06-002014PL Department Of Health, Board Of Medicine vs. Matthew Wise, M.D. Status: Closed Recommended Order on Thursday, November 9, 2006.

Summary: Respondent approved prescribed medication over the Internet without seeing or talking to the patient, a violation of the standard of care and Rule governing electronic prescriptions.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 06 - 2014 PL

)

MATTHEW WISE , M.D., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Purs uant to notice, a formal hearing was held in this case

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

Division of Administrative Hearings, on September 14, 2006, by

video teleconference between West Palm Beach and Tallahassee,

Florida.

APPEARAN CES

For Petitioner: Jennifer Forshey

Assistant General Counsel

Office of General Counsel

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Joseph Harrison , Esquire

Law Offices of Joseph Harrison, P.A.

Post Office Box 810637

Boca Raton , F lorida 33481 - 0637

STATEMENT OF THE ISSUE S

The first issue in this case for determination is whether

Petitioner has jurisdiction over the actions of Respondent,

Matthew J. Wise , M.D., alleged in an Administra tive Complaint

filed with Petitioner on March 14, 2006, in DOH Case No. 2004 -

06604, and amended by Order entered July 14, 2006.

If the first issue is decided favorably to Petitioner, the

second issue for determination is whether Respondent committed

the vi olations of Chapter 458, Florida Statutes, alleged in the

Amended Administrative Complaint; and, if so, what disciplinary

action should be taken against his license to practice medicine

in Florida.

PRELIMINARY STATEMENT

On or about March 13, 2006 , the Depa rtment of Health filed

an Administrative Complaint against Respondent Matthew J. Wise ,

M.D., an individual licensed to practice medicine in Florida,

before the Board of Medicine, in which it alleged that Dr. Wise

had committed violations of S ubs ection s 458 .331(1)(t) and (nn) ,

Florida Statutes (200 4 ) (All references to Florida Statues and

the Florida Administrative Code are to the 2004 versions, unless

otherwise indicated). Respondent , through counsel, disputed the

allegations of fact contained in the Admini strative Complaint

and requested a formal administrative hearing pursuant to

Sections 120.569(2)(a) and 1 20.57(1), Florida Statutes (2006 ).

On June 9 , 200 6 , the matter was filed with the Division of

Administrative Hearings with a request that an administra tive

law judge be assigned to conduct proceedings pursuant to Section

120.57(1), Florida Statutes (200 6 ). The matter was designated

DOAH Case Num ber 06 - 2014 PL and was assigned to the undersigned .

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

20 06 , by Notice of Hearing entered June 19 , 2006. The hearing

was subsequently continued to September 14, 2006, at the request

of the Respondent .

On July 6 , 2006, Petitioner's Motion to Amend

Administrative Complaint was filed. That Motion, opposed by

Resp ondent, was granted by Order entered July 14, 2006 .

On September 8 , 2006, Petitioner filed a Proposed Pre -

hearing Statement . Petitioner's Amended Proposed Pre - Hearing

Statement was filed on September 11, 2006. The day of the

hearing, September 14, 2006, at 8:28 a.m., Respondent fax - filed

Respondent's Supplement to the Amended Pre - Hearing Stipulation

Filed by Petitioner. Respondent stated, in part, the following

in the Supplement:

It is in fact not clear why the Joint

statement was Not [sic] filed as such , but

in any event, the Respondent adds the

Following [sic]:

. . . .

2. Respondent would state that there IS a

pending MOTION. The JURISDICTION issue, and

Respondent's Motion to Dismiss based on lack

of jurisdiction is in fact Still [sic]

pending today 's evidentiary portion of a

Hearing, As [sic] Ordered by the Court.

Respondent strongly contends There [sic] is

no basis for the Petitioner to have

jurisdiction. As such, Respondent OBJECTS

to ALL of Petitioner's Witnesses and ALL of

the exhibits for tha t specific reason.

. . . .

4. Finally, Respondent adds that an Issue

of Law to be Litigated [sic] is whether

Respondent's conduct falls explicitly Within

[sic] the "emergency" exception to the Rule

of the Board That [sic] Petitioner claims

was alleged ly violated.

The first issue quoted above raised by Respondent relates

to three separate motions which Respondent had previously filed

seeking the summary disposition of this matter on the grounds

that Petitioner lacked jurisdiction over the conduct alleg ed in

the Amended Administrative Complaint. Those motions had all

be en denied, two by Order and one, due to the proximity of the

final hearing, ore tenus , during a motion hearing conducted by

telephone. At the commencement of the final hearing, having no t

received Respondent's Supplement, Respondent explained the

contents of the Supplement, including the issue of jurisdiction.

After hearing argument of the parties, the parties were informed

that the issue of Petitioner's jurisdiction or lack thereof was

an issue that had properly been raised by Respondent, whether by

"outstanding motion" or as an affirmative defense.

Consequently, that issue has been dealt with in the Findings of

Fact and Conclusions of Law of the Recommended Order.

