11-005691PL Department Of Health, Board Of Medicine vs. Jacinta Irene Gillis, M.D. Status: Closed Recommended Order on Friday, February 3, 2012.

Summary: Dr. Gillis failed to properly diagnose, treat, and medicate patients; recommend suspension of license and payment of costs and fees.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE , )

)

Petitioner , )

)

vs. ) Case Nos. 11 - 5691PL

) 11 - 5692PL

JACINTA IRENE GILLIS, M.D. , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice to all parties, the final hearing was

conducted in this case on December 5 and 6, 2011, in Ft. Myers,

Florida, before Administrative Law Judge R. Bruce McKibben of

the Division of Administrative Heari ngs.

APPEARANCES

For Petitioner: Robert J. Bobek, Esquire

Shirley L. Bates, Esquire

Department of Heath

Prosecution Services Unit

4052 Bald Cypress Way, Bin C65

Tallahassee, Florida 32399 - 3265

For Respondent: Jacinta I rene Gillis, M.D. , pro se

12446 Pebble Stone Court

Fort Myers, Florida 33913

STATEMENT OF THE ISSUE S

The issues in this case, as set forth in the Amended

Administrative Complaints in each respective case, are as

follows:

DOH Case No. 2010 - 01 128/DOAH Case No. 11 - 5692

Count One . Whether Respondent, Jacinta Irene Gillis, M.D.

(hereinafter referred to herein as " Dr. Gillis " ), violated

sections 458.331(1)(nn) and 458.326, Florida Statutes (2008 and

2009), by:

a. Failing to diagnose patient M.G. w ith intractable

pain prior to prescribing a controlled substance

under Schedules II - V, as provided in section

893.03, from on or about December 19, 2008 through

December 30, 2009;

b. By inappropriately or excessively prescribing

potentially lethal, highly abused, controlled

substances, to wit: oxycodone, oxycontin,

Percocet, and Valium, to M.G. without justification

during the same time period;

c. By inappropriately or excessively prescribing

controlled substances to M.G. prior to exploring

other treatm ent modalities or rehabilitation; and

d. By failing to order a urine drug screen on M.G. at

any time during her course of treatment.

Count Two . Whether Dr. Gillis failed to keep legible

medical records justifying the course of treatment for M.G. in

one or more of the following ways:

a. By failing to document justification for

inappropriately or excessively prescribing

controlled substances during her course of

treatment; and

b. By failing to document justification for not

ordering a urine drug screen du ring the course of

treatment.

Count Three . Whether Dr. Gillis failed to meet the

required standard of care in regards to her treatment of M.G. in

one or more of the following ways:

a. By inappropriately or excessively prescribing

controlled substances wi thout justification;

b. By failing to confirm whether M.G. presented to a

psychiatrist or psychologist after the initial

referral by Dr. Gillis;

c. By failing to order a urine drug screening of M.G.

during her course of treatment; and

d. By inappropria tely or excessively prescribing

controlled substances prior to exploring other

modalities or rehabilitation.

Count Four . Whether Dr. Gillis prescribed controlled

substances , other than in the course of her professional

practice , by prescribing controlled substances inappropriately

or excessively in one or more of the following ways:

a. By inappropriately or excessively prescribing

controlled substances prior to exploring other

treatment modalities or rehabilitation for M.G.;

b. By inappropriately or exce ssively prescribing

controlled substances without ordering a urine drug

screening for M.G.; and

c. By inappropriately or excessively prescribing

controlled substances to M.G. without

justification.

DOH Case No. 2008 - 20661/DOAH Case No. 11 - 5961

Count One . Whether Dr. Gillis violated section

458.331(1)(nn), Florida Statutes (2008), 1/ and Florida

Administrative Code Rule 64B8 - 9.013(3) in one or more of the

following ways:

a. By failing to perform or document performing a

complete physical exam of R.S.;

b. By failing to explore or document exploring other

treatment modalities or rehabilitation for R.S.;

c. By failing to obtain or document obtaining a

complete medical history of R.S.;

d. By failing to document the nature or intensity of

R.S. ' s pain;

e. By failing to document the current or past

treatments of R.S. ' s pain;

f. By failing to document information on the effect of

pain on R.S. ' s physical or psychological function;

g. By failing to develop or document developing a

treatment plan for R.S.; a nd

h. By failing to determine or document determining if

there were any underlying or coexisting diseases or

conditions for R.S.

Count Two . Whether Dr. Gillis violated sections

458.331(1)(nn) and 458.326 in one or more of the following ways:

a. By faili ng to diagnose R.S. with intractable pain

prior to prescribing controlled substances, i.e.,

Percocet;

b. By prescribing 90 tablets of Percocet 10/325 to

R.S. without justification;

c. By prescribing Percocet to R.S. without exploring

other treatment mod alities or rehabilitation; and

d. By inappropriately prescribing Percocet to R.S.

after R.S. reported that he was not currently being

treated for pain.

Count Three . Whether Dr. Gillis failed to keep legible

medical records justifying the course of trea tment for R.S. in

one or more of the following ways:

a. By failing to document justification for

prescribing Percocet to R.S.;

b. By failing to document a complete physical

examination of R.S. prior to prescribing Percocet;

c. By failing to document a c omplete medical history

of R.S. prior to prescribing a controlled

substance;

d. By failing to document a urine screen on R.S.; and

e. By failing to document a diagnosis of intractable

pain for R.S.

Count Four . Whether Dr. Gillis violated sections

458. 331(1)(nn) and 458.326 in one or more of the following ways:

a. By failing to perform or document performing a

complete physical examination of D.H. on either of

two visits;

b. By failing to obtain or document obtaining a

complete medical history on D.H. ;

c. By failing to explore or document exploring other

treatment modalities or rehabilitation for D.H.;

d. By failing to document the nature or intensity of

D.H. ' s pain;

e. By failing to document the current or past

treatments of D.H. ' s pain;

f. By fa iling to document information on the effect

of pain on D.H. ' s physical or psychological

function;

g. By failing to develop or document a treatment plan

for D.H.; and

h. By failing to determine or document determining if

there were any underlying or coexi sting diseases

or conditions for D.H.

