10-002814PL Department Of Health, Board Of Medicine vs. John P. Christensen, M.D. Status: Closed Recommended Order on Tuesday, June 28, 2011.

Summary: Department failed to prove by clear and convincing evidence that physician prescribed excessive amounts of controlled substances or that he committed medical malpractice. Department's expert witness testimony is unpersuasive.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 10 - 2814PL

)

JOHN R. CHRISTENSEN, M.D., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal h earing was held in this case

on August 26, 2010, by video teleconference, with the parties

appearing in West Palm Beach, Florida, before Patricia M. Hart,

a duly - designated Administrative Law Judge of the Division of

Administrative Hearings, who presided i n Tallahassee, Florida.

APPEARANCES

For Petitioner: Greg S. Marr, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Marc P. Ganz, Esquire

McGrane, Nosich & Ganz, P.A.

75 Valencia, Suite 1100

Coral Gables, Florida 33134

STATEMENT OF THE ISSUE

Whether the Respondent committed the violations alleged in

t he Amended Administrative Complaint dated March 26, 2010, and,

if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

In an eight - count Amended Administrative Complaint dated

March 26, 2010, the Department of Health ( " Department " ) charged

John P . Christensen, M.D., with having violated

section 458.331(1)(q), Florida Statutes (2006), 1 by prescribing

controlled substances other than in the course of his

professional practice and with having violated

section 458.331(1)(t) by failing to practice medi cine in

accordance with the level of care, skill, and treatment

recognized in general law related to health care licensure. The

charges arose out of Dr. Christensen ' s care and treatment of

patient A.L. between February 12, 2007, and June 29, 2007.

In supp ort of its charge that Dr. Christensen violated

section 458.331(1)(q), the Department alleged in Count One of

the Amended Administrative Complaint that, on six occasions,

Dr. Christensen " prescribed excessive and/or inappropriate

amounts of methadone, and/ or oxycodone, and/or alprazolam " to

A.L. 2 In support of its charge that Dr. Christensen violated

section 458.331(1)(t), the Department alleged in Count Two of

the Amended Administrative Complaint that Dr. Christensen

committed medical malpractice by " fail ing to diagnose a history

of anxiety to support prescribing Alprazolam " ; " failing to order

screening urine toxicology to rule out usage of illicit

substances or confirm usage of prescribed medications " ; " failing

to refer Patient A.L. to a psychiatrist and/ or addiction

specialist and/or a rehabilitation center for substance abuse " ;

and " failing to order diagnostic tests to justify the course of

treatment for patient A.L.. " In Counts Three through Eight, the

Department supported its charges that Dr. Christen sen violated

section 458.331(1)(t) with allegations that Dr. Christensen

committed medical malpractice when he wrote prescriptions for

pain medications written by Dr. Christensen for A.L. on six

occasions between February 12, 2007, and June 29, 2007. 3

On A ugust 3, 2010, Dr. Christensen filed Respondent ' s

Second Motion to Strike Expert, and the Department filed its

response in opposition to the motion on August 6, 2010. The

motion was based on the failure of the Department ' s expert

witness to provide docume nts at his deposition, which

Dr. Christensen had requested that he produce in a subpoena

duces tecum. After argument on the motion at the final hearing,

the motion was denied, but Dr. Christensen was advised that

accommodations would be made to allow his counsel to be fully

prepared to cross - examine the Department ' s expert witness and

avoid any prejudice to Dr. Christensen. Although

Dr. Christensen ' s counsel cross - examined the Department ' s expert

witness and did not ask for any of the suggested accommodat ions,

such as reconvening the hearing to allow cross - examination of

the Department ' s expert witness or allowing Dr. Christensen to

cross - examine the Department ' s expert witness in a deposition

taken subsequent to the final hearing, Dr. Christensen ' s counse l

did not withdraw his objection to the testimony of the

Department ' s expert witness.

At the hearing, the Department presented the testimony of

David M. Glener, M.D., and Petitioner ' s Exhibits 1 and 2 were

offered and received into evidence. Dr. Christens en testified

in his own behalf and presented the testimony of Richard L.

Rauch, M.D., by means of a videotape and transcript of his

deposition, in lieu of his live testimony. Respondent ' s

Exhibits 3, 5, 7, 8, and 10 were offered and received into

evidence . 4 In addition, Joint Exhibits A, B, and C (the

transcript and videotape of Dr. Rauch ' s deposition testimony)

were offered and received into evidence.

Finally, Dr. Christensen offered into evidence Respondent ' s

proposed exhibits 1 - J and 1 - K. The Departme nt objected to the

admission of these proposed exhibits on the grounds of

relevance. Respondent ' s proposed exhibit 1 - J consists of the

medical records maintained by Fredric Swartz, M.D., a physician

who was treating A.L. for pain management and prescribin g pain

medications for A.L. during the period extending from

December 21, 2006, through June 25, 2007. Respondent ' s proposed

exhibit 1 - K consists of the medical records of Dr. John Uribe,

who performed surgery on A.L. ' s left knee in 2002. The

Department argued that these records were not relevant to the

charges contained in the Amended Administrative Complaint, since

those charges involved only the treatment Dr. Christensen

provided to A.L. Dr. Christensen argued that these materials

were relevant becaus e the records of Dr. Swartz were reviewed by

the Department ' s expert witness and because the records of

Dr. Uribe go to the weight and credibility of the testimony of

the Department ' s expert witness. Having considered the

arguments of the parties and havi ng reviewed the evidence in its

entirety, the undersigned has concluded that Respondent ' s

proposed exhibits 1 - J and 1 - K are not relevant to the issues

presented in the Amended Administrative Complaint or to the

weight and credibility of the testimony of th e Department ' s

expert witness.

The two - volume transcript of the proceedings was filed with

the Division of Administrative Hearings , and the parties timely

filed their proposed findings of fact and conclusions of law,

which have been considered in the prepa ration of this

Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the facts stipulated to by the parties in the

Joint Prehearing Stipulation, and on the entire record of this

proceeding, the foll owing findings of fact are made:

1. The Department is the state agency responsible for the

investigation and prosecution of complaints involving physicians

licensed to practice medicine in Florida. See § 456.072, Fla.

Stat. The Board of Medicine ( " Board " ) is the entity responsible

for regulating the practice of medicine and for imposing

penalties on physicians found to have violated the provisions of

section 458.331(1). See § 458.331(2), Fla. Stat.

2 . At the times pertinent to this proceeding,

Dr. Chri stensen was a physician licensed to practice in Florida,

having been issued license number 92135, and he practiced with

the A1A Health & Wellness Clinic ( " Clinic " ), specializing in

pain management.

3 . In 1975, Dr. Christensen received a degree in

chiropra ctic, and he specialized in chiropractic orthopedics.

Dr. Christensen has been practicing chiropractic orthopedics in

the Palm Beach, Florida, area since 1975, although he took time

away from his practice to attend medical school and to obtain a

master ' s degree in public health.

