11-000052PL Department Of Health, Board Of Medicine vs. Lowell Anthony Adkins, M.D. Status: Closed Recommended Order on Wednesday, October 26, 2011.

Summary: Respondent was not shown to have violated the applicable level of care in prescribing controlled substances, or to have failed to follow the applicable practice standards, but he failed to keep legible medical records, warranting disciplinary action.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE , )

)

Petitioner, )

) Case No. 1 1 - 00 52 PL

vs. )

)

LOWELL ANTHONY ADKINS , M.D., )

)

Respondent. )

)

RECOMMENDE D ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

August 15 - 16 , 2011, at sites in Tallahassee and Lauderdale

Lakes , Florida .

APPEARANCES

For Petitioner: Shirley L. Bates , Es quire

Sharmin Royette Hibbert, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Jeffrey A Shaffer, Esquire

Jeffrey A. Shaffer, P.A.

4308 Main Street

Jup iter, Florida 33458

STATEMENT OF THE ISSU ES

The issue s in this case are whether Respondent , a

physician , fail ed to adhere to the applicable level of care in

prescribing controlled substances; fail ed to follow standards

for the use of controlled substanc es for the treatment of pain;

and fail ed to keep legible medical records justifying the course

of a patient's treatment; if so, whether Petitioner should

impose discipline on Respondent's medical license within the

applicable penalty guidelines or take som e other action.

PRELIMINARY STATEMENT

On January 5 , 2011, under a Motion to Re - Open Case,

Petitioner Department of Health requested that the Division of

Administrative Hearings ("DOAH") conduct a hearing to determine

whether Respondent Lowell Anthony Adk ins, M.D., had committed

the offenses charged in an Amended Administrative Complaint ,

which was dated September 24, 2010. The Department alleged that

Dr. Adkins had prescribed narcotic analgesics to a young man in

violation of the applicable standard of c are , and contrary to

the practice standards governing the use of controlled

substances to control pain. In addition, the Department charged

Dr. Adkins with having failed to maintain legible medical

records justifying the course of the patient's treatment.

An Administrative Law Judge was assigned to preside in the

matter , and he scheduled the final hearing for April 19 and 20,

2011 . On the Department's motion, the final hearing was

continued, to August 15 and 16, 2011. T he final hearing took

place on t hose dates, as scheduled, with b oth parties present

and represented by counsel .

The following persons testified at the hearing: J.D. and

his mother T.R.; Marc R. Gerber, M.D.; Robert J. Friedman, M.D.;

and Dr. Adkins. Joint Exhibits 1 through 4 and 8

through 16 were received in evidence without objection.

The final hearing transcript , comprising three volumes, was

filed on September 1, 2011 . A joint motion requesting that the

deadline for filing proposed recommended orders be enlarged to

October 7 , 201 1 , was granted. Each party timely filed a

Proposed Recommended Order , and these have been carefully

considered .

FINDINGS OF FACT

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

Anthony Adkins , M.D. , was licensed to practice medicine in th e

state of Florida. Dr. Adkins is a family practitioner who has a

clinical interest in pain management.

2 . Petitioner Department of Health (the "Department") has

regulatory jurisdiction over licensed physicians such as

Dr. Adkins . In particular, the Dep artment is authorized to file

and prosecute an administrative complaint against a physician,

as it has 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 disciplin able offense.

3. Here , the Department alleges that Dr. Adkins committed

three such offenses ÏÏ namely, failure to adhere to the applicable

level of care in prescribing controlled substances; failure to

follow standards for the use of controlled substances f or the

treatment of pain; and failure to keep legible medical records

justifying the course of treatment ÏÏ in connection with the care

he provided to J.D . , a young adult (early twenties) whom

Dr. Adkins saw on about a half - dozen occasions between September

2007 and March 2008.

4 . The events giving rise to this dispute began on

September 19, 2007, when J.D. was first seen by Dr. Adkins.

J.D. presented with complaints of chronic pain in both knees,

which were swollen, and a history of juvenile arthritis. Until

recently before this visit, J.D. had been treated for several

months by a Dr. Gelinas, who had prescribed Vicodin to alleviate

the pain. J.D. told Dr. Adkins that the Vicod in had made him

nause ous and failed to control his pain . He also reported th at

n onsteroidal anti - inflammatory drugs ("NSAIDs") caused him to

have nosebleeds.

