11-005163PL Department Of Health, Board Of Chiropractic Medicine vs. John P. Christensen, M.D. Status: Closed Recommended Order on Friday, March 16, 2012.

Summary: Respondent is guilty of prescribing legend drugs other than in the course of his professional practice, as well as engaging in deceptive conduct related to practice of medicine. Recommend revocation of license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH , BOARD OF )

CHIROPRACTIC MEDICINE , )

)

Petitioner, )

)

vs. ) Case No. 11 - 5163 PL

)

JOHN P. CHRISTENSEN, M.D. , )

)

Respond ent. )

________________________________)

RECOMMENDED ORDER

A final hearing was held in this case before Edward T.

Bauer, an Administrative Law Judge of the Division of

Admini str ative Hearings, on December 16 , 2011 , by video

teleconference a t sites in T allahassee and West Palm Beach ,

Florida.

APPEARANCES

For Pet itioner: Robert A. Milne, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Allan L. Hoffman, Esqui re

W. Grey Tesh, Esquire

1610 Southern Boulevard

West Palm Beach, Florida 33406

STATEMENT OF THE ISSUE S

The issues in this case are whether Respondent committ ed

the allegations contained in the Administrative Complaint , and

if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

On August 25 , 2011 , Petitioner, Department of Hea lth, Board

of Medicine, filed a five - count Administrative Complaint agai nst

Respondent, Dr. John P. Christensen , the grava men of which was

th at Respondent prescribed medications in excessive and/or

inappropriate doses, violated the standards for the use of

controlled substances for pain management, maintained inadequate

medical records, and engaged in dec eptive practices.

Respondent timely re quested a formal hearing to contest the

allegations, a nd, on October 7 , 201 1 , the matter was referred to

the Division of A dministrative Hearings ("DOAH") and assigned to

Administrative Law Judge John G . Van Laningham. On December 9 ,

2011, Judge Van Laning ham transferred the instant matter to the

undersigned.

As noted above, the final hearing in t hi s matter was held

on December 16 , 2011, during which Petitioner presented the

testimony of Respondent and Robert Yastrzemski. Without

obj ection, Petitioner introduced 23 exhibits int o evidence,

numbered 1 - 23 . Petitioner's exhibits included the de position

transcripts of C.H., S.J., L.J., M.R., J.R. 1 / ; Ms. Dailyn

Zambrano 2 / ; and Orlando G. Florete, M.D., 3 / an expert in the field

of pain management. Respondent testified on his own behalf,

presented the testimony of Marie Altidor , and introduced four

exhibits, numbered 1 - 4. At the conclusion of the hearing, the

undersigned granted the parties' request for a deadline of 20

days from the filing of the fi nal heari ng transcript for the

submission of proposed recommended orders.

The final hearing t ranscript 4 / was f iled with DOAH on

January 13, 2012 . Subsequently, on February 2, 2012, the

parties f iled a joint request to extend the deadline for the

submission of proposed recommended orders to February 16, 2012.

On the following day, the undersig ned issued an order that

granted the requested extension.

Both parties thereafter submitted proposed recommended

orders, which have been considered in the preparation o f this

Recommended Order. 5 /

FINDINGS OF FACT

A. The Parties

1 . Petitioner Department of Health has regulatory

jurisdiction over licensed physicians such as Respondent. In

particular, Petitioner is authorized to file and prosecute an

administrative c omplaint, as it has done in this instance, when

a panel of the Board of Medicine has found probable cause exists

to suspect that the physician has committed one or more

disciplinable offenses.

2. At all times pertinent to this cause , Respondent was a

medical doctor licensed in the State of Florida , having bee n

issued license number ME 92135 . Although not the subject of the

instant proceeding, Respondent has also been licensed by the

State of Florida as a chiropractic physician.

B. Background / Arr angement with Dr. Wagner

3 . In or around 1975, Respon dent completed his education

at the National University of Health Sciences and began to

practice chiropractic medicine shortly thereafter .

4. Some fifteen years later, Respondent and an

acquaintance Ï Ï Dr. Joseph Wag ner, also a licensed chiropractor in

the State o f Florida ÏÏ matriculated at a medical school in the

Dominican Republic. Although both Respondent and Dr. Wagner

ultimately earned Doctor of Medicine ("MD") degrees in the mid

1990s, Respondent was not licensed in Florida to practice as an

MD until early 2006 . Significantly, however, Dr. Wagner never

obtaine d licensure as a medical doctor. Consequently,

Dr. Wagner is prohibited by statute ( with two ex ceptions,

neither of which is applica ble in this case 6 / ) from prescribing

any medicinal drug.