4 . Dr. Christensen received his medical degree in 1995,

and he completed a one - year internship in internal medicine.

Dr. Christensen was certified in preventive medicine by the

American Board of Preventive Medicine on January 22, 20 07, and,

after passing an examination, he was credentialed in March 2007

by the American Academy of Pain Management. Between February 9,

1997, and February 1998, Dr. Christensen was certified as an

addiction professional by the American Association of

Acupuncture and Oriental Medicine and the American College of

Addictionology and Compulsive Disorders after having taken a

120 - hour program in addictionology.

5 . Dr. Christensen first saw A.L. at the Clinic on

February 12, 2007. At the time, A.L. was 21 years old, having

been born on September 17, 1985.

6 . At the February 12, 2007, office visit, A.L. completed

a Personal History form in which he stated that he was self -

employed and worked in construction; that his major complaint

was knee and back pain; and that the condition of which he

complained began when he was 13 years old, which would have been

in or about 1998. A.L. also noted on the Personal History form

that he had seen other doctors for " pain management, " but he did

not include the names of an y of the doctors who had provided

pain management treatment.

7 . Dr. Christensen completed the New Patient History Form

at A.L. ' s first office visit. He noted that A.L. complained of

intense, sharp, incapacitating pain in his left knee, with

associated pa in in his lower back. A.L. reported that he had

had multiple surgeries on his knee that had been unsuccessful.

8 . Dr. Christensen performed a general examination of A.L.

to confirm that he was alert and oriented and that his organ

systems functioned prop erly. Dr. Christensen noted that A.L.

was thin, but he did not identify any abnormal finding.

Dr. Christensen did note that A.L. complained of anxiety.

Because of A.L. ' s complaints, however, Dr. Christensen focused

his examination on A.L. ' s left knee an d lower back.

9 . Dr. Christensen observed scars on A.L. ' s left knee,

which confirmed the multiple surgeries that A.L. reported, and

he also noted muscle atrophy of A.L. ' s left leg, a condition

that Dr. Christensen attributed to lack of exercise of the lef t

leg. Dr. Christensen performed several orthopedic tests

targeted at A.L. ' s left knee and lower back, and

Dr. Christensen ' s objective physical examination confirmed

A.L. ' s subjective complaints of pain.

10 . The differential diagnosis noted by Dr. Christ ensen on

the New Patient History Form was multiple failed knee surgeries

with associated lower back pain and lumbar disc syndrome.

Dr. Christensen concluded that A.L. most likely had a lumbar

disc problem because of A.L. ' s abnormal gait resulting from the

knee injury and the resulting pressure on A.L. ' s pelvis.

11 . Dr. Christensen also noted on the New Patient History

Form that A.L. reported that, each month for years, he had taken

60 to 90 80 - milligram tablets of Oxycontin; 400 to 600 30 -

milligram tablet s of Roxicodone; 200 40 - milligram tablets of

Methadone; 60 to 90 2 - milligram tablets of Xanax; and 3 bottles

of Oxifast. Based on these medications, dosages, and

quantities, Dr. Christensen considered A.L. overmedicated, and

he intended, during his treat ment of A.L., to gradually reduce

the amount of medications prescribed for A.L.

12 . Oxycontin and Methadone are pain medications, and

Oxycontin and Roxicodone are trade names for the generic drug

Oxycodone. Oxifast is a liquid form of Oxycodone, and Xana x is

a drug used to treat anxiety. Both Oxycodone and Methadone are

classified as schedule II controlled substances in

section 893.03(2), Florida Statutes, and have a high potential

for abuse; Xanax, which is the trade name for the generic drug

Alprazolam , is classified as a schedule IV controlled substance

in section 893.03(4), with a low potential for abuse relative to

schedule I, II, and III controlled substances.

13 . As part of his initial office visit with

Dr. Christensen, A.L. signed a Pain Manageme nt Agreement, in

which he agreed that, among other things, he would not take any

pain medications not prescribed by Dr. Christensen or seek

treatment from any other doctors in order to obtain pain

medications; prescriptions would be filled at the same phar macy,

which A.L. identified as " Gordons Pharmacy " ; he would take the

medications prescribed in the manner indicated on the label; he

agreed to random urine drug tests; and he understood he would be

discharged by Dr. Christensen if he failed to abide by the Pain

Management Agreement. Dr. Christensen went over this agreement

with A.L. during this initial office visit, and he emphasized

that the agreement was a legal document that, if breached, would

result in A.L. ' s being discharged as Dr. Christensen ' s pati ent.

14 . In his typed notes for A.L. ' s February 12, 2007,

office visit, Dr. Christensen stated:

Subjective: Mr. [L] indicated on his first

visit today that he is feel constant severe

pain in his left knee causing him to limp

which refers pain to the lowe r back. Mr. L

additionally reports restricted movement

pain localized in the right lumbar, left

lumbar, right lower lumbar area, and left

lower lumbar area. Mr. [L] stated that for

years he is made fairly comfortably by

taking pain pills but his low back pain is a

lot more uncomfortable due to bending,

driving, lifting, and standing. He also

stated today that he is experiencing

constant severe pain in the area of the left

knee joint and related he has had 7 failed

knee surgeries since he was 13 years old .

Mr. [L] additionally made particular comment

about stiffness, restricted movement, and

inflexibility pain localized in the left

kneecap. Mr. [L] ' s knee joint pain feels

worse due to bending, standing, and walking.

He states that taking pain pills redu ces the

severity of the pain.

Dr. Christensen also noted in his typed notes that A.L. rated

the level of knee joint and low back pain at nine on a scale of

one to ten; Dr. Christensen ' s handwritten notes indicate that

A.L. rated the level of pain at " 10 " .

15 . Dr. Christensen ' s assessment, as reflected in his

typed notes, was that A.L. showed a persistent chronic

symptomatology; that is, Dr. Christensen considered A.L. ' s knee

and lower back pain to be a chronic and stable condition, with

no hope of improv ement given that A.L. rejected additional

surgery on his left knee as an option.

16 . Dr. Christensen also requested at the February 12,

2007, office visit that A.L. provide him with any MRI reports or

other radiologic studies as soon as possible, and A.L. provided

several radiological consultation reports the day after his

initial office visit. The reports included an MRI of A.L. ' s

left knee done on or about April 1998; an MRI of A.L. ' s

lumbosacral spine done on or about December 2000; an MRI of

A.L. ' s le ft knee done on February 9, 2001; an MRI of A.L. ' s left

knee done on August 23, 2002; and a radiological study of A.L. ' s

cervical spine and a CT scan of A.L. ' s brain in April 2006.

Dr. Christensen reviewed the reports and confirmed that A.L. ' s

diagnosis w as an osteochondral defect of his left knee, most

likely from a sports injury.