As to the additional "Issue of Law" that Respondent cited

in his Supplement, after hearing further explanation from

Respondent it was determined that Respondent was for the first

time in this proceeding raising an i ssue as to whether his

conduct came under an exemption from th e laws he allegedly had

violated . The issue is one for which Respondent, and not

Petitioner, has the burden of proof. Petitioner initially

objected because it had not been put on notice of Respondent's

reliance upon the exemption until the commencement o f the

hearing and, therefore, was not prepared to address the issue

with its own proof. A ruling on the issue was reserved until

Respondent presented his proof on the question so that it could

be determined whether Petitioner was truly prejudiced by

Respo ndent's questionable tria l tactic. Ultimately, however,

Petitioner withdrew its objection after having an opportunity to

review the exemption and to hear Respondent's evidence.

After resolving preliminary matters at the final hearing,

Petitioner presented the testimony of James L. Jones, M.D.,

Ph.D., who was accepted as an expert in obstetrics and

gynecology. Petitioner offered and had admitted Petitioner's

Exhibits A - 1, C, D, and G. Rather than accepting Petitioner's

Exhibits E and F, which consisted of certified copies of Section

458.331, Florida Statutes (2003 and 2004), and Florida

Administrative Code Rule 64B8 - 9.014, as evidence, official

recognition was taken of those laws .

Respondent, who was accepted as an expert in obstetrics and

gynecology, test ified on his own behalf . Respondent offered no

exhibits. Without objection, the record was left open for

Respondent to file either the deposition testimony of , or an

affidavit by , David Grimes, M.D.

On October 11, 2006, Respondent filed a Joint Status Re port

on Post - Hearing Matters in which Respondent represented that the

parties had agreed to file an affidavit from Dr. Grimes.

The two - volume Transcript of the final hearing was filed on

October 6 , 2006. Dr. Grimes' Affidavit was filed on October 13,

2006 . By Notice of Filing Transcript entered October 16 , 2006,

the parties were informed that the Transcript and Affidavit had

been filed and that their proposed recommended orders were to be

filed on or by October 27 , 2006. The date for filing proposed

reco mmended orders was extended to October 30, 2006, at the

unopposed request of Respondent.

Both parties filed proposed recommended orders on

October 30 , 2006. 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.

2. Respondent, Matthew J. Wise , M.D., is, and was at the

times material to this matter, a physician licensed to practice

medicine in Florida, having been issue d license number ME 84654 .

Dr. Wise has been licensed in Florida since 2002 .

3. Dr. Wise's mailing address of record at all times

relevant to this matter is 616 Manor Place, West Melbourne,

Florida 32940 .

4. Since November 2005, Dr. Wise has been board certified

by the American Board of Medical Specialties in obstetrics and

gynecology (hereinafter referred to as "OB/GYN").

5 . No evidence that Dr. Wise has previously been the

subject of a license disciplinary proceeding was offered.

B. Location of Dr. W ise's Medical Training and Practice .

6. Dr. Wise, who has never resided in Florida, began

medical school at the University of Virginia, located in

Charlottesville, Virginia, in 1994. He graduated in 1998 with a

degree in medicine.

7. Dr. Wise next moved to Chapel Hill, North Carolina,

where he attended residence in OB/GYN at the University of North

Carolina.

8. Dr. Wise completed his residency in 2002.

9. In 2003, f ollowing his successful completion of the

OB/GYN residency program in North Carolina, Dr . Wise moved to

Gallup, New Mexico. Dr. Wise accepted employment with the

United States Department of Health and Human Services. In

particular, Dr. Wise accepted employment at an American Indian

health service hospital.

10. Dr. Wise, after moving to New Mexico, began working in

the OB/GYN department at Gallup Indian Medical Center, seeing

Navajo and Zuni female patients.

11. At no time has Dr. Wise physically practiced medicine

with the State of Florida.

C. Getthepill.com .

12 . Getthepill.com is a Flor ida corporation created by or

on behalf of Dr. Wise. Dr. Wise is president of the

corporation.

13 . Getthepill.com's main office is located at 6355 South

Highway A1A, Suite 3, Melbourne, Florida 32951 (hereinafter

referred to as the "Melbourne Office Addr ess") . Some of

Dr. Wise's family and friends, who reside in Melbourne, assist

in operating the company from that location.

14 . Between February 2004 and October 2004 Dr. Wise

provided medical services, and thus practiced medicine, through

Getthepill.com.

15 . Dr. Wise, through Getthepill.com's internet web - site

address, "www.getthepill.com" (hereinafter referred to as the

" Internet Address"), provided prescriptions for contraceptives

to individuals who complied with instructions provided at the

Internet A ddress .

16 . In particular, individuals interested in obtaining a

prescription for contraceptives we re required to complete an on -

line medical questionnaire (hereinafter referred to as the

" Internet - Line Medical Questionnaire") that wa s then submitted

to G etthepill.com and ultimately to Dr. Wise for his review and

approval .

