86-000836 Board Of Medical Examiners vs. Virgil R. Rizzo Status: Closed Recommended Order on Friday, August 29, 1986.

Summary: Charge of violation various provisions of Chapter 458 not sustained. Reversed in Final Order.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF MEDICAL )

EXAMINERS , )

)

Petitioner , )

)

vs. ) CASE NO. 86-0836

)

VIRGIL R. RIZZO, M.D. , )

)

Respondent. )

_______________________________)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of

Administrative Hearings by its duly designated Hearing Officer, Donald R.

Alexander, on July 2, 1986 in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner : Leslie A. Brookmeyer, Esquire

130 North Monroe Street

Tallahassee, Florida 32301

For Respondent : Walter G. Campbell, Jr., Esquire

700 Southeast Third Avenue, Suite 100

Fort Lauderdale, Florida 33316

BACKGROUND

In a five count amended administrative complaint filed on April 25, 1986,

petitioner, Department of Professional Regulation, Board of Medical Examiners,

has charged that respondent, Virgil R. Rizzo, a licensed physician, had violated

various provisions within Chapter 458, Florida statutes. /1 The underlying

allegations supporting the complaint are that (a) while treating a patient

between June, 1982 and October, 1985 respondent failed to perform adequate

testing to properly diagnose that the patient had narcolepsy, that respondent

dispensed an inappropriate and excessive amount of dextroamphetamine sulfate to

the patient between February, 1982 and February, 1985, and failed to keep

adequate written medical records justifying the course of treatment to the

patient, (b) while treating a second patient between October, 1982 and August,

1985 respondent diagnosed the patient as being narcoleptic without adequate

medical justification and without performing sufficient testing and diagnosis,

that between October, 1982 and June, 1985 respondent inappropriately dispensed

excessive amounts of dextroamphetamine sulfate to the patient, and failed to

keep adequate written medical records justifying his course of treatment, and

(c) while treating a third patient between June, 1982 and April, 1985, who had

previously been diagnosed as having narcolepsy, respondent inappropriately

dispensed an excessive amount of dextroamphetamine sulfate to said patient, and

failed to keep adequate medical records justifying the course of treatment to

said patient. It is alleged that the foregoing conduct (a) violated Subsection

458.331(1)(n), Florida Statutes, in that respondent failed to keep written

medical records justifying his course of treatment of said patients (Count I),

(b) constituted a violation of Subsection 458.331(1)(q), Florida Statutes,

because respondent dispensed a legend drug (dextroamphetamine sulfate) other

than in the course of his professional practice (Count II), (c) violated

Subsection 458.331(1)(cc), Florida Statutes, by dispensing a drug which is an

amphetamine to persons who did not have narcolepsy (Count III), (d) violated

Subsection 458.331(1)(1), Florida Statutes, by making deceptive, untrue or

fraudulent misrepresentations in the practice of medicine or employing a trick

or scheme in the practice of medicine when said scheme or trick failed to

conform to the generally prevailing standards of treatment in the medical

community (Count IV), and (e) violated Subsection 458.331(1)(t), Florida

Statutes, by being guilty of gross or repeated malpractice or failing to

practice medicine with that level of skill, care and treatment which is

recognized by a reasonably prudent similar physician as being acceptable under

similar conditions and circumstances (Count V).

Respondent disputed the above allegations and requested a formal hearing

pursuant to Subsection 120.57(1), Florida Statutes (1985). The matter was

referred by petitioner to the Division of Administrative Hearings on March 11,

1986, with a request that a hearing officer be assigned to conduct a formal

hearing. By notice of hearing dated March 31, 1986 the final hearing was

scheduled on June 13, 1986 in Fort Lauderdale, Florida. At the request of the

parties, the matter was rescheduled to July 2, 1986 at the same location.

At final hearing petitioner presented the testimony of respondent and Dr.