5. In 2007, Respondent and Dr. Wagner ent ered into a joint

venture designed, in the words of Respondent, to "expand"

Dr. Wagner's chiropractic practice . At that time , and for the

duration o f their business agreeme nt , Respondent's principal

place of business was located in Palm Beach County, while

Dr. Wagner practiced chiropractic medicine in Daytona Beach.

6. Under the joint venture (which continued until August

2011, when both their offices were raided by the Federal Bureau

of Investigation), Respondent travel ed to Daytona Beach several

tim es each month and interacted with Dr. Wagner concerning some,

but not all, of Dr. Wagner's chiropract ic clients (hereinafter

"joint - venture client s" or "JVCs") .

7. From what can be gleaned of the credible portions of

Respondent's deposition and final hearing testimony, it ap pears

that Respondent's activity with respect to JVCs included a

review of client file s, and, in some cases , a determinatio n that

one or more medications ÏÏ i ncluding narcotics ÏÏ should be

prescribed . Indeed, Respondent's level of participation was so

minimal that his face - to - face interaction with JVCs consisted,

at most, of an initial introduction, and on no occ asion did

Respon dent personally examine ÏÏ or perform treatment s upon ÏÏ any

JVC .

8. As a consequence of Respo ndent's phantom - like presence

at Dr. Wagner's clinic , it was common for a JVC who presented

for routine fol low - up appoi ntments, which for some clients

occurred as frequently as once time per week, to be seen only by

Dr. Wagner or Dr. Wagn er's son, John Wagn er, who was also a

chiropractor . Troublingly, these visits frequently ended

( without Respondent having seen or spoke n with the JVC on that

day) with Dr. Wagner phoning in a pre scription refill. 7 /

9. At the conclus ion of a JVC's office visit, Dr. Wagner ÏÏ

and possibly Respondent, if the JVC was seen on a day when

Respondent was actually present in the Daytona office ÏÏ dictate d

medical notes that Dr. Wagner usual ly transcribed at a later

time. Subsequently, and with Respondent's blanket

authorization , Dr. Wagner would create a claim form ( if the JVC

had insurance coverage) to submit to the insurance carrier for

reimbursement.

10. Incredibly , Respondent also gr anted Dr. Wagner

complete auth ority to affix his signature to reimbursement

claims and submit them ÏÏ without Respon dent looking at the forms

beforehand ÏÏ to insu rance carriers. This was accomplished not by

the use of a stamp, which medical professionals oft en provide to

their subordinates to expedite business affairs, but by

Dr. Wagner manually signing , in cursive, "John P. Christensen"

inside the box of the claim form labeled "signature of the

physician or supplier.

11. Another unusual aspect of t he joint venture was the

manner in which Respondent and Dr. Wagner dealt with

reimbursement checks from insurance carriers. By agreement,

reimbursement ch ecks for claims that related to JVCs were

received by mail at Dr. Wagner's place of business in Dayto na

Beach. Upon their receipt, Dr. Wagner deposited the checks into

a SunTrust checking account for which Respondent had sole

signatory authority. At the end of each month, Respondent

transfer red the entire balance of the SunTrust account into his

busines s account at PNC Bank. Respondent would subsequently

draft a check on the PNC account to Dr. Wagner in an amount

equal to 50 percent of the monthly proceeds.

12. As Respondent readily admits, his joint venture with

Dr. Wagner yielded subst antial financ ial remuneration. Over a

four - year period, reimbursement from insurance carriers totaling

$800,000 ÏÏ a tidy sum in light of Respondent's nominal

participation ÏÏ was deposited into Respondent's SunTrust account,

the proceeds of which were split 50/50 with Dr . Wagner.

13 . Against the foregoing backdrop, the undersigned wi ll

address , on a client - by - client basis, the specific wrongdoing

alleged in the Administrative Complaint.

C. Client K.R.

14 . On or about August 25, 2010, K.R. presented to Dr.

Wagner 's clinic for treatment of a back injury she sustained in

an automobile accident approximately eight months earlier. K.R.

continued to be seen at Dr. Wagner's clinic , on a weekly basis

and as a JVC, 8 / until November 11, 2010.

15 . During K.R.'s initial office visit, no examination was

conducted, nor did Dr. Wagner order that any diagnostic scans

(such as x - rays) be taken. Instead, Dr. Wagner simply asked

K.R. about her injuries and "cracked" her back for several

minutes. While the evidence does not for eclose the possibility

that K.R. was introduced briefly to Respondent during the first

appoin tment, it is clear that no further interaction ÏÏ of any

kind ÏÏ occu rred between them.