17 . The Internet Medical Q uestionnaire utilized by

Geetthepill.com at the times relevant asked prospective patients

to answer the following questions:

1. Are you 18 years or older?

2. Are you 35 years or older AND a smoker?

3. Do you have or have you ever had high

blood pressure?

4. Blood pressure taken within the last

month (systolic/diastolic)

5. Are you experiencing abnormal vaginal

bleeding that has not been evaluated by a

physi cian?

6. Do you know or suspect that you are

pregnant?

7. Do you know or suspect that you have

breast cancer?

8. Do you have or have you ever had liver

tumors or liver disease?

9. Have you, your parents or your siblings

ever had blood clots in the deep veins of

the legs?

10. Have you, your parents, or your

siblings ever had a pulmonary embolism (a

detached blood clot that formed in the deep

veins of the legs and traveled to the lung ) ?

11. Have you ever had a heart attack?

12. Have you ever had a stro k e (a sudden

neurological afflic tion caused by impaired

blood supply to the brain ) ?

13. Do you have valvular heart disease

complicated by pulmonary hypertension,

atrial fibrillation, or history of subacute

bacterial endocarditis?

14. Do you have diabetes with associated

kidney, eye, or nerve disease?

15. Do you suffer from migraine headaches?

16. Will you be undergoing a major surgery

followed by a prolonged period of

immobilization within the next week?

17. Are you on any of the following

medications: rifampin (Rimactane or

Rifadin), Phenobarbital (Luminal or

Solfoton), phenytoin (Dilantin), primidone

(Mysoline), carbamazepine (Tegreto),

ethosuximide (Zarontin), griseofulvin

(Fulvicin or Grifulvin), or troglitazone

(Rezulin)?

18. I understand that th e use of birth

control pills may cause side effect and

adverse reaction, including but not limited

to nausea, abdominal pain, fatigue,

headache, heavier or lighter menstrual

bleeding, dizziness, and breast tenderness.

19. I understand that no doctor, phys ician

or other healthcare professional can

guarantee that birth control pills can

completely prevent pregnancy. I understand

that I may use birth control pills properly

and still become pregnant.

18 . The information solicited on the Internet Medical

Q ue stionnaire wa s information designed to assist in determining

whether an individual wa s qualified to t ake the requested

contraceptive, including whether the individual lacked any

contra indications to taking the drug sough t .

19 . No prescription wa s issued w ithout the submission of

an Internet Medical Questionnaire or if the information

provided , in Dr. Wise's opinion, disqualified the individual as

an appropriate candidate for the requested prescription.

20 . Dr. Wise wa s provided completed Internet M edical

Q uestionnaire s , which he reviewed and, if the information

provided appeared acceptable, he would approve the requested

prescription.

21 . If a request wa s approved by Dr. Wise, either he or

someone at his direction call ed the prescription into a pharmacy

i dentified by the individual patient.

D. Patient L.R.

22 . On or about February 6, May 24, and October 21, 2004

(hereinafter referred to as the "Solicitation Dates"), an

individu al who identified herself or him self as "L.R." sought a

prescription from Gett hepill.com by going to the Internet

Address.

23 . Although L.R.'s names suggest that the individual is a

female , and the parties discussed L.R. throughout the proceeding

as being female, there was no competent substantial evidence

presented which prove d L. R.'s sex. Other than hearsay documents

submitted by L.R. to Getthepill.com, there was no identification

of who the individual was that sent the various e - mails at issue

in this case. It cannot, therefore, even be found that L.R. is

the individual's corre ct name.

24 . L .R. completed a separate Internet M edical

Q uestionnaire provided at Getthepill.com's Internet Address and

submitted them by internet transmission on the Solicitation

Dates. The Q uestionnaires completed by L.R. were identical to

the one quot ed in Finding of Fact 17.

25 . On the Internet Medical Q uestionnaire submitted by

L.R. on or about February 6, 2004, L.R. answered question 1,

"Are you 18 years or older?" with a "Yes"; in response to

question 4, L.R. gave what apparently was intended to b e a blood

pressure reading of "115/78"; L.R. indicated in response to

questions 18 and 19, "I Understand"; and L.R. answered the

remaining questions "No."

26 . Upon receipt of the I nternet Medical Q uestionnaire at

12:16 p.m., February 6, 2004, L.R. was sen t an e - mail indicating

that the questionnaire had been received and was awaiting

physician approval. The evidence failed to prove where the e -

mail was sent from or by whom.

27 . In response to an e - mail inquiry from L.R., an e - mail

was sent to L.R. at 1:1 2 p.m. indicating that the credit card

statement for the prescription would read "getthepill.com."

28 . L.R. 's February 6, 2004, I nternet Medical

Q uestionnaire was reviewed by Dr. Wise in New Mexico and, based

solely upon the information in the Internet Me dical

Questionnaire provided by L.R., whom he had not seen or spoken

to, electronically authorized the issuance of a prescription for

L.R. to receive Trivora - 28.