Jeffrey E. Erlich. It also offered petitioner's exhibits 1-5. All were

received in evidence except exhibits 4 and 5 upon which ruling was reserved.

The latter two exhibits are the depositions of Drs. Matthew Cohen and Jacob

Green. Respondent testified on his own behalf and presented the testimony of

Drs. James Tezza and Irving Vinger, Betty E Conner, Nora Poulson and John

Westyn. He offered respondent's exhibits 1- 6 which were received in evidence.

Exhibits 1 and 2 are the affidavits of Drs. Hector J. Sanchez and Merwin E

Buchwald.

The transcript of hearing was filed on July 21, 1986. Proposed findings of

fact and conclusions of law were filed by petitioner and respondent on August 1

and 4, 1986, respectively. A ruling on each proposed finding of fact has been

made in the Appendix attached to this Recommended Order.

At issue is whether respondent's license as a medical doctor should be

disciplined for the alleged violations set forth in the amended administrative

complaint.

Based upon all of the evidence, the following findings of fact are

determined:

FINDINGS OF FACT

A. Introduction

1. At all times relevant hereto, respondent, Virgil R. Rizzo, held

physician license number ME 0013066 issued by petitioner, Department of

Professional Regulation, Board of Medical Examiners (DPR). He has never been

the subject of an investigation by DPR prior to this proceeding.

2. Rizzo received an undergraduate degree in chemistry from the University

of Pittsburg. He later applied to and was accepted in medical school at the

University of Basel, Switzerland where he received his medical degree in 1966.

After graduating, Rizzo worked for six months in the research division of a

Swiss dermatology/immunology clinic and studied for three months at the Swiss

Institute of Tropical Medicine. He then returned to Lakeland, Florida where he

completed a one year internship at Lakeland General Hospital and Polk County

Hospital. At about the same time, Rizzo successfully passed the Florida

examination for licensure and was licensed to practice medicine in the state

around 1967 or 1968. Rizzo thereafter opened an office in the general practice

of medicine in Plantation, Florida. Within a few months he was drafted into the

army for a two year stint in the Medical Corps. Upon discharge he returned to

Plantation to resume his medical practice. In 1976, Rizzo sold his practice and

took a sabbatical for a year. Upon returning, he sharply reduced the number of

patients that he treated to approximately one hundred per year. They included

some former patients, friends and a few referrals. He also obtained a law

degree and has been a licensed attorney since 1981. He still sees and treats

some 20 to 30 patients per month, mostly at his home.

3. This proceeding does not stem from complaints filed by former Rizzo

patients. Rather, it arose after the Drug Enforcement Agency (DEA) gave DPR a

list of Schedule II legend drugs purchased by Rizzo from various pharmaceutical

suppliers. This was to be expected since Rizzo was required to fill out a DEA

form 222 when purchasing the drugs, and such purchases were then routinely

reviewed by DPR investigators. Indeed, Rizzo was aware of this procedure when

he filled out the form and ordered the drugs.

B. Narcolepsy

4. Narcolepsy is an uncommon but not rare disease. It is characterized by

recurrent and excessive drowsiness or sleepiness from which subjects are readily

awakened. It is frequently, but not always, accompanied by cataplexy, a

phenomenon of acute, brief, episodic, generalized muscular weakness,

precipitated by feelings of emotion. If no cataplexy occurs, the disease is

diagnosed as pure narcolepsy. The symptoms range from mild drowsiness to severe

sleepiness in which subjects spend the entire day drifting in and out of sleep.

The attacks of sleep may occur once or several times a day and may last minutes

to hours. The sleep is similar to normal sleep but is apt to occur at

inappropriate times, such as during work or while walking or driving. The usual

onset of the disease is in adolescence or young adulthood, although some cases

do not occur until later years. Once a person is diagnosed as having

narcolepsy, the typical symptoms generally remain forever, although in some

cases they go into remission. The most generally accepted treatment is the

dispensing of amphetamines (dexedrine), a class II controlled substance, to the

patient. Hypertension and cardiovascular disease are contraindications in the

use of the drug. Because of this, the regular monitoring of the patient's blood

pressure and heart rate is required. In addition, the drug has a high potential

for abuse, and for this reason, care must be used by the physician in

prescribing its use.

