06-001918PL Department Of Health, Board Of Medicine vs. Nima Heshmati, M.D. Status: Closed Recommended Order on Thursday, December 7, 2006.

Summary: Respondent failed to record the physical examination of a patient.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE , )

)

Petitioner , )

)

vs. ) Case No. 06 - 1918PL

)

NIMA HESHMATI, M.D. , )

)

Respondent . )

)

RECOMMENDED ORD ER

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

on July 13, 14, and 17, 2006, in Viera, Florida, before Susan B.

Harrell, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Donald Fre eman, Esquire

Ephr ai m Livingston, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3250

For Respondent: Gregory W. Eisenmenger, Esquire

Eisenmenger, Berry & Peters, P.A.

5450 Village Drive

Viera, Florida 32955

STATEMENT OF THE ISSUES

The issues are whether Respondent violated Subsections

458.331(1)(m), 458.331(1)(q), 458.331(1) (t), and 458.331(1)(nn),

Florida Statutes (2004), 1 and Florida Administrative Code

Rules 64B8 - 9.003 and 64B8 - 9.013(3), and, if so, what discipline

should be imposed.

PRELIMINARY STATEMENT

On September 9, 2005, Petitioner, Department of Health,

Board of M edicine (Department), filed a 13 - count Administrative

Complaint against Respondent, Nima Heshmati, M.D.

(Dr. Heshmati ), alleging that he violated Subsections

458.331(1)(m), 458.331(1)(q), 458.331(1)(t), and 458.331(1)(nn),

Florida Statutes, and Florida Adm inistrative Code Rules 64B8 -

9.003 and 64B8 - 9.013(3). On June 1, 2006, the Department filed

its First Amended Administrative Complaint, in which the

undercover agents referenced in the Administrative Complaint

were identified by their initials.

Dr. Heshmat i requested an administrative hearing, and the

case was forwarded to the Division of Administrative Hearings on

May 25, 2006, for assignment to an administrative law judge.

On July 3, 2006, the parties filed a Joint Pre - Hearing

Stipulation, in which the parties stipulated to certain facts.

To the extent relevant, those facts have been incorporated in

this Recommended Order.

On July 11, 2006, the Department filed Petitioner's Motion

for Official Recognition, requesting that official recognition

be taken of Subsections 458.331(1)(m), 458.331(1)(q),

458.331(1)(t), 458.331(1)(nn), and 893.03, Florida Statutes, and

Florida Administrative Code Rules 64B8 - 9.003 and 64B8 - 9.013.

The motion was granted at the final hearing.

At the final hearing, Petitioner's Exh ibits 2 through 15

were admitted in evidence. The Department called the following

witnesses: John Pasko ; Deborah George ; John L. King ; S.K.S. ;

D.C. ; R.D.M. ; Wendy Yokey ; J.E.B. ; David Webster, M.D. ; Scott

Mostert ; Kimberly Harmen ; and John Schultz.

At th e final hearing, Respondent's Exhibits 1 through 5

were admitted in evidence. Dr. Heshmati testified on his own

behalf and called the following witnesses: Richard Paul

Bonfiglio, M.D.; Stephen Kenneth Badolato, M.D.; and Donna

Saliba.

The last volumes of the five - volume Transcript were filed

on September 25, 2006. The parties agreed to file their

proposed recommended orders within ten days of the filing of the

transcript. The parties timely filed their proposed recommended

orders which have been conside red in the rendering of this

Recommended Order.

FINDINGS OF FACT

1. The Department is the state department charged with

regulating the practice of medicine pursuant to Section 20.43

and Chapters 456 and 458, Florida Statutes.

2. At all material times to this proceeding, Dr. Heshmati

was a licensed medical doctor within the State of Florida,

having been issued license number ME84360. Dr. Heshmati is

board - certified in Family Practice.

3. In 2004, there existed a related group of three walk - in

clinics, w hich included the Melbourne Walk - In Clinic (Melbourne

Clinic) located in Melbourne, Florida ; the Cocoa Walk - In Clinic

located in Cocoa, Florida ; and the Palm Bay Walk - In Clinic

located in Palm Bay, Florida.

4. During July through December 2004, Dr. Heshma ti was

working part - time as a physician at two of the walk - in clinics:

Melbourne Clinic and Palm Bay Walk - In Clinic. During this same

time period, he was also working part - time as an emergency room

doctor in emergency rooms in Osceola and Kissimmee, Flor ida.

5. In 2004, the Melbourne Police Department began an

undercover investigation of the three walk - in clinics concerning

the prescribing of controlled substances to patients of the

clinics. The investigation was led by John Pasko, who had

considerable experience in investigating pharmaceutical

diversion cases.

6. Mr. Pasko enlisted the assistance of four persons who

acted as undercover operatives in the investigation. The

undercover operatives were S.K.S., D.C., R.D.M, and J.E.B.

S.K.S. was a detecti ve with the Saint Lucie County Sheriff's

Office and used the alias of Aaron Joseph for the investigation.

D.C. is a licensed pharmacist and a practicing attorney. She

did not use an alias during the investigation. R.D.M. is

employed by the Department of Health and investigates

allegations against health care professionals. She used the

alias Stephanie Vzatek for the investigation. J.E.B. is a

medical malpractice investigator for the Department of Health.

The alias he used for the investigation was Jer ry Thompson. For

purposes of this Recommended Order, the undercover operatives

will be referred to by the aliases they used, with the exception

of D.C. who will be referred to by her initials.

7. Each of the undercover operatives met with Mr. Pasko

prior to presenting themselves at the walk - in clinics. The

operatives were told to go to the clinics, to make general

complaints of pain, such as back pain or headaches, and to be as

vague as possible about their symptoms. The operatives were to

ask for contr olled substances for the pain. None of the

operatives was actually experiencing the symptoms of which they

complained. Each operative was wired with an electronic

communication device prior to visiting the clinics for the

purpose of recording the convers ations that took place during

the visits. Each operative was given money to pay for the

visits in cash.

8. At the end of each visit, the operatives returned to

the police station for a debriefing and gave sworn statements

concerning what transpired durin g their visits. Some of the

taped recordings of the visits were inaudible, but the

operatives were not aware of the problems with the tapes prior

to giving their sworn statements. The operatives gave the

prescriptions they received and the receipts for p ayments of

their visits to Mr. Pasko. The prescriptions were never filled.

9. Aaron Joseph first visited the Melbourne Clinic on

July 9, 2004. He told the person in the reception area that he

had back pain and wanted to see a doctor. Mr. Joseph was gi ven

some forms to fill out, which he did. He returned the forms to

the person in the reception .

10. Mr. Joseph was taken to the back of the clinic where

he was weighed. He was placed in a room, where a woman in

scrubs took his blood pressure and pulse. She advised him that

his blood pressure was a little high. Sh e asked why he was at

the clinic to which he replied that he was a window washer and

had a bad back. He told the woman that he was taking

cholesterol medication. He also stated that he had no known

allergies.