Count Five . Whether Dr. Gillis violated sections

458.331(1)(nn) and 458.326 in one or more of the following ways:

a. By failing to diagnose D.H. with intractable pain

prior to prescribing a controlled substance, i.e .,

oxycodone;

b. By prescribing 120 tablets of 30 mg oxycodone

without justification;

c. By prescribing 120 tablets of 30 mg oxycodone prior

to exploring other treatment modalities or

rehabilitation for D.H.; and

d. By prescribing oxycodone to D.H. a fter D.H.

reported that he was not experiencing any pain.

Count Six . Whether Dr. Gillis failed to keep legible

medical records justifying the course of treatment for D.H. in

one or more of the following ways:

a. By failing to document justification for

p rescribing 120 tablets of 30 mg oxycodone;

b. By failing to document a complete physical

examination of D.H. prior to prescribing a

controlled substance;

c. By failing to document a complete medical history

of D.H.;

d. By failing to document urine dru g screening of D.H.

prior to prescribing a controlled substance; and

e. By failing to document a diagnosis of intractable

pain for D.H. prior to prescribing a controlled

substance.

PRELIMINARY STATEMENT

This case was originally opened at the Division of

Administrative Hearings ("DOAH") under C ase Nos. 11 - 4058PL and

11 - 4062PL. Pursuant to a motion filed by Respondent, Department

of Health, Board of Medicine (hereinafter the " Department " ),

jurisdiction was relinquished to the Department so that the

Adminis trative Complaints could be amended and presented to the

probable cause board. When the files were reopened at DOAH,

they were opened under the style and case numbers appearing

above. Dr. Gillis disputes the allegations in the Amended

Administrative Comp laints and requested a formal administrative

hearing.

At the final hearing, the Department presented the

testimony of four witnesses: Daniel Negersmith, a deputy with

the Pinellas County Sheriff ' s Office (PCSO); Robert Johnson,

deputy with PCSO; Robert Osterland, detective with PCSO; and

Dr. Marc Gerber, accepted as an expert in p ain m edicine. The

Department ' s E xhibits 1 through 3, 6, and 17 were admitted into

evidence. Official recognition was taken of the statutes and

rules offered in E xhibits 7 thro ugh 16. Dr. Gillis called

Negersmith, Johnson and Dr. Gerber as witnesses in her

case - in - chief. Dr. Gillis did not testify. Dr. Gillis's

E xhibits 8 through 11 were admitted into evidence.

The parties advised that a transcript of the final hearing

would be ordered. By rule , the parties have ten days from the

date the transcript is filed to file proposed recommended

orders. The T ranscript was filed on January 9, 2012.

Dr. Gillis filed a " Post Order Recommendation " on January 3,

2012 , which is accepted a s her P roposed R ecommended O rder

("PRO") . On January 5, 2012, Dr. Gillis refiled her Post Order

Recommendation, stating that the Department refused to provide

her a copy of the final hearing T ranscript " as agreed in court. "

Dr. Gillis offered to resubmit her Post Order Recommendation

with citations to the record if the Department provided her a

copy of the T ranscript. The Department filed its PRO on

January 19, 2012. Each party ' s PRO was duly considered in the

preparation of this Recommended Order. Dr. Gillis filed a

response to the Department's PRO on February 1, 2012, but it was

not considered in the preparation of the Recommended Order, as

there is no provision in the Rules of Procedure for such a

response.

FINDINGS OF FACT

1. The Department is th e state agency having

responsibility for monitoring health care professionals,

including medical doctors. Dr. Gillis is a medical doctor

licensed in Florida, North Carolina , and Iowa. She is not

board - certified in any area of medicine , but claims to be

" eligible " for board - certification in the field of internal

medicine.

2. Dr. Gillis received her medical degree from Meharry

Medical College in Nashville, Tennessee, in 1997. She completed

her internal medicine residency in 2003. Her medical career

incl udes the following places of employment:

Ʊ Medical director/staff physician at Tennessee

prison for women: March - August 2003;

Ʊ Hospitalist at Hilton Head Regional Medical Center:

August 2003 - February 2004;

Ʊ Pain management " specialist " in Atlanta, Georgia:

March - September 2004;

Ʊ Staff phys ician for Illinois Correctional

Facilities: September 2004 - January 2005;

Ʊ Pain specialist/physician in Rock Island, Illinois:

March - September 2005;

Ʊ Hospitalist at Brommen Medical Center in

Bloomington, Illinois: May - August 2005;

Ʊ Hospitalist at Hor izon Medical Center in Dixon,

Tennessee: September 2005 - January 2006;

Ʊ Pain specialist for National Health Services Clinic

in Nashville, Tennessee: June - August 2006;

Ʊ Hospitalist at Kedlic Medical Center in Richland,

Washington: September 2006 - Janua ry 2007;

Ʊ Hospitalist at Auburn Regional Medical Center in

Auburn, Washington: January - June 2007;

Ʊ Hospitalist at Mercy Medical Center in Sioux City,

Iowa: July - August 2007;

Ʊ Hospitalist at Albermarle Medical Center in

Elizabeth City, North Carolina : September - December

2007;

Ʊ Hospitalist at National Medical Affiliates in Punta

Gorda, Florida: January - July 2008;

Ʊ Pain management specialist at UR Medical Clinic in

St. Petersburg, Florida: July - November, 2008; and

Ʊ Pain management specialist a t Dollar Medical Clinic

in St. Petersburg, Florida: January 2009 - October

2010.