29 . T r ivora - 28 is a legend drug indicated as a monthly

oral contraceptive for the prevention of pregnancy.

30 . At 4:01 p.m., on February 6, 2004, L.R. was informed

by e - mail that the prescription had been approved. L.R., who

had previously provided the name and phone number of the

pharmacy where the prescription was to be filled, was also

inform ed that the phone number provided for the pharmacy was

incorrect. L.R. provided a new telephone number with an Ohio

area code for a CVS pharmacy.

31 . At 4:10 p.m. , an e - mail was sent to L.R. indicating,

in part, the following:

Dr. Matthew Wise has review ed your submitted

medical information and blood pressure

measurement and determined that you are an

appropriate candidate for birth control

pills. Your prescription for Trivora - 28 was

called in to the voice mail at CVS Pharmacy

at (937) . . . at 4:10 PM C ST on 02.06.2004.

. . .

Dr. Wise's telemedicine office is located in

Melbourne, Florida. His office telephone

number is (321) 724 - 5714 . If you would like

to ask a medical question of Dr. Wise or you

have a comment for him, please feel free to

contact hi m by e - mail at

[e-mail] or by telephone at the

office number above. ( Emphasis added ) .

The e - mail went on to give instructions concerning the proper

use of the contraceptive being prescribed, including the

following warning:

Although getthepi ll.com is committed to

providing safe, easy access to

contraceptives for healthy young women with

no risk factors, we cannot overemphasize the

importance of a yearly gynecologic

examination, which includes a breast

examination, a Pap smear, and tests for

s exually transmitted infections (STIs).

Please schedule an appointment with a local

gynecologist.

32 . The area code of the telephone number for Dr. Wise

give n to L.R. quoted above is a Florida area code , specifically

covering Melbourne, Florida . It is t he only phone number for

Dr. Wise provided to L.R. The reference to the Melbourne O ffice

Address is the only indication of the location of Dr. Wise given

to L.R. Dr. Wise thus held himself out to L.R. as a Florida

physician.

33 . Someone from Getthepill. com, on behalf of Dr. Wise,

telephoned the prescription Dr. Wise had approved for L.R. to a

CVS pharmacy located in Ohio. Dr. Wise's Florida medical

license number was not used.

34 . A "Telemedicine Electronic Medical Record"

(hereinafter referred to as t he "Me dical Record") consisting of

typed "medical notes," the completed I nternet Medical

Q uestionnaire submitted by L.R., and the e - mail correspondence

between L.R. and, on behalf of Dr. Wise, Getthepill.com was

maintained for the February 6, 2004, prescri ption.

35. Dr. Wise's address listed on the Medical Record for

L.R. is the Internet Address. The phone number is the same

Melbourne phone number provided to L.R.

36 . Among other things, the Medical Record list s what

purports to be L.R.'s name, address, age, phone number, e - mail

address, sex, and a summary of medical history taken from the

answers to the I nternet Medical Q uestionnaire L.R. Provided .

Whether any of the information wa s accurate was not known , and

could not with any certainty, be known by D r. Wise. Having

never seen or talked to L.R., Dr. Wise did not even know,

despite indications to the contrary on the Medical Record, that

L.R. was in fact a female.

37 . L.R., through Getthepill.com, contacted Dr. Wise again

on May 24, 2004. L.R. complet ed a second I nternet Medical

Q uestionnaire, giving the same answers provided on t he first

one, except for reporting a purported blood pressure reading of

102/76.

38 . The May 24, 2004, request from L.R. was treated , in

all material respects, the same as th e February 6, 2004,

request.

39 . L.R. contacted Dr. Wise a final time, again through

Getthepill.com, on October 21, 2004. Other than reporting a

purported blood pressure of 115/70, L.R. provided the same

answers to the questions on the I nternet M edical Q uestionnaire

given in the previously filed Internet Medical Questionnaires.

40. Again, L.R.'s third req uest for a prescription was

treated in all material respects in the same manner as the

February 6, and May 24, 2004, requests, with one exception.

Foll owing notification to L.R. that the request had been

approved, L.R. was sent an e - mail which stated the following:

We regret to inform you that this will be

your last prescription refill for birth

control pills. It is our mission to provide

only emergency prescriptions for

contraceptives. In the case of birth

control pills, we are happy to submit

prescriptions for three (3) months of

medication for women who have not yet

established gynecologic care with a local

health care provided. We feel that three

( 3) months should provide adequate time for

a patient to schedule an appointment with a

local physician or women's clinic. While we

have provided refills for women who have

requested them, since August 2002 it has

been our office policy to restrict

prescri ption refills to a total of twelve

(12) months.

As you are well aware, women of all ages

clearly benefit from yearly visits to the

gynecologist. Preventative health care in

the form of contraceptive counseling,

general health education, and screening for

high blood pressure, breast cancer, and

cervical cancer is invaluable. There has

been some concern that our convenient

service may allow some women to avoid these

vital annual visits -- another reason to

restrict prescriptions to one year. We

apologize fo r any inconvenience.

