10-010229PL Department Of Health, Board Of Medicine vs. Algirdas Krisciunas, M.D. Status: Closed Recommended Order on Monday, June 27, 2011.

Summary: Respondent was tried, found guilty, and convicted of crimes which directly relate to the practice of medicine; accordingly, it is recommended that Petitioner revoke Respondent's license and impose a $10,000 fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE , )

)

Petitioner, )

) Case No. 10 - 10229 PL

vs. )

)

ALGIRDAS DR. KRISCIUNAS , M.D. , )

)

Respondent. )

)

RECOMME NDED ORDER

This case came before Administrative Law Judge John G. Van

Laningham for final hearing by video teleconference and

simultaneous telephone conference on April 18, 2011, at sites in

Tallahassee and Lauderdale Lakes, Florida, with Respondent

part icipating by t elephone from Pensacola .

APPEARANCES

For Petitioner: Laura L. Glenn, Esquire

Diane K. Kiesling, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallaha ssee, Florida 32399 - 3265

For Respondent: Algirdas Krisciunas , M.D., p ro s e

Legal Mail

Inmate No. 73639 - 004

Federal Prison Camp

Post Office Box 3949

Pensacola, Florida 32516

STATEMENT OF THE ISSU ES

The primary issue in this case is whether the crime s of

which Respondent was convicted are directly related to the

practice of medicine. If so, it will be necessary to determine

an appro priate penalty.

PRELIMINARY STATEMENT

On September 1 0 , 2010, Petitioner Department of Health

("Department") issued an Administrative Complaint against

Respondent Algirdas Krisciunas , M.D. 1 The Department alleged

that Dr. Krisciunas had been convicted of crime s which directly

relate to the practice of medicine. Dr. Krisciunas timely

requested a formal hearing, and on November 16, 2010, the

Department filed the pleadings with the Division of

Administrative Hearings, where an Administrative Law Judge was

assigned to preside in the matter.

The final hearing was to have been held on February 3,

2011. O n January 18, 2011, however, the Department filed an

emergency motion to place the case in abeyance because

Dr. Krisciunas was being moved to a diffe rent federal prison and

would be unavailable on the original hearing date. The final

hearing was rescheduled for April 18, 2011 .

The final hearing took place on April 18, 2011, with both

parties present. The Department called as its sole witness

Detecti ve William Schwartz of the Broward County Sheriff's

Office . In addition, Petitioner ' s Exhibits 1 through 3 were

received in evidence without objection.

Dr. Krisciunas testified on his own behalf and presented no

other witnesses. He did not offer any exh ibits.

The one - volume final hearing transcript was filed on

May 17, 2011, and Proposed Recommended Orders were due on

May 27, 2011. The Department's Proposed Recommended Order and

Dr. Krisciunas's post - hearing submission have been considered .

Unl ess otherwise indicated, citations to the Florida

Statutes refer to the 20 1 0 Florida Statutes.

FINDINGS OF FACT

1 . At all times relevant to this case, Respondent Algirdas

Krisciunas, M.D., was licensed to practice medicine in the s tate

of Florida . Hi s office was located in Broward County.

2. Petit ioner has regulatory jurisdiction over licensed

physicians such as Dr. Krisciunas. In particular, the

Department is authorized to file and prosecute an administrative

complaint against a physician, as it h as done in this instance,

when a panel of the Board of Medicine has found that probable

cause exists to suspect that the physician has committed a

disciplinable offense. Exercising its prosecutorial authority,

t he Department has charged Dr. Krisciunas wit h one such offense,

namely, being tried and found guilty of a crime which directly

relates to the practice of medicine.

3 . It is an undisputed fact that, on October 13, 2010, in

a case styled United States v. Krisciunas , No. 0:10 - 6007 - CR -

DIMITROULEAS - 0 01, the U.S. District Court for the Southern

District of Florida entered a j udgment of conviction which

adjudicated Dr. Krisciunas guilty of five c ounts of unlawfully

dispensing o xycodone , a narcotic pain medication, and one cou nt

of conspiring to distribu te o xycodone. Based on this

conviction, the court sentenced Dr. Krisciunas to a term of 97

months' incarceration in a federal prison. At the time of the

final hearing in this case, Dr. Krisciunas was serving his

sentence in the custody of the U.S. Bureau of Prisons.

4 . T he crimes of which Dr. Krisciunas was convicted are

directly related to the practice of medicine ÏÏ a fact that

Dr. Krisciunas concedes is true .

5 . Because it is undisputed that Dr. Krisciunas was

convicted of crimes that directly r elate to the practice of

medicine, the conduct which gave rise to Dr. Krisciunas's

conviction is relevant only for the limited purpose of

determining the appropriate penalty to be imposed in this

proceeding. In this regard, the undersigned finds that the

principal events which gave rise to Dr. Krisciunas's conviction

occurred on July 13, 2009; August 6, 2009; and September 9,

2009. On each of these dates, Detective William Schwartz of the

Broward County Sheriff's Office, working undercover, presented

to D r. Krisciu nas as " Bill Rix ." During each visit,

Dr. Krisciunas gave "Bill Rix" prescriptions for o xycodone and

the anxiolytic a lprazolam despite the absence of any legitimate

medical justification for prescribing these medications . "Bill

Rix" (D etective Schwartz) paid Dr. Krisciunas's staff in cash

for the drugs, which he received in Dr. Krisciunas's office at

the conclusion of each visit.