11. Mr. Joseph was taken to another room, where he was

seen by Dr. Heshmati. He told Dr. Heshmati that he washed

windows for a living which required him to sit in a Bosun's

chair for long periods of time, resulting in lower back pain.

He advised the doctor that he had been taking a dose of

hydrocodone in the mornings and another dose after work for two

years for the back pain. Mr. Joseph told the doctor that he was

under the care of a doctor in Fort Pierce , but that he was in

Melbourne on a temporary job. He told Dr. Heshmati that he had

had an MRI done in Ft. Pierce and that as soon as his boss let

him have some time off he would go to Fort Pierce, get the MRI,

and bring it to Dr. Heshmati.

12. Dr. Heshmati asked Mr . Joseph to stand up and bend

over. Mr. Joseph bent over and said , "ugh" after he bent over a

little. Mr. Joseph's grunt when he bent over was a sign to

Dr. Heshmati that Mr. Joseph did have pain in his lower back.

He sat back down on the examining table, and Dr. Heshmat i

listened to his chest with a stethoscope, tapped Mr. Joseph's

knees with the stethoscope, and rubbed Mr. Joseph's back , legs ,

and heel s .

13. Dr. Heshmati's records for Mr. Joseph's visit on

July 9, 2004, indicate that Dr. Heshmati did a review of

Mr. Jo seph's systems and that the review did not reveal any

coughing, congestion, Rhinorrhea , sinus pain, sneezing, sore

throat, ear ache, nausea, vomiting, diarrhea, abdominal pain,

chest pain, headache, dizziness, weakness, or numbness. The

records do not doc ument that Dr. Heshmati listened to

Mr. Joseph's chest, tapped Mr. Joseph's knees, or rubbed

Mr. Joseph's back, legs, and heel s . Dr. Heshmati claims that a

form recording his examination is missing from Mr. Joseph's

file; however, his testimony is not cre dible given that the

records of patients D.C. and Ms. Vzatek contained similar forms

as the one used for Mr. Joseph's first visit.

14. Mr. Joseph's history, as recorded on July 9, 2004,

shows that he was not a smoker and did drink alcohol

occasionally.

15 . Dr. Heshmati advised Mr. Joseph that his blood

pressure was a little high and that they needed to keep an eye

on it. It is not unusual for a patient who is experiencing pain

to have a slightly elevated blood pressure. He diagnosed

Mr. Joseph as having chronic back pain.

16. Dr. Heshmati wrote Mr. Joseph a prescription for

30 tablets of Lorcet, 10 - 650 milligrams. The generic name for

Lorcet is hydrocodone, which is a controlled substance with a

potential for abuse and physical or psychological depende nce.

Dr. Heshmati told Mr. Joseph to refrain from heavy lifting and

to use ice packs on his back. Mr. Joseph was to return as

needed.

17. Mr. Joseph returned to the Melbourne Clinic on

July 23, 2004, again complaining of lower back pain. H e was

weighed and his temperature, pulse rate, and blood pressure were

taken. The woman taking his blood pressure advised him that it

was still a little high.

18. Dr. Heshmati examined the patient and asked him to

bend over. Mr. Joseph complied with the request an d expressed

discomfort when he bent over a short distance. Dr. Heshmati

touched Mr. Joseph's back. He noted that Mr. Joseph had good

range of motion. Dr. Heshmati asked Mr. Joseph about bringing

in the MRI. Again, Dr. Heshmati told Mr. Joseph that his blood

pressure was elevated and that they needed to watch it.

19. Dr. Heshmati discussed Mr. Joseph's window washing

occupation with him, and Mr. Joseph explained how he used a

Bosun's chair while washing the windows. High - rise window

washers often expe rience back pain from sitting in a Bosun's

chair each day and from the positions that they have to take

while washing windows.

20. While Mr. Joseph was at the Melbourne Clinic on

July 23, 2004, he signed a contract stating that while he was

under treatm ent by the Melbourne Clinic that he would not seek

narcotic or any other type of pain medication anywhere else for

his medical condition. Although Mr. Joseph signed the contract,

stating that he had been informed of the side effects of the

pain medication regarding physical addiction and psychological

dependence, the only counseling that he had received from anyone

at the clinic was that the medication could damage his liver.

21. Dr. Heshmati prescribed 25 tablets of Lorcet for

Mr. Joseph's back pain at t he July 23, 2004, visit.

22. Mr. Joseph returned to the Melbourne Clinic on

August 12, 2004, again complaining of back pain. One of the

staff at the clinic weighed him and took his temperature, pulse

rate, and blood pressure. His blood pressure had im proved since

his last visit.

23. Dr. Heshmati examined Mr. Joseph again on August 12,

2004. The doctor asked Mr. Joseph to bend over as he had done

at the two previous visits, and Mr. Joseph reacted in the same

manner, indicating that he had pain after b ending a short

distance. Dr. Heshmati asked Mr. Joseph to raise his legs about

14 inches off the ground, which Mr. Joseph did. Dr. Heshmati

noted in the medical records that Mr. Joseph had good range of

motion and a negative straight - leg test. The docto r wrote in

his notes that Mr. Joseph would be in Melbourne for another

month and that Mr. Joseph was waiting for his records from his

doctor in Fort Pierce.

24. Mr. Joseph indicated to Dr. Heshmati that he was

frustrated because Dr. Heshmati had prescri bed only 25 tablet s

of Lorcet at the previous visit. Dr. Heshmati wrote Mr. Joseph

a prescription for 30 tablets of Lortab.

25. On August 27, 2004, Mr. Joseph returned to see

Dr. Heshmati again complaining of back pain. He was weighed,

and his pulse r ate and blood pressure were checked.

Dr. Heshmati examined Mr. Joseph's back and noted that

Mr. Joseph had no tenderness and a good range of motion.

Mr. Joseph was required to sign an agreement during this visit,

agreeing to have a ten - panel blood test d one.

26. Dr. Heshmati wrote a prescription for Mr. Joseph for

25 tablets of Lortab. He did not return to Dr. Heshmati's

office for another visit.

27. On each visit to the Melbourne Clinic, Mr. Joseph paid

the receptionist $60 in cash prior to seeing Dr. Heshmati. He

was given a receipt for each visit.

28. On July 16, 2004, D.C. went to the Melbourne Clinic

complaining of lower back pain and trouble sleeping. D.C.

indicated that she had not injured her back , but had been having

the pain off and on for two to three months with a fairly recent

onset of pain. Staff at the clinic weighed her and recorded her

temperature, pulse rate, and blood pressure. She gave her

family medical history, indicating that her mother had heart

disease, but denying a family history of cancer, diabetes, and

hypercholesterolemia. Her social history showed that she did

not smoke and drank alcohol socially. D.C. advised that she was

allergic to sulfa and had no previous surgeries.