As is discussed further, infra , the evidence failed to prove

that L.R. was seeking contraceptives on the Solicitation Dates

as an "emergency." No information, even assuming that such

information could have been considered reliable, w hich it would

not have been , was elicited from L.R. or otherwise by Dr. Wise

or Getthepill.com that indicated the reason L.R. was seeking

contraceptives through Getthepill.com . Nor was any convincing

evidence presented at hearing to support a finding that L.R. was

requesting contraceptives on the Solicitation Dates for anything

remotely related to an emergency.

41. Florida Administrative Code Rule 64B8 - 9.014

(hereinafter referred to as the "Telemedicine Rule") prescribes

standards which Florida physicians are required to adhere to

when prescribing medications electronically. The standards

required by the Telemedicine Rule are that the physician

document a patient evaluation , including a physical examination ,

to establish a diagnosis for the which a drug i s prescribed;

that the physician discuss with the patient the treatment

options, risks and benefits of the treatment being provided; and

that the physician maintain contemporaneous medical records.

Dr. Wise failed to comply with th e se standards in prescri bing

medications to L.R. on all three of the Solicitation Dates.

42. Dr. Wise did not document any patient evaluation which

included the results of a physical examination of L.R. Dr. Wise

plainly did not perform any exami nation of L.R. whatsoever.

Dr. W ise did not see, touch, or even speak with L.R. on

Solicitation Dates or at any other time.

43. Dr. Wise's suggestion at hearing that, by considering

the blood pressure information provided to him by L.R. on the

Internet Medical Questionnaire, he performe d a relevant physical

examination is rejected. What Dr. Wise was provided by L.R.

were merely "numbers" that purported to be blood pressure

readings. Even at hearing, no evidence was presented to

substantiate what the numbers provided by L.R. on the Inte rnet

Medical Questionnaire represent. Just as those numbers do not

reliably justify a finding of fact as to what they represent,

they also do not justify a physician's unbridled reliance on

them to determine the health of a patient. W hile it may be

appro priate for a physician to rely on some information provided

by a patient, no reasonable physician would simply ask his or

her patient what their blood pressure is when they visit the

physician's office; a reasonable physician would actually take,

or have a n assistant take, the patient's blood pressure.

Dr. Jones' opinion on this matter, that simply relying upon what

a patient reports is their blood pressure does not constitute a

physical examination, is credited. Dr. Wise's testimony to the

contrary is re jected.

4 4 . Dr. Wise also suggested that it is necessary for a

physician to rely upon what a patient tells them . While it may

be true that a physician must often rely upon information

provided by a patient, in this matter Dr. Wise's reliance solely

upon the input of L.R. provided on the Internet Medical

Questionnaire lacked any justification whatsoever and was

unreasonable. Many things that a face - to - face examination of a

patient would allow a physician to verify, Dr. Wise simply

assumed. Dr. Wise, beca use he did not conduct any physical

examination of L.R., had to assume L.R.'s sex, blood pressure,

and whether the age given by L.R. was reasonably consistent with

L.R.'s appearance. Dr. Wise also had to assume that L.R. was

capable of understanding the m edical questions asked on the

Internet Medical Questionnaire and that L.R. had no questions

about the information sought.

4 5 . Dr. Wise's expert witness, Dr. David A. Grimes, failed

to provide any credible, convincing testimony to support a

finding that Dr . Wise conducted a physical examination in

compliance with the Telemedicine Rule. Dr. Grimes , recognizing

that Dr. Wise did not conduct a physical examination, merely

suggests that a physical examination was not necessary:

In providing short - term prescrip tions for

birth control pills without requiring a

physical examination or an office visit for

appropriately screened patients, Dr. Wise

was allowing patients the opportunity to

obtain and use effective contraceptives

while awaiting health insurance coverag e or

an appointment with a local physician.

46 . Dr. Grimes also states in his Affidavit that "there is

no medical evidence that supports the practice of requiring a

physical examination prior to the prescribing of birth control

pills." This very limited statement, that there is "no medical

evidence," misses the point. First, whether supported by

"medical evidence" or not, t he Telemedicine Rule requires a

physical examination . S econdly, the better evidence in this

case, whether "medical evidence" suppor ting the need for a

physical examination exists or not, supports the finding that a

physical examination of a person seeking contraceptives , which

includes at a minimum ensuring that the patient is a female and

checking the patient's blood pressure , is med ically necessary.

4 7 . Dr. Wise also failed to have any "discussion" with

L.R. on any of the Solicitation Dates about treatment options or

risks and benefits of the contraceptive which L.R. sought and

was provided . W hile information was provided at the

Ge tthepill.com Internet Address concerning contraceptives,

including options and risks and benefits, Dr. Wise could not,

with any assurance, assume that L.R. had read or even seen that

information.