17 . Dr. Christensen did not order additional diagnostic

studies of A.L. ' s knee and lower back because he concluded, as a

chiropractic orthopedist and based both on his objectiv e

findings from the physical examination of A.L. and on his review

of the radiological reports, that A.L. ' s injury would not get

better on its own; that additional diagnostic tests would show

only that A.L. ' s condition had gotten worse; and that the

result s of additional diagnostic tests would not change his

diagnosis or treatment of A.L.

18 . The treatment plan for A.L. that Dr. Christensen

outlined in his typed notes is as follows:

One month appointment is scheduled for the

patient. Pain medication that he was taking

was reviewed and a decreased amount of pain

medicine was prescribed. He was given a

book on Subutex/Suboxone. I covered our

pain management agreement, cautioned of side

effects, addiction, health concepts,

physical therapy, patient is too y oung for

knee replacement, etc. Our plan is to

reduce the patients [sic] present intake of

pain meds . . . to a lessor [sic] amount

each month as we are able.

19 . Dr. Christensen believed that A.L. was taking too much

pain medication. He wanted to help A.L. undo the damage that

had been done by the excessive pain medications that

Dr. Christensen believed had been prescribed for A.L., and

Dr. Christensen planned to reduce the amount gradually to a more

appropriate level of medication.

20 . Accordingly, o n February 12, 2007, Dr. Christensen

wrote A.L. prescriptions for 60 40 - milligram tablets of

Methadone, with instructions to take one tablet two times per

day; 300 30 - milligram tablets of Roxicodone, with instructions

to take two tablets five times per day ; and 60 2 - milligram

tablets of Xanax, with instructions to take one tablet two times

per day. Based on the quantities and dosages of medications

that A.L. reported he was taking as of February 12, 2007,

Dr. Christensen eliminated the prescriptions for Ox ycodone and

Oxifast and significantly reduced the number of 30 - milligram

Roxicodone tablets and 40 - milligram Methadone tablets A.L. could

take each month.

21 . Dr. Christensen prescribed Xanax for A.L. because A.L.

reported to Dr. Christensen that he had a nxiety; because

Dr. Christensen observed that he was anxious during the office

visit and knew that pain could cause anxiety; and because A.L.

reported to Dr. Christensen that he had been taking Xanax prior

to February 12, 2007. Although Dr. Christensen pr escribed less

Xanax for A.L. than A.L. reported that he had been taking,

Dr. Christensen did not want to A.L. to stop taking Xanax

abruptly because A.L. could have seizures and die.

22 . The prescriptions written for A.L. by Dr. Christensen

significantly d ecreased the amount of pain medication A.L. was

reportedly taking prior to February 12, 2007, but

Dr. Christensen was satisfied that the prescriptions would

provide a sufficient amount of medication to control A.L. ' s

pain.

23 . Dr. Christensen felt that he could not refuse to

prescribe pain medications for A.L. on February 12, 2007,

because, once a patient has been on pain medications for years,

as A.L. reportedly had, stopping the pain medications abruptly

could result in very severe withdrawal symptoms. In addition,

Dr. Christensen was concerned that, if he did not prescribe pain

medications for A.L., A.L. would not continue his treatment with

Dr. Christensen.

24 . As part of his treatment plan, Dr. Christensen also

discussed with A.L. on February 12, 200 7, health concepts such

as improving his diet, getting exercise, considering physical

therapy, setting goals, and increasing spiritual awareness. In

addition, he gave A.L. information on Suboxone, a drug used

primarily to prevent withdrawal symptoms when the amount of

opioids such as Roxicodone is significantly reduced. Although

A.L. was not interested in discussing Suboxone at the

February 12, 2007, office visit, Dr. Christensen intended to

continue discussing the drug with A.L. at subsequent office

visi ts because Dr. Christensen ' s ultimate plan was to wean A.L.

off of opioids completely.

25 . A.L. continued treatment with Dr. Christensen until

June 29, 2007, seeing Dr. Christensen on March 12, 2007;

April 10, 2007; May 7, 2007; June 2, 2007; and June 29, 2007.

As recorded in Dr. Christensen ' s typed notes, A.L. complained at

each office visit of " constant severe pain " in his lower back

and his left knee area, with restricted movement in the lower

back area and " stiffness, restricted movement, and inflexib ility

pain localized in the left kneecap. " At each office visit, A.L.

rated his knee and/or lower back pain at nine on a scale of one

to ten, except that, at the office visit on May 7, 2007, A.L.

rated his knee joint pain at eight on a scale of one to ten .

26 . Dr. Christensen reviewed A.L. ' s systems at each office

visit and conducted a physical examination focused on A.L. ' s

left knee and back. Dr. Christensen ' s assessment of A.L. ' s

status at each office visit was that his condition was chronic

and/or sta ble.

27 . At A.L. ' s March 12, 2007, Dr. Christensen prescribed

60 40 - milligram tablets of Methadone, with instructions to take

one tablet two times per day; 300 30 - milligram tablets of

Roxicodone, with instructions to take two tablets five times per

day; a nd 60 2 - milligram tablets of Xanax, with instructions to

take one tablet two times per day.

28 . In his handwritten notes of the March 12, 2007, office

visit, Dr. Christensen noted that A.L. was stable on the pain

medications prescribed. On March 12, 2007 , A.L. also completed

a Pain Outcomes Profile, in which he rated his pain generally as

five or six on a scale of one to ten; A.L. rated his level of

anxiety as seven on a scale of one to ten.

29 . In his handwritten notes of the April 10, 2007, office

visi t, Dr. Christensen stated that he had a long discussion with

A.L. about weaning him off of the pain medications and

developing goals for doing so. Dr. Christensen drew a graph in

his notes of the April 10, 2007, office visit to illustrate his

discussion w ith A.L. about taking one 30 - milligram Roxicodone

ten times at a time instead of two. Dr. Christensen noted that

A.L. wanted to take the Roxicodone tablets more often than ten

times per day, and Dr. Christensen explained to A.L. that he

needed to take eno ugh pain medication to control his pain but

not enough that he would go into a state of euphoria because

that would lead to addiction.

30 . Dr. Christensen expanded on his point about weaning

A.L. off of the large dose of Roxicodone in his typewritten

note s of the April 10, 2007, office visit:

I explained the concept of 2 roxicodone ' s

[sic] (60 mg) verse [sic] 30 mg taken more

often. 2 tabs can cause excess, waste,

build tolerance and the patient will run out

of meds. Taking the roxicone [sic] 30 mg

table ts one at a time will allow the patient

to dose himself better, decrease tolerance,

reduce waste, laste [sic] longer. Less pain,

and ultimately take less pain meds. I

showed him how 240 roxies would provide more

pain relief than 300 roxies if taken 1 at a

time more often then [sic] taking 2 or more

at a time which is how the patient was

taking them.