5. To properly diagnose the disease, a complete physical examination and

adequate patient history is necessary. The best test to diagnose narcolepsy is

the physician's clinical evaluation of the patient. An electroencephalogram

(EEG) is recommended in some, but not all, cases to verify the existence of the

disease. The mere response to medication alone cannot be the sole basis for

diagnosing the disease.

C. Patient Donald D. Conner

6. In 1973, Rizzo began treating one Donald D. Conner, then 55 years of

age and a long distance truck driver who resided in Fort Pierce, Florida. Rizzo

initially treated Conner for hemorrhoids. In October, 1982 Conner complained to

Rizzo that he frequently felt great urges to fall asleep during daylight hours,

particularly while driving his truck. Rizzo recommended multivitamin tablets.

On that visit, Rizzo took a complete patient history from Conner and gave him a

thorough physical examination. Because there were no pertinent positive

physical findings, Rizzo did not record any entries concerning the examination

in Conner's medical records. This was consistent with his instruction at

medical school and internship training in Lakeland where he was told not to

"clutter up" the records with all findings, but only with those that were

positive. The actual recorded notes in Conner's records for that visit were as

follows: Falling asleep during day while driving. Recommend multivitamins.

7. On November 10, 1982 Conner returned to Rizzo's office again

complaining that he was experiencing frequent sleeping episodes both at home and

on the road, particularly when he was driving. Conner told Rizzo that he had

been diagnosed by another physician as having narcolepsy, and had been given

dexedrine to counter its symptoms. Conner also told Rizzo that the medication

had produced favorable results in terms of controlling the sleeping episodes.

Conner produced an empty vial for a prescription of dexedrine written by an out-

of-state physician. This was not unusual since Conner had visited several out-

of-state physicians while on his long trucking sojourns each year. Having

excluded psychological and neurological problems, and having ruled out sleeping

disorders and hypothyroidism, Rizzo postulated a tentative diagnosis of pure

narcolepsy, and wrote Conner a prescription for dextroamphetamine sulfate. In

making this diagnosis he did not attempt to contact the unnamed out-of-state

physician who had been treating Conner. After the visit, Rizzo recorded

Conner's blood pressure, pulse rate and the following notes in Conner's records:

Given Dexedrine 5mg.q.4h by M.D. out west

with good results. Told has case of narcolepsy.

Will order dexedrine for him.

8. Conner returned to Rizzo's office on December 18, 1982. Rizzo again

performed a complete physical examination of Conner and found no positive

findings. In addition, his blood pressure and heart rate were within normal

limits. Therefore, there were no recordings in the patient records relative to

the physical examination. After completing the evaluation, and having ruled out

all other problems, Rizzo concluded that Conner had pure narcolepsy and made the

following notation in Conner's patient records:

Diagnosis: Narcolepsy

Rx. 500 Dextroamphetamine Sulphate 5mg.

9. Rizzo continued to see Conner over the next few years. The last

recorded visit by Conner was on February 15, 1985. Between December, 1982 and

February, 1985, Rizzo gave periodic prescriptions to Conner for dexedrine in the

following quantities:

Date Quantity Dosage

12/18/82 500 5mg. tablets

04/12/83 500 10mg. tablets

07/29/83 500 10mg. tablets

12/10/83 500 10mg. tablets

03/20/84 500 10mg. tablets

06/18/84 500 10mg. tablets

10/15/84 500 10mg. tablets

02/18/85 500 10mg. tablets

10. However, after taking into account the time interval between refills,

and the instructions given to the patient, the drug was given in quantities and

strength that were in conformity with recognized and prevailing dosages and

amounts for treating narcolepsy. On each visit Conner's heart rate and blood

pressure were taken. Since they were within normal limits they were not

recorded on the chart except on March 20, 1984. Rizzo did not take Conner's

weight on any visit but stated Conner had told him his weight, and that it was

being "monitored." Conner later died in 1985 from an unrelated illness.