16 . Although Respondent had no contact whatsoever with

K.R. , the evidence d emonstrates that Respondent permitted

Dr. Wagner ÏÏ on the date of K.R.'s first visit an d on every

follow - up visit, which g enerally lasted no more than a few

minutes ÏÏ to telephone a local pharmacy on his behalf and direct

that certain prescriptions be fi lled. Specifically, each week

from August 25, 2010, through November 10, 2010, K.R. was

prescribed seven - day supplies of the following medications: 40

tablets of Lortab 9 / (the brand name for the formu lation of

hydrocodone 10 / and acetaminophen); 21 tables of Soma 11 / (the brand

name for carisoprodol, 12 / a muscle relaxant); and 21 table t s of

X anax 13 / (a brand name for alprazolam, 14 / which is designed to

treat anxiety).

17 . Petitioner's expert witness in this proceeding, Dr.

Orlando Florete, credibly testified t hat the dosages of Lortab,

Xanax, and Soma prescribed to K.R. were excessive, and that the

combination of the three medicati ons was inappropriate due to an

unacceptably heightened risk of respiratory depression and

death.

D. Client M.R.

18 . In late Ju ly or early August 2009, M.R. presented to

Dr. Wagner's clinic for treatment of leg, back, and neck pain.

M.R. returned for follow - up appointments at least one time per

week for the next several months.

19 . At no time did M.R. undergo a medical examin ation

during his visits, which consisted of having his back cracked by

either Dr. Wagner or his son (and, on occasion, the use of a b ed

with heat).

20 . Notwithstanding that Respondent and M.R. neither me t

nor had contact of any kind , Respondent consi dered M. R. to be a

JVC . 15 / As a consequence , Respondent allowed Dr. Wagner to

phone - in the following medications ÏÏ with Respondent listed on

the prescription bottl es as the prescribing physician ÏÏ for M.R.,

on a weekly basis, from August 7, 2009, through Oct ober 16,

2009: 40 tablets of hydrocodone, with each pill containing 10

milligrams of hydrocodone and 500 milligrams of acetaminophen;

and 24 tablets of Xanax, each in two milligram doses

E. Clients L.J. , S.J., and J.J.

21 . In or around August 2 009 , S.J., J.J. (S.J's co usin),

and L.J. (S.J's mother) were involved in an automobile accident.

Thereafter, in late 2009 and early 2010, S.J., J.J., and L.J.

p res ented themselves on multiple occasions for chiropractic

treatment at Dr. Wagner's office in Daytona Beach.

22 . Although there is insufficient evidence as to what

occurred during J.J.'s office visits (no testimony of J.J. has

been introduced), S.J. and L.J. were seen initially by Dr.

Wagner's son, and later by Dr. Wagner himself during follow - u p

appointments.

23 . As with pat ient M.R., both S.J. and L.J. neither met

n or had any con tact whatsoever with Respondent. Nevertheless,

as clients that were within the ambit of Respo ndent and

Dr. Wagner's joint venture , 16 / Respondent allowed Dr. W agner to

phone - in prescriptions for S.J. and L.J. as follows: Lortab (40

tablets) and Soma (20 tablets) for L.J. on January 30, 2010; and

Lortab and Soma (40 and 20 tablets, respectively) for S.J. on

November 7, 2009, January 2, 2010, and February 27, 201 0. As

with the JVCs discussed previously , Respondent was listed in the

pharmacy records and on the medication bottles as the

prescribing physician.

2 4 . Consistent wi th the terms of the joint venture ,

Dr. Wagner submit ted reimbursement claims to Direct General

Insurance Company ("DGIC," a personal injury protection carrier)

for services purportedly rendered to S.J., L.J., and J.J during

th eir office visits. In particular , clear and convincing

evidence exists that Dr. Wagner, with Respondent's kno wledge and

authorization, submitted reimbursement claims to DGIC in

connection with S.J., J.J., and L.J. that bear the following

dates: January 30, 2010 (S.J.); January 30, 2010, and March 13

and 27, 2010 (L.J.); and April 10 and 24, 2010 (J.J.). 17 /

25 . While the exact services billed to DGIC varied by

patient and date, the content of each of these claim forms

represented unambiguously that the examinations and/or

treatments were performed by Respondent and no other . This was

unquestionably deceptive in light of Respondent's consistent

testimony that he never physically conducted medical

examinations or treatments in connection with any JVC .

F. Client C.H.

26 . In or around December 2008, C.H. was referred to Dr.

Wagner's clinic by her personal inju ry attorney. Over the next

four months, C.H. was treated by Dr. Wagner and/or Dr. Wagner's

son during multiple office visits.

27 . In stark contrast to Respondent's position with

respect to patients discussed above (Responde nt admitted during

his depo sition that K.R., M.R., S.J., L.J., and J.J. were JVCs ,

yet attempted ÏÏ unsuccessfully ÏÏ during the final h earing to

retract such testimony ) , Respondent has consistently maintained

that C.H . was not a JVC , that he had no knowledge of C.H ., and

that any presc ription phoned in by Dr. Wagner in connection with

C.H . was without his knowledge or authorization. As the

undersigned credits this portion of Respondent's testimony, any

events that occurred at the clinic with respect to C.H. cannot

serve as a basis to d iscipline Respondent.