31 . On April 10, 2007, Dr. Christensen prescribed 60

40 - milligram tablets of Methadone, with instructions to take one

tablet two times per day and 60 2 - m illigram tablets of Xanax,

with instructions to take one tablet two times per day.

Dr. Christensen also prescribed 300 30 - milligram tablets of

Roxicodone, but he instructed A.L. to take one tablet ten times

per day rather than two tablets five times per d ay.

32 . A.L. completed a Pain Outcomes Profile at the

April 10, 2007, office visit, and he rated his pain level

generally at five on a scale of one to ten; A.L. rated his level

of anxiety at seven on a scale of one to ten.

33 . A.L. also signed an A1A Hea lth & Wellness Clinic

Patient Informed Consent and Notice of Material Risks for

Treatment of Intractable Pain with Controlled Substances on

April 10, 2007, in which A.L. confirmed that Dr. Christensen had

recommended and A.L. had requested treatment with o pioid pain

medication. By signing the form, A.L. also confirmed that he

and Dr. Christensen had discussed alternative therapies,

including drug cessation treatment using Suboxone and potential

side effects and risks of controlled substances.

34 . At A.L. ' s next office visit, on May 7, 2007,

Dr. Christensen prescribed 60 40 - milligram tablets of Methadone,

with instructions to take one tablet two times per day and 60 2 -

milligram tablets of Xanax, with instructions to take one tablet

two times per day. Dr. C hristensen decreased A.L. ' s

prescription for Roxicodone from 300 30 - milligram tablets to

240 30 - milligram tablets, with instructions to take one tablet

eight times per day. Dr. Christensen also noted in his

typewritten notes that A.L. refused physical the rapy and that

Suboxone/Subutex was discussed with A.L. but that A.L. indicated

that he was " not at all interested. "

35 . At A.L. ' s June 2, 2007, office visit, Dr. Christensen

further reduced to 210 the number of 30 - milligram Roxicodone

tablets he prescribe d for A.L., and he instructed A.L. to take

one tablet seven times per day. Dr. Christensen noted in the

Follow Up Visit form that he completed on June 2, 2007, that

A.L. was not happy about the decrease in the number of

Roxicodone tablets and complained t hat he would be in pain.

Dr. Christensen noted that he explained again that the goal was

to get A.L. drug - free. Dr. Christensen also discussed

additional knee surgery as an option, but he noted that A.L.

emphatically refused further surgery.

36 . Dr. Chr istensen included on the Follow Up Visit form

for the June 2, 2007, office visit a notation that states in

part that A.L. brought with him a " Drug Class II w/o Script (it

was meds prescribed by in wrong bottle.). " There is no further

explanation or mentio n of this in either Dr. Christensen ' s

handwritten notes or typewritten notes for the June 2, 2007,

office visit.

37 . A.L. ' s final office visit to Dr. Christensen was on

June 29, 2007. Dr. Christensen noted on the Follow Up Visit

form that A.L. complained of knee pain that was " unbearable " at

times. Dr. Christensen also noted that A.L. was experiencing

increased lower back pain because he was walking with a limp.

38 . Dr. Christensen again decreased to 180 the number of

30 - milligram Roxicodone tablets he prescribed for A.L., with one

tablet to be taken every six hours. Dr. Christensen noted:

" Patient will be underdosed but it was explain [sic] the

importance of Ř Roxi More H 2 O, reviewed [pain management]

contract & goals of Ř meds over time. " According to the notes

on the Follow Up Visit form, Dr. Christensen intended to let

A.L. stabilize at 180 30 - milligram Roxicodone tablets per month

and to talk with A.L. again about beginning Suboxone.

39. Dr. Christensen believed that the amount of

medications tha t A.L. claimed to be taking at the first office

visit on February 12, 2007, was clearly excessive, but he

believed that A.L. was telling the truth. Although doubts about

A.L. ' s truthfulness regarding his medications crossed

Dr. Christensen ' s mind, he chos e to believe A.L. was telling the

truth for several reasons.

40 . First, Dr. Christensen believed that a physician must

assume that a patient is telling the truth, especially a complex

patient like A.L., unless there is an objective reason for

doubting the patient ' s veracity.

41 . Second, Dr. Christensen considered A.L. to be a model

patient; he was clean, polite, fully alert, and competent. In

addition, A.L. continued to keep his appointments with

Dr. Christensen even though Dr. Christensen was decreasing the

amount of Roxicodone he prescribed for A.L. each month.

42 . Third, Dr. Christensen was aware from his physical

examinations of A.L. and from A.L. ' s medical history that A.L.

had long - standing problems with his knee that caused him pain.

A.L. reporte d that he had been on pain medication for

approximately ten years, and, even though Dr. Christensen

thought the amount of medications A.L. reported he was taking at

his first office visit with Dr. Christensen on February 12,

2007, was excessive, Dr. Christ ensen thought that A.L. could

conceivably be taking the amount of pain medications he reported

because, over time, A.L. probably had built up a tolerance for

the pain medications and needed to take more of the medication.

Dr. Christensen was concerned abo ut the amount of pain

medication A.L. reportedly was taking, however, and, therefore,

one of Dr. Christensen ' s goals for A.L. ' s treatment was to

reduce the amount of pain medications A.L. was taking and,

eventually, to wean him off of pain medications enti rely.

43 . Fourth, an incident occurred early in his relationship

with A.L. that made Dr. Christensen doubt A.L. ' s veracity, but

this assessment was proven wrong. Shortly after his first

office visit on February 12, 2007, A.L. returned to

Dr. Christensen ' s office and asked for a replacement

prescription for Roxicodone, explaining that the prescription

was in the pocket of his jeans and that the prescription had

been damaged when his mother washed the jeans. Dr. Christensen

thought that A.L. was simply see king an additional amount of the

pain medication. Dr. Christensen told A.L. he would have to

bring in the damaged prescription, but Dr. Christensen doubted

that he would do so. A.L. brought in the prescription, which

had obviously been damaged, and Dr. C hristensen felt badly

because he had misjudged A.L. He taped the damaged prescription

in A.L. ' s medical file to remind himself that he should not

prejudge his patients.

44 . Even though A.L. had consented to urine drug tests in

the Pain Management Agreeme nt he signed on February 12, 2007,

Dr. Christensen did not order A.L. to submit to a urine

toxicology screening test on his initial office visit, as a

condition of Dr. Christensen ' s taking him on as a patient, nor

did Dr. Christensen order A.L. to submit t o a random urine

toxicology screening test during the time A.L. was

Dr. Christensen ' s patient. Given the extremely large amount of

pain medications A.L. reported to Dr. Christensen that he had

been taking prior to his first office visit on February 12,

20 07, and Dr. Christensen ' s concern that A.L. was overmedicated,

Dr. Christensen should have considered asking A.L. to submit to

a urine toxicology screening test as provided in the Pain

Management Agreement.