5. Dr. Adkins took J.D.'s medical history and performed a

physical examinati on. J.D. characterized the degree of pain he

was experiencing as severe (grading it as 8 on a sc ale of 1 to

10 with 10 being the worst) , which was an exaggeration intended

to deceive the doctor (although he did in fact have some pain) .

As part of his ruse, which fooled Dr. Adkins, J.D. purposely

faked the range of motion tests to give the impression that the

condition of his knees was worse than it actually was. J.D. was

not candid with Dr. Adkins in providing information about his

symptoms because ÏÏ unknown to Dr. Adkins at the time , who

reasonably assumed that his patient's statements for purposes of

medical diagnosis or treatment were reliable 1 ÏÏ J.D. was addicted

to narcotic pain medication and wanted a prescription to feed

this addiction.

6. Dr. Adkins wrote a prescription authorizi ng J.D. to

obtain 60 tablets of Oxycodone having a dosage of 15 milligrams

("mg") apiece. Because Oxycodone is a narcotic pain reliever,

Dr. Adkins required J.D. to sign a Medication Contract, which

enumerated J.D.'s responsibilities regarding the proper use of

the controlled substances he was being prescribed. The terms

and conditions of the contract included the following:

1. The physicians and staff of Lowell

Adkins M.D.P.A. will be the ONLY physicians

that will be writing for these medications

and I will not seek these medications from

other physicians, INCLUDIN G EMERGENCY ROOM

PHYSICIANS.

2. . . . I will take the medications as

prescribed and not take more on a daily

basis unless approved by my physician.

7. At the initial visit on September 19, 2007 , J.D. also

signed a release authorizing Dr. Gelinas to pro vide copies of

J.D.'s medical records to Dr. Adkins, which was done.

Dr. Gelinas's handwritten chart is largely illegible, but it

shows that J.D. carried a diagnosis of arthralgia (j oin t pain)

based on the problems he was having with his knees. In

additi on, the records included the radiologist's report

regarding an MRI of J.D.'s right knee, which had been examined

on July 31, 2007. The MRI report gives as J.D.'s diagnosis:

"History of juvenile rheumatoid arthritis since age 12.

Complaints of pain, crep itus, locking, and instability." The

study did not discover any significant damage or disease, except

for a "tiny incipient Baker's cyst."

8. For the next half - year , J.D. saw Dr. Adkins on a

monthly basis. J.D. continued to complain of chronic pain an d

repeatedly reported that the pain medication Dr. Adkins was

prescribing was not adequately controlling his pain. For much

of this time, J.D. held two jobs, working full - time as a small -

engine mechanic until being laid off in December 2007, and

moonlight ing in a sporting goods store, which became his only

source of income after the loss of his regular job. These jobs

required J.D. to be physically active, and Dr. Adkins

periodically increased the dosage of the pain medication he was

prescribing, so that J.D. could function at work. Dr. Adkins

ordered X - rays of J.D.'s knees as well, but J.D. declined to get

them.

9. W hile under Dr. Adkins's care, J.D. suffered at least

two traumatic injuries requiring treatment for acute pain. In

October 2007, J.D. inju red his shoulder at work and went to an

urgent care center for treatment. The doctor prescribed

Oxycodone to control the pain associated with this injury. J.D.

told Dr. Adkins that he had hurt his shoulder but did not let

Dr. Adkins know that he had obta ined a prescription for

Oxycodone from another physician , in violation of the Medication

Contract he had entered into .