3. The Department is pursuing sanctions against Dr. Gillis

based on her provision of medical care to three patients: D.H.,

R.S. and M.G. Both D.H. and R.S. are pseudonyms used by

D eputies Negersmith and Johnson, respectively, as part of an

undercover investigation of the clinic where Dr. Gillis was

working in 2008. Their initials are used throughout this order

for continuity , because all of the patient records and other

e vidence used those initials , rather than patient names. M.G.

was a bona fide patient of Dr. Gillis ' s while she was operating

another clinic in 2009 - 2010.

4. In 2008 , Dr. Gillis worked at a clinic operated by

UR Medical Group, Inc., located in Pinellas Pa rk, Florida. The

clinic (referred to herein as the " UR Clinic " ) was owned by

Renee Demasso, a non - physician. Dr. Gillis was the only medical

doctor on staff at the clinic when she worked there. Another

employee at the clinic was Quinton Knight, a large African -

American male , who served as the office receptionist. The

clinic had a " recruiter " named Jason Norris. 2 / A recruiter is a

person hired by the clinic to find new patients for the clinic ' s

medical staff, i.e., for Dr. Gillis.

5. On August 4, 2008, Negersmith , posing as D.H. , was

escorted to the UR Clinic by Norris. Upon arrival , he was given

a patient information sheet to fill out. Norris directed him to

write " severe lower back pain " on the sheet as the purpose of

the visit. D.H. filled out the sheet, providing the following

information:

Ʊ His pseudonym, address and contact information;

Ʊ His gender, marital status, height and weight;

Ʊ A fake social security number and date of birth;

Ʊ A fake driver ' s license number;

Ʊ His supposed occupat ion, i.e., a lineman for a

private employer;

Ʊ A purported ailment, i.e., " severe lower back pain,

weakness in knees " as the purpose for his visit;

Ʊ No insurance information;

Ʊ Neck/back pain and headaches as his medical

history;

Ʊ A signature and da te.

6. All of the information provided was , of course , false.

That is, D.H. was a fictitious name for a person pretending to

be a patient. After filling out the form, D.H. discussed with

Norris the cost of seeing the doctor. Norris said it would be a

$350 charge. After approximately 45 minutes, D.H. was escorted

to another waiting area, a vestibule separate from the main

waiting area.

7. After a short wait of five to ten minutes, D.H. was

shown into an examination room where he met Dr. Gillis. D.H .

was told to weigh himself on a floor scale and told Dr. Gillis

his weight, 264 pounds. She then took his blood pressure which

was 140/80. Dr. Gillis told D.H. that he might want to take

some medication to lower his blood pressure.

8. Dr. Gillis inqu ired as to the history of his present

illness. According to the History and Physical Form (referred

to herein as the patient chart) filled out by Dr. Gillis as she

talked with the patient, D.H. said he had no pain (zero on a

one - to - ten scale). Dr. Gillis wrote that D.H. " has difficulty

explaining what he is really feeling " and that D.H. said muscle

relaxers do not work for him. D.H. then told Dr. Gillis that

oxycodone helps him to relax.

9. Dr. Gillis then had D.H. perform three simple tasks:

walking a short distance on his toes, walking on his heels, and

raising his arms above his head. D.H. walked as directed, but

he could not raise his arms higher than shoulder height because

he was concealing a firearm in his waistband and raising his

arms any highe r would have revealed the weapon. 3 / So he raised

his arms up to shoulder height and then lowered them. D.H.

cannot remember whether Dr. Gillis asked him why he could not

raise his arms higher. Her notations on the patient chart

indicate only that D.H. h as less strength in his right foot

(leg) and less range of motion in his left arm.

10. At the conclusion of the examination, Dr. Gillis

listed " chronic back and neck problems, chronic pain symptoms,

non - specific " as the assessment and treatment plan for D. H. The

lower left corner of the patient chart has an indication saying

" needs records. " D.H. purposefully avoided using the word

" pain " throughout his examination. The only mention of pain was

o n the intake sheet he filled out, where he checked a box

en titled neck/back pain. D.H. told Dr. Gillis that oxycodone

helped him relax. She did not inquire as to whether he was

taking any other medications or suggest any other modalities or

treatment with D.H.

11. After the examination, D.H. went back to the fro nt

office where he received a prescription for 120 tablets of 30 mg

oxycodone and for 90 tablets of 600 mg M otrin. He handed Norris

$350 in cash, which Norris then gave to Knight. No receipt was

provided for the payment. D.H. then went to a local pharma cy

and had the prescription filled. Pursuant to prior

arrangements, he gave 60 of the oxycodone tablets to Norris for

sale on the street. 4 / The remaining tablets were placed into

locked storage. Norris did not know D.H. was a police officer,

of course.

12. On August 27, 2008 (23 days later), D.H. appeared at

the UR Clinic again. This time he was accompanied by D eputy

Johnson who was posing as patient R.S. The deputies arrived at

the clinic and looked for Norris, who was usually hanging around

the parki ng lot. However, Norris was not there , and the

deputies could not reach him via telephone , so they decided to

go into the clinic anyway and see if they could obtain

additional drugs. When D.H. and R.S. came into the clinic

without Norris accompanying the m, Knight became very upset and

agitated. D.H. told Knight that Norris had recently changed his

cell phone number , and it was not possible to contact him right

then. R.S. started to walk out of the office, but Knight called

him back and asked him for $35 0 and a copy of his

identification . Knight then gave R.S. a patient information

sheet to fill out. D.H. was not asked to fill out any paperwork

at that time.

13. D.H. was then escorted to the examination room where

he saw Dr. Gillis again. No tests or p hysical examination were

conducted. The only thing Dr. Gillis asked D.H. was whether he

had brought his medical records with him. D.H. told her he had

not had time to get them from his prior doctor yet. Dr. Gillis

instructed D.H. not to come back to the clinic without his

medical records. At the foot of the chart, Dr. Gillis wrote

" Dr. Rew, family doctor; 2 weeks records; brought in

personally. " The note was not explained by Dr. Gillis.