48. L .R.'s purported medical history, while recorded in a

m edical record contemporaneously, was limited to the information

provide d on the three Internet Medical Questionnaires. That

information was not reliable nor, if it were, did it contain all

the i nformation concerning L.R. that should have been collected

an d maintained in a medical record . For example, the Internet

Medical Questionnaire did not elicit information from L.R. as to

L.R.'s last menstrua l cycle: whether L.R. had had a

hysterectomy; and whether L.R. had ever taken oral

contraceptives and, if so, whether any problems had been

experienced.

49. L.R.'s purported medical history also lacked reliable

information as to whether there were any contraindications to

oral contraceptives. There are several contraindications, which

if present, would cause a p hysician to refuse to prescribe oral

contraceptives. Those contraindications include a history of

liver or heart disease, a history of smoking by a person over

the age of 35, current pregnancy, a history of migraine

headaches, a history of high blood pres sure, and a history of

insulin - dependent diabetes. Dr. Wise did not obtain any

information concerning these contraindications from L.R.

50 . In addition to failing to meet the standards of the

Telemedicine Rule , Dr. Wise failed to create any reasonable

do ctor - patient relationship with L.R. on any of the Solicitation

Dates. Dr. Wise failed to do so because he failed to conduct a

physical examination of L.R., he failed to obtain a reliable

medical history from L.R., discussed, supra , and he failed to

obtain L.R.'s informed consent.

5 1 . Again, t he purported blood pressure information L.R.

provided lacks reliability. If L.R. suffered from high blood

pressure, which would be revealed if a physical examination had

been performed, Dr. Wise very likely would not have approved the

prescriptions. Not knowing how L.R. came up with the numbers

provided to him, Dr. Wise could only assume that the number s

actually reflected L.R.'s blood pressure. Without knowing who

administered the blood pressure measu rement, how it was

administered, or even whether it was measured at all, Dr. Wise's

reliance on the numbers provided by L.R. was not reasonable.

5 2 . As to obtaining "informed consent," Dr. Wise had no

discussion with L.R. as to L.R.'s understanding of what the

contrace ptive requested was. L.R.'s request was simply approved

by Dr. Wise without any idea why L.R. had requested the

particular oral contraceptive L.R. sought or why L.R. though

contraception was necessary . Dr. Wise simply had no discussion

with L.R. from whi ch he could determine whether L.R. understood

what was being prescribed or whether, based upon

contraindications, L.R. was or was not a proper candidate for

the reques ted medication. Merely providing information about

contraception at the Internet Address does nothing to ensure

that a patient, L.R. in particular, actually paid any attention

to the information or understood it.

E. The Standard of Care .

53 . Dr. Wise's failure to conduct a physical examination

of L.R. constituted the failure to practice med icine with that

level of care, skill, and treatment which is recognized by

reasonably prudent physicians as being acceptable under similar

condition and circumstances (hereinafter referred to as the

"Standard of Care " ). See § 458.331(1)(t), Fla. Stat.

54 . Dr. Jones' testimony in this regard is credited, while

any opinion to the contrary from Dr. Wis e or Dr. Grimes is

rejected .

55 . Dr. Wise violated the Standard of Care by failing, as

discussed, supra , to establish a doctor - patient relationship

with L.R. prior to prescribing Trivora - 28. The lack of a

doctor - patient relationship is the only factual basis alleged in

the Amended Administrative Complaint for the alleged violation

of the Standard of Care.

56. Dr. Grimes' opinions to the contrary are rejected.

First, Dr. Grimes assumes facts not in evidence -- that L.R. is a

female and that the age L.R. gave was accurate. Dr. Grimes also

failed to indicate in his Affidavit that Dr. Wise's conduct was

within the Standard of Care in Florida, which is the only

rel evant issue. Dr. Grimes' opinions are also too general in

nature and lack the specificity concerning L.R.'s treatment in

particular necessary to be of much use.

F. The Telemedicine Rule Emergency Exception .

57 . The Telemedicine Rule contains an exceptio n to the

physician conduct prescribed in the Rule. The evidence failed

to prove that the exception applies to Dr. Wise's treatment of

L.R.

58 . There was no information, even if it could be assumed

to be reliable, provided by L.R. or anyone else which Dr. Wise

could have relied upon to conclude that L.R.'s requests were

being made in "an emergency situation." There was nothing in

the information provided by L.R. that indic a ted that the

immediate administration of the medication was "necessary for

the prop er treatment of [L.R.] . . . . "

59 . L.R. made no representations, even assuming it would

have been acceptable to rely upon such representations if they

had been made, to indicate there was any emergency or the need

for immediate administration of the Triv ora - 28 L.R. was

pr ovided . L.R. did not give any explanation whatsoever as to

why the medication was being sought through Getthepill.com or

when L.R. intended to take the medication, if at all. All L.R.

did was ask for the prescription s . While Dr. Wise t estified

about a number of factors that might support the immediate

approval of a prescription for an oral contraceptive, Dr. Wise

had been provided with no information by L.R. or anyone else

that would indicate that those factors pertained to L.R.