G . Findings of Ultimate Fact

28 . The undersigned finds , as a matter of ultimate fact,

that Respondent violated section 458.331(1)(q), Florida

Statutes, by prescribing controlled substances to K.R., M.R.

S.J., and L.J. outside the course of his professional practice

as a medical doctor.

29. It is further determined , as a matter of ultimate

fact, that Respondent engaged in deceptive conduct related to

the practice of medicine, contrary to section 458.331(1)(k),

Florida Statutes.

30 . Finally, the undersigned finds , as matters of ultimate

fact, that Respondent is not guilty of violating subsections

458.331(1)(m), (1)(t), and (1)(nn), Florida Statutes.

CONCLUSIONS OF LAW

A. Jurisdiction

31 . The Division of Administrative Hear ings has

jurisdiction over the parties and subject matter of this cause,

pursuant to section 120.57(1), Florida Statutes .

B. The Burden and Standard of Proof

32 . This is a disciplinary proceeding in which Petitioner

seeks to discipline Respondent's li cen se to practice medicine .

Accordingly, Petitioner m ust prove the allegations contained in

the Administrative Complaint by clear and convincing evidence.

Dep't of Banking & Fin., Div. of Secs. & Investor Prot. v.

Osborne Sterne, Inc. , 670 So. 2d 932, 93 5 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 , 294 (Fla. 1987).

33 . Clear and convincing evidence:

[R]e quires that the evidence must be found

to be credible; the facts to which the

witnesses testify must be distinctly

remembered; the testimony mus t be precise

and lacking in confusion as to the facts in

issue. The evidence must be of such a

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 establi shed.

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

C. Petitioner's Authority to Impose Discipline;

The Charges Against Respondent

34 . Section 458.331(1), Florida Statutes, authorizes the

Board of Medicine to impose penalties ra nging from the issuance

of a letter of concern to revocation of a physician's license to

practice medicine in Florida if a physician commits one or more

acts specified therein.

35 . I n its Administrative Complaint, Petitioner alleges

that Respondent is guilty of : committing medical malpractice

(Count I); prescribing a legend drug other than in the course of

his professional practice (Count II); violating the standards

for the use of controlled substances for pain control (Count

III); failing to keep suf ficient medical records (Count IV); and

engaging in deceptive or fraudulent practices related to the

practice of medicine (Count V). For ease of discussion, the

undersigned will begin with Count Two.

D. Count II

36 . I n Count II of the Administrativ e Complaint ,

Petitioner contends that Responde n t violated section

458.331(1)(q) , which provides:

(1) The following acts constitute grounds

for denial of a license or disciplinary

action, as specified in s. 456.072(2) :

* * *

(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, dispensi ng, administering,

mixing, or otherwise preparing legend drugs,

including all controlled substances,

inappropriately or in excessive or

inappropriate quantities is not in the best

interest of the patient and is not in the

course of the physician' s professi onal

practice, without regard to his or her

intent.

(emphasis added).

37 . As detailed in the findings of fact above, Respondent

issued prescriptions to K.R., M.R., L.J., and S.J. (and in

potentially lethal doses and combinations in K.R.'s case) for

Lort ab, Xanax, and/or Soma, all of which are controlled

substa nces. Accordingly, the central inquir y is whether those

medications were issued in the course of Respo ndent's

professional practice ÏÏ i.e. , was Respondent actually engaged in

the practice of medicin e ?

38. Critical to the resolution of this issue is the fact

that Respondent never developed legitimate doctor - patient

relationships with any of the clients in question . Indeed, the

evidence demonstrates that K.R., M.R., L.J., and S.J. had no

contact w hatsoever with, nor were they examined by, Respondent

or any other licensed medica l doctor at any time before or after

Respondent's issuance of the prescriptions. As the controlled

substances were not prescribed to the JVCs as part of a doctor -

patient rel ationship , it is concluded that Respondent was not

acting within the course of his medical practice. See Dep't of

Health, Bd. of Med. v. Rodriguez , Case No. 10 - 1835PL , 2010 Fla.

Div. Adm. Hear. LEXIS 125 (F la. DOAH Sept. 29, 2010)(concluding

that physicia n prescribed oxycodone outside the course of his

medical practice, contrary to section 458.331(1)(q) , due to

limited interaction between physician and recipient of the

medication ). Respondent is therefore guilty of Count II.

E. Count s I and III

39 . Turning to Count I of the Administrative Complaint,

Petitioner alleges that Respondent 's conduct violated section

458.331(1)(t), which provides three grounds for disciplinary

action:

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 this paragraph. Medical

malpractice shall not be construed to

require more than one instance, event, or

act.