14. The patient chart filled out by Dr. Gillis on the

second visit was extremely abbreviated in content. Under chief

complaint , Dr. Gillis wrote, " patient states treatment plan is

working; no complaints. " The chart contains his vital signs:

pulse of 142/80 and weight of 268 pounds. The history of

present illness sect ion of the form says only that D.H has a

zero out of ten level of pain with treatment. She noted that

D.H. has " no changes from prior testing " and added a note to

" refill meds. " The assessment and treatment plan section says

" chronic back and neck proble m. " According to D.H., he never

mentioned any problem to Dr. Gillis.

15. Dr. Gillis did not inquire as to whether D.H. was

currently taking any medications, but wrote , " oxycodone # 120 "

and " Motrin 600 # 90 " on the current medications section of the

chart. There was no physical examination of any kind performed

on this visit.

16. D.H. then went out to the office and got his

prescription for 120 tablets of 30 mg oxycodone. Dr. Gillis

never asked him whether he had taken all of the prior

prescription, nor di d she discuss pain with him. As part of his

cover, D.H. intentionally avoided the use of the word " pain "

when talking to Dr. Gillis.

17. Meanwhile, R.S. completed his patient information

sheet, providing the following information:

Ʊ His pseudonym, addres s and contact information;

Ʊ His gender, marital status, height and weight;

Ʊ A fake social security number and date of birth;

Ʊ A fake driver ' s license number;

Ʊ His occupation (carpenter work) and employer

(unemployed);

Ʊ Purpose of visit, which D.H . listed as " stiffness in

both shoulders " ;

Ʊ No auto accident involved and no insurance available;

Ʊ Medical history options of high blood pressure and

neck/back pain were checked in the list of various

diseases and conditions listed on the sheet;

Ʊ An allergy to Keflex;

Ʊ Referred to clinic by a friend.

18. R.S. was then taken back to an examination room where

he met Dr. Gillis. He, too, contrived not to mention the word

pain in his conversations with Dr. Gillis. He simply said he

had a stiff shoul der.

19. Dr. Gillis took his vital signs and had R.S. do the

same physical tests that D.H. had performed in his first visit.

R.S. remembers Dr. Gillis listening to his chest with a

stethoscope and then examining his shoulder.

20. The patient chart filled out by Dr. Gillis during

R.S. ' s visit contained the following information: " Chief

complaint - - Self employed; carpentry; history of surgery on back,

shoulder problems one year ago; surgery and thus pain; no

history of pain management. " She correctly noted that R.S. was

not currently on any medications.

21. Dr. Gillis ' s assessment and treatment plan for R.S.

was listed on the chart as chronic shoulder pain. There is no

explanation for that notation. At the bottom corner of the

chart, Dr. Gillis wrote " MRI of neck/shoulder; Dr. Wood,

Pinellas County Orthopedic. " That notation was not explained

further by Dr. Gillis.

22. R.S. went back to the front office where he was handed

a prescription for Percocet 10/325, even though he never asked

for medication. The Percocet was at the maximum strength (10

mg) for oxycodone content for that medication. R.S. then left

the office, identified photographs of Dr. Gillis and Knight for

his superiors and had no further involvement with the

investigation.

23. The testimony o f Negersmith and Johnson as to their

undercover actions was credible. Each of them had a clear and

unambiguous memory of the events and did not appear to have any

prejudices or ill intent that might negatively affect their

testimony. The truth and veraci ty of their statements is

accepted.

24. At some point in time after the August 27, 2008 ,

visit, the P CSO decided they had enough evidence to prosecute

the UR Clinic as a " pill mill. " As part of that prosecution,

Dr. Gillis was pulled over in a traffic sto p one day as she was

leaving the clinic. After detaining her and explaining the

charges that were being filed, the deputies advised Dr. Gillis

to retain all patient records for patients she had been treating

at the clinic. Later, Dr. Gillis cooperated wi th the s heriff ' s

o ffice and provided sets of original patient records to them.

Dr. Gillis thereafter left her employment with the UR clinic and

opened her own clinic.

25. Patient M.G. presented to Dr. Gillis at her new place

of employment, Dollar Medical Clinic, on December 19, 2008.

Dr. Gillis was the owner and operator of this new clinic.

26. M.G. filled out a patient information sheet which

garnered the following information about him:

Ʊ Name, address and contact information;

Ʊ Marital status (married), and emergency contact

information;

Ʊ Height, weight, and date of birth;

Ʊ Purpose of visit, listed as " refill on meds, follow - up

on surgery. "

Ʊ Auto accident on November 17, 2007;

Ʊ Insurance company information; and

Ʊ Medical history of neck/back pain, headaches, and

arthritis.

27. M.G. was then examined by Dr. Gillis. She filled out

a patient chart for him that listed a history of surgery and

treatments for pain. The patient chart lists Dr. Spuza and

Dr. Nucci as physicians from whom M.G. had received care in the

past.

28. The patient chart note d that M.G. need ed to be

referred to a psychiatrist or psychologist as soon as possible .

There wa s also a note indicating that M.G. ' s MRI need ed to be

confirmed. Then there wa s a note written by Dr. Gillis saying

" [p] atient is not going to be patient. " There wa s no

explanation as to what that note mean t . The assessment and plan

of treatment wa s then listed as " pain dependent " (altho ugh the

writing on the patient chart is not very clear , and no testimony

was elicited from Dr. Gillis to confirm what was written) and

that the patient was advised about decreasing his pain

medications.

29. M.G. complained of pain at an eight on the one to ten

scale with " treatment with oxycodone times four, " presumably

meaning four times per day.

30. Upon completion of her examination of M.G., Dr. Gillis

wrote him a prescription for 240 tablets of 30 mg oxycodone,

120 tablets of 40 mg oxycontin, 30 table ts of 10 mg valium, and

60 tablets of 500 mg naprosyn. According to the prescription,

M.G. was supposed to take one of the oxycodone tablets every

three hours, 24 hours per day, i.e., eight times per day. That

was in addition to the oxycontin, which was to be taken every

six hours. According to Dr. Gerber, " no pain doctor in the

country would write a prescription like that. " It would also be

almost impossible for a patient to take all of those medications

as prescribed.