60 . Dr . Grimes' opinion with regard to the applicability

of the emergency exception to the Telemedicine Rule, quoted in

Finding of Fact 45 , is also rejected. First, Dr. Grimes

mistakes the facts of this matter by assuming that: L.R. was an

"appro priately screen ed patient[]"; and that L.R. was awaiting

health insurance coverage or an appointment with a local

physician. The evidence failed to prove any of these assumed

facts and, therefore, Dr. Grimes' opinion concerning the

exception to the Telemedicine Rule is rejected.

61 . The exception to the Telemedicine Rule does not apply

to Dr. Wise's treatment of L.R.

G . Dr. Wise's Florida Connection .

62 . In filling the three prescriptions for L.R., Dr. Wise

had the following connections with Florida:

a. He is licens ed by the State of Florida as a physician;

b. T he business through which he dealt with L.R.,

Getthepill.com, is a Florida corporation with its main office

located in Florida and, at least in part, some of its dealings

with L.R. were handled from the Flori da office . Dr. Wise is the

president of that corporation ;

c. L.R. was notified that Dr. Wise's address was a

Melbourne, Florida, address and that his telephone number was

the same as Getthepill.com 's Melbourne office phone number.

L.R. was not given any other information that would indicate

that Dr. Wise was practicing medicine from any location other

than Florida;

d. At least one of the prescriptions Dr. Wise filled for

L.R. was called in on his behalf from an individual physically

located in Florida;

e. At least one of the e - mail communications to L.R. was

sent from an individual physically located in Florida; and

f. The Telemedicine Electronic Medical Records maintained

for L.R. by Dr. Wise list s the following office information at

the top of those records:

The Offices of Dr. Matthew Wise

6355 Hwy A1A Suite 3

Melbourne Beach, FL 32951

(321)724 - 5714

63 . In filling the three prescriptions for L.R., the

following aspects of the transactions had no Florida connection:

a. Dr. Wise was, at no time, loc ated in Florida. He has,

as found, supra , never practiced in Florida in person . He

approved L.R.'s solicitations from New Mexico;

b. The physician number provided to the pharmacy was not

his Florida license number;

c. The pharmacy at which the prescrip tions were placed was

a pharmacy with an Ohio telephone number;

d. The evidence failed to prove that L.R. was located in

Florida;

e. Some of the prescriptions were called in to the

pharmacy by someone located out si d e of Florida; and

f. E - mails on some o f the transactions with L.R. were sent

from a location out side of Florida .

64. Based upon the findings in paragraph 62 , it is found

that Dr. Wise was practicing medicine in Florida in his dealings

with L.R.

CONCLUSIONS OF LAW

A. Jurisdiction .

6 5 . The D ivision 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

45 6.073(5), Florida Statutes (2006 ).

6 6 . Dr. Wise has argued that the Board of Medicine

(hereinafter referred to as the "Board"), lacks jurisdiction

over him, suggesting that the nexus between his activities were

insufficient to support a finding that the Board has

jurisdiction over him. These arguments are rejected.

6 7 . The Department has suggested that the Board has

jurisdiction over Dr. Wise pursuant to Section 48.193(1)(a),

Florida Statutes, Florida's "long - arm statute." That provision

governs the circumstances which must be present before it may be

concluded that the "courts" of Florid a have civil jurisdiction

over the person. That provision does not apply in this case

because this forum and the Board are not "courts" and the issue

in this case is not whether a civil action may be maintained

over Dr. Wise.

6 8 . The Board's jurisdiction over Dr. Wise stems from the

fact that he has obtained and maintained a license to practice

medicine in Florida. In so doing, Dr. Wise has subjected

himself to the application of Section 458.331(1), Florida

Statutes. Section 458.331(1), Florida Statutes , authorizes 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. Dr. Wise is a physician licensed by the

State of Florida and is subject to discipline by the Board to

the extent that he practiced medicine in Florida.

6 9 . In this matter, although a number of the pertinent

activities at issue did not take place in Florida, there are

enough activities w hich did take place in Florida to give the

Board both subject and personal jurisdiction over Dr. Wise .

70 . Most important is the fact that Dr. Wise held himself

out to L.R. as a physician with a Florida address and telephone

number. At no time was L.R. i nformed that Dr. Wise was not

practicing medicine in Florida. This fact, coupled with the

other actions which connect Dr. Wise's treatment of L.R. with

Florida found in this Recommended Order , are adequate to give

the Board jurisdiction over Dr. Wise's tr eatment of L.R.

B . The Burden and Standard of Proof .

7 1 . The Department seeks to impose penalties against

Dr. Wise through the Amended Administrative Complaint that

include suspension or revocation of his license and/or the

imposition of an administrativ e fine. Therefore, the Department

has the burden of proving the specific allegations of fact that

support its charge that Dr. Wise violated Section s 458.331(1) (t)

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

Department of Banking and Fin ance, 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.").

7 2 . 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; th e 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 th e 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).

