16-001796PL Department Of Health, Board Of Medicine vs. Dror M. Peled, M.D. Status: Closed Recommended Order on Thursday, July 14, 2016.

Summary: Department of Health proved physician was unable to practice with reasonable skill and safety to patients without treatment and was terminated from PRN for non-compliance without good cause.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MEDICINE,

Petitioner,

vs. Case No. 16 - 1796PL

DROR M. PELED, M.D.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On June 1, 2016, Administrative Law Judge J. Lawrence

Johnston held the final hearing by video teleconference, with

sites in Tampa and Tallahassee.

APPEARANCES

For Petitioner: Francis A. Carbone, II, Esquire

Rob F. Summers, Esquire

Louise Wilhite - St Laurent, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

For Respondent: No A ppearance

STATEMENT OF THE ISSUE S

The issues in this case are whether, and how, the B oard of

Medicine should discipline the Respondent based on charges set

out in the Second Amended Administrative Complaint filed by the

Petitioner.

PRELIMINARY STATEMENT

On February 24, 2016, the Petitioner, Department of Health,

filed an Amended Administrative Complaint against the Respondent

alleging: in Count I, that the Respondent was unable to

practice medicine with reasonable skill and safety to patients,

in violati on of section 458.331(1)(s), Florida Statutes 1/ ; and in

Count II, that he was terminated from a P rofessionals Resource

Network (PRN) treatment program for impaired practitioners, in

violation of section 458.331(1)(hh). The Respondent requested a

hearing, and the matter was referred to Division of

Administrative Hearings, where the Respondent has vacillated

between wanting a hearing and not wanting a hearing, and between

disputing the facts and not disputing the facts. Ultimately, it

was determined that di sputed issues of material fact existed,

and th at a final hearing was required.

On May 11, the PetitionerÓs request for the Respondent to

undergo a second, updated mental and physical examination by

Debra Barnett, M.D., was granted, over the RespondentÓs

ob jection. Respondent failed to appear for the examination.

On May 17, the Petitioner noticed the taking of

Dr. BarnettÓs deposition on May 23 in lieu of live testimony at

the final hearing. The Respondent did not appear for the

deposition.

The Petition er moved for leave to file a Second Amended

Administrative Complaint based on Dr. BarnettÓs deposition

testimony. The RespondentÓs barely coherent response was

considered, and leave to amend was granted on May 24.

At the final hearing, the PetitionerÓs Composite

Exhibits 1, 2 (the RespondentÓs deposition testimony), and 3

(Dr. BarnettÓs deposition testimony) were admitted in evidence.

The Respondent did not appear for the final hearing and did not

present any evidence.

Two hours after the final hearin g ended, the Respondent

filed a Motion to Reschedule the final hearing, which was

denied. The Respondent filed anoth er Motion to Reschedule on

June 8, which is denied.

The Transcript of the final hearing was filed on June 14.

The parties filed proposed r ecommended orders that have been

considered.

FINDING S OF FACT

1. The Petitioner is the state agency charged with the

licensing and regulation of the practice of medicine pursuant to

section 20.43, and chapters 456 and 458, Florida Statutes.

2. At all tim es material to the allegations in the Second

Amended Administrative Complaint, the Respondent was a licensed

medical doctor within the State of Florida, having been issued

license ME 77763.

3. The RespondentÓs address of record with the Petitioner

is 5035 Mile Stretch Drive, Holiday, Florida 34690.

4. Since his early childhood, the Respondent has suffered

from psychiatric condition s . The Respondent has not received

consistent treatment for his psychiatric issues for at least the

past two year s . Responde nt attempted to sel f - treat his

psychiatric conditions with a variety of medication s , including

lithium, levothyroxine, Paxil, and Prozac.

5. Such sel f - prescribing and sel f - treatment is

inappropriate.