CONCLUSIONS OF LAW

6 . The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuan t to

s ections 120.569, and 120.57(1), Florida Statutes.

7 . A proceeding, such as this one, to suspend, revoke, or

impose other discipline upon a license is penal in nature.

State ex rel. Vining v. Florida Real Estate Comm ' n , 281 So. 2d

487, 491 (Fla. 1973). Accordingly, to impose discipline, the

Department must prove the charges against Dr. Krisciunas by

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

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

933 - 34 (Fla. 1996)(citing Ferris v. Turlington , 510 So. 2d 292,

294 - 95 (Fla. 1987)); Nair v. Dep ' t of Bus . & Pro f ' l Regulation,

Bd. of Medicine , 654 So. 2d 205, 207 (Fla. 1st DCA 1995).

8 . Regarding the standard of proof, in Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court

developed a " workable definition of clear and convincing

evidence " and found that of necessity such a definition would

need to contain " both qualitative and quantitative standards. "

The court held that:

clear 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 testimony

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 a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

Id. The Florida Supreme Court later adopted the Slomowitz

court ' s description of clear and convincing evidence. See In re

Davey , 645 So. 2d 398, 404 (Fla. 1994). The First District

Court of Appeal also has followed the Slomowitz test, adding the

interpretive comment that " [a]lthough this standard of p roof may

be met where the evidence is in conflict, . . . it seems to

preclude evidence that is ambiguous. " Westinghouse Elec. Corp.

v. Shuler Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991),

rev . denied , 599 So. 2d 1279 (Fla. 1992)(citation omitted).

9 . In the Administrative Complaint, the Department charged

Dr. Krisciunas under s ection 458.331(1)(c), Florida Statutes,

which provides in pertinent part as follows:

(1) The following acts constitute grounds

for denial of a license or disciplinary

acti on . . . :

* * *

(c) Being convicted or found guilty of, or

entering a plea of nolo contendere to,

rega r dless of adjudication, a crime in any

jurisdiction which directly relates to the

practice of medicine or to the ability to

practice medicine.

10 . The evidence prove s clearly and convincingly that Dr.

Krisciunas was convicted of crimes that directly relate to the

practice of medicine . Therefore, Dr. Krisciunas is guilty of

the offense described in s ection 458.331(1)(c).

1 1 . The Board of Medi cine imposes penalties upon licensees

in accordance with the disciplinary guidelines prescribed in

Florida Administrative Code Rule 64B8 - 8.001 (2010) . The range

of penalties for a first offense involving s ection 458.331(1)(c)

is set forth in r ule 64B8 - 8.0 01(2 ) as follows:

From probation to revocation or denial of

the license, an administrative fine ranging

from $1,000.00 to $10,000.00, and 50 to 100

hours of community service .

1 2 . 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 p enalties 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 histor y 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, F.S., of the provision of

controlled substanc es 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) Where a licensee has been charged with

violating the standard of care pursuant to

Section 458.331(1)(t), F.S., but the

licensee, who is also the records owner

pursuant to Section 456.057(1), F.S., fails

to keep and/or produce the medical records.

(i) Any other relevant mitigating factors.

1 3 . No mitigating circumstances were shown . On the other

hand, s ubparagraphs (a), (f), and (g) of r ule 64B8 - 8.001(3) set

forth relevant aggravating factors in this case. This is because

on July 13, August 6, and September 9, 2009, Dr. Krisciunas

exposed his " patient " (actually, an undercover dete ctive) and the

public to potential harm by unlawfully dispens ing oxycodone to

someone who did not demonstrate any need for such medication.

Further, Dr. Krisciunas benefitted financially from the sale of

controlled substance s ÏÏ for cash ÏÏ to a patient who d id not

demonstrate any need for them . Finally, Dr. Krisciunas's

criminal conduct involved the provision of controlled substances

for trade, barter, or sale.

1 4 . The Department proposes that Dr. Krisciunas's license

be revoked and that he be required to pay an administrative fine

of $10,000 . This penalty falls within the applicable range of

penalties and is appropriate under the facts and circumstances

of this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

order finding Dr. Krisciunas guilty the offense described in

s ection 458.331(1)(c), Florida Statutes , i.e., being convicted

of a crime that directly rela te s to the practice of medicine .

It is further RECOMM ENDED that the Board of Medicine revoke

Dr. Krisciunas's medical license and impose an administrative

fine of $10,000.

DONE AND ENTERED this 27th day of June , 20 1 1 , in

Tallahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

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 27th day of June , 20 1 1 .

ENDNOTE

1 / Due to a clerical error, Respondent's firs t name was

misspelled in the file of the Division of Administrative

Hearings. The style of this case has been amended to reflect

the correct spelling of Respondent's name.

COPIES FURNISHED :

Laura L. Glenn, Esquire

Diane K. Kiesling, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Algirdas Krisciunas , M.D.

Legal Mail

Inmate No. 73639 - 004

Federal Prison Camp

Post Office Box 3949

Pensacola, Florida 32516

Larry McPherson , Jr., Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

Nicholas W. Rom anello, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Or der. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.