10. On or about December 29, 2007, J.D. suffered a serious

and painful injur y to his finger at work. For this he went to

the emergency room, accompanied by his mother who told the ER

doctor that J.D. was addicted to, and abusing, narcotic pain

medication. Despite the objection of J.D.'s mother, the ER

doctor prescribed Oxycodone for pain. Thereafter, J.D. visited

a workers' compensation physician for treatment of this same

injury, and he was again prescribed Oxycodone. J.D. inform ed

Dr. Adkins of the injury to his finger but not these

prescriptions , which represented additional breaches of the

Medication Contract . 2

11. A couple of mont hs before the trip to the ER described

above, J.D.'s mother ("T.R.") had attempt ed to stop Dr. Adkins

from prescribing Oxycodone to J.D. , raising similar concerns

about J.D.'s alleged drug abuse. On November 26, 2007, she had

dropped by Dr. Adkins's offic e to report to him that J.D. was

crushing and snorting his pain medication. Dr. Adkins was not

immediately available, so T.R. left her business card and

requested that Dr. Adkins call her, which he did later that

evening. Upon hearing T.R.'s concerns, Dr . Adkins requested

that she arrange to accompany J.D. on his next office visit , so

that the three of them could discuss the situation together .

12. T.R. did show up for J.D.'s next doctor's appointment,

on December 1 4 , 2007. J.D., however, had not invite d her, and

he became very a ngry when, upon arriv ing at Dr. Adkins's office,

he found his mother already waiting there . The two argued

loudly in the reception area , c ausing a scene . J.D. refused to

allow his mother to come into the examination room with h im and

Dr. Adkins. Consequently, Dr. Adkins met separately with J.D.

and T.R.

13. T.R. told Dr. Adkins that J.D. was on probation as a

result of drug - related charges and that he was participating in

a Drug Court program, but she apparently provided no pa perwork

to substantiate t he se assertions. Dr. Adkins had not been aware

that J.D. might be in trouble with the law, and he was somewhat

surprised by the news because ordinarily the authorities contact

him when a patient of his has been arrested for unlawf ul

possession or use of prescription medication. T.R. further

claimed that J.D. had been snorting his medication, although she

had not actually seen him do so.

14. T.R.'s concerns upset Dr. Adkins, and when he met with

J.D. alone , he lectured him on th e need for strict compliance

with the Medication Contract. Dr. Adkins told J.D. that he

would be discharged from Dr. Adkins's practice if J.D. ever

snorted the medication again. Dr. Adkins ordered a urine

toxicology screen and required J.D. to be tested. J.D.

complied, and the drug screen was negative for illegal

substances. Dr. Adkins agreed to continue treating J.D. with

narcotic analgesics.

15. When J.D. lost his full - time job in December 2007, he

lost his health insurance. After that, J.D. paid out - of - pocket

for his doctor's appointments. Following a visit on March 19,

2008, however, J.D. stopped seeing Dr. Adkins.

16. In summary, Dr. Adkins prescribed Oxycodone to J.D. in

the following dosages and amounts, on the dates shown below:

Date Do sage Amount

09/19/07 15 mg 60 tablets

1 0 /19/07 30 mg 9 0 tablets

11/16/07 30 mg 120 tablets

12/14/07 30 mg 120 tablets

01/1 4 /0 8 30 mg 1 5 0 tablets

02/22/08 30 mg 150 tablets

03/19/08 30 mg 180 tablets

17. The Dep artment's expert witness, Marc R. Gerber, M.D.,

testified at hearing that the foregoing amounts and dosages of

opioids , which Dr. Adkins prescribed to J.D. , did not violate

the standard of care. T. 165. The undersigned finds this to be

true, based on Dr. Gerber's testimony.

18. In its Amended Administrative Complaint, the

Department alleged that Dr. Adkins had practiced below the

requisite level of care in prescribing narcotic pain medication

to J.D. ÏÏ and thus violated secti on 458.326(3), Florida

Statut es 3 ÏÏ in one or more of the following ways:

a) By failing to diagnose Patient J.D. with

intractable pain; and/or

b) By failing to refer Patient J.D. to a

Psychiatric - addiction specialist, especially

after he was informed by Patient's mother

that he was, allegedly, an addict; and/or

c) By failing to refer Patient J.D. to an

orthopedic specialist to have the pain in

his knee evaluated; and/or

d) By prescribing excessive narcotics for

Patient J.D.'s alleged pain condition prior

to exploring the effectiven ess of other

NSAIDs; and/or

e) By failing to refer Patient J.D. to a

rheumatoid arthritis specialist and/or by

failing to verify the complaints of pain

from juvenile rheumatoid arthritis with

blood tests.