6. RespondentÓs psychiatric conditions came to light a fter

an employee filed a regulatory complaint with the Occupational

Health and Safety Administration. The result of this complaint

was a mediated settlement that required Respondent to pay

$10,000.

7. The Respondent went to the former employeeÓs new plac e

of employmen t and held a knife to his neck. The Respondent then

returned to his office to treat patients. He did not think it

was his patientsÓ or their caregiversÓ business what he did on

his lunch brea k .

8. Law enforcement was notified , which resu lted in the

Respondent being taken into custody under FloridaÓs Baker Act .

The Respondent self - reported his Baker Act Hospital Admission, to

PRN.

9. Pursuant to section 456.076, Florida Statutes , and

Florida Administrative Cod e Rule 64B3 1 - 10.001, PRN is the

approved Impaired Practitioner Treatment Program and a consultant

to the Petitioner. PRN consults with the Petitioner regarding

practitionersÓ impairment and their ability to safely practice

their profession safely. The purpose of PRN is to ensure th e

public health and safety by assisting practitioners who may

suffer from che m ical dependency; psychiatric illness;

psychosexual illness, including boundary violations;

neurological/cognitive impairment; physical illness; HIV

infection/AIDS; and behavior d isorders.

1 0 . PRN participants are responsible for complying with the

recommendations of the evaluator and/or treatment provider in

consultation w ith the PRN medical director, complying with the

terms of the PRN monitoring contract, and meeting financial

obligations to treating pract i tioners, including toxicology

testing and PRN facilitator group fee s .

1 1 . As part of the intake process, PRN required the

Respondent to undergo a psychiatric evaluation performed by

Dr. Jamie Smolen, M.D., and a neurocogniti ve evaluation performed

by Dr. Benjamin Phalin, Ph. D .

1 2 . Dr. Phalin diagnosed the Resp o ndent with dysthymic

disorder, history of major depressive disorder, social anxiety

disorder, anxiety disorder not otherwise specified, attentio n -

deficit hyperactivi ty disorder, and schizoid and paranoid

personality features.

1 3 . Dr. Phalin opined that RespondentÓs emotional

instability, limited insight, and poor jud g ment raised

significant concerns regarding RespondentÓs ability to practice

as a physician with reaso nable skill and safety.

1 4 . Dr. Smolen agreed with Dr. Phal i nÓs diagnostic

impression. Dr. Smolen was concerned with the RespondentÓs

strange behavior regarding alcohol use at work. Dr. Smolen

opined that the Respondent was not able to practice medicine with

reasonable skill and safety due to his limit e d insight, limited

coping abilities, undertreated mental illnes s , and attempts to

sel f - treat and sel f - diagnose his mental illness.

15 . Dr. Phalin opined that the Respondent would need to

abstain from all controlled and mood - altering substances and

medications, engage in individual psychotherap y , cease self -

diagnosing and sel f - prescribing psychotropic medications, seek

treatment with a psychi a trist to include psychotropic medication

management, enter into a monitoring contract with PRN , and

demonstrate compliance for two weeks in order to return to

practice.

16 . After considering the evaluation reports, PRN

determined that the Respondent need e d to refrain from practice.

In order to return to practice, PRN required Respondent to

execute a monitoring contract, confirm psychiatric and

therapeutic appointments, demonstrate compliance with those

appointments, refrain from alcohol and stimulant medi c ation use,

refrain from self - prescribing psychotropic medication , and submit

two negative urine drug screen s .

17 . Because the Respondent disagreed with PRNÓs

requirements, he immediately attempted to circumvent PRN by

placing repeated phone calls to the Board of Medicine and PRN.

Christina Gaudiana took over as the R espondentÓs case manager at

this point as a result of his behavio r .

18 . On December 9, 2014, the Respondent signed a tw o - year

monitoring contract with PRN requiring random urine drug and

alcohol testing, weekly group therapy, monthly psychiatry

appointmen ts, and abstinence from alcohol and drugs not

prescribed by another physicia n , among other conditions.