29. On July 16, 2004, D.C. signed a patient co ntract,

agreeing that while she was being treated at the Melbourne

Clinic that she would not seek narcotic or any other type of

pain medication anywhere else for her medical condition. The

contract stated that she had been informed of the side effects

of that type of medication regarding physical addiction and

psychological dependence. She was asked by staff to sign the

contract prior to her seeing Dr. Heshmati. Neither staff nor

Dr. He shmati counseled her during that visit on the side effects

of the med ications that she had been prescribed.

30. Dr. Heshmati examined D.C., asking her to bend over

and touch her toes, which she did with no difficulty and without

expressing any pain. He asked her where her pain was located,

and she pointed to her lower sac ral back. She told Dr. Heshmati

that she had seen a doctor in Palm Bay for pain in her back, but

that she could not remember the name of the doctor.

Dr. Heshmati checked the side of D.C.'s leg and asked her if she

had any numbness. He also hit her knee with the end of the

stethoscope. The doctor listened to D.C.'s heart and lungs. He

told her that she had a heart murmur and that she needed to have

someone look at the heart murmur. Dr. Heshmati inquired whether

D.C. had had a MRI or an X - ray of her bac k, and she replied that

she had not. Dr. Heshmati's notes indicate that he did a review

of her systems and noted no coughing, congestion, R hino rr hea,

sinus pain, sneezing, sore throat, ear ache, nausea, vomiting,

diarrhea, abdominal pain, chest pain, shor tness of breath,

headache, dizziness, weakness , or numbness.

31. Based on his examination, Dr. Heshmati concluded that

D.C. had an acute musculoskeletal event. She had indicated the

pain was in her lower back. Her straight - leg test was negative,

indic ating no radiation of pain and no nerve impingement. Her

range of motion was good, which eliminated a lot of conditions

associated with the spine.

3 2 . D.C. told Dr. Heshmati that in the past Lortab and

Xanax had worked for her. He wanted to prescribe an other pain

medication for her, but she told him that she wanted to stay

with the Lortab. He prescribed 20 tablets of Lortab and

20 tablets of Flexeril, which is a non - narcotic muscle relaxer.

D.C. told him that those drugs would not help her sleep and

as ked him for Xanax. He refused to prescribe the Xanax. He

told her to do some back exercises, but did not tell her what

specific back exercises she should do. Dr. Heshmati told her to

return in two weeks if she was not better.

3 3 . D.C. returned to the M elbo u rne Clinic on July 30,

2004, complaining that her back still hurt and that she was

having trouble sleeping. Staff at the clinic weighed her and

recorded her temperature, blood pressure , and pulse rate .

3 4 . Dr. Heshmati saw D.C. and asked her whether she had

done her exercises , to which she replied that she had not. He

ran his hand along her spine, checked the sides of her legs , and

pushed on her feet. He asked her to push towards him with her

foot on his hand.

3 5 . D.C. asked him twice during the v isit for a

prescription of Xanax to help her sleep. She told him that the

Flexeril did not help her. He was hesitant about prescribing

the Xanax, indicating that he did not want to prescribe two

narcotics, but he eventually prescribed 15 tablets of Xanax ,

along with 20 tablets of Lortab and 20 tablets of Naproxen,

which is an anti - inflammatory medication. He told her to take

the Naproxen during the day because it did not cause drowsiness.

Dr. Heshmati also told her that the Xanax could be habit -

forming.

3 6 . Dr. Heshmati wanted D.C. to have an X - ray, wrote a

prescription for an X - ray of her lumbar sacral for chronic back

pain, and recommended a couple of places where she could have

the X - r ay done. She asked him how many more times she come

return for a visit without having the X - ray done, and he told

her that he could not continue to prescribe pain medication for

more than two months without her having an X - ray done. D.C. did

not return to visit Dr. Heshmati after her July 30, 2004, visit.

3 7 . Stephani e Vzatek first presented at the Palm Bay

Walk - In Clinic on December 1, 2004, complaining of a current

lower back pain towards her right side. She stated that the

back pain had been coming and going for about two years and that

she did not know how she ha d hurt her back.

3 8 . Staff at the clinic took Ms. Vzatek's weight, pulse

rate, and blood pressure. She advised staff that she had no

allergies and that she was taking Lortab, Xanax, and Soma.

3 9 . Prior to seeing Dr. Heshmati, Ms. Vzatek was asked to

sig n a patient contract on December 1, 2004, in which she agreed

that while she was being treated at the clinic that she would

not seek narcotic or any other type of pain medication anywhere

else for her medical condition. The contract, which she signed,

als o stated that she had been informed of the effects of those

types of medication regarding physical addiction and

psychological dependence; however, she was never counseled on

the side effects of any pain medications that Dr. Heshmati

prescribed for her.

40 . Dr. Heshmati asked Ms. Vzatek whether she had had a

MRI or an X - ray done, to which she replied that she had not. He

asked her if she had seen a doctor, and she told him that she

had seen Dr. Ryan out of Orlando. Dr. Heshmati reached under

Ms. Vzatek's jacket, felt of her back, and asked her if her back

hurt. She told him that her back did hurt. He checked her

reflexes by hitting around her knee with the stethoscope.

Dr. Heshmati also checked her heart and lungs and recorded his

findings as normal. Dr. Heshmati's notes indicate that he did a

review of systems and noted that Ms. Vzatek had no abdominal

pain, weakness, or numbness. Her straight - leg test was

negative , and she had good range of motion.

4 1 . Ms. Vzatek told Dr. Heshmati that she was curr ently

taking S oma to help her sleep and Lortab for her back pain and

that occasionally she took Xanax. Dr. Heshmati asked Ms. Vzatek

what strength of Lortab that she was taking, and she told him

10/500. He prescribed 15 Lortab tablets in that strength fo r

her. He also prescribed 20 tablets of Naproxen, but did not

prescribe Xanax or S oma . Dr. Heshmati told Ms. Vzatek that she

needed to get a MRI or an X - ray, and that if she wanted to have

refills of the prescriptions that she would have to have the

test s done. He also advised her to get physical therapy. She

told him that she did not have insurance and could not afford a

MRI or physical therapy.

4 2 . Ms. Vzatek returned to Dr. Heshmati's office on

December 29, 2004. She advised the staff that she had seen

Dr. Heshmati before and that she wanted to get refills of her

prescriptions. A staff person asked her whether she had brought

any X - rays with her, and Ms. Vzatek replied that she had not

because she could not afford to get them done. The staff perso n

advised Ms. Vzatek that she could go to the Beach Walk - In Clinic

and get a back X - ray for $50.

4 3 . The staff person also advised Ms. Vzatek that she

could get only four refills unless she had blood tests done and

that she would have to get a physical after her fifth visit.