45 . Even if Dr. Christensen had administered one or more

urine toxicology screening tests to A.L., however, the results

of the test would have revealed only the types of drugs in

A.L. ' s system; that is, the urine toxicology screening test

could have confirmed that A.L. was taking the medications that

he reported to Dr. Christensen on February 12, 2007, and would

have identified any illicit drugs he was taking at the time of

the test; it would not, however, have provided any information

on the quantities of drugs in A.L. ' s system and, therefore,

would not have confirmed the quantities of drugs A.L. reported

to Dr. Christensen that he was taking at the time of his first

office visit.

Summary and findings of ultimate fact

46 . A few words of explanation are necessary before

proceeding with the analysis of the evidence in this case.

Given A.L. ' s tragic death in July 2007, it is difficult for all

concerned in this case to restrict their analysis of the

evidence to those facts of which Dr. Christensen was aware

during the time he treated A.L., yet it is essen tial that the

evidence be viewed from this perspective. It became apparent

during the course of this hearing that A.L. did not disclose

certain matters to Dr. Christensen that might have changed the

course of Dr. Christensen ' s treatment of A.L. These mat ters are

irrelevant to the issues presented in the Department ' s

Administrative Complaint; they are not part of the record in

this case; and they have not, therefore, been considered in the

preparation of this Recommended Order.

Counts One and Three through Eight

47 . The evidence presented by the Department is not

sufficient to establish with the requisite degree of certainty

that Dr. Christensen prescribed Roxicodone, Methadone, or Xanax

for A.L. inappropriately or in excessive amounts or that he

breached the standard of care in prescribing these medications.

The Department ' s expert witness testified that Dr. Christensen

violated the standard of care because the combination,

quantities, and dosages of the medications Dr. Christensen

prescribed for A.L. wer e excessive. The Department ' s expert

witness did not, however, identify the standard of care that

would have governed Dr. Christensen ' s treatment of A.L., nor did

he provide a clear explanation of the basis for his opinion that

the combination, quantities , and dosages of medications

Dr. Christensen prescribed for A.L. were excessive, especially

considering the combination, quantities, and dosages of

medications that A.L. reported to Dr. Christensen that he was

taking at the time of his first office visit w ith

Dr. Christensen.

48 . Rather, the Department ' s expert witness repeatedly

stated his opinion, based on " his knowledge of pharmacology and

more than 20 years[ ' ] experience, " 5 that the prescriptions

written by Dr. Christensen, if taken by A.L. as directed , would

be " 100 percent lethal, 100 percent of the time. " 6 The

Department ' s expert witness gave no cogent explanation for his

opinion that the combination, quantities, and dosages of the

drugs would be 100 percent lethal, 100 percent of the time, 7

which o pinion, in any event, is refuted by the fact that A.L.

was successfully treated by Dr. Christensen with the same

combination of drugs, albeit with decreasing quantities of

Roxicodone, for a period of four and one - half months. 8 In

addition, in formulating his opinion that the quantities and

dosages of the medications Dr. Christensen prescribed for A.L.

were excessive, the Department ' s expert witness apparently did

not consider the possibility that A.L. had, over the years,

developed a tolerance for these me dications. 9

49 . In fact, the Department ' s expert witness did not give

credence to A.L. ' s complaints of pain; he did not believe that

A.L. should have been treated with narcotics for pain; and it

can reasonably be inferred from his testimony that the

Depar tment ' s expert witness would have refused to treat A.L.

The Department ' s expert witness dismissed A.L. ' s complaints of

pain as not credible, stating that " [t]he patient is extremely

young to have any pain complaints. " 10 The Department ' s expert

witness tes tified that, if he had been consulted, he " would have

recommended a trial of spinal cord stimulation " ; that

Dr. Christensen could have " prescribe[d] an appropriate brace

for the knee " ; or that Dr. Christensen might have chosen " to

then make a referral to a n orthopedic surgeon " for surgery on

A.L. ' s knee. 11 The testimony of the Department ' s expert witness

as to the treatment he would have provided to A.L. was

repeatedly conditioned by the word " if " ; if A.L. ' s reported knee

problem were confirmed, and if the Department ' s expert witness

had agreed to treat A.L. In fact, on the basis of the written

medical records alone, the Department ' s expert witness dismissed

A.L. as " a liar and probably a substance abuser and certainly

diverting his medication " and labeled as " outlandish " A.L. ' s

" self reported history of medication and prescription " and his

" claims of being prescribed high dosages and lethal quantities "

of controlled substances. 12

50 . In rendering his opinion that the combination,

quantities, and dosages of the medications Dr. Christensen

prescribed for A.L. were excessive and in violation of the

standard of care, the Department ' s expert witness did not

acknowledge in his testimony that Dr. Christensen considered the

quantities, dosages, and number of differe nt pain medications

that A.L. reported on his first office visit to be excessive;

that Dr. Christensen concluded that A.L. was overmedicated; that

Dr. Christensen ' s treatment plan focused on decreasing the

quantity of medications prescribed for A.L.; that

Dr. Christensen did, in fact, refuse to write A.L. prescriptions

for Oxycodone and Oxifast; that, at A.L. ' s first office visit,

Dr. Christensen wrote prescriptions for Roxicodone and Methadone

for A.L. that were for quantities substantially smaller than

th ose A.L. reportedly was taking; that Dr. Christensen assumed

that A.L. was truthful when he reported that he was taking 60 to

90 two - milligram Xanax; that Dr. Christensen could not eliminate

Xanax from the prescriptions he wrote for A.L. because abrupt

wit hdrawal from Xanax could cause death; that Dr. Christensen

reduced by one - third the number of two - milligram Xanax he

prescribed for A.L.; that Dr. Christensen introduced at A.L. ' s

first office visit the possibility of A.L. ' s using Suboxone to

help in weani ng him off of opioid analgesics such as Roxicodone

and Methadone; that Dr. Christensen steadily decreased the

quantity of Roxicodone he prescribed for A.L., until the amount

was substantially less than the amount A.L. reportedly was

taking at the time of h is first office visit with

Dr. Christensen. By failing to indicate that he considered

these factors in rendering his opinions and by making the broad

and unsupported assertion that the medications prescribed by

Dr. Christensen for A.L. were 100 percent le thal, 100 percent of

the time, the Department ' s expert witness substantially

diminished the credibility of his opinions.