2. Committing gr oss medical malpractice.

3. Committing repeated medical malpractice

as defined in s. 456.50 . A person found by

the board to have committed repeated medical

malpractice based on s. 456.50 may not be

licensed or continue to be licensed by this

state to provide health care services as a

medical doctor in this state.

(e mphasis added).

40 . Of the three forms of malpractice detailed a bove,

Petitioner asserts only that Respondent is guilty of "medical

malpractice," which is defined, in relevant part, as the

" failure to practice medicine in accordance with the level of

care, skill and treatment recognized in general law related to

health care licensure." § 456.50(1)(g), Fla. Stat. (emphasis

added).

41 . As an interrelated charge, Petitioner contends in

Count III that Respondent violated Florida Administrative Code

Rule 64B8 - 9.013(3), a rule that defines, to the extent of its

reach, the standard of care for a physician's use of controlled

substances:

(3) Standards. The Board has adopted the

following standards for the use of

controlled substances for pain control:

(a) Evaluation of the Patient . A complete

medical history and physical examination

must be conducted and documented in the

medical record. The medical record 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

p hysical 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.

(b) Treatment Plan. The written treatment

plan should state objectives that will be

used to determine treatment success, such as

pain relief and improved physical and

psychosocial function, and should indicate

if any further diagnostic evaluations o r

other treatments are planned. After

treatment begin s, the physician should

adjust drug therapy to the individual

medical needs of each pat ient. Other

treatment modalities or a rehabilitation

program may be necessary depending on the

etiology of the pain and the extent to which

the pain is associated with physical and

psychosocial impairment.

(emphasis added).

42 . As concluded in the preceding section of this

Recommended Order, Respondent did not act within the course of

his professional practice ÏÏ i.e., his conduct occurred outside

the practice of medici ne ÏÏ on the occasions when he prescribed

controlled substances to M.R., K.R, S.J., and L.J. In light of

that determination, Respondent cannot be convicted, in

connection with the same underlying behavior, of failing to

practice medicine in accordance with the applicable sta ndard of

care. This principle has been explained succinctly as follows :

Thus, Sabates is correct that it would be

unfair to punish him for both a [violation

based on the same conduct. The un fairness

would stem , however, not from the problem of

multiplicitous charges, as Sabates argues,

but rather from the impossibility of having

committed both offenses at the same time,

vis - à - vis the same putative patient. The

bottom line is that a t violati on and a q

violation are mutually exclusive theories of

potential liability; either a physician was

practicing medicine, which would disprove an

element of an alleged q violation, or he was

not practicing medicine, which would

disprove an element of an all eged t

violation.

Dep't of Health, Bd. of Med. v. Sabates , Case No. 10 - 9430PL

(Fla. DOAH Oct. 29, 2010)(Order on Motion to Dismiss) ; Dep't of

Health, Bd. of Med. v. Genao , Case No. 10 - 3348, 2010 Fla. Div.

Adm. Hear. LEXIS 190 (Fla. DOAH Nov. 30, 2010)("Th e Department

cannot, however, as it does here, seek to punish the identical

conduct as both being within the practice of medicine and

outside the practice of medicine. If the legislature did not

consider the acts that constitute a violation of section

458 .331(1)(q) to be separate and distinct from, and more serious

than, the negligent acts that constitute medical malpractic e

pursuant to section 458.331(1) (t) . . . there would be no need

for it to identify separate violations"); Dep't of Health, Bd.

of Med. v. Tobkin , Case No. 05 - 2590PL, 2006 Fla. Div. Adm. Hear.

LEX IS 273 (Fla. DOAH June 26, 2006) ("[T]he act of prescribing a

controlled substance for improper purposes or improper reasons

is an act that is 'other than in the course of the physician's

professi onal practice.' And inasmuch as such an act is outside

the scope of the practice of medicine, section 458.331(1)(t)

. . . does not appear to apply to such an act because, by its

terms, section 458.331(1)(t) appears to be limited in

application to acts pe rformed in the cou rse of the practice of

medicine ") ; Dep't of Health, Bd. of Med. v. Heller , Case No. 00 -

4747PL, 2001 Fla. Div. Adm. Hear. LEXIS 2686 (Fla. DOAH June 12,

2001).

43 . Although not cited by Petitioner, the undersigned is

aware that the Board of Medicine has , in recent years , relied

intermittently upon two decisions ÏÏ Scheininger v. Department of

Professional Regulation , 443 So. 2d 387 (Fla. 1st DCA 1983) and

Waters v. Department of Health , 962 So. 2d 1011 (Fla. 3 d DCA

2007) ÏÏ for the propositio n that sections 458.331(1)(t) and

458.331(1)(q) are not mutually exclusive theories. As explained

below, however, neither opinion so holds .