Ms. Vzatek was given a form to sign indicating that she agreed

to get blood tests done starting with the next visit and that

all tests were to be done over the next three months.

4 4 . When Ms. Vzatek saw Dr. Heshmati, she told him t hat

she still hurt. He also asked whether she had X - rays made, and

when she told him that she had not had the X - rays taken, he

wrote a prescription for a lumbar sacral X - ray and referred her

to the Beach Walk - In Clinic. Dr. Heshmati asked Ms. Vzatek what

her occupation was, and she responded that she was a cocktail

waitress and worked an eight - hour shift and occasionally a

double shift.

4 5 . Dr. Heshmati asked Ms. Vzatek to bend over and asked

her if her back hurt when she bent over. He asked her whether

she had been using ice packs and doing lower back exercises.

Neither he nor his staff demonstrated, instructed about, or

provided literature on lower back exercises that she was to

perform. Dr. Heshmati prescribed 30 tablets of Naproxen and

15 tablets o f Lortab.

4 6 . Ms. Vzatek's paid $60 in cash up front for each of her

visits and received a receipt. She did not return to see

Dr. Heshmati after her December 29, 2004, visit.

4 7 . On December 2, 2004, Jerry Thompson presented at the

Melbourne Clinic com plaining of lower back pain. Prior to going

to the Melbourne Clinic, he had been seen by Dr. Wang at the

Coco a Walk - In Clinic. The receptionist asked Mr. Thompson if

this was his first visit to the Melbourne Clinic to which he

replied that it was.

4 8 . A staff person weighed Mr. Thompson, took his blood

pressure, and recorded his height. She asked him whether he had

any allergies and took a social history. He told her that he

had been having pain in his lower back for about six months and

that he took L ortab and Xanax when he had pain.

4 9 . Dr. Heshmati asked Mr. Thompson whether he had seen

another doctor for his back pain. Mr. Thompson told

Dr. Heshmati that he had seen a doctor in Orlando , but that he

did not remember his name. The evidence did not establish that

Mr. Thompson told Dr. Heshmati or his staff that Mr. Thompson

had seen Dr. Wang at the Cocoa Walk - In Clinic. Nothing in the

medical records for Mr. Thompson's visit on December 2, 2004,

indicate that he informed anyone at the Melbourne Clin ic that he

had been seen by Dr. Wang. Dr. Heshmati asked Mr. Thompson

whether he had brought any medical records, X - rays , or MRI

reports with him, and Mr. Thompson told him that he had not.

Dr. Heshmati advised Mr. Thompson that he would have to get

thos e.

50 . Mr. Thompson said that he had hurt his back when he

tripped and fell. Dr. Heshmati listened to Mr. Thompson's chest

and back with a stethoscope. The doctor told Mr. Thompson to

bend over as far as he could. Mr. Thompson stood up and bent

over an d groaned when his outstretched fingers were about a

foot - and - a - half from the ground. Dr. Heshmati had Mr. Thompson

to get up on the examining table and lie on his back.

Dr. Heshmati grabbed Mr. Thompson's ankles one at a time and

raised them to approxim ately 40 or 50 degrees. Each time

Mr. Thompson would groan. Dr. Heshmati then had Mr. Thompson

sit on the side of the examining table and hang his feet over

the side while Dr. Heshmati tapped his legs with a stethoscope.

Dr. Heshmati noted that Mr. Thom pson had tenderness in the

mid - lower back and had a negative straight - leg test.

Dr. Heshmati's notes indicate that he did a review of

Mr. Thompson's systems and did not find any abdominal pain,

weakness, or numbness.

5 1 . Dr. Heshmati asked what the doct or in Orlando had

prescribed, and Mr. Thompson told him that he had been given

Lortab and Xanax. Dr. Heshmati seemed concerned about the Xanax

and told him there were other medications that he could take.

The doctor told Mr. Thompson that Lortab could be habit forming

and could lead to drowsiness. Mr. Thompson replied that he was

not worried because he frequently took antihistamines, which did

not make him drows y . Dr. Heshmati would not prescribe both

Lortab and Xanax. He did prescribe 30 tablets of Lo rtab and

30 tablets of Naproxen and told Mr. Thompson that he should have

a MRI or at least an X - ray done before he returned for another

visit.

5 2 . Mr. Thompson paid $60 in cash for his visit when he

first came into the clinic. He was given a receipt for the

payment. He did not return to see Dr. Heshmati.

5 3 . Normally, patients do not use walk - in clinics as their

primary medical care provider. When a patient presents on an

initial visit with musculoskeletal back pain, the physician, at

a minimum, must perform a focused examination, which would

include an examination on the lumbar spine, and a neurological

examination, especially findings in the lower extremities. The

physician would ask the patient if the patient had any

gallbladder problems, any weakn ess in the legs, and any history

of back pain. Acute back pain will typically resolve in six to

eight weeks with conservative treatment. Conservative treatment

would include prescribing small amounts of pain medication with

follow - up visits from two - and - a - half to three weeks. Lortab,

Lorcet, and Naproxen are acceptable medications for the

treatment of back pain.

5 4 . It is common and appropriate for a physician in a

walk - in clinic setting to prescribe small amounts of medication

with quick follow - up visi ts. When a physician in a walk - in

clinic setting prescribes a two - week supply of pain medication

for a patient and intends to follow up with the patient in two

weeks, the physician would be considered to have prescribed a

small amount of medication.

CON CLUSIONS OF LAW

5 5 . 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. (2005).

5 6 . The Department has the burden to establish the

allegations in the F irst Amended Administrative Complaint by

clear and convincing evidence. Department of Banking and

Finance v. Osborne Stern & Company , 670 So. 2d 932 (Fla. 1996).

5 7 . The Department has alleged that Dr. Heshmati violated

Subsections 458.331(1)(m), 458.331 (1)(q), 458.331(1)(t), and

458.331(1)(nn), Florida Statutes, which provide that the

following acts constitute grounds for disciplinary action:

(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 co urse 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.

* * *

(q) Prescribing, dispensing, administering,

mixing, or otherwise preparing a legend

drug, including any controlled substance,

other than in the course of a physician's

professional practice. For the purposes of

this paragraph, it shall be legally presumed

that prescribin g, 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.

* * *

(t) Gross or repeated malpractice or the

failure to practice medicine with that level

of care, skill, and treatment which is

recognized by a reasonably prudent similar

physician a s being acceptable under similar

conditions and circumstances. The board

shall give weight to the provisions of s.

766.102 when enforcing this paragraph. . . .

As used in this paragraph, "gross

malpractice" or "the failure to practice

medicine with that level of care, skill, and

treatment which is recognized by a

reasonably prudent similar physician as

being acceptable under similar conditions

and circumstances," shall not be construed

so as to require more than one instance,

event, or act. Nothing in th is paragraph

shall be construed so as to require that a

physician shall be incompetent to practice

medicine in order to be discipline d pursuant

to this paragraph.