D. Patient Edmund Bonnett

11. Patient Edmund Bonnett first visited Rizzo around 1971. On or about

October 18, 1982 Bonnett visited Rizzo complaining of lassitude, depression and

sleepiness. Upon performing a complete physical examination with no positive

findings, Rizzo recorded only Bonnett's blood pressure and heart rate in the

records. Rizzo also obtained a patient history but did not record the results.

Bonnett had specific complaints of having a sudden urge to collapse and fall

asleep at work during the daytime. These episodes would last from a few minutes

to an hour. After ruling out other causes, including hypothyroidism and

sleeping disorders, Rizzo postulated a tentative diagnosis of depression and

"possible narcolepsy." He prescribed dexedrine and multivitamins with minerals.

His notations in Bonnett's records read as follows:

Lassitude, depression and sleepyness (sic)

Dx Depression and possible Narcolepsy

try: Dexedrine 5 mg tid (#100) and

multivitamins c mineral q P.M.

12. Bonnett next visited Rizzo on December 22, 1982. After further

evaluation, and finding that Bonnett had responded well to dexedrine, Rizzo

concluded that Bonnett had narcolepsy and continued him on the same medication.

His notations in the records were as follows:

Improved c Dexedrine

Dx Narcolepsy

give 100 Dexedrine 5 mg tid

He also recorded Bonnett's blood pressure and heart rate.

13. When Bonnett returned on April 10, 1983 he reported to Rizzo that his

symptoms had been alleviated with the treatment. Rizzo was then satisfied that

his diagnosis was correct and made the following notes in the patient records:

Satisfied c Rx

Continue same c Dx Narcolepsy

500 5mg. Dextroamphetamine Sulfate (x2)

Notes recorded by Rizzo after visits by Bonnett on June 22, 1983 and in October,

1983 are not legible.

14. On April 1, 1984 Rizzo noted in Bonnett's patient records that the

patient "feels not responding as well to medsy non-generic Dextro for

Narcolepsy 5-10 mgs. Dextrodrine 5 mg 400-$24. Warned of possible increased

tolerance to Dexedrine. Recommended periodic abstention."

15. Rizzo continued to see Bonnett as a patient through 1985 and to

prescribe dexedrine for his illness. During the period from October, 1982

through June, 1985 Rizzo prescribed the following quantities of dexadrine:

Date Quantity Dosage

10/18/82 100 5mg. tablets

12/22/82 100 5mg. tablets

04/10/83 500 5mg. tablets

06/22/83 500 10mg. tablets

02/01/84 400 5mg. tablets

05/22/84 500 (unknown strength)

10/15/84 500 10mg. tablets

02/01/85 500 10mg. tablets

04/13/85 500 10mg. tablets

06/12/85 500 10mg. tablets

16. However, after taking into account the time interval between refills,

and the instructions given to the patient, the drug was given in quantities and

strength that were within acceptable limits for treating narcolepsy.

17. Rizzo examined Bonnett on each visit but found no positive findings.

Accordingly, he did not record the results on the patient records. Although

Rizzo never recorded Bonnett's weight on his records during the relevant thirty-

two months period, Rizzo was aware of the patient's weight from earlier visits,

and stated it varied from between 210 and 240 pounds. In a physical performed

by another physician in June, 1986 Bonnett was found to be "mildly

hypertensive." Whether he was mildly hypertensive while being treated by Rizzo

was not disclosed.