19. Although Dr. Gerber clearly expressed conce rns about

Dr. Adkins's treatment of J.D., his testimony ultimately failed

to establish, unequivocally, that any of the acts or omissions

enumerated above constitute d an unambiguous violation of the

applicable standard of care. As mentioned, Dr. Gerber

spe cifically refuted the allegation that Dr. Adkins had

prescribed "excessive narcotics, " as charged in subparagraph d).

He further testified that, in his opinion, Dr. Adkins had not

violated section 458.326, see T. 164 ÏÏ a blanket statement that

casts doubt on all of the standard - of - care violations that the

Department has alleged.

20. Dr. Gerber testified that he "had no problem with

respect to how J.D. presented to Dr. Adkins and the treatment

Dr. Adkins had rendered to J.D. through December." T. 161.

Thi s testimony, given by the Department's expert, precludes the

undersigned from finding without hesitation that the acts and

omissions described in subparagraphs a), c), and e) above

violated the standard of care.

21. As for subparagraph b), Dr. Gerber st opped well short

of stating that the standard of care required Dr. Adkins to

refer J.D. to an addiction specialist. To the contrary, he

expressed the opinion that, at the time (i.e., 2007 - 20 08), the

decision whether to make such a referral was lef t to the

physician's discretion . T. 124, 153. The most Dr. Gerber could

say on this point was that, in his view, one "hundred percent of

pain specialist [sic] would . . . possibly refer out to an

addiction specialist." T. 155 (emphasis added). This testimony

i s insufficiently convincing to establish clearly that

Dr. Adkins's " failure " to refer J.D. to an addiction specialist

violated the standard of care.

22. The essence of Dr. Gerber's opinion on the standard of

care was captured in the following remarks, w hich he made on

cross - examination in the course of explaining his opinion that

Dr. Adkins had not violated section 458.326:

We wouldn't even be here if there wasn't the

issue [that is, J.D.'s addiction] brought to

his [Dr. Adkins's] attention [by T.R.] and

the negative urine screen. . . . [T]here

are not major issues early on and I never

said that there were. I had concerns but

this whole case and the whole issue,

standard of care, revolves around what was

not done when significant issues [relating

to J. D.'s addiction] were made available.

That's really what I feel comfortable giving

my opinion on is what happened after

November."

T. 163. Dr. Gerber then identified three steps that, in his

opinion, Dr. Adkins should have taken "after November" to

sati sfy the standard of care: (1) order a urine toxicology

test; (2) talk with the patient and his mother; and (3)

"possibly change the medication regimen." T. 167 - 68. Although

the Department did not allege that Dr. Adkins had violated the

standard of care by failing to take any of these measures, the

evidence shows that Dr. Adkins did, in fact, perform the first

two. The third is plainly too indefinite on its face to qualify

as a standard of care.

23. The Department's other expert, James F. Schaus, M.D.,

who testified via videotaped deposition, was, like Dr. Gerber,

unable to unambiguously declare that Dr. Adkins's treatment of

J.D. had fallen below the applicable standard of care. On this

subject he hedged:

I found some problems in the case that could

or could not be deviations from the standard

of care, but it certainly raised some

concerns on my part. . . .

* * *

Standard of care is to me a black and white,

you know, question, and there's many shades

of gray, like any case. And in this case,

there are shades of gray when it comes to

standard of care. As I said earlier, I

found a few things that could be potential

deficiencies in his care that may or may not

come to the level of a deviation of the

standard of care. And I'm not prepared to

sa y definitively that he did deviate from

the standard of care. But I do identify

those concerns, those various concerns.

J.F.S. 11, 13 (emphasis added). Dr. Schaus's testimony is

insufficient to support a finding, based on clear and convincing

evidence, that Dr. Adkins's treatment of J.D. fell below the

applicable level of care, skill, and treatment.

24. The remaining charges against Dr. Adkins are based on

alleged deficiencies in the medical record of J.D.'s treatment.