19 . The Respondent was cleared to return to practice

shortly after signing his contract and demonstrating initial

compliance with the above requirements .

2 0 . Immediately after being cleared to return to practice,

the Respondent again began initiating numerous harassing and

discourteous telephone calls and emails to PRN staff and others .

Email recipients included PRN staff members, the American Board

of Pediatrics, The New York Time s , The Tampa Bay Time s , a United

States Senator from Florida, and the President of the United

States.

2 1 . On January 7, 201 5 , PRN held a staffing meeting due to

the RespondentÓs behavior. The result of the staffing meeting

wa s to advise the Respondent to stop his behavior or he would

have to be withdrawn from practice until he could have a recovery

status evaluation due to the threats of sel f - harm contained

within his email s .

2 2 . PRN advised the Respondent to stop the repeate d

telephone calls and emails and informed him that his behavior was

inappropriat e . The Respondent agreed and apologized.

2 3 . Courteousness and respect toward PRN staff is a

requirement of the PRN monitoring contract and participant

manual.

2 4 . On Januar y 8, 2015, the RespondentÓs psychotherapist

informed PRN that the Respondent had only attended one session in

the previous month and missed an appointment. The RespondentÓs

psychotherapist struggled to get the Respondent to attend the

required weekly meet ing s .

25 . This is an instance of material non - compliance and a

violation of the PRN monitoring contract.

26 . PRN could not ensure the RespondentÓs ability to

practice medicine safely due to his behavio r , and suspected the

Respondent had relapsed, f allen out of compliance with his

medication management, or both.

27. On January 14, 201 5 , the Respondent again sent a

bizarre, erratic and discourteous email to PRN, prompting PRN to

require that the Respondent withdraw from practice and undergo a

recover y - stat us evaluatio n .

28 . PRN sent the Respondent an agreement t o withdraw from

practice and required that the Respondent execute and return the

agreement. The Respondent did no t , which is an instance of

material non - compliance with the PRN monitoring contrac t .

29. The Respondent stopped checking into Affinity, a

computerized monitoring system, on January 21, 201 5 , and had

three missed chec k - ins by January 23, 2015.

3 0 . Failure to check into the Affinity system is considered

a violation of the monitoring contr act and material non -

compliance.

3 1 . The Respondent continued to send erratic and

discourteous emails to PRN and multiple other recipients.

3 2 . Due to the RespondentÓs several simultaneous instances

of material no n - compliance with his PRN contract, the

R espondentÓs case manager requested a staffing meeting to

determine the future course of the RespondentÓs participation in

PRN. The staffing meeting determined that the Respondent had

several instances of material no n - compliance and could not be

monitored, which warranted contract termination and referral to

the Petitioner.

3 3 . PRN terminated its monitoring contract on January 26,

201 5 , and notified the Respondent the same da y .

34 . PRNÓs termination of the Respon d entÓs monitoring

contract was due to his f ailure to comply with the contractÓs

terms. The RespondentÓs failure to comply was without good

cause.

35 . Because there was probable cause to believe that the

Respondent was unable to practice medicine safely, the State

Surgeon GeneralÓs designee compel led the Respondent to an

examination on July 21, 2015, with Dr. Debra Barnet t , M.D., a

boar d - certified physician in psychiatry, addiction psychiatry,

and a medical review officer.

36 . As part of her July 21, 2015, evaluation, D r . Barnett

reviewed the PRN file, including the chronology report, and

additional medical records that the Petitioner compelled the

Respondent to produc e , which included the clinical progress notes

from the R espondentÓs PRN mental health counselor and the

medication record from his p harmacy.

37 . As part of her July 21, 2015, evaluatio n , Dr. Barnett

administered clinical questionnair e s, a urine drug and alcohol

screen, and conducted a clinical interview and a background

check on the Respondent.