* * *

(nn) Violating any provision of this

chapter, chapter 456, or any rules adopted

pursuant thereto.

5 8 . The Department alleged that Dr. Heshmati violated

Florida Administrative Code Rule 64B8 - 9.003, which states:

(1) Medical records are maintained for the

following purposes:

(a) To serve as a basis for planning

patient care and for the continuity in the

evaluation of the patient's condition and

treatment.

(b) To furnish documentary evidence of the

course of the patient's medical evaluation,

treatment, and change in condition.

(c) To document communication between the

practitioner responsible for the patient and

any other health care professional who

contributes to the patient's care.

(d) To assist in protecting the legal

interest of the patient, the hospital, and

the practitioner responsible for the

patient.

(2) A licensed physic ian shall maintain

patient medical records in English, in a

legible manner and with sufficient detail to

clearly demonstrate why the course of

treatment was undertaken or why an

apparently indicated course of treatment was

not undertaken.

(3) The medical record shall contain

sufficient information to identify the

patient, support the diagnosis, justify the

treatment and document the course and

results of treatment accurately, by

including, at a minimum, the patient

histories; examination results; test

resu lts; records of drugs prescribed,

dispensed, or administered; reports of

consultations and hospitalizations; and

copies of record or reports or other

documentation obtained from other health

care practitioners at the request of the

physician and relied upo n by the physician

in determining the appropriate treatment of

the patient.

(4) All entries made into the medical

records shall be accurately dated and timed.

Late entries are permitted, but must be

clearly and accurately noted as late entries

and dated and timed accurately when they are

entered into the record. However, office

records do not need to be timed, just dated.

(5) In situations involving medical

examinations, tests, procedures, or

treatments requested by an employer, an

insurance company, or another third party,

appropriate medical records shall be

maintained by the physician and shall be

subject to Section 456.061, F.S. However,

when such examinations, tests, procedures,

or treatments are pursuant to a court order

or rule or are conducted a s part of an

independent medical examination pursuant to

Section 440.13 or 627.736(7), F.S., the

record maintenance requirements of Section

456.061 and this rule do not apply. Nothing

herein shall be interpreted to permit the

destruction of medical record s that have

been made pursuant to any examination, test,

procedure, or treatment except as permitted

by law or rule.

5 9 . The Department alleged that Dr. Heshmati violated

Florida Administrative Code Rule 64B8 - 9.013(3), which states:

(3) Standards. The Board has adopted the

following standards for use of controlled

substances for pain control:

(a) Evaluation of the Patient. A complete

medical history and physical examination

must be conducted and documented in the

medical record. The medical record sh ould

document the nature and intensity of the

pain, current and past treatments for pain,

underlying or coexisting diseases or

conditions, the effect of the pain on

physical and psychological function, and

history of substance abuse. The medical

record al so should document the presence of

one or more recognized medical indications

for the use of a controlled substance.

(b) Treatment Plan. The written treatment

plan should state objectives that will be

used to determine treatment success, such as

pain rel ief and improved physical and

psychological function, and should indicate

if any further diagnostic evaluation or

other treatments are planned. After

treatment begins, the physician should

adjust drug therapy to the individual

medical needs of each patien t. Other

treatment modalities or a rehabilitation

program may be necessary depending on the

etiology of the pain and the extent to which

the pain is associated with the physical and

psychosocial impairment.

(c) Informed Consent and Agreement for

Treatmen t. The physician should discuss the

risks and benefits of the use of controlled

substances with the patient, persons

designated by the patient, or with the

patient's surrogate or guardian if the

patient is incompetent. The patient should

receive prescrip tions from one physician and

one pharmacy where possible. If the patient

is determined to be at high risk for

medication abuse or have a history of

substance abuse, the physician should employ

the use of a written agreement between the

physician and patie nt outlining patient

responsibilities, including, but not limited

to:

1. Urine/serum medication levels

screening when requested.

2. Number and frequency of all

prescription refills; and

3. Reasons for which drug therapy may be

discontinued (i.e ., violation of agreement).

(d) Periodic Review. At reasonable

intervals based on the individual

circumstances of the patient, the physician

should review the course of treatment, and

any new information about the etiology of

the pain. Continuation or m odification of

therapy should depend on the physician's

evaluation of the patient's progress. If

treatment goals are not being achieved,

despite medication adjustments, the

physician should reevaluate the

appropriateness of continued treatment. The

physi cian should monitor patient compliance

in medication usage and related treatment

plans.

(e) Consultation. The physician should be

willing to refer the patient as necessary

for additional evaluation and treatment in

order to achieve treatment objectives.

Special attention should be given to those

pain patients who are at risk for misusing

their medications and those whose living

arrangements pose a risk for medication

misuse or diversion. The management of pain

in patients with a history of substance

abu se or with a comorbid psychiatric

disorder requires extra care, monitoring,

and documentation, and may require

consultation with or referral to an expert

in the management of such patients.

(f) Medical Records. The physician is

required to keep accurate and complete

records to include, but not be limited to:

1. The medical history and physical

examination, including history of drug abuse

or dependence, as appropriate;

2. Diagnostic, therapeutic, and

laboratory results;

3. Evaluation and consul tations;

eatment objectives;

5. Discussion of risks and benefits;

eatments;

7. Medications (including date, type,

dosage, and quantity prescribed);

8. Instructions and agreements; and

9. Periodic reviews. Records must

rem ain current and be maintained in an

accessible manner and readily available for

review.

(g) Compliance with Controlled Substances

Laws and Regulations. To prescribe,

dispense, or administer controlled

substances, the physician must be licensed

in the s tate and comply with applicable

federal and state regulations. Physicians

are referred to the Physicians Manual: An

Information Outline of the Controlled

Substances Act of 1970, published by the

U.S. Drug Enforcement Agency, for specific

rules governing controlled substances as

well as applicable state regulations.

60 . The standards for the use of controlled substances for

pain control set forth in Florida Administrative Code

Rule 64B8 - 9.013(3) are applicable to all physicians and are not

limited to p hysicians who are treating in a pain management

clinic setting. However, Florida Administrative Code

Rule 64B8 - 9.013(1)(f) provides:

Each case of prescribing for pain will be

evaluated on an individual basis. The Board

will not take disciplinary action against a

physician for failing to adhere strictly to

the provisions of these standards, if good

cause is shown for such deviation. The

physician's conduct will be evaluated to a

great extent by the treatment outcome,

taking into account whether the drug used is

medically and/or pharmacologically

recognized to be appropriate for the

diagnosis, the patient's individual needs

including any improvement in functioning,

and recognizing that some types of pain

cannot be completely relieved.