In Count Two of the Amended Admin istrative Complaint, the

Department has charged Dr. Adkins with violating, in one or more

of the following ways, the administrative rule which set s forth

standards for prescribing narcotic pain medications:

a) By prescribing controlled substances for

pain control, to wit: oxycodone and

carisprodol, to Patient J.D. without

documenting the nature and intensity of the

pain, current and past treatments for pain,

underlying or coexisting diseases or

conditions, the effect of the pain on

physical and psychologi cal function, and any

history of substance abuse; and/or

b) By prescribing controlled substances for

pain control, to wit: oxycodone and

carisprodol, to Patient J.D. without

documenting one or more recognized medical

indications for the use of a controll ed

substance.

25. As will be discussed below, the provisions of the rule

that articulated standards for documenting a pain - management

patient's evaluation, which are the provisions that Dr. Adkins

is alleged to have violated, were aspirational rather tha n

prescriptive at the time of the alleged violations, enumerating

matters that a physician should include in the medical record as

opposed to mandating what must be done. Nevertheless, even

though t he chart that Dr. Adkins prepared contemporaneously w as

w ritten in his own hand and is di fficult to decipher, the

undersigned finds upon review of the medical record that

Dr. Adkins substantially followed the rule's guidelines.

26. To be sure, Dr. Adkins's handwriting is hard to read .

This, coupled with Dr. Adkins's use of abbreviations and other

types of informal shorthand when making his notes, prevents the

undersigned from forming a full understanding of everything in

the medical record. The undersigned can make out enough words,

however, to appreciate th at Dr. Adkins documented the nature of

J.D.'s pain, current and past treatment for pain, and various

diseases or conditions that had caused, or were causing, pain,

e.g., swollen knees, a rotator cuff injury, and the avulsion of

J.D.'s finger. The Departme nt has failed to prove, with clear

and convincing evidence, that Dr. Adkins's documentation of his

evaluation of J.D. fell short of the guidelines.

27. In Count Three of the Amended Administrative

Complaint, the Department has alleged that Dr. Adkins viol ated

the statute governing medical recordkeeping in one or more of

the following ways:

a) By failing to keep legible medical

records documenting the reasons for

prescribing oxycodone and carisprodal for

Patient J.D.; and/or

b) By failing to keep medical records which

legibly recorded the patient history,

examination results, test results, and drugs

prescribed for Patient J.D.; and/or

c) By failing to keep medical records which

justify the course of treatment for Patient

J.D.

28. Having reviewed the m edical record, the undersigned

finds the evidence insufficient to prove, clearly and

convincingly, that Dr. Adkins failed to justify the course of

treatment for Patient J.D. The chart is barely legible,

however, and in this regard Dr. Adkins has committed a

disciplinable offense; the chart itself is clear and convincing

proof of guilt.

CONCLUSIONS OF LAW

29 . DOAH has personal and subject matter jurisdiction in

this proceeding pursuan t to s ections 120.569, and 120.57(1),

Florida Statutes (2010) .

30 . A p roceeding, 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 pro ve the charges against Dr. Adkins 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).

31 . 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 con vincing

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 w hich 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 proof 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).

32 . The Department is prosecuting Dr. Adkins u nder s ection

458.331 , Florida Statutes (200 7 ), which provide d in pertinent

part as follows :

(1) The following acts shall constitute

grounds for . . . disciplinary action [ : ]

* * *

(m) F ailing to keep legible, as defined by

department rule in consultation with the

board, medical records that identify the

licensed physician or the physician extender

and supervising physician by name and

professional title who is or are responsible

for rendering, ordering, supervising, or

billing for each diagnostic or treatment

procedure and that justify t he course of

treatment of the patient, including, but not

limited to, patient histories; examination

results; test results; records of drugs

prescribed, dispensed, or administered; and

reports of consultations and

hospitalizations.

* * *

( nn ) Vi olating any provision of this

chapter or chapter 456, or any rules adopted

pursuant thereto .

33 . Under the authority of section 458.331(1)(nn), the

Department charged Dr. Adkins, in Count One, with violating

section 458.326; and, in Count Two, with viol ating Florida

Administrative Code Rule 64B8 - 9.013(3)(a)(2003).