44 . In Scheininger , the court affirmed the suspension of a

physician's license based on findings that he had committed acts

punishable under sections 458.331(1)(t) and 458.331(1)(q). The

court held that the record supported the hearing officer's

finding that the doctor had " on two occasions " prescribed

controlled substances to his patients without first giving t hem

physical examinations "as required by the minimum acceptable

prevailing community medical standard." Id. at 387 - 88 (emphasis

added). This obvious reference to the standard of care makes

clear that the finding in question supported a determination of

guilt with regard to the offense defined in section

458.331(1)(t), i.e., medical malpractice. The court further

held that the hearing officer's findings supported the

conclusion that the doctor had "routinely dispensed said drugs

to weight control patient s on a continuing basis without

appropriate follow - up care contrary to the best interests of the

patients." Id. at 388 (emphasis added). This was clearly a

reference to the offense defined in section 458.331(1)(q). That

statu t e creates a presumption whi ch (if not rebutted) requires a

finding that the doctor was "not [acting] in the best interest

of the patient and [was] not [operating] in the course of [his]

professional practice" based upon clear and convincing proof

that the doctor prescribed controlle d substances

" inappropriately or in excessive or inappropriate quantities."

The court did not state that the doctor had committed both

offenses at the same time, vis - à - vis the same putative patient s,

and such an interpretation of the case is unwarranted, given

that the medical malpractice had occurred only on two occasions,

whereas the dispensing of controlled substances other than in

the course of the doctor's professional practice had taken place

on a continuing basis.

45 . In Waters v. Dep't of Health , 962 So. 2d 1011 (Fla. 3d

DCA 2007), the court affirmed an order revoking a doctor's

license based on charges grounded in sections 458.331(1)(m),

458.331(1)(q), and 458.331(1)(t). The ALJ had recommended that

the charge based on subsection (q) be dismisse d because the

Department's interpretation of that provision was "unsettled."

Id. at 1012. The Department had rejected the ALJ's

"interpretation of the requirements of subsection (q)," id. at

1013, and the court held that doing was "within the agency' s

de legated range of discretion." I d. The court did not,

however, state what the Department's interpretation of

subsection (q) was, much less announce that it agreed with such

interpretation. Nor did the court articulate the "judge's legal

position with reg ard to the subsection (q) charges," id. at

1012, which it found the Department had not erred in rejecting.

Rather, the court described the ALJ's belief that the Department

had issued "two conflicting prior orders," "one seeming to

require proof that the a ccused doctor was engaged in illicit

activity when prescribing the drugs in question while the other

merely required proof that the doctor prescribed the drugs

inappropriately or in excessive or inappropriate quantities."

Id. It is reasonable to infer th at the ALJ had agreed with one

or the other of these positions.

46 . Neither of these "interpretations" of subsection (q)

is wholly accurate as stated. First, proof of "illicit

activity" is not required to sustain a finding of guilt under

subsection (q). What is required is p roof that the accused

doctor was not practicing medicine when he p rescribed the drugs

in question . Such conduct, of course, would be illicit by

def inition ÏÏ because it is not permitted under sub section (q) ÏÏ

and perhaps criminal in na ture, but the gravamen of the offense

is not merely " illicit activity." The gravamen of the

subsection (q) offense, rather, is dispensing a legend drug

other than in the course of the physician's professional

practice. Second, subsection (q) does not req uire proof of

inappropriate prescribing. Subsection (q) permits such proof as

the basis for a rebuttable presumption that the physician was

acting outside the course of his professional practice.

Consequently, Waters establishes nothing more than that th e

agency did not err in rejecting a flawed interpretation of

subsection (q). At any rate, the Waters court did not

explicitly ÏÏ or implicitly ÏÏ reject the proposition that

subsection (t) and subsection (q) prescribe mutually exclusive

theories for imposing administrative discipline.

47 . For the reasons expressed above , the undersigned's

finding of guilt with respect to section 458.331(1)(q) ÏÏ that

Respondent's issuance of the prescriptions occurred outside the

course of his practice ÏÏ precludes a determinat ion that

Respondent violated section 458.331(1)(t) and rule 64B8 - 9.013,

where each charge is predicated upon the same underlying

behavior. Accordingly, Count s I and III must be dismissed.

G. Count IV

48. Petitioner further contends, in Count IV of the

complaint, that Petitioner has violated section 458.331(1)(m),

which proscribes the following conduct :

Failing to keep legible, as defined by

department rule in consultation with the

board, medical records that identify the

licensed physician or the ph ysician extender

and supervising physician by name and

professional title who is or are responsible

for rendering, ordering, supervising, or

billing for each diagnostic or treatment

procedure and that justify the course of

treatment of the patient , includi ng, but not

limited to, patient histories; examination

results; test results; records of drugs

prescribed, dispensed, or administered; and

reports of consultations and

hospitalizations.