6 1 . The Department alleged that Dr. Heshmati violated

Subsection 458.331(1)(m), Florida Statutes , and Florida

Administrative Code Rule 64B8 - 9.003 , by failing to keep written

medical records justifying the course of treatment of D.C.,

Mr. Joseph, Ms. Vzatek, and Mr. Thompson. The Department

alleged that Dr. Heshmati failed to keep medical records that

document an adequate medical history or that justify the

treatment of the patients with controlled substances. The

Department did establish by clear and convincing evidence tha t

Dr. Heshmati violated Subsection 458.331(1)(m), Florida

Statutes, by failing to document his examination of Mr. Joseph

during Mr. Joseph's visit on July 9, 2004. Dr. Heshmati's claim

that part of Mr. Joseph's file containing the result of his

examinatio n is missing is not credible. The Department failed

to establish by clear and convincing evidence that Dr. Heshmati

violated Subsection 458.331(1)(m), in his treatment of D.C.,

Ms. Vzatek, and Mr. Thompson.

6 2 . The Department alleged that Dr. Heshmati v iolated

Subsection 458.331(1)(q), Florida Statutes, by prescribing

controlled substances inappropriately in one or more of the

following ways:

a. By failing to perform adequate physical

examinations of Mr. Joseph, D.C.,

Ms. Vzatek, and Mr. Thompson;

b. B y repeatedly prescribing controlled

substances to Mr. Joseph, D.C., Ms. Vzatek,

and Mr. Thompson without ascertaining the

etiology of his/her pain; and

c. By prescribing controlled substances to

Mr. Joseph, D.C., Ms. Vzatek, and

Mr. Thompson without medic al justification.

6 3 . The Department failed to establish by clear and

convincing evidence that Dr. Heshmati violated Subsection

458.331(1)(q), Florida Statutes , by prescribing Lortab

inappropriately for Mr. Joseph. Dr. Heshmati did ascertain the

etiolog y of Mr. Joseph's pain based on Mr. Joseph's explanation

that he sat in a Bosun's chair for long periods of time while

washing high - rise windows. Dr. Heshmati did a review of

Mr. Joseph's systems and determined that Mr. Joseph had no

complaints of abdomin al pain, weakness, or numbness. He asked

Mr. Joseph to bend over, and Mr. Joseph bent over and expressed

pain, indicating that the pain was in his lower back. He tapped

Mr. Joseph's knees and felt of Mr. Joseph's back, legs, and

heels. The examinations for Mr. Joseph met the requirements for

a focused examination. The prescription of a controlled

substance in the amount prescribed was justified.

6 4 . The Department failed to establish by clear and

convincing evidence that Dr. Heshmati violated Subsectio n

458.331(1)(q), Florida Statutes, by prescribing controlled

substance for D.C. Dr. Heshmati did a review of D.C.'s systems,

noting that she had no abdominal pain, no weakness, and no

numbness. Her straight - leg tests were negative, and she had

good range of motion. She indicated that she had pain in her

lower back. The examinations met the requirement for a focused

examination. D.C. told Dr. Heshmati that she had been having

the pain on and off for two to three months with a recent onset

of pain. Base d on his examination and the history given by

D.C., Dr. Heshmati reasonably concluded that D.C. had an acute

musculoskel e tal event.

6 5 . On D.C.'s first visit, he refused to prescribe Xanax,

which D.C. had requested as a sleep - aid. He prescribed a non -

narcotic muscle relaxer. On her second visit, D.C. told

Dr. Heshmati that the muscle relaxer was not helping her sleep.

He prescribed a small amount of Xanax along with an

anti - inflammatory medication to be taken during the day and

Lortab. His prescri ptions for controlled substance were

justified.

6 6 . The Department failed to establish by clear and

convincing evidence that Dr. Heshmati violated Subsection

458.331(1)(q), Florida Statutes, by prescribing controlled

substances for Ms. Vzatek. He did a r eview of Ms. Vzatek's

systems, finding that she had no abdominal pain, weakness, or

numbness. He felt her back, and she indicated that her back was

hurting. Her straight - leg test was negative, and she had good

range of motion. She told him that the pain had been coming and

going for about two years, she was currently having pain, but

she did not know how she had hurt her back. Dr. Heshmati's

prescription for controlled substances for Ms. Vzatek was

justified.

6 7 . The Department failed to establish by c lear and

convincing evidence that Dr. Heshmati violated Subsection

458.331(1)(q), Florida Statutes, by prescribing controlled

substances for Mr. Thompson. Dr. Heshmati did a review of

systems with no findings of abdominal pain, numbness, or

weakness. Dr. Heshmati asked Mr. Thompson to bend over, and

Mr. Thompson bent over and groaned when his outstretched fingers

were about a foot - and - a - half above the ground. When

Dr. Heshmati raised Mr. Thompson's ankles to approximately 40 or

50 degrees, Mr. Thompson g roaned as if in pain. Dr. Heshmati

tapped Mr. Thompson's legs with a stethoscope. Mr. Thompson's

straight - leg test was negative . Dr. Heshmati's prescription for

controlled substances for Mr. Thompson was justified.

6 8 . The Department alleged that Dr. H eshmati violated

Subsection 458.331(1)(t), Florida Statutes, by failing 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 circumstances in one or more of

the following ways:

a. By failing to perform comprehensive

physical examinations on D.C., Aaron Joseph,

Stephanie Vzatek, and Jerry Thompson prior

to prescribing a controlled substance;

b. By failing to obtain a complete history

on D.C., Aaro n Joseph, Stephanie Vzatek, and

Jerry Thompson prior to prescribing a

controlled substance;

c. By failing to make a diagnosis or

treatment plan for D.C., Aaron Joseph,

Stephanie Vzatek, and Jerry Thompson prior

to prescribing a controlled substance;

d. By failing to maintain the medical

records of D.C., Aaron Joseph, Stephanie

Vzatek, and Jerry Thompson with sufficient

detail to demonstrate their condition,

history, diagnosis and/or treatment plan

such to warrant the prescription of a

controlled substanc e;

e. By inappropriately and excessively

prescribing controlled substances to D.C.,

Aaron Joseph, Stephanie Vzatek, and Jerry

Thompson;

f. By failing to ascertain the etiology of

D.C.'s, Aaron Joseph's, Stephanie Vzatek's,

and Jerry Thompson's pain;

g. By failing to order and follow up on

diagnostic testing;

h. By failing to obtain previous physician

records and study results to document the

accuracy of the medical and physical history

reported by D.C., Aaron Joseph, Stephanie

Vzatek, and Jerry Thompson ;

i. By failing to maintain the practices

required for use of controlled substances

for pain management as described in Florida

Administrative Code Rule 64B8 - 9.013(3),

Florida Statutes.