51 . Rather than taking an objective view of the treatment

that Dr. Christensen provided A.L. from February 12, 2007, to

June 29, 2007, the Department ' s expert witness demonstrated

throughout his testimony a disdain for Dr. Christensen as a

physician. This disdain for Dr. Christensen is made

particularly clear when the Department ' s expert witness

attributed to Dr. Christensen a purely ec onomic motive in his

treatment of A.L. The Department ' s expert witness testified

that Dr. Christensen, in common with " most pill mills or

physicians like the subject, " had " a huge economic incentive "

for his treatment of A.L. 13 These statements demonstrat ed a bias

against Dr. Christensen that substantially diminished the

credibility of his testimony, in general, for the following

reasons. First, there was no allegation in the Administrative

Complaint and no evidence in this record to support the

categoriz ation of Dr. Christensen by the Department ' s expert

witness as a physician associated with a " pill mill. " Second,

in reaching his conclusion that Dr. Christensen ' s motivation for

treating A.L. was purely financial, the Department ' s expert

witness assumed, in the absence of even a scintilla of evidence

in this record, that Dr. Christensen required his patients to

pay a substantial amount of cash for each office visit and that

Dr. Christensen was a " dispensing physician, " that is, a

physician who sells drugs as well as prescribing them. 14

Count Two

52 . In Count Two of the Administrative Complaint, the

Department charged Dr. Christensen with violating the standard

of care in four respects, which are discussed in detail below.

A. Failure to diagnose a history of anxiety

53 . The evidence presented by the Department is not

sufficient to establish with the requisite degree of certainty

that Dr. Christensen ' s treatment of A.L. fell below the standard

of care because he failed " to diagnose a history of anxiety to

s upport prescribing Alprazolam. " 15 Dr. Christensen noted on the

New Patient History Form completed during A.L. ' s first office

visit on February 12, 2007, that A.L. reported a history of

anxiety as a psychiatric condition, and A.L. also reported that

he was currently taking Alprazolam, or Xanax. On each of A.L. ' s

subsequent office visits to Dr. Christensen, A.L. reported on

the Pain Outcomes Profile that he had significant feelings of

anxiety, and Dr. Christensen observed that A.L. exhibited

anxious behavior s during his office visits. The Department ' s

expert witness apparently overlooked this information in

Dr. Christensen ' s medical records because he testified that he

could find no justification for prescribing Alprazolam for A.L. 16

B. Failure to order urin e toxicology screening test

54 . The evidence presented by the Department is not

sufficient to establish with the requisite degree of certainty

that Dr. Christensen ' s treatment of A.L. fell below the standard

of care because he failed " to order screening u rine toxicology

to rule out usage of illicit substances or confirm usage of

prescribed medications. " The Department ' s expert witness

identified the standard of care at the times pertinent to this

proceeding as requiring patients to submit to intermittent urine

toxicology screening studies so that the patient wouldn ' t know

when such testing would take place. The Department ' s expert

witness further explained that it was always a matter of

clinical judgment as to when to require a patient to submit to a

urin e toxicology screening study, even to a patient such as

A.L., who had reported taking a large quantity of pain

medications at the time of his first office visit to

Dr. Christensen.

55 . The Department ' s expert witness testified that, given

the amount of pa in medications A.L. reported to Dr. Christensen

that he was taking at the time of A.L. ' s first office visit, a

urine toxicology screening study of A.L. at the first office

visit would be " indicated, " but the Department ' s expert witness

did not testify that Dr. Christensen violated the standard of

care by failing to require A.L. to submit to such a study at

that first office visit or during the time he was treating A.L.

In fact, according to Dr. Christensen ' s expert witness, at the

times pertinent to this p roceeding, it would not be within the

standard of care to require a patient to submit to a urine

toxicology screening study within the first four and one - half

months of treatment. 17

56 . Finally, there is no indication in the record that

Dr. Christensen had any reason to suspect that A.L. was taking

illicit substances; the primary concern Dr. Christensen, and the

Department ' s expert witness, had with respect to A.L. was the

quantity of pain medications he was reportedly taking at the

time of his first office visit. Because a urine toxicology

screening study reveals only the types of substances in the

urine and not the quantity of such substances, a urine

toxicology screening study would not have revealed whether A.L.

was lying about the quantities of pain me dications he reported

to Dr. Christensen on his first office visit, as was concluded

by the Department ' s expert witness; such a study would have

revealed only whether A.L. was, in fact, taking these

substances, a concern that, based on the information avai lable

to him, Dr. Christensen did not have at A.L. ' s first or

subsequent office visits. According to the standard of care

identified by the Department ' s expert witness, Dr. Christensen

did not deviate from this standard of care by using his clinical

judgm ent to decide not to require A.L. to submit to a urine

toxicology screening study.

C. Failing to refer A .L. for treatment for substance

abuse

57 . The evidence presented by the Department is not

sufficient to establish with the requisite degree of ce rtainty

that Dr. Christensen ' s treatment of A.L. fell below the standard

of care because he failed " to refer Patient A.L. to a

psychiatrist and/or addiction specialist and/or rehabilitation

center for substance abuse. " The only mention of

Dr. Christensen ' s failure to refer A.L. to a psychiatrist,

addiction specialist, or rehabilitation center in the testimony

of the Department ' s expert witness was in answer to the question

of the Department ' s counsel: " Would respondent ' s failure to do

so in this case fall below the standard of care? " The

Department ' s expert witness answered: " Given his [A.L. ' s]

claims of previous medication prescription and usage, yes. " 18

The Department ' s expert witness never defined the standard of

care to which he was referring, and hi s opinion, therefore, is

not persuasive on this issue. 19

D. Failure to order diagnostic tests

58 . The evidence presented by the Department is not

sufficient to establish with the requisite degree of certainty

that Dr. Christensen ' s treatment of A.L. fell below the standard

of care because he failed " to order diagnostic tests to justify

the course of treatment for patient A.L. " The Department ' s

expert witness testified that he would " not be prepared to say

that [Dr. Christensen ' s failure to order a diagnos tic test to

justify his course of treatment for A.L. fell below the standard

of care] because there ' s no justification for the course of

treatment regardless of any study or consultation that the

subject could have initiated. " 20 There was no allegation in the

Administrative Complaint that Dr. Christensen violated the

standard of care because there was no justification for the

treatment he provided A.L., and this testimony is irrelevant to

a determination of whether Dr. Christensen should have ordered

additi onal diagnostic tests for A.L.

59 . The Department ' s expert witness did, however, go on to

state that, under the circumstances of this case, " a reasonable

and prudent physician . . . should have, at the very least,

ordered an MRI study of the knee, [and] p erformed a

comprehensive physical examination of the effected [sic] joint "

and that " many physicians would have ordered an MRI of the knee

or at the very least, perform [sic] a very detailed and well

documented physical examination and then written down hi s

treatment plan and the justification for his treatment plan. " 21

To the extent that this testimony constitutes the articulation

of the standard of care by the Department ' s expert witness, the

opinion of the Department ' s expert witness that Dr. Christensen

fell below this standard of care is unsupportable for two

reasons.

60 . First, the Department ' s expert witness incorrectly

identified the report of the MRI of A.L. ' s knee done in 1998 as

the only MRI report in Dr. Christensen ' s medical records. The

Depar tment ' s expert witness overlooked the report in

Dr. Christensen ' s medical records of the post - surgical MRI done

of A.L. ' s left knee on August 23, 2002, four and one - half years

before A.L. ' s first office visit to Dr. Christensen in

February 2007. Therefore , the opinion of the Department ' s

expert witness that Dr. Christensen fell below the standard of

care for failing to order an MRI is not persuasive because it is

based on the incorrect assumption that the most recent MRI of

A.L. ' s knee was done nine years prior to his first office visit

with Dr. Christensen.