34. In the years 2007 - 20 08, s ection 458.326 provided as

follows:

(1) For the purposes of this section, the

term "intractable pain" means pain for which,

in the generally accepted course of m edical

practice, the cause cannot be removed and

otherwise treated.

(2) Intractable pain must be diagnosed by a

physician licensed under this chapter and

qualified by experience to render such

diagnosis.

(3) Notwithstanding any other provision of

law, a physician may prescribe or administer

any controlled substance under Schedules II -

V, as provided for in s. 893.03, to a person

for the treatment of intractable pain,

provided the physician does so in accordance

with that level of care, skill, and treatment

recognized by a reasonably prudent physician

under similar conditions and circumstances.

(4) Nothing in this section shall be

construed to condone, authorize, or approve

mercy killing or euthanasia, and no treatment

authorized by this section may be used for

such purpose.

35. Based on the findings of fact set forth above,

including the findings regarding the sufficiency and weight of

the evidence, it is concluded that Dr. Adkins was not shown to

have violated section 458.326.

36. At the time of the events at issue, rule 64B8 -

9.013(3)(a) provided as follows:

Evaluation of the Patient. A complete

medical history and physical examination

must be conducted and documented in the

medical record. The medical record should

document the nature and intensity of the

pain, current and past treatments for pain,

underlying or coexisting diseases or

conditions, the effect of the pain on

physical and psychological function, and

history of substance abuse. The medical

record also should document the presence of

one or more recognized medical indications

for the use of a controlled substance.

(Emphasis added.) The undersigned notes that the Board of

Medicine amended this rule in 2010, changing the words "should"

(which are underlined in the quotation above) to "sha ll." See

Fla. Admin. Code R. 64B8 - 9.013(3)(a)(2010).

37 . Disciplinary statutes and rules "must be construed

strictly, in favor of the one against whom the penalty would be

imposed." Munch v. Dep't of Prof'l Reg., Div. of Real Estate ,

592 So. 2d 1136, 11 43 (Fla. 1st DCA 1992); see Camejo v. Dep't of

Bus. & Prof'l Reg. , 812 So. 2d 583, 583 - 84 (Fla. 3d DCA 2002);

McClung v. Crim. Just. Stds. & Training Comm'n , 458 So. 2d 887,

888 (Fla. 5th DCA 1984)("[W]here a statute provides for

revocation of a license th e grounds must be strictly construed

because the statute is penal in nature. No conduct is to be

regarded as included within a penal statute that is not

reasonably proscribed by it; if there are any ambiguities

included, they must be construed in favor of the licensee."); see

also, e.g. , Griffis v. Fish & Wildlife Conserv. Comm'n , 57 So. 3d

929 , 931 (Fla. 1st DCA 2011)(statues imposing a penalty must

never be extended by construction).

38. The provisions of the rule that Dr. Adkins is alleged

to have vi olated appear to be precatory rather than prescriptive

in nature . This is because the word "should" usually prefaces

an expectation instead of a command , at least in formal speech .

In stark contrast, the amended rule, which took effect after the

events i n question and thus is inapplicable here , clearly and

unambiguously mandates actions that the physician "shall" take

with regard to documentation. Consequently, whereas a failure

to obey the current version of the rule clearly would be a

disciplinable off ense, it is not obvious that a doctor can be

punished for failing to do that which, under the earlier

version , he merely "should" have done. Given that the rule must

be construed in favor of the licensee, the undersigned seriously

doubts whether the alleg ations in Count Two of the Amended

Administrative Complaint, even if proved, would constitute a

disciplinable offense.

39. It is not necessary to decide this case on that basis,

however, because the allegations were not proved. Based on the

findings of fact set forth above, including the findings

regarding the sufficiency and weight of the evidence, it is

concluded that Dr. Adkins was not shown to have violated rule

64B8 - 9.013(3)(a) .

40. Finally, there is the question of whether Dr. Adkins

kept adequat e medical records. Rule 64B8 - 9.003 (2006) is

instructive, and it provides in pertinent part as follows:

(2) A licensed physician shall maintain

patient medical records in English, in a

legible manner and with sufficient detail to

clearly demonstrate why the course of

treatment was undertaken.