31. Approximately one month later , on January 16, 2009,

M.G. returned to Dr. Gillis for the first of several follow - up

visits. The patient chart filled out by Dr. Gillis that day

indicates the chief complaint by M.G. to be " pain, top of

buttocks radiating down leg to foot on left side. " M.G. said

his pain level was an eight out of ten with his medications.

Dr. Gillis wrote a note to refill the medications and that there

were " no acute changes " to M.G. ' s condition. This time, the

assessment and treatment plan was abbreviated as " A/P. " This

was the beginning of very cursory notes in the patient charts

for M.G. The notes on the chart became shorter and less

detailed as time went on. The "A/P" was listed as chronic neck

pain and dental issues.

32. Dr. Gillis then wrote prescriptions for 240 more

oxycodone tablets, 120 more oxycontin tablets, 30 valium and

30 amoxicillin tablets. There is no record in the chart as to

why the amoxicillin was added to M.G. ' s medication regimen.

There is no justification for providing essentially the same

r egimen of treatment when the patient was complaining of pain at

a level of eight out of ten .

33. M.G. came back for another follow - up on February 13,

2009. At that visit, Dr. Gillis charted the chief complaint as

" thorac lumbar surgery [indecipherable] mo nths ago. " Again M.G.

complained of a level of pain at eight out of ten when using his

medications. Dr. Gillis noted her intent to refill the

medications and that there were no acute changes in M.G. ' s

condition. His "A/P" was listed as chronic back pain . A

prescription for the same medications, same doses, and same

amounts as the previous visit was issued.

34. M.G. returned on March 12, 2009 , for a follow - up

visit. The chief complaint at that time was " patient has

difficulty [indecipherable]. " Under h istory of present illness,

Dr. Gillis wrote that M.G. has no history of pain prior to

surgery and that he gets no relief from valium or Soma. There

is no prescription for Soma in the records, so M.G. must have

been getting that drug from some other source . There is no

indication Dr. Gillis inquired as to where he got the

medication, whether he was on any other medications, or how

often he was taking the medication.

35. Dr. Gillis again wrote that there were no acute

changes in M.G. ' s condition although he did not present with the

same chief complaint. The "A/P" appears to be chronic back

pain , although the writing is not clear. Prescriptions for

oxycodone and oxycontin were renewed as before, and a

prescription for A mbien was added. The valium prescript ion was

not refilled. No explanation for the change in the drug regimen

was provided by Dr. Gillis.

36. On April 4, 2009, M.G. returned for another visit.

This time his chief complaint was that he ran out of medications

and had a seizure. There is no in dication that Dr. Gillis

inquired as to the type of seizure or whether M.G. had received

any treatment for it. There is no evidence as to when M.G. ran

out of his medications or how many pills he had taken since the

prior visit. M.G. still complained of pain at a level of eight

out of ten with his treatment. There is no indication of his

pain level after he ran out of his medications. The "A/P" was

listed as chronic back pain. The prescriptions written by

Dr. Gillis for this visit were the same as the previous visit.

37. For his next visit, May 12, 2009, there is no chief

complaint listed on the patient chart. Dr. Gillis again wrote

that there was no acute change in the patient ' s condition, that

M.G. ' s pain level was 6.5 out of ten with his treatment, and

that the prescriptions should be refilled. The same oxycodone

and oxycontin prescriptions (240 and 120 tablets, respectively)

were written, along with the A mbien prescription.

38. M.G. visited Dr. Gillis again on June 12, 2009. The

chief complaint fo r that visit was low back pain caused by

tripping over a toy car at his home. M.G. ' s pulse and weight

were measured , and there wa s a note on the chart that M.G. ha d

" CBP " (which is presumably chronic back pain) and a toothache.

A notation at the bottom o f the chart sa id " 25$ , " but is not

explained. Dr. Gillis prescribed the same regimen of 240 pills

of oxycodone and 120 pills of oxycontin. In the current

medications section of the chart, Dr. Gillis wrote " Meds. " That

notation was not explained. As in each of the previous visits,

Dr. Gillis did not perform a urine screen to determine whether

M.G. had been taking the medications or not.

39. M.G. came back to see Dr. Gillis on July 6, 2009. The

chart for that visit says the chief complaint by M.G. was a

surgical procedure called percantaneous distectomy and that M.G.

" had care since the procedure. " There is also a note that

indicates " 5 procedures , " but the note is not explained. M.G.

reported his pain level as five out of ten , with medications ,

and ten out of ten , without. Dr. Gillis prescribed the same ,

oxycodone and oxycontin medications as in the previous visits.

There is no explanation as to why the medication levels were the

same , even though M.G. was reporting less pain than in prior

visits and had undergone surgery during the interim.

40. M.G. ' s next visit to Dr. Gillis was on August 5, 2009.

His chief complaint on that day is essentially unreadable , and

Dr. Gerber could not decipher it at all. There is a mention of

Xanax in the chart, but its purpose is not explained. M.G. ' s

pain level is listed as six out of ten , with medications, ten

out of ten , without. That is close to the pain levels described

in the prior visit. However, without some sort o f physical or

functional exam or a psychologi cal assessment, it wa s impossible

to determine whether M.G. was functioning, no matter what his

pain level. Dr. Gillis refilled the oxycodone and oxycontin

prescriptions and added a prescription for ten tablets of

Percocet 1/650, a minimal and almost usel ess dose . The "A/P"

list ed chronic lower back pain and seizure activities, but there

wa s no discussion as to what seizures occurred or when.

41. On September 9, 2009, M.G. presented with a complaint

of a stiff neck. The chart mention ed an MRI, but d id no t

explain or elaborate on it. The assessment of the patient wa s

listed as " Ch LBP " (presumably chronic lower back pain), but

there wa s no explanation of the relationship between the

assessment and the presenting problem. There wa s no

documentation of car e in treatment on the patient chart.