E. Patient John Westyn

18. This patient initially came to Rizzo for an eye injury suffered on

June 18, 1982. On September 20, 1982 Westyn returned to Rizzo's office

complaining of sudden attacks of falling asleep at work and while driving. He

also told Rizzo he had recently been told by a local internist that he possibly

had narcolepsy. Rizzo performed a complete physical examination of Westyn but

found no positive findings. He accordingly only noted the patient's blood

pressure and heart rate in the notes. Rizzo also took a complete history from

the patient. After doing so, Rizzo recommended that Westyn take dexadrine "to

take care of the diagnosis." He also made the following notation in the

records:

9/20/82 c/o sleeping all the time.

Recent exam and tests by internist who told

has possible narcolepsy. Recommend dexa-

drine. Dx narcolepsy. Rx try dextroamphete-

mine sulfate 5 mg (500)T-II TID.

Rizzo did not contact the other unnamed internist, or request copies of patient

records to assist him in the diagnosis.

19. When Westyn returned on October 15, 1982 he told Rizzo he was feeling

much better after taking the dexadrine. Based upon the patient's history,

physical and response to the medication Rizzo made the following notation in his

records.

10/15/82 Feeling much better c periodic

Dexadrine.

Dx Narcolepsy

Rx continue c same.

20. Rizzo continued to treat Westyn over the next few years. He always

checked the patient's blood pressure and pulse although this was not recorded in

the records. Rizzo was unsure if he weighed the patient, and did not record the

patient's weight at any time. During the period from September, 1982 through

July, 1985 Rizzo prescribed the following quantities of dextroamphetemine

sulfate:

Date Quantity Dosage

09/20/82 500 5mg. tablets

1982 500 5mg. tablets

01/28/83 500 10mg. tablets

05/06/83 500 10mg. tablets

09/20/83 400 10mg. tablets

01/18/84 1000 5mg. tablets

05/29/84 500 10mg. tablets

10/12/84 500 10mg. tablets

02/15/85 500 10mg. tablets

04/03/85 500 10mg. tablets

21. Given the time interval between refills, and the instructions to the

patient, the quantities and strength were acceptable for treating narcolepsy.

22. Westyn testified at final hearing and confirmed that he would have

sudden sleep attacks at work in mid-day, or nod off while stopped at a traffic

light. He also believes he fell asleep at the wheel just prior to being in an

automobile accident. He further confirmed that the sleep attacks had been

alleviated since taking the medication. He has continued to take dexadrine

since late 1982 but in less strength and frequency, and last took the drug some

two months before the final hearing.

F. Expert Testimony

23. Petitioner presented the testimony (one live and two by deposition) of

three physicians who were tendered as experts in various areas of medicine. One

was a neurologist from Jacksonville offered as an expert in narcolepsy, the

second a family practitioner from Tallahassee offered as an expert in general

medicine and family practice, and the third a board certified internist from

Hollywood tendered as an expert in drug usage, patient records and internal

medicine. In addition to his own testimony, respondent countered with two

experts, one a board certified internist from Hollywood who had recently

examined patient Bonnett, and the second a former University of Miami Medical

School associate professor of family medicine and now a medical consultant in

Miami. Rizzo also submitted two from physicians (one in Dade County and the

other in Broward County) whose statements supplemented the testimony of Rizzo

and his two experts. As might be expected, the two sets of physicians presented

sharply conflicting testimony on whether Rizzo deviated from the requirements of

Chapter 458. Where findings in favor of a party have been hereinafter made, the

undersigned has considered that party's expert testimony to be more credible and

persuasive.

24. The amended complaint contends that Rizzo's medical records were

inadequate to justify the course of treatment on the three patients in question.

In this regard, the three DPR experts opined that such records were indeed

inadequate. However, the testimony of Dr. Vinger on behalf of respondent is

deemed to be more credible and persuasive on this issue, particularly since

Vinger is now a physician reviewer for Medicare and the Medical Foundation of

South Florida. As such, he reviews the medical records of over one hundred

facilities in the Dade-Broward area and is therefore more familiar with the

community practice and standard on the adequacy of recordkeeping. In his

opinion, Rizzo's records, although quite brief, were in conformity with the

standard practiced by other South Florida physicians. /2 Therefore, it is found

that such medical records were sufficient to justify the course of treatment of

patients Conner, Bonnett and Westyn.