(emphasis added).

49. As reflected by the foregoing language, secti on

458.331(1)(m) requires a physician to create appropriate records

that justify a patient's course of treatment . Therefore, it

follows naturally ÏÏ pursuant to the reasoning expressed above

with respect to Counts I and III ÏÏ that no violation of section

458 .331(1)(m) can be sustained in connection with M.R., K.R.,

L.J., and S.J., as those individuals, alth ough connected to

Respondent through the joint venture and prescribed medication s

in furtherance thereof , were never treated by Respondent as

patients in t he course of his professional practice. Count IV

must therefore be dismissed.

H. Count V

50 . Finally, in Count V of the Complaint, Petitioner

alleges that Respondent violated section 458.331(1)(k), which

provides that a physician is subject to di scipline for:

Making deceptive, untrue , or fraudulent

representations in or related to the

practice of medicine or employing a trick or

scheme in the practice of medicine.

(emphasis added).

51 . As detailed in the findings of fact contained herein,

ther e is clear and convincing evidence that Respondent knowingly

authorized Dr. Wagner to submit written claims for reimburse ment

that represented ÏÏ deceptively and untruthfully ÏÏ that h e

(Respondent) provided treatments and services to patients S.J.,

L.J, and J .J. Although Respondent's conduct did not occur in

the practice of medicine, see Elmariah v. Department of

Professional Regulation, Board of Medicine , 574 So. 2d 164 (Fla.

1st DCA 1990)(holding that physician's submission of false

information in connectio n application for staff privileges did

not occur in the practice of medicine, as untruthful

representations were not made in the diagnosis, treatment,

operation, or prescription for any human disease), 18 / the

undersigned concludes that the false representat ions contained

within the claim forms related to the practice of medicine. S ee

Doll v. Department of Health , 969 So. 2d 1103, 1104 - 05 (Fla. 1st

DCA 2007 )(holding that submission of fraudulent reimbursement

claims related to the practice of medicine; licen see falsely

represented in the claims that he had conducted technical

components of magne tic resonance imaging testing); cf. Rush v.

Dep't of Prof'l Reg., Bd. of Podiatry , 448 So. 2d 26, 27 - 28

(Fla. 1st DCA 1984)(holding that conviction for conspiracy to

i mport marijuana related to the practice of podiatric medicine).

Accordingly, Respondent is guilty of Count V.

I . Penalty

52 . In determining the appropriate punitive action to

recommend in this case, it is necessary to consult the Board of

Medicine's disciplinary guidelines, which impose restrictions

and limitations on the exercise of the Board's disciplinary

authority under section 458.331. See Parrot Heads, Inc. v.

Dep't of Bus. & Prof'l Reg. , 741 So. 2d 1231, 1233 - 34 (Fla. 5th

DCA 1999).

53 . The Board's guidelines for violations of section

458.331(1)(q) and (1)(k) are enumerated in Florida

Administrative Code Rule 64B8 - 8.001. As it relates to

Respondent's violation of section 458.331(1)(q), rule 64B8 -

8.001(2)(q) provides for a penalty range (for a first offense)

of one year probation to revocation, 50 to 100 hours of

community service , and an administrative fine from $1,000 to

$10,000. With respect to the violation of 458.331(1)(k), rule

64B8 - 8.001(2)(k) penalty that ranges from probation to

rev ocation, 50 to 100 hours of community service , and a fine of

$1,000 to $10,000.

54. Rule 64B8 - 8.001(3) provides that, in applying the

penalty guidelines, the following aggravating and mitigation

circumstances may be taken into account:

(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 history 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 substances for trade, barter or

sale, by a licensee. In such cases, the

Board will deviate from the penalties

recommended above and impose suspension or

revocation of licensure.

(h) 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.

(emphasis added).

55 . Notwithstanding Respondent's lack of disciplinary

history , his egregious conduct in this matter ÏÏ that exposed at

least one individual to a potentially fatal drug interaction ÏÏ

warrants the revocation of his license to practice medicine and

the imposition of the maximum fine. See Dep't of Health, Bd. of

Med. v. Rodriguez , Case No. 10 - 1835PL, 2010 Fla. Div. Adm. Hear.