6 1 . Second, Dr. Christensen did a comprehensive physical

examination of A.L. ' s left knee joint. Dr. Christensen, aided

by his background in chiropractic orthopedics, performed several

tests on A.L. ' s left knee, which, together with the post -

operative MRI done in August 2002, led him to the conclusion

that, if anything, the condition of A.L. ' s left knee would not

have improved, and probably would have worsened, over the

intervening years. Dr. Christens en documented the results of

the examination in the typed notes he prepared on February 12.

2007, and set out his diagnosis and treatment plan for A.L.

Therefore, the opinion of the Department ' s expert witness that

Dr. Christensen fell below the standard of care for failing to

conduct a comprehensive physical examination of A.L. ' s left knee

and to document the results of the examination and the treatment

plan for A.L. is unpersuasive because the Department ' s expert

witness apparently overlooked this inform ation in A.L. ' s medical

records. 22

CONCLUSIONS OF LAW

62 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

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

Florida Statutes (2010).

6 3 . The Department seeks to impose penalties against

Dr. Christensen that include suspension or revocation of his

license and/or the imposition of an administrative fine.

Therefore, the Department has the burden of proving the

violations alleged in the Ad ministrative Complaint by clear and

convincing evidence. Dep ' t of Banking & Fin ., Div. of Sec. &

Investor Prot . v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); Pou v.

Dep ' t of Ins . & Treasurer , 707 So. 2d 941 (Fla. 3d DCA 1998);

and § 120.57(1)(j), Fla. Stat. (2010) ( " 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. " ).

64 . " Clear and conv incing " evidence was described by the

court in Evans Packing Co. v . Dep ' t of Agric. & Consumer Serv. ,

550 So. 2d 112, 116, n. 5 (Fla. 1st DCA 1989), as follows:

. . . [C]lear and convincing evidence

requires that the evidence must be found to

be credible; the facts to which the

witnesses testify must be distinctly

remembered; the evidence must be precise and

explicit and the witnesses must be lacking

in confusion as to the facts in issue. The

evidence must be of such weight that it

produces in the mind of the trier of fact

the firm belief or conviction, without

hesitancy, as to the truth of the

allegations sought to be established.

Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983).

65 . Judge Sharp, in her dissenting opinion in Walker v.

Fla. D ep ' t of Bus. & Prof ' l Regulation , 705 So. 2d 652, 655

(Fla. 5th DCA 1998)(Sharp, J., dissenting), described clear and

convincing evidence as follows:

Clear and convincing evidence requires more

proof than preponderance of evidence, but

less than beyond a r easonable doubt. In re

Inquiry Concerning a Judge re Graziano ,

696 So. 2d 744 (Fla. 1997). It is an

intermediate level of proof that entails

both qualitative and quantative [sic]

elements. In re Adoption of Baby E.A.W. ,

658 So. 2d 961, 967 (Fla. 1995 ), cert.

denied , 516 U.S. 1051, 116 S. Ct. 719, 133

L. Ed. 2d 672 (1996). The sum total of

evidence must be sufficient to convince the

trier of fact without any hesitancy. Id.

It must produce in the mind of the trier of

fact a firm belief or conviction as to the

truth of the allegations sought to be

established. Inquiry Concerning Davie , 645

So. 2d 398, 404 (Fla. 1994).

66 . Section 458.331(2), Florida Statutes, provides that

the Board may impose discipline on a licensed physician for

violating any pro vision of section 458.331(1). In its eight -

count Administrative Complaint, the Department has charged

Dr. Christensen with violations of sections 458.331(1)(q) and

458.331(1)(t), Florida Statutes, which provide:

(q) Prescribing, dispensing, administering ,

mixing, or otherwise preparing a legend

drug, including any controlled substance,

other than in the course of the physician ' s

professional practice. For the purposes of

this paragraph, it shall be legally presumed

that prescribing, dispensing, administe ring,

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) Notwithstanding s. 456.072(2) but as

specified in s. 456.50(2):

1. Committing medical malpractice as

defined in s. 456.50. The board shall give

great weight to the provisions of s. 766.102

when enforcing thi s paragraph.

Medical malpractice shall not be construed

to require more than one instance, event, or

act.

* * *

Nothing in this paragraph shall be construed

to require that a physician be incompetent

to practice medicine in order to be

disciplined pursu ant to this paragraph. A

recommended order by an administrative law

judge or a final order of the board finding

a violation under this paragraph shall

specify whether the licensee was found to

have committed " gross medical malpractice, "

" repeated medical malpractice, " or " medical

malpractice, " or any combination thereof,

and any publication by the board must so

specify.

67 . With respect to section 458.331(1)(t),

section 456.50(1)(g), Florida Statutes, defined medical

malpractice in pertinent part as foll ows: "' Medical

malpractice ' means the failure to practice medicine in

accordance with the level of care, skill, and treatment

recognized in general law related to health care licensure. "

Section 766.102(1), Florida Statutes, provided in pertinent

part: " The prevailing professional standard of care for a given

health care provider shall be that level of care, skill, and

treatment which, in light of all relevant surrounding

circumstances, is recognized as acceptable and appropriate by

reasonably prudent si milar health care providers. "

68 . Based on the findings of fact herein, the Department

has failed to prove by clear and convincing evidence that

Dr. Christensen prescribed legend drugs, including controlled

substances, for A.L. in excessive or inappropria te quantities or

that Dr. Christensen committed medical malpractice in his care

and treatment of A.L. The Department has, therefore, failed to

prove by clear and convincing evidence that Dr. Christensen

violated sections 458.331(1)(q) and 458.331(1)(t).

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Medicine enter a final

order dismissing the Administrative Complaint filed against John

P. Christensen, M.D., by the Department of Health.

D ONE AND ENTERED this 28th day of June , 2011, in

Tallahassee, Leon County, Florida.

S

___________________________________

Patricia M. Hart

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

this 28th day of June, 2011.

ENDNOTES

1 / All references herein to the Florida Statutes are to the 2006

edition unless otherwise indicated.

2 / It is noted that, in paragraph 16 of its Admin istrative

Complaint, the Department alleged that A.L. died on or about

July 2, 2007, "from combined drug toxicity." No evidence was

presented to support this allegation, and the parties did not

include this fact in the facts to which the parties stipulate d

in the Joint Pre - Hearing Stipulation. It, nonetheless, appears

that the fact of A.L.'s death is undisputed. Significantly, the

Department did not allege in its Administrative Complaint that

Dr. Christensen was responsible in any way for A.L.'s death.