25. With one exception (Dr. Green), all experts agreed that amphetamines

(dexadrine) were an acceptable course of treatment for narcoleptic patients.

Indeed, this course of treatment is consistent with that prescribed by relevant

excerpts of various authoritative medical treatises received in evidence. The

sole dissenter (Dr. Green) preferred to use retalin rather than dexadrine since

the latter drug can become addictive and has some side effects on the

cardiovascular system. In all cases, the amounts and dosage of dexadrine given

the patients by Rizzo were in conformity with the Physicians Desk Reference, and

within acceptable limits for narcoleptic patients. Although DPR's witnesses

criticized the large number of pills given the patients at one time, Dr. Vinger

established that the practice of prescribing large numbers of tablets at one

time was now encouraged so that patients would not have to see the physician

each month merely to obtain a prescription refill. Rizzo confirmed that saving

money for his patients was his motive, and that by purchasing large quantities

of the drug at a time, he could do so. /3 Therefore, it is found that the

amounts and dosage were not excessive or inappropriately prescribed, and were in

the course of his professional practice.

26. It is charged that Rizzo dispensed a legend drug (dexadrine) to three

patients who did not have narcolepsy. In this regard, no DPR expert could

confirm or establish that the patients did not have narcolepsy. Indeed, only

one DPR expert (Dr. Ehrlich) had actually treated one of the three patients

(Westyn), and in that case, he was not looking for narcolepsy. Conversely, a

board certified internist (Drezza) examined Bonnett in June, 1986 and made a

similar diagnosis of narcolepsy. Like Rizzo, he did so without the benefit of

an EEG, and relied solely on the patient's history, physical and lab work.

Therefore, Rizzo's dispensement of dexadrine to the patients was for the

treatment of narcolepsy, and was accordingly proper.

27. Through testimony of Rizzo's experts, as supplemented by the two

physicians who submitted affidavits, it was established that Rizzo's treatment

of the three patients was in conformity with prevailing standards of treatment

in the Dade-Broward area. This being so, it is found Rizzo did not employ a

scheme or trick that failed to conform with such standards.

28. No expert characterized Rizzo's conduct as equating to malpractice.

However, there was sharply conflicting testimony on whether his conduct fell

below the level of skill, care and treatment which is recognized by a reasonably

prudent similar physician under similar circumstances. Through the more

credible and persuasive testimony it was established that Rizzo's conduct met

the minimum level of skill, care and treatment expected of a general

practitioner in the Broward County area during the years in question.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has jurisdiction of the subject

matter and the parties thereto pursuant to Subsection 120.57(1), Florida

Statutes (1985).

30. Petitioner's exhibits 4 and 5 are received in evidence. /4 Wright V.

Schulte, 441 So.2d 660 (Fla. 2nd DCA 1983)(an expert need not possess the same

specialty, or be in the same branch of medicine, to give testimony as to the

standard of care if the witness is found to possess sufficient training,

knowledge and experience to express the opinion).

31. In the amended complaint, respondent is charged with five violations

of Subsection 458.331(1), Florida Statutes (1985), while treating patients

Conner, Bonnett and Westyn. The pertinent statutory provisions are as follows:

(1) Making deceptive, untrue, or fraudulent

representations in the practice of medicine

or employing a trick or scheme in the prac-

tice of medicine when such scheme or trick

fails to conform to the generally prevailing

standards of treatment in the medical community.

(n) Failing to keep written medical records

justifying the course of treatment of the

patient, including, but not limited to,

patient histories, examination results, and

test results.