C . Section 458.331(1)(t), Florida Statutes; The Standard

of Care .

7 3 . Section 458. 331(1)(t) , Florida Statutes, 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 c onditions

and circumstances. . . .

7 4 . In paragraph 32 of the Amended Administrative

Complaint, it has been alleged that Dr. Wise v iolated the

Standard of Care by "failing to establish a doctor - patient

relationship with individual L.R. prior to prescribi ng

Trivora - 28."

7 5 . The evidence has clearly and convincingly proved that

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

paragraphs 32 as described in the Findings of Fact.

D . Section 458.331(1)(nn), Florida Statutes; The

Telemedicine Rule .

7 6 . Section 458.331(1)(nn), Florida Statutes, provides

that any violation of Chapters 456 or 458, or any rules adopted

pursuant to those Chapters, constitutes grounds for disciplinary

action by the Board. In this case, the Department has alleged

that Dr. Wise violated Section 458.331(1)(nn), Florida Statutes,

by violating the Telemedicine Rule.

7 7 . The evidence proved clearly and convincingly that Dr.

Wise failed to comply with the requirements of the Telemedicine

Rule in prescribing medications to L.R. Dr. Wise prescribed

medication to L.R. based solely on the Internet Medical

Questionnaires provided through Getthepill.com. and, therefore ,

is guilty of providing " treatment recommendations, including

issuing a prescription, via electronic or other means " and none

of the following elements required by the Telemedicine Rule were

met:

(a) A documented patient evaluation,

including history and physical examination

to establish the diagnosis for which any

legend drug is prescribed.

(b) Discussion between the physician . .

. and the patient regarding treatment

options and the risks and benefits of

treatment.

(c) Maintenance of contemporaneous

medical records meeting the requirements of

rule 64B8 - 9.003, F.A.C.

7 8 . Finally, the evidence failed to prove that the

exception to the Telemedicine Rule applies in this matter. That

exception provides the following:

(3) The provisions of this rule are not

applicable in an emergency situation. For

purposes of this rule an emergency situation

means those situa tions in which the

prescribing physician or physician assistant

determines that the immediate administration

of the medication is necessary for the

proper treatment of the patient, and that it

is not reasonably possible for the

prescribing physician or phy sician assistant

to comply with the provision of this rule

prior to providing such prescription.

The evidence failed to prove that Dr. Wise had any information

which would have supported a decision that the prescriptions

sought by L.R. were medically nece ssary for immediate

administration in order to treat L.R.

7 9 . Having proved that Dr. Wise violated the Telemedicine

Rule, it has been proved clearly and convincingly that Dr. Wise

violated Section 458.331(1)(nn), Florida Statu t es.

E . The Appropriate Pena lty .

80 . 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

authori ty under Section 458.331, Florida Statutes. See Parrot

Heads, Inc. v. Department of Business and Professional

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

8 1 . The Board's guidelines are set out in Florida

Administrative Code Rule 64B8 - 8.001, which p rovides 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 appl icants 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 penalt y

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 fr om 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

offen ses are descriptive only; the full

language of each statutory provision cited

must be consulted in order to determine the

conduct included.

8 2 . Florida Adminis trative Code Rule 64B8 - 8.001(2) (t)3.

provide s , in pertinent part, the following penalty f or a

v iolation of Section 458.331(1)(t), Florida Statutes: from two

years’ probation to revocation, and an administrative fi ne from

$1,000.00 to $10,000.00.

8 3 . Florida Administrati ve Code Rule 64B8 - 8.001(2)(x)1.

provide s the following penalty guidelines for a violation of

Section 458.331(1)(nn), Florida Statutes: a reprimand to

revocation and an administrative fine from $1,000.00 to

$10,000.00.

8 4 . 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 his tory 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.

8 5 . In Petitioner' s Proposed Recommended Order, the

Department has requested that it be recommended that Dr. Wise's

license be suspended for six months, followed by one year of

probation, and that he be required to pay a fine in the amount

of $10,000.00.

8 6 . Having careful ly 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. The Board may, however, want to consider

not suspending Dr. Wise's lic ense because of the nature of his

government employment.

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 Matthew J. Wise , M.D., has vio lated

S ubs ection s 458.331(1)(t) and (nn) , Florida Statutes, as

described in this Recommended Order; suspending his license to

practice medicine in Florida for six months, followed by

probation for two years; and requiring that he pay an

administrative fi ne of $ 10 ,000.00 .

DONE AND ENTERED this 9th day of November , 2006, in

Tallahassee, Leon County, Florida.

S

___________________________________

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

t his 9th day of November , 2006.

COPIES FURNISHED:

Jennifer Forshey

Assistant General Counsel

Office of General Counsel

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Joseph Harrison , Esquire

Law Offices of Joseph Harrison, P.A.

Post Office Box 810637

Boca Raton , F lorida 33481 - 0637

Larry McPherson, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

R. S. Power, Agency Clerk

Depar tment 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. M. Rony François, Secretary

Department of Health

40 52 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.