(3) The medical record shall contain

sufficient information to identify the

patient, support the diagnosis, justify the

treatment and document the course and

results of treatment accurately, by

including, at a mini mum, patient histories;

examination results; test results; records

of drugs prescribed, dispensed, or

administered; reports of consultations and

hospitalizations; and copies of records or

reports or other documentation obtained from

other health care pract itioners at the

request of the physician and relied upon by

the physician in determining the appropriate

treatment of the patient.

41. Based on the findings of fact set forth above,

including the findings regarding the sufficiency and weight of

the evide nce, it is concluded that Dr. Adkins was shown to have

created a medical record that is not capable of being fully

understood by anyone other than Dr. Adkins. His making of an

illegible chart amounts to a disciplinable offense.

42. The Board of Medicine imposes penalties upon licensees

in accordance with the disciplinary guidelines prescribed in

Florida Administrative Code Rule 64B8 - 8.001 ( 2007 ) . The range

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

is set forth in rule 64B8 - 8.001(2 ) as follows:

From a reprimand to denial or two (2) years

suspension followed by probation, and an

administrative fine from $1,000.00 to

$10,000.00 .

43 . 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 restrain ts, 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 history of the

applicant or lice nsee 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 substances for trade, barter or

sa le, 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.

44 . S ubparagraphs (a), (b), (d), (e), and (f), set forth

relevant mit igating factors in this case. This is because

Dr. Adkins's illegible medical record did not expose J.D. to

injury; Dr. Adkins was not practicing under any legal

constraints; this is Dr. Adkins's first offense ÏÏ his disciplinary

history is otherwise clear; and Dr. Adkins did not realize any

untoward pecuniary benefit or gain in connection with the

offense.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

order finding Dr . Adkins not guilty of the charges set forth in

the Counts One and Two of the Amended Administrative Complaint ;

finding Dr. Adkins guilty of the charge set forth in Count

Three , namely failing to keep legible medical records, an

offense defined in section 458.331(1)(m) ; and imposing the

following penalties: reprimand, administrative fine in the

amount of $1,000, and obligation to complete the Medical Records

course.

DONE AND ENTERED this 26th day of October , 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 26th day of October , 20 1 1 .

ENDNOTES

1 / The Department arg ues that Dr. Adkins should have been highly

skeptical about the truth of J.D.'s statements because, it

contends (with insufficient evidential support), young men pose

a greater risk than other types of patients of abusing or

diverting narcotic analgesics. The undersigned credits

Dr. Adkins's testimony that he had believed J.D. was being

honest in describing his experience of pain and finds, as a

matter of fact, that it was reasonable for Dr. Adkins to do so.

Although the undersigned has resolved this part icular dispute of

fact in Dr. Adkins's favor based upon the evidence presented, it

is interesting to note that the law regards declarations such as

J.D.'s to Dr. Adkins as inherently reliable ÏÏ and thus admissible

for the truth of the matters asserted under an exception to the

hearsay rule. See § 90.803(4), Fla. Stat. Professor Ehrhardt

explains the rationale behind this exception as follows: "When

a person consults a doctor for the purpose of obtaining

treatment, he or she has a strong motivation to be t ruthful

because of the desire for effective treatment. The diagnosis or

treatment depends in part on what the patient tells the doctor."

C. Ehrhardt, Florida Evidence § 803.4, 860 (2009 Edition). A

standard of care requiring doctors automatically to dis trust

some patients' declarations (namely those of young men) that

would be admissible over a hearsay objection in a civil or

criminal proceeding would be somewhat anomalous.

2 / J.D. was, as well, regularly seeing another physician

(besides Dr. Adkins an d the acute care doctors) from whom he

obtained prescriptions for pain medication in contravention of

the Medication Contract. He did not tell Dr. Adkins about this,

either.

3 / This statute is quoted in the text at paragraph 34, infra .

COPIES FURNISHED :

Shirley L. Bates, Esquire

Sharmin Royette Hibbert , Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 6 5

Tallahassee, Florida 32399 - 3265

Jeffrey A. Shaffer, Esquire

Jeffrey A. Shaffer, P.A.

4308 Main Street

Jupiter, Florida 33458

Joy Tootle , Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

Nicholas Romanello , General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.