(q) Prescribing, dispensing, administering,

mixing, or otherwise preparing a legend drug,

including any controlled substance, other

than in the course of the physician's profes-

sional practice. For the purposes of this

paragraph, it shall be legally presumed that

prescribing, dispensing, administering,

mixing, or otherwise preparing legend drugs,

including all controlled substances, inappro-

priately 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 professional practice, without

regard to his intent.

(t) Gross or repeated malpractice or the

failure to practice medicine with that level

of care, skill, and treatment which is recog-

nized by a reasonably prudent similar physi-

cian as being acceptable under similar condi-

tions and circumstances. The board shall

give great weight to the provisions of s.

768.45 when enforcing this paragraph. As

used in this paragraph, "repeated malprac-

tice" includes, but is not limited to, three

or more claims for medical malpractice within

the previous 5-year period resulting in

indemnities being paid in excess of $10,000

each to the claimant in a judgment or settle-

ment and which incidents involved negligent

conduct by the physician. As used in this

paragraph, "gross malpraotice" or "the fail-

ure to practice medicine with that level of

care, skill, and treatment which is recog-

nized by a reasonably prudent similar physi-

cian as being acceptable under similar condi-

tions and circumstances," shall not be con-

strued so as to require more than one in-

stance, event, or act.

(cc) Prescribing, ordering, dispensing,

administering, supplying, selling, or giving

any drug which is an amphetamine or sympatho-

mimetic amine drug or a compound designated

as a Schedule II controlled substance, pursu-

ant to chapter 893, to or for any person

except for:

1. The treatment of narcolepsy; hyperkine-

sis; behavioral syndrome in children charac-

terized by the developmentally inappropriate

symptoms of moderate to severe distractabil-

ity, short attention span, hyperactivity,

emotional liability, and impulsivity; or

drug-induced brain dysfunction; or

32. The greater weight of evidence reveals that respondent (a) did not

employ a trick or scheme in the practice of medicine which failed to conform to

generally prevailing standards of treatment in the community, (b) kept adequate

medical records justifying the course of treatment of the three patients, (c)

prescribed dexadrine in the course of his professional practice, (d) practiced

medicine with that level of skill, care and treatment which is recognized by

reasonably prudent similar physicians as being acceptable under similar

conditions and circumstances, and (e) prescribed dexadrine for the treatment of

narcolepsy. Therefore, it is concluded the charges in Counts I-V must fail.

33. In view of the above conclusions, respondent's contention that the

Board of Medical Examiners has failed to adopt by rule "guidelines for the

disposition of disciplinary cases involving specific types of violations" as

required by Subsection 458.331(4), becomes moot and need not be addressed ./5

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the amended administrative complaint be DISMISSED, with

prejudice.

DONE and ORDERED this 29th day of August, 1986, in Tallahassee, Florida.

_________________________________

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of August, 1986.

ENDNOTES

1/ The original administrative complaint was filed on February 10, 1986. After

respondent's motion to dismiss the original complaint was partially granted by

order dated April 14, 1986, the amended complaint was filed.

2/ Doctor Vinger stated that he sometimes sees records of other physicians with

even less documentation than Rizzo. While he stated that the brevity of records

was "unfortunate," it was nonetheless the norm for area physicians.

3/ For example, one bottle of 500 tablets of dexadrine purchased from a

pharmaceutical house cost Rizzo (and ultimately his patient) around $23. If he

gave his patients a prescription for only 100 tablets, their cost would be

around $150.

4/ Most of respondent's objections go to the weight to be accorded the

deposition testimony of DPR witnesses Green and Cohen. The undersigned has

taken these objections into account in weighing their testimony.