3 / In his Order on Respondent's Motion to Strike, Administrative

Law Judge John G. Van Laningham held that the facts alleged in

Counts Two through Eight of the Amended Administrative

Complaint, even though set forth as multiple acts of medical

malpractice , constitute a single "incident" of medical

malpractice, as that term is defined in section 456.50(1)(d)2.,

Florida Statutes.

4 / Respondent's Exhibit 10 is a Verified Opinion of Medical

Expert Pursuant to Florida Statute 766.203(3) attested to by

Gregory B. Collins, M.D., and obtained as part of In Re: Presuit

Investigation of Claim Pursuant to Florida Statutes Chapter 766,

regarding a lawsuit that A.L.'s personal representative sought

to file against Dr. Christensen. The Department objected to

Responden t's Exhibit 10 on the grounds of hearsay and relevance,

and that exhibit was received into evidence subject to the

limitations on the use of hearsay found in section 120.57(1)(c),

Florida Statutes 2010 (" Hearsay evidence may be used for the

purpose of supp lementing or explaining other evidence, but it

shall not be sufficient in itself to support a finding unless it

would be admissible over objection in civil actions. " ) .

5 Transcript, volume 1, at page 39.

6 / Id. at pages 38, 46 - 47, and 94.

7 / The only attempt the Department's expert witness made to

explain the basis for his opinion that the combination of drugs

prescribed by Dr. Christensen would be 100 percent lethal,

100 percent of the time, is as follows:

. . . [A] reasonable and prudent physician

would not combine Xanax, Alprazolam, with

high dose opioid therapy because there is a

synergy between the two medications and that

would very likely result in the patient's

death.

In other words, the cause of the

respiratory repression associated wit h

opioid analgesics, namely Oxycodone

[Roxicodone] and Methadone in this case,

when combined with a respiratory repression

that can be associated with Alprazolam,

there is a synergy where one plus one equals

three and that's why very often this

combination will result in death.

Id. at page 41. This "explanation" is simply insufficient to

establish with any degree of certainty the soundness of the

Department's expert witness's opinions that the prescriptions

were excessive and the treatment without justifi cation.

8 / It is noted that, although the medical records of Dr. Swartz

were not received into evidence because they were not relevant

to the charges against Dr. Christensen, th ere was testimony that

another pain management physician was treating A.L. an d writing

him prescriptions for pain medications during the time he was

being treated by Dr. Christensen. Dr. Christensen, however, was

not aware during the time he treated A.L. that A.L. was seeing

another pain management physician, and there was no alle gation

in the Administrative Complaint, and no evidence presented at

the hearing, that Dr. Christensen was in any way responsible for

A.L.'s death.

9 / The Board of Medicine recognizes the potential that persons

taking opioid analgesics such as the pain m edications prescribed

by Dr. Christensen for A.L. will develop a tolerance for the

medications and that it will sometimes be necessary "to increase

the dose of opioid to achieve the same level of analgesia."

Fla. Admin. Code R. 64B8 - 9.013(2)(c)(effective October 19,

2003); see also R. 64B8 - 9.013(1)(b)("Physicians should recognize

that tolerance and physical dependence are normal consequences

of sustained use of opioid analgesics . . . ) and R. 64B8 -

9.013(1)(c), (f), and (i).

10 / Transcript, volume 1, at p age 32.

11 / Id. at pages 46 and 102 - 03. The Department's expert witness

refused to agree on cross - examination that pain medications

would have been indicated for A.L. given the condition of his

knee, but, when reminded of his answer to this question duri ng

his deposition, the Department's expert witness acknowledged

that "opioid analgesics could be part of the treatment plan" for

A.L. Id. at pages 102 - 03.

12 / Id. at pages 36 and 37.

13 / Id. , at page 51.

14 / Id.

15 / This meaning of this allegation is unclear. A "diagnosis"

implies that a physician has made an independent determination

of the nature of a medical or, in this case, a mental condition;

"history," as used in the context of this allegation, implies

that the patient is providing the informat ion regarding a

medical or mental condition already diagnosed by another

physician.

16 / It should be noted that, in addition to overlooking the

notations in Dr. Christensen's medical records that A.L.

reported that he suffered from anxiety, the Department 's expert

witness testified that he would not have prescribed Alprazolam,

or Xanax, for anxiety because Xanax is "simply not the correct

treatment for anxiety"; Transcript, volume 1,, at page 105; this

contradicted his earlier testimony that the only legit imate

medical use of Xanax was to treat anxiety and panic disorder.

Id. at page 40. The Department's expert witness also testified

that his practice was "to avoid prescribing anti - depressants and

anti - anxiety medications." Id. at page 106.

17 / The stan dards for use of controlled substances for the

treatment of pain established by the Board of Medicine that were

effective in 2007 provided the following:

If the patient is determined to be at high

risk for medication abuse or have a history

of substance a buse, the physician should

employ the use of a written agreement

between physician and patient 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).

As noted in the findings of fact, Dr. Christensen required A.L.

to sign such an agreement, and Dr. Christensen explained the

terms of the agr eement to A.L. in detail.

18 / Transcript, volume 1, at page 43.

19 / The Board of Medicine has defined "substance abuse" in

Florida Administrative Code Rule 64B8 - 9.013(2)(h) as follows:

"For the purpose of this rule, 'substance abuse' is defined as

the u se of any substance for non - therapeutic purposes of use of

medication for purposes other than those for which it is

prescribed." The Department presented no evidence that A.L. was

taking the medications prescribed by Dr. Christensen for a

purpose other th an to control the pain in his back and knee, and

there was nothing in the medical records of Dr. Christensen that

would indicate that A.L. was abusing those medications,

especially in light of Dr. Christensen's consistent reduction of

the amount of Roxicod one he prescribed for A.L.

20 / Transcript, volume 1, at page 45 - 46. The Department's

expert witness refused a second time to state an opinion that

Dr. Christensen violated the standard of care by not ordering

diagnostic tests:

Q. . . . Would the standa rd of care have

required the respondent to have ordered

additional diagnostic tests to justify his

course of treatment of this patient.

A. As I said before, there is no

justification for the course of treatment

the subject proceeded with.

Id. at page 47 .

21 / Id. at pages 46 and 47 - 48.

22 / It is noted that the Department's expert witness did not

criticize the quality of Dr. Christensen's examination of A.L.'s

knee at any point in his testimony.

COPIES FURNISHED:

Marc P. Ganz, Esquire

McGrane, Nosich & Ganz, P.A.

75 Valencia, Suite 1100

Coral Gables, Florida 33134

Greg S. Marr, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Larry McPherson, Jr., Executive Director

Board of Medicine

Department of Heal th

4052 Ba l d Cypress Way

Tallahassee, Florida 32399

Nicholas Romanello, General Counsel

Department of Health

4052 Ba l d Cypress Way

Tallahassee, Florida 32399

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 this case.