38 . The July 21, 2015, evaluation took significantly longer

to complete than the standard time for interviews due to the

RespondentÓs minimalized, nonsensica l , and sarcastic answers.

39. Throughout the July 21, 2015, evaluation, the

Respondent provided odd rationales, such as using the vodka he

kept hidden in his desk as a mouthwash to explain and minimize

his drinking at work. He made an additional odd request for a

sample of his own urin e , which he submitted in connection with

the July 21, 2015, evaluation.

4 0 . The Respondent also claimed that the samples submitted

to Dr. Smolen that were positive for metabolites of alcohol must

have been adulte r ated because the urine results were positive

for metabolites of alcohol in his urine, but the blood results

were not. The Respondent continues to hold this belief. Not

only are such results possible, but they are consistent with the

RespondentÓs method of drinking alcohol.

41 . Dr. Barnett opined that the RespondentÓs erratic emails

in the PRN file exemplified his Ðmagical thinkingÑ; his request

to have a sample of his own urine demonstrated eccentricity and

paranoia , indicative of schizoid personality disorder; and his

sel f - prescription of levothyroxin e due to the Fukushi m a, Japan,

nuclear accident demonstrated poor judg m ent and inappropriate

pract ice because there was no evidence of radioactive fallout in

Florida from Fukushima, Japan, and levothyroxine is not an

approved treatment for radiation exposur e .

4 2. The Respondent later claimed that he sel f - prescribed

levothyroxine as a supplemental medi cation to his ant i depressant

medications. Dr. Barnett opined that this motive is also

medically inappropriate and incorrect. There is a lack of

scientific evidence that levothyroxine functions in this manner.

The Respondent apparently confused levothyro xine and a similar,

but distinctly different thyroid medication, Cytomel, which does

have ant i depressant - boosting properties in certain case s . Both

medications have to be taken consistently in order for the

medications to work in concert.

43 . Dr. Barnett noted that the Respo n dentÓs attempts at

sel f - diagnosis and sel f - treatment were inappropriate due to the

RespondentÓs altered thinking and impulsivity. Her observations

of the Respondent during her evaluation were consistent with his

behavior evidenced in the PRN file, including threats of sel f -

harm, disjointed thought processes, exaggeratio n , and hyperbole.

44 . Dr. Barnett opined that the RespondentÓs insight into

his issues, problem - solving ability, judgment, ability to cope

with stressful situations, d ecisio n - making in a crisi s ,

emotional control, and impulse control were all poor.

45 . Dr. Barnett diagnosed the Respondent with schizoid

personality disorder and al c ohol abuse.

46 . Dr. Barnett opined that the Respondent was not able to

practice his profe ssion with reasonable skill and safety to

patients. She recommended that the Responde n t participate in

PRN monitoring and complete behavioral therapy.

47 . The Respondent has insiste d that Dr. BarnettÓs

di a gnoses are incorrect, that he does not drin k , and that he is

simply Ðshy.Ñ

48 . Dr. Barnett distinguished normal shyness and the

RespondentÓs personality disorder diagnosis, explaining that

people who are shy seek out social engagement and eventually

experience a decrease in their initial social anxiety . People

with schizotypal personal i ty disorder do not seek social

engagement, and due to their altered thinking about and

interpretation of events, struggle to build a rapport with and

accommodate others.

49 . As part of this proceeding, the Respondent wa s ordered

to be re - evaluated on May 20, 2016.

50 . The Respondent indicated in his deposition on May 17,

2016, and in repeated telephone calls to Dr. BarnettÓs office in

the weeks prior to his evaluation, that he had no intention of

complying with the Orde r that he be re - evaluated .

51 . On May 20, 2016, the Respondent called Dr. BarnettÓs

office and claimed he had a backache. He did not appear at

Dr. BarnettÓs office for his evaluation as ordere d .