6 9 . Florida Administrative Code Rule 64B8 - 9.013(3)(a)

requires that a complete physical examination must be conducted

and documented in the medical record when prescribing controlled

substances. Both the expert for the Department and an expert

for Dr. Heshmati agreed that , at a minimum , a focused

examination was warrante d for each of the undercover agents who

presented to Dr. Heshmati. Dr. Heshmati did do a focused

examination on each of the patients; however , Dr. Heshmati did

fail to document a physical examination of Mr. Joseph on his

initial visit.

70 . Florida Admini strative Code Rule 64B8 - 9.013(3)(a)

requires that a complete medical history be taken and documented

in the medical record. The Department failed to establish by

clear and convincing evidence that Dr. Heshmati failed to take

and document a complete medica l history of the undercover

agents.

7 1 . Mr. Joseph advised Dr. Heshmati that he washed high -

rise windows and sat in a Bosun's chair for long periods of

time, resulting in lower back pain. He told Dr. Heshmati that

he had seen a doctor in Fort Pierce abo ut his back and had a MRI

taken in Fort Pierce. According to Mr. Joseph, he had been

having the pain for at least two years and took hydrocodone two

times a day for the relief of the pain and that he was currently

taking medication for cholesterol. He wa s able to work by

taking the hydrocodone. Dr. Heshmati also did a review of

Mr. Joseph's systems. A sufficient medical history was taken

and documented for Mr. Joseph.

7 2 . D.C. advised Dr. Heshmati that she had been having

lower back pain on and off for two to three months with a resent

onset of pain. She had seen a doctor in Palm Bay concerning her

back pain. According to D.C., she had taken Lortab and Xanax in

the past, and they had worked for her. She gave a family

medical history. D.C. advised th at she had had no previous

surgeries and that she was allergic to sulfa. Dr. Heshmati

asked her whether she had had a MRI or X - ray taken of her back,

and she advised that she had not. Dr. Heshmati also did a

review of D.C. 's systems. A sufficient medica l history was

taken and documented for D.C.

7 3 . Ms. Vzatek told Dr. Heshmati that she had been having

lower back pain toward her right side on and off for about two

years with a recent recurrence of pain. She stated that she did

not know how she had hurt her back. She told Dr. Heshmati that

she had seen a doctor in Orlando about her back and that she was

taking Lortab, Xanax, and Soma. When queried, she told

Dr. Heshmati that she had not had a MRI or X - ray taken because

she did not have insurance and co uld not afford to have the

tests performed. Dr. Heshmati did a review of Ms. Vzatek's

systems. A sufficient medical history was taken and documented

for Ms. Vzatek.

7 4 . Mr. Thompson told Dr. Heshmati that he hurt his back

when he tripped and fell and th at he had been having lower back

pain for about six months. He advised Dr. Heshmati that he had

seen a doctor in Orlando and that he took Lortab and Xanax when

he had pain. Dr. Heshmati did a review of Mr. Thompson's

systems. A sufficient medical histor y was taken and documented

for Ms. Thompson .

7 5 . The Department has failed to establish by clear and

convincing evidence that Dr. Heshmati failed to make a diagnosis

or treatment plan for each of the undercover agents. On

Mr. Joseph's initial visit, Dr. Heshmati diagnosed Mr. Joseph

with chronic back pain and told him that his blood pressure was

elevated. Dr. Heshmati told Mr. Joseph to avoid heavy lifting

and to use ice packs and prescribed 30 tablets of Lorcet.

Mr. Joseph was to get his MRI from his d octor in Fort Pierce and

return as needed.

7 6 . Mr. Joseph returned in two weeks, still complaining of

lower back pain. Dr. Heshmati prescribed 25 tablets of Lorcet,

and told Mr. Joseph to do no heavy lifting, apply ice packs, try

back exercises, and to get the MRI from the doctor in Fort

Pierce.

7 7 . Almost three weeks later, Mr. Joseph returned to see

Dr. Heshmati again complaining of lower back from washing high -

rise windows. By this time, Mr. Joseph's blood pressure was

down, indicating that Mr. Jo seph was getting some relief from

the pain. Dr. Heshmati recommended back exercises, prescribed

30 tablets of Lorcet, and noted that Mr. Joseph was waiting for

his MRI to come from the doctor in Fort Pierce.

7 8 . Two weeks later, M r. Joseph went to Dr. H eshmati for

his final visit. He was again diagnosed with chronic back pain

and was prescribed 25 tablets of Lorcet. Mr. Joseph was

required to sign an agreement that he would undergo blood

screening tests.

7 9 . On D.C.'s July 16, 2004, visit, Dr. Heshmat i diagnosed

D.C. as having back pain that was musculoskeletal in nature. He

prescribed 20 tablets of Lortab and 20 tablets of Flex e ril, but

refused to prescribe Xanax as she had requested. He recommended

that she do some back exercises but did not tell h er what

specific exercises to do. He also recommended that she get an

X - ray. D.C. was told to return in two weeks if she was not

better.

80 . D.C. returned to see Dr. Heshmati two weeks later.

Based on D.C. 's contention that the Flex e ril was not helping her

to sleep, Dr. Heshmati changed her medication and prescribed

Naproxen to be taken during the day and Xanax to help her sleep.

She was continued with Lortab. Dr. Heshmati also wrote a

prescription for an X - ray of her lumbar sacral and told her that

h e could not continue to prescribe pain medication for more than

two months unless she had an X - ray done. He continued to

recommend back exercises. D.C. was to return in three weeks.

8 1 . On Ms. Vzatek's December 1, 2004, visit, Dr. Heshmati

diagnosed her as having recurrent back pain. He recommended

that she get some physical therapy and that she have either a

MRI or an X - ray done. He prescribed 15 tablets of Lortab and 20

tablets of Naproxen, but refused to prescribe Xanax or Soma,

which she told him t hat she had been taking.

8 2 . Ms. Vzatek returned to Dr. Heshmati's office four

weeks later, complaining of back pain. Dr. Heshmati discussed

exercises with her and asked whether she was using an ice pack.

He wrote a prescription for a lumbar sacral X - r ay and prescribed

15 tablet s of Lortab and 30 tablets of Naproxen. Ms. Vzatek was

required to sign a contract agreeing to have blood tests done.

8 3 . Dr. Heshmati diagnosed Mr. Thompson with chronic back

pain that was musculoskeletal in nature. Dr. Heshm ati told

Mr. Thompson that he would have to get a MRI or an X - ray before

he returned for a visit. Dr. Heshmati prescribed 30 tablets of

Lortab and 30 tablets of Naproxen, but he refused to prescribe

Xanax. Mr. Thompson was to return if his pain continued .

8 4 . The Department did establish by clear and convincing

evidence that Dr. Heshmati fail ed to maintain adequate medical

records of his examination of Mr. Joseph on his initial visit

and, therefore, did establish that Dr. Heshmati fail ed to

practice medi cine with that level of skill, care, and treatment,

which is recognized by a reasonably prudent similar physician as

being acceptable under similar conditions in violation of

Subsection 458.331(1)(t), Florida Statutes .