Dr. Gillis refilled the oxycodone and oxycontin and also added a

prescription for Mobic, an anti - inflammatory medication.

42. M.G. came back to visit Dr. Gillis on October 7, 2009.

The chief complaint sa id M.G. ha d go od and bad days and that the

last surgery did not have good results. His pain level was down

to six out of ten , with medications , and ten out of ten ,

without. Chronic lower back pain continues to be the assessment

and treatment plan notation. Nonetheles s, he was prescribed the

exact same levels of oxycodone and oxycontin as all of the other

visits.

43. On November 4, 2009, M.G. returned to see Dr. Gillis.

A different patient chart form was utilized by Dr. Gillis at

that visit. The form includes a quest ion, " Hello, how are you

doing? " to which M.G. responded, " Terrible. " M.G. said the

ongoing treatment was working , but that he wa s not sleeping

better. His pain level on that day was back up to seven out of

ten , with medications. In her notes, Dr. Gilli s said to " refill

with adjustment with valium. " There is no explanation as to why

valium would be added to M.G. ' s medication regimen.

44. M.G. then visited Dr. Gillis on December 2, 2009. In

response to the question about how he wa s feeling, M.G. said he

was " planning for surgery; not doing good. " He said the

treatment was working and he was sleeping better. The

assessment update on the chart said chronic lower back pain with

exacerbations. The exacerbations were not explained. M.G. was

prescribed t he same medications as the previous visit.

45. M.G. ' s thirteenth and last monthly visit to Dr. Gillis

occurred on December 20, 2009. When asked how he felt, M.G.

answered " Alright. " He said the treatment was working , but that

some of his medications had been stolen. He reported not having

oxycodone for nine days and oxycontin for seven days (or,

possibly, not having nine oxycodone tablets or seven oxycontin

tablets , the record is not clear.) He also said he had taken

his medications that very day, but t here wa s no indication in

the record as to which medications he was talking about. He

said his lower back pain was at a level of seven to eight on

that day. Dr. Gillis did not inquire about the inconsistent

statements and refilled his prescriptions anywa y.

46. The patient records for M.G. do not discuss whether he

was paying for the cost of the prescriptions out - of - pocket or

whether insurance was covering some of the cost. The cost of

the medications would have been approximately $600.00 per month.

47. I t is clear that M.G. presented as a complex patient

and was obviously receiving medical care elsewhere at the same

time he was being treated by Dr. Gillis. He was apparently

receiving medications from other sources at the same time

Dr. Gillis was treating him. Dr. Gillis was at least somewhat

aware of M.G. ' s other medical care, but she never did monitoring

or screening of M.G. that would have given her insight into how

her treatment plan was interacting with M.G. ' s other treatment.

And, once Dr. Gillis s aw that her treatment was not alleviating

M.G. ' s pain, she should have referred him to a b oard - certified

pain management specialist.

48. Dr. Marc Gerber was accepted at final hearing as an

expert witness for the Department. Dr. Gerber is a b oard -

certifie d pain management specialist who currently treats

patients with pain management issues. Dr. Gerber ' s testimony

was clear, concise, and credible. He did not appear to have any

prejudice against Dr. Gillis as a person, but was very concerned

about how she was practicing medicine. His testimony forms the

basis for the following findings of fact.

49. Relying upon the patient charts and patient

information sheets provided by Dr. Gillis, there does not appear

to have been a diagnosis of intractable pain for M. G.

Intractable pain is pain for which, in the generally accepted

course of medical practice, the cause cannot be removed and

otherwise treated. There does not appear to have been an

appropriate and complete physical examination of M.G. performed

by Dr. G illis.

50. The oxycodone and oxycontin prescriptions for M.G.

over a 13 - month period are excessive. Despite her initial note

wherein she advised M.G. that his medication levels must be

decreased, Dr. Gillis continued the same regimen of oxycodone

and ox ycontin throughout M.G. ' s treatment. There is no

indication the medications were working, as M.G. continued to

complain about pain for the entire 13 months he was under

Dr. Gillis ' care. Other than adding other medications, Valium,

Mobic, Percocet, and A mbien for very brief periods, there was no

change to M.G. ' s prescription regimen. The patient charts for

the visits to Dr. Gillis do not contain any justification for

why the medications were prescribed in those quantities.

51. The amount of oxycodone and oxycontin prescribed was,

in itself, excessive. According to the prescriptions, M.G. was

supposed to take one oxycontin every six hours. Oxycontin is a

time - release medication that should only be taken once every

12 hours at most. M.G. was prescribed e ight tablets of 30 mg

oxycodone per day, i.e., one every four hours or two every eight

hours - - in addition to the oxycontin. The totality of those

medications could be lethal.

52. There are no indications in the patient charts that

Dr. Gillis was taking vi tal signs and doing a physical

evaluation of M.G. at every visit. Nonetheless, she continued

to prescribe the high dosages of potentially lethal medications.

53. Most importantly, Dr. Gillis never had a urine drug

screen done on M.G. Such a test would ha ve revealed whether

M.G. was actually taking the drugs he was prescribed. It would

have provided a determination of the level of drugs or other

substances in M.G. ' s body and then how the drugs were affecting

him. A urine drug screen done at the time of M .G. ' s earliest

visit would have established a baseline for measuring the

effectiveness and utility of future prescriptions. For a

patient such as M.G., with a history of surgeries, a need for

psychiatric evaluation, and a propensity to take large amounts

of drugs, a urine drug screen would have been an essential

element of the periodic review required for all such patients.

54. Dr. Gillis erroneously stated that she had rejected

D.H. and R.S. as patients after their first and second visits,

respectively. The evidence shows that both " patients "

voluntarily stopped visiting the clinic after completing their

undercover work. Neither of the patients was told by Dr. Gillis

not to return (although D.H. was told not to come back without

bringing his medical reco rds).