52 . Dr. Barnett reviewed RespondentÓs depositio n , in

add ition to the materials she reviewed before, and was able to

opine on the RespondentÓs inability to practice with reasonable

skill and safety to patients to a reasonable degree of medical

certaint y .

53 . The Respondent joked about killing patients during hi s

deposition. According to Dr. Barnett, h e had a significant

enduring pattern of odd thinking.

54 . According to Dr. Barnett, t he RespondentÓs failure to

appear on May 20, 2016, and his telephone calls attempting to

cancel the evaluation demonstrated his Ðmagical thinkin g Ñ that

his situation could simply Ðgo away.Ñ

55 . Based on the additional information she reviewed ,

Dr. Barnett clarified her diagnos e s of the Respondent , saying he

suffers from schizotypal personality disorder and alcohol abuse.

56 . Dr. Barnett concluded that with his diagnoses, and

previous and current lack of treatment, the Respondent is not

able to practice as a physician with reasonable skill and safety

to patients.

5 7 . Dr. BarnettÓs testimony was credible and based on

sufficient fa cts, data, and expertise.

5 8 . The RespondentÓs Proposed Recommended Order contends

that the Petitioner cannot verify alcohol abuse, schizoid

personality disorder, or schizotypal personality disorder for

various reasons. To the contrary, the evidence was clear and

convincing that the Respondent was abusing alcohol, albeit in an

odd way, and suffers from a schizotypal personality disorder, as

well as other mental disorders. As a result, he is unable to

practice medicine with reasonable skill and safety to patients

at this time, notwithstanding his apparent ability to have done

so for many years in the past. In addition, it is clear from

the evidence that the Respondent was terminated from PRN for

failure to comply , without good cause for his non - compliance .

59 . It is possible that the Respondent will be able to

resume the practice of medicine with reasonable skill and safety

to patients, with appropriate conditions, after he receives and

completes appropriate treatment.

CONCLUSIONS OF LAW

6 0 . The Peti tioner regulates the practice of medicine in

Florida under chapters 456 and 458, Florida Statutes, and

Florida Administrative Code Chapter 64B - 8. 2/ In this case, the

Petitioner has charged the Respondent with violations of

sections 458.331(1)(s) and 456.0 72(1)(hh).

6 1 . Section 458.331(1)(s) subjects a physician to

discipline for being unable to practice medicine with reasonable

skill and safety to patients by reason of illness or use of

alcohol, drugs, narcotics, chemicals, or any type of material or

as a result of any mental or physical condition. Section

458.331(1)(s) does not require a showing of actual harm to

patients. In Major v. Dep artment of Prof essional Regulation ,

531 So. 2d 411 (Fla. 3d DCA 1988), the court held that the Board

of Medicine need not wait for actual harm to patients to occur

before it acts to protect the public interest by imposing

penalties and restrictions on a physician under that statute.

Discipline may be imposed under the statute even if a physician

has managed to not let p ersonal problems actually affect

professional performance.

6 2 . Section 456.072(1)(hh) subjects a physician to

discipline for being terminated from a treatment program for

impaired practitioners, that is overseen by an impaired

practitioner consultant as d escribed in section 456.076 for

failure to comply, without good cause, with terms of the

monitoring or treatment contract entered into by the physician ,

or for not successfully completing any drug treatment or alcohol

treatment program.

6 3 . Because it see ks to impose license discipline, the

Petitioner has the burden to prove its allegations by clear and

convincing evidence. See DepÓt of Banking & Fin. v. Osborne

Stern & Co., Inc. , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987 ). This Ðentails both a

qualitative and quantitative standard. The evidence must be

credible; the memories of the witnesses must be clear and

without confusion; and the sum total of the evidence must be of

sufficient weight to convince the trier of fact without

hesitancy.Ñ In re Davey , 645 So. 2d 398, 404 (Fla. 1994). See

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

1983). ÐAlthough this standard of proof may be met where the

evidence is in conflict, . . . it seems to preclude evidence

t hat is ambiguous.Ñ Westinghouse Electric Corp. v. Shuler

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

6 4 . The Petitioner has met its burden of proof as to the

allegations in the Second Amended Administrative Complaint.