LEXIS 125 (Fla. DOAH Sept. 29, 2010)(recommending revocation and

maximum fine where physician violated section 458.331(1)(q),

among other statutory provisions).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final orde r be entered by th e

Board of Medicine :

1 . Findin g that Responden t violated section 458.331(1)(q ) ,

Florida S tatutes, as charged in Count II of the Administrative

Complaint ;

2 . Finding that Respondent violated section 458.331(1)(k),

as charged in Count V of the Complaint;

3. Dismissing Counts I, III, and IV of the Administrative

Complaint;

4. Revoking Respondent's license to practice medicine; and

5. Imposing a total administrative fine of $20,000.00.

DONE AND ENTERED this 16 th day of March , 20 12 , in

Tallahassee, Leon County, Florida.

S

___________________________________

EDWARD T. BAUER

Administrative Law Judge

Division of Adminis trative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing ( 850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16 th day of March, 2012 .

ENDNOTES

1 / Although not objected to, the deposition transcripts of C.H.,

S.J., L.J., M.R., and K .R. are hearsay , see Dinter v. Brewer ,

420 So. 2d 932, 933 (Fla. 3d DCA 1982) , a nd, under the

circumstances presented, neither Florida Rule of Civil Procedure

1.330 nor the rules of evidence authorize the use of the

transcripts beyond the supplementation or explanation of other

evidence. See Dep't of Heal th, Bd. of Chiropractic Med. v.

Christensen , Case No. 11 - 4936 (Fla. DOAH March 16,

2012)( discussing at length, in the companion case to the instant

proceeding, the potential application of rule 1.330 and the

evidence code to the deposition transcripts). Nevertheless, the

nature and extent of Respondent's incriminating admissions in

this proce eding, as supplemented by the transcripts of S.J.,

L.J., M.R., J.R. , provide clear and convincing evidence of

Respondent's misconduct.

2 / Pursuant to Florida Rule of Civil Procedure 1.330(a)(3)(B),

the deposition transcript of Ms. Zambrano may be us ed in this

proceeding for any purpose.

3 / Florida Rule of Civil Procedure 1.330(a)(3)(F) permits the

use of Dr. Florete's deposition transcript for any purpose.

4 / Pursuant to the parties' stipulation, the undersigned has

also considered the hea ring transcript from DOAH Case number 11 -

4936PL (that relates to Respondent's chiropractic license and

was heard on December 15, 2011), which has been included as part

of the record.

5 / Unless noted otherwise, all statutory references are to the

co dification in effect at the time of Respondent's alleged

misconduct.

6 / See § 460.403(9)(c)2., Fla. Stat. (providing that

chiropractic physicians are authorized to administer certain

topical anesthetics in aerosol form, and, for emergency

purposes, med ical oxygen).

7 / Respondent essentially conceded as much in his deposition

testimony. See Pet. Ex. 7, pp. 13 & 41.

8 / See Pet. Ex. 7, pp. 93 - 97.

9 / Each Lortab tab let prescribed to K.R. consisted of 10

milligrams of hydrocodone and 500 mill igrams of acetaminophen.

10 / In the dosage prescribed, hydrocodone is a Schedule III

controlled substance, the abuse of which "may lead to moderate

or law physical dependence or high psychological dependence." §

893.03(3), Fla. Stat.

11 / Each tablet contained 350 milligrams of carisoprodol.

12 / Carisoprodol is a Schedule IV controlled substance, the

abuse of which may lead to "limited physical or psychological

dependence relative to the substances in Schedule III." §

893.03(4), Fla. Stat.

13 / Each tablet contained 2 milligrams of alprazolam.

14 / Alprazolam is a Schedule IV controlled substance. §

893.03(4)(a), Fla. Stat.

15 / See Pet. Ex. 7, pp. 100 - 102. To the extent that Respondent

attempted during the final hearing to completely d isavow any

knowledge of M.R., such testimony is rejected.

16 / See Pet. Ex. 7, pp. 11, 18, 45, & 55.

17 / See Pet. Ex. 7, pp. 31 - 32; 43 - 44; 50 - 53.

18 / Elmariah interpreted section 458.331(1)(l), Florida Statutes

(1983), which prohibited the m aking of "deceptive, untrue, or

fraudulent representations in the practice of medicine." That

section, later redesignated as (1)(k), was amended in 1989 to

prohibit the making of "deceptive, untrue, or fraudulent

representations in or related to the pract ice of medicine."

(emphasis added). In dicta, the court in Elmariah noted that

while the conduct at issue in that case predated the amended

statute, the added "or related to" language should "give pause

to those who might assume that actions similar to [ the

physician's] remain unpunishable." 574 So. 2d at 165 n.1.

COPIES FURNISHED :

Robert Milne, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Allan L. Hoffman, Esquire

W. Grey Tesh, Esquire

1610 Sout hern Boulevard

West Palm Beach, Florida 33406

Nicholas Romanello, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1701

Bruce Deterding, Executive Director

Board of Chiropractic Medicine

Department of Heal th

4052 Bald Cypress Way, Bin C - 07

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 issu e the Final Order in this case.