55. Dr. Gillis did not testify at final hearing and did

not provide any credible rebuttal to the facts asserted by the

Department ' s witnesses. Dr. Gillis did demonstrate an

understanding of the practice of medicine through her

questioning of the Dep artment ' s medical expert, but her

treatment of patients R.S., D.H. and M.G. was deficient. The

Department did not specifically allege, nor was there any

evidence to support that Dr. Gillis intentionally practiced

medicine in an inappropriate manner. Howe ver, her treatment of

the patients in question indicate s serious shortcomings in her

ability to effectively and appropriately manage pain for her

patients. Furthermore, Dr. Gillis represented herself at final

hearing and, without assistance of counsel, wa s not able to

effectively present a strong defense to the Department ' s

allegations. Although she was given ample opportunity to

testify concerning her care and treatment of the patients at

issue, she declined to do so. Although the Department ' s

perceptio n of Dr. Gillis ' treatment of D.H., R.S. and M.G. was

based on its expert ' s review of medical records only,

Dr. Gillis ' s refusal to testify left Dr. Gerber ' s perception as

the only reliable source of information.

CONCLUSIONS OF LAW

56. The Division of A dministrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to s ections 120.57 and 120.569, Florida

Statutes (2011).

57. The burden of proof in this case is on the Department

to prove, by clear and convin cing evidence, that sanctions or

discipline should be imposed on Dr. Gillis based on the facts

presented. Dep ' t of Banking & Fin. V. Osborne Stern & Co. , 670

So. 2d 932 (Fla. 1996).

58. The Department has the right to impose discipline on

physicians lice nsed by the State of Florida. Grounds for

discipline are found in s ection 458.331. In the 2008 version of

Florida Statutes , which are relevant to this proceeding, the

following grounds for disciplinary actions are listed:

(q) Prescribing, dispensing, or

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, dispe nsing, 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 profe ssional

practice, without regard to his or her

intent.

* * *

(t) Notwithstanding s. 456.072(2) but as

specified in s. 456.50(2):

1. Committing medical malpractice [which]

shall not be construed to require more than

one instance, event, or act.

2. Committing gross medical malpractice.

3. Committing repeated medical

malpractice as defined in s. 456.50. . .

Nothing in this paragraph shall be construed

to require that a physician be incompetent

to practice medicine in order to be

disciplin ed pursuant to this paragraph. A

recommended order by an administrative law

judge . . . finding a violation under this

paragraph shall specify whether the licensee

was found to have committed " gross medical

malpractice, " " repeated medical

malpractice, " or medical malpractice, " or

any combination thereof, and any publication

by the board must so specify.

* * *

(nn) Violating any provi sion of this

chapter or chapter 456, or any rules adopted

pursuant thereto.

59. Section 458.326 states:

Intract able pain; authorized treatment. Ï -

(1) For the purposes of this section, the

term " intractable pain " means pain for

which, in the generally accepted course of

medical practice, the cause cannot be

removed and otherwise treated.

(2) Intractable pai n 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 circumstan ces.

(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.

60. Medical malpractice is defined as " the failure to

practic e medicine in accordance with the level of care, skill,

and treatment recognized in general law related to health care

licensure. . . . " § 456.50(1)(g) .

61. The standards for the use of controlled substances for

the treatment of patients with intractable pain are set forth in

Florida Administrative Code Rule 64B8 - 9.013 (the " Rule " ). The

Rule also directs practicing physicians to the Physicians

Manual: An Informational Outline of the Controlled Substances

Act of 1970, published by the U.S. Drug Enforceme nt Agency, for

specific rules governing controlled substances , as well as

applicable state regulations.

62. The Rule recognizes that controlled substances,

including opioid analgesics, may be essential to the treatment

of intractable pain. However, the Rule cautions physicians to

use such drugs only when relying upon current knowledge.

Further, physicians are cautioned to assess patients and adjust

dosages according to the intensity and duration of the pain.

63. Evaluation of the patient is an essentia l standard set

forth in the Rule. It includes a complete medical history and

physical examination of the patient, including current and past

treatments, underlying or co - existing diseases or conditions,

and the effect of the pain on the patient ' s psycholo gical and

physical functioning. After evaluation, a treatment plan is the

next important standard to be met. The treatment plan should be

written with objectives that can be used to determine treatment

success and shall state whether other diagnostic eva luations or

treatments are planned.

64. Under the standard for medical records in the Rule,

the physician is required to keep accurate and complete records

which must include at least the following:

1. The complete medical history and a

physical exam ination, including history of

drug abuse or dependence, as appropriate;

2. Diagnostic, therapeutic, and

laboratory results;

3. Evaluations and consultations;

eatment objectives;

5. Discussion of risks and benefits;

eatments;

7. Medications (including date, type,

dosage, and quantity prescribed;

8. Instructions and agreements;

9. Drug testing results; and

10. Periodic reviews. Records must

remain current, maintained in an accessible

manner, readily available fo r review, and

must be in full compliance.

65. Chapter 456 addresses health professions, including

physicians. Section 456.072 sets forth the grounds for

discipline; section 456.073 outlines the process for

disciplinary proceedings.

66. The Department has established by clear and convincing

evidence that Dr. Gillis failed to perform a complete physical

examination on R.S. and D.H. The controlled substances

prescribed to those two patients were , thus , inappropriate and

excessive. There is inadequate e vidence as to the nature of the

physical examination for M.G.

67. The Department has established by clear and convincing

evidence that Dr. Gillis failed to diagnose M.G. with

intractable pain, but prescribed controlled substances in

excessive amounts wi thout proper monitoring, evaluation, or

assessments. The failure to order a urine drug screen for M.G.

despite prescribing voluminous quantities of opioid analgesics

violated the standard of care.

68. Dr. Gillis violated the standard of care by not

docum enting or considering other treatment modalities for

patients R.S., D.H., and M.G. Further, Dr. Gillis ' s repeated

prescription of controlled substances to M.G. with differing

complaints and results was a violation of the standard of care.