6 5 . The Board of Medicine (Board) may impose the following

penalties under section 456.072(2): suspension or permanent

revocation of a license; restriction of practice o r license;

imposition of an administrative fine; issuance of a reprimand or

letter of concern; placement of the licensee on probation for a

period of time; corrective action; and/or a require ment that the

practitioner undergo remedial e d ucation. However, a licensee

affected by section 458.331(l)(s) must be given opportunities at

reasonable intervals to demonstrate that he or she can resume the

competent practice of medicine with reasonable skill and safety

to patients.

6 6 . Florida Administrative Cod e Rule 64B8 - 8.001(2)(s)

provides that the Board shall, when it finds a licensee has

violated section 458.331(1)(s) fo r the first time , impose

penalties ranging from probation, to denial or indefinite

suspension until the licensee is able to demonstrate ability to

practice with reasonable skill and safety followed by probation,

and an administrative fine from $1,000 to $5 ,000.

6 7 . Rule 64B8 - 8.001(2)(w w ) provides that the B o ard shall,

when it finds a licensee has violated section 456.072(1)(hh) for

the first time , impose penalties ranging from suspension until

the licensee demonstrates compliance with all terms of the

moni toring or treatment contract, and is able to demonstrate t o

the Board the ability to practice with reasonable skill and

safety to be followed by a term of probation and a fine of $1,000

to $2,500, to revocation.

6 8 . Rule 64B8 - 8.001(3) sets out aggravating and mitigating

circumstances for determining whether to deviate from the penalty

guidelines. It is unnecessary to ma k e any findings on

aggravating or mitigating circumstances because the

recommendation is within the penalty guideline s , and the Board

shou ld not deviate from the routine range of discipline for the

proven violation.

69 . Under section 456.072(4), the Board , in its final

order , shall assess costs related to the investigation and

prosecution of the case. Costs to be assessed under the statute

include, but are n o t limited to, salaries and benefits of

personnel, costs related to the time spent by the attorney and

other personnel working on the case, and any other expenses

incurred by the Department on this case.

RECOMMENDATION

Based on the foreg oing Findings of Fact and Conclusions of

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

f inal o rder finding that the Respondent violated s ections

458.331(1)(s) and 456.072(1)(hh ) ; suspending his license until

such time he appears before the Board of Medicine and

demonstrates his ability to practice medicine with reasonable

skill and safety to patients; imposing a pe r iod of probation for

no less than ten years after the suspension, conditioned on

compliance with a PRN monitoring contract and PRN

recommendation s ; requiring the payment of an administrative fi n e

in the amount of $ 2,500; and awarding costs to the Departmen t .

DONE AND ENTERED this 1 4 th day of July , 2016 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative 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 1 4 th day of July , 2016 .

ENDNOTE S

1/ Unless otherwise noted, all statutes refer to the Florida

Statutes that were in effect in 2014 and 2015.

2/ All rules are the version of the Florida Administrative Code

that was in effect in 2014 and 2015.

COPIES FURNISHED:

Francis A. Carbone, II, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Dror M. Peled, M.D.

5035 Mile Stretch Drive

Holiday, Florid a 34690

(eServed)

Rob F. Summers, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

(eServed)

Louise Wilhite - St Laurent, Esquire

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Nichole C. Geary, General Counsel

Department of Health

4052 Bald Cypress Way , Bin A - 02

Tallahassee, Florida 32399

(eServed)

Claudia Kemp, JD, Executive Director

Board of Medicine

Department of Health

4052 Bald Cyp ress Way , Bin C - 03

Tallahassee, Florida 32399

(eServed)

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 shoul d be filed with the agency that

will issue the Final Order in this case.