8 5 . The Department failed to establi sh that Dr. Heshmati

failed to maintain the medical records of D.C., Ms. Vzatek, and

Mr. Thompson with sufficient detail to demonstrate their

condition, history, or diagnosis and/or treatment plan such to

warrant the prescription of controlled substances .

8 6 . The Department failed to establish that Dr. Heshmati

inappropriately and excessively prescribed controlled substances

to Mr. Joseph, D.C., Ms. Vzatek, and Mr. Thompson. The use of

Lortab and Lorcet for back pain is an accepted treatment. The

use o f Naproxen is also an accepted medication for such a

condition. Dr. Heshmati prescribed the controlled substances in

small amounts and followed up with the patients in a timely

manner. Dr. Heshmati treated each of the patients

conservatively.

8 7 . The De partment failed to establish that Dr. Heshmati

failed to establish the etiology of the pain of the four

patients as discussed above concerning the allegations of

violations of Subsection 458.331(1)(q), Florida Statutes.

8 8 . The Department failed to e stablish that Dr. Heshmati

failed to order and follow up on diagnostic testing. The record

is clear that Dr. Heshmati requested Mr. Joseph, on several

occasions, to get his MRI from his doctor in Fort Pierce.

Dr. Heshmati wrote prescriptions for X - rays f or D.C. and

Ms. Vzatek and told Mr. Thompson that he would have to have a

MRI or an X - ray done before he could return for treatment.

8 9 . The Department failed to establish that in a walk - in

clinic setting that Dr. Heshmati was required to get medical

rec ords from previous treating physicians. He did request

Mr. Joseph to get the MRI, which had been done in Fort Pierce ,

and he did tell Mr. Thompson that he needed to bring his medical

records. None of the patients at issue were seeing Dr. Heshmati

for lon g - term treatment. Mr. Joseph saw Dr. Heshmati four

times, but made it clear that he was in the area on a temporary

job and would be following up with his own physician when he

returned to Fort Pierce. D.C. and Ms. Vzatek saw Dr. Heshmati

two times each, and Mr. Thompson saw Dr. Heshmati one time.

90 . The Department alleged that Dr. Heshmati failed to

follow the practices contained in Florida Administrative Code

Rule 64B8 - 9.013(3)(c). One of the requirements of the rule is

that the physician is to disc uss the risks and benefits of the

use of controlled substances with the patient. Dr. Heshmati did

not tell Mr. Joseph on his first visit that Lorcet could be

addictive, but he did ask what medication Mr. Joseph had been

taking. Mr. Joseph had been taking Lorcet for two years, and

the medication enabled him to continue working with his pain.

On Mr. Joseph's second visit, he signed a contract stating that

he would not seek narcotic medications from other doctors while

under Dr. Heshmati's care. A staff pe rson advised Mr. Joseph on

the second visit that continued use of the medication could

damage his liver. On Mr. Joseph's last visit , he was required

to sign an agreement to obtain blood tests. The evidence on the

whole does not establish that Dr. Heshmat i violated Florida

Administrative Code Rule 64B8 - 9.013(3)(c) in his treatment of

Mr. Joseph.

9 1 . On D.C.'s first visit with Dr. Heshmati, she was

required to sign the same agreement that Mr. Joseph signed

concerning seeking narcotics from other physicians . She told

Dr. Heshmati that she had previously taken Lortab and Xanax and

that they had worked for her. Dr. Heshmati refused to prescribe

both Lortab and Xanax as requested by D.C. On her second visit,

D.C. again requested Xanax. Dr. Heshmati was hesi tant about

prescribing both Lortab and Xanax, but did prescribe the Xanax

with the warning that the Xanax could be habit forming. He also

prescribed Naproxen, which D.C. was to take during the day.

Dr. Heshmati also told D.C. that he could not prescribe pain

medication for more than two months without her having an X - ray

done. On the whole, the record does not establish that

Dr. Heshmati violated Florida Administrative Code

Rule 64B8 - 9.013(3)(c) in his treatment of D.C.

9 2 . On Ms. Vzatek's initial visi t to Dr. Heshmati, she

also signed the same agreement that Mr. Joseph and D.C. signed

agreeing to restrict their requests for pain medication to

Dr. Heshmati. Ms. Vzatek stated that she was currently taking

Lortab, Xanax, and Soma and that she had been ha ving back pain

on and off for about two years. He prescribed Lortab for her,

but would not prescribe Xanax or Soma as requested. He also

advised Ms. Vzatek that if she wanted refills of her pain

medication that she would have to have a MRI or an X - ray do ne.

On her second visit, Ms. Vzatek signed an agreement to get blood

tests performed. On the whole, the record does not establish

that Dr. Heshmati violated Florida Administrative Code

Rule 64B8 - 9.013(3)(c) in his treatment of Ms. Vzatek.

9 3 . When Mr. Thompson requested that Dr. Heshmati

prescribe Xanax and Lortab, Dr. Heshmati was concerned about the

use of Xanax and told Mr. Thompson that there were other

medications that he could take. He also informed Mr. Thompson

that Lortab could be habit forming and could lead to drowsiness.

Mr. Thompson indicated that he frequently took antihistamines

and that they did not make him drowsy. Dr. Heshmati refused to

prescribe both Xanax and Lortab. He also told Mr. Thompson that

he would have to have a MRI or an X - ray done before he came for

another visit. On the whole, the record does not establish that

Dr. Heshmati violated Florida Administrative Code

Rule 64B8 - 9.013(3)(c) in his treatment of Mr. Thompson.

94. The Department has established that Dr. Heshmati

violated Subsection 458.331(1)(nn), Florida Statutes, in that he

violated Subsections 458.331(1)(m) and 458.331(1)(t), Florida

Statutes , in relation to Mr. Joseph .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECO MMENDED that a f inal o rder be entered finding that

Dr. Heshmati violated Subsections 458.331(1)(m) , 458.331(1)(t) ,

and 458.331(1)(nn) , Florida Statutes, by failing to document his

physical examination of Mr. Joseph on Mr. Joseph's initial

visit; finding th at Dr. Heshmati is not guilty of the other

allegations set forth in the Amended Administrative Complaint;

and suspending his license for one year and crediting him with

the time that his license has been under emergency suspension.

DONE AND ENTER ED this 7 t h day of December, 2006 , 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

(8 50) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7 th of December , 2006 .

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes ar e to the 2004 version.

COPIES FURNISHED :

Donald Freeman, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3250

Gregory W. Eisenmenger, Esquire

Eisenmenger, Berry & Peters, P.A.

5450 Village Drive

Viera, Florida 32955

Ephr ai m Livingston, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3250

Timothy M. Cerio, General Cou nsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Larry McPherso n, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

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 Recomme nded Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.