69. Despite not ing the need for psychological evaluation

for M.G., Dr. Gillis failed to confirm whether M.G. had received

such an evaluation , while continuing to prescribe large

quantities of a controlled substance to the patient.

70. Dr. Gillis prescribed potentially l ethal doses of

oxycodone and oxycontin to M.G. without sufficient

justification. She also prescribed valium, Percocet and other

drugs without sufficiently documented bases.

71. Dr. Gillis is guilty of committing medical malpractice

based on the finding s set forth herein.

72. In DOAH Case No. 11 - 5692,as to Count One involving

patient, M.G., Dr. Gillis:

Ʊ Failed to diagnose M.G. with intractable pain prior

to prescribing controlled substances;

Ʊ Inappropriately and excessively prescribed

potentially lethal controlled substances;

Ʊ Excessively prescribed controlled substances; and

Ʊ Failed to order a u rine drug screen when necessary.

73. As to Count Two involving M.G., Dr. Gillis:

Ʊ Failed to document justification for excessive

prescription of controlled substances; and

Ʊ Failed to document her rationale for failing to

order a urine drug screen.

74. As to Count Three involving M.G., Dr. Gillis violated

the required standard of care by:

Ʊ Inappropriately and excessively prescribing

controlled substances without justification;

Ʊ Failing to confirm whether the patient presented to

a psychiatrist or psychologist;

Ʊ Failing to order a urine drug screen; and

Ʊ In appropriately and excessively prescribing

controlled substances prior to exploring other

modalities.

75. As to Count Four involving M.G., Dr. Gillis:

Ʊ Inappropriately and excessively prescribed

controlled substances prior to exploring other

treatment modalities;

Ʊ Inappropriately and excessively prescribed

controlled substances without ordering a urine

screen; and

Ʊ Inappropriately and excessively prescribing

controlled substances w ithout justification.

76. In DOAH Case No. 11 - 5961, as to Count One concerning

patient R.S., Dr. Gillis violated section 458.331(1)(nn):

Ʊ By failing to perform or document performing a

complete physical examination;

Ʊ Failing to explore or document ex ploring other

treatment modalities;

Ʊ Failing to obtain or document obtaining a complete

medical history;

Ʊ Failing to document the nature and intensity of

pain;

Ʊ Failing to document the current or past treatments;

Ʊ Failing to document information on the effect of

pain on the patient's physical or psychological

function;

Ʊ Failing to develop or document developing a

treatment plan; and

Ʊ Failing to determine or document determining if

there were any underlying or coexisting diseases or

conditions fo r the patient.

77. As to Count Two for patient R.S., Dr. Gillis violated

sections 458.331(1)(nn) and 458.326 by:

Ʊ Failing to diagnose intractable pain;

Ʊ Prescribing Percocet without justification; and

Ʊ Prescribing Percocet without exploring other

t reatment modalities.

78. As to Count Three for patient R.S., Dr. Gillis failed

to keep legible medical records justifying the course of

treatment by:

Ʊ Failing to document justification for prescribing

Percocet;

Ʊ Failing to document a complete physica l examination

prior to prescribing a controlled substance;

Ʊ Failing to document a complete medical history prior to

prescribing a controlled substance;

Ʊ Failing to document a urine screen; and

Ʊ Failing to diagnose intractable pain.

79. As to Coun t Four for patient D.H., Dr. Gillis violated

sections 458.331(1)(nn) and 458.326 by:

Ʊ Failing to perform or document performing a

complete physical examination on either of his

visits;

Ʊ Failing to obtain or document obtaining a complete

medical history;

Ʊ Failing to explore or document exploring other

treatment modalities;

Ʊ Failing to document the intensity or nature of the

pain;

Ʊ Failing to document current or past treatments of

the pain;

Ʊ Failing to document information on the effect of

pain on the patient's physical or psychological

function;

Ʊ Failing to develop or document developing a

treatment plan; and

Ʊ Failing to determine if there were any underlying

or coexisting diseases or conditions.

80. As to Count Six relating to patient D.H., Dr. Gillis

failed to keep legible medical records by:

Ʊ Failing to document justification for prescribing

120 tablets of 30mg oxycodone;

Ʊ Failing to document a complete physical examination

prior to prescribing a controlled substance;

Ʊ Failing to doc ument a complete medical history;

Ʊ Failing to document a urine drug screening; and

Ʊ Failing to document a diagnosis of intractable pain

prior to prescribing a controlled substance.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusion s of

Law, it is

RECOMMENDED that a final order be entered by the Department

of Health suspending the license of Respondent , Jacinta Irene

Gillis, M.D., until such time as Dr. Gillis can demonstrate

competency in the practice of medicine, especially as it relates

to pain management, to the satisfaction of the Board of

Medicine.

It is further

RECOMMENDED that the final order assess the cost of

investigating and prosecuting this case and that payment of such

costs be a condition precedent to ending the s uspension of

Dr. Gillis ' s license to practice.

DONE AND ENT ERED this 3rd day of February , 2012 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The D eSoto 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 3rd day of February , 2012 .

ENDNOTES

1 / All statut ory references are to Florida Statutes (20 08 ),

unless otherwise noted.

2 / Norris did not testify at the final hearing. He is currently

incarcerated in the Pinellas County Jail following his arrest

for armed robbery of a pharmacy.

3 / Negersmith was car rying a firearm because he had been advised

that Norris sometimes robbed patients after they picked up their

prescription from the pharmacy.

4 / D.H. observed Norris selling the pills on the street in a

drug deal.

COPIES FURNISHED :

Joy Tootle, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399

Nicholas Romanello, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Robert J. Bobek, Esquire

Shirley L. Bates, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C65

Tallahassee, Florida 32399 - 3265

Jacinta Irene Gillis , M.D.

12446 Pebble Stone Court

Fort Myers, Florida 33913

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parti es 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.