5/ Although respondent's contention is rendered moot, the Board may wish to

consider amending its Rule 21M-20.01 to avoid future similar arguments. This is

because the rule refers to violations under Chapter 458, Florida Statutes

(1979), and to citations in Chapter 458 that do not appear in the 1979 or later

amended versions of that chapter. Moreover, reference is made to certain

violations under Chapter 455 which presumably are typographical errors since

they have no bearing upon medical doctors.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0836

PETITIONER:

1. Covered in finding of fact 1.

2. Covered in finding of fact 2.

3. Covered in finding of fact 2.

4. Covered in findings of fact 6-9.

5. Covered in finding of fact 7.

6. Covered in finding of fact 7.

7. Covered in finding of fact 9.

8. Covered in finding of fact 8.

9. Rejected as being contrary to the greater weight of evidence.

10. Rejected as being contrary to the greater weight of evidence.

11. Rejected as being contrary to the greater weight of evidence.

12. Rejected as being contrary to the greater weight of evidence.

13. Partially covered in finding of fact 9.

14. Covered in findings of fact 10-14.

15. Covered in finding of fact 10.

16. Covered in finding of fact 14.

17. Rejected as being contrary to the greater weight of evidence.

18. Rejected as being contrary to the greater weight of evidence.

19. Rejected as being contrary to the greater weight of evidence.

20. Rejected as being contrary to the greater weight of evidence.

21. Covered in finding of fact 4.

22. Covered in finding of fact 4.

23. Covered in finding of fact 14.

24. Partially covered in finding of fact 14.

25. Covered in findings of fact 15-17.

26. Covered in finding of fact 15.

27. Covered in finding of fact 15.

28. Covered in finding of fact 17.

29. Covered in finding of fact 16.

30. Covered in finding of fact 22.

31. Rejected as being contrary to the greater weight of evidence.

32. Rejected as being contrary to the greater weight of evidence.

33. Rejected as being contrary to the greater weight of evidence.

34. Rejected as being contrary to the greater weight of evidence.

35. Covered in finding of fact 17.

36. Covered in finding of fact 5.

37. Covered in finding of fact 5.

38. Rejected as being contrary to the greater weight of evidence.

39. Covered in finding of fact 5.

Respondent:

1. Covered in background except the last sentence which is a conclusion of

law.

2. Covered in finding of fact 1.

3. Rejected as being unnecessary.

4. Covered in finding of fact 19 and conclusion of law 2.

5. Covered in finding of fact 19.

6. Covered in finding of fact 19.

7. Rejected for the reasons stated in conclusion of law 2.

8. Covered in findings of fact 7, 8, 10, 11, 15 and 16.

9. Covered in finding of fact 22.

10. Covered in finding of fact 24.

11. Covered in finding of fact 22.

12. Covered in findings of fact 21 and 22.

13. Covered in finding of fact 22.

14. Covered in findings of fact 20-24.

15. Covered in finding of fact 19.

16. Covered in finding of fact 5. Respondent's proposed findings are set

forth in unnumbered paragraphs. For ease of ruling, the undersigned has given

numbers tothe sixteen unnumbered paragraphs.

COPIES FURNISHED:

Leslie Brookmeyer, Esquire

130 N. Monroe Street

Tallahassee, Florida 32301

Walter G. Campbell, Jr., Esquire

700 Southeast Third Avenue, Suite 100

Fort Lauderdale, Florida 33316

Ms. Dorothy Faircloth, Executive Director

Florida Board of Medical Examiners

130 North Monroe St.

Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

BEFORE THE BOARD OF MEDICINE

DEPARTMENT OF PROFESSIONAL

REGULATION,

Petitioner,

DPR CASE NO. 0059884

vs. DOAH CASE NO. 86-0836

LICENSE NO. ME 0013066

VIRGIL R. RIZZO, M.D.,

Respondent.

______________________________/

FINAL ORDER OF THE

BOARD OF MEDICINE

This cause came before the Board of Medical Examiners (Board) pursuant to

Section 120.57(1)(b)(9), Florida Statutes, on October 11, 1986, in Tampa,

Florida for the purpose of considering the Hearing Officer's Recommended Order

(a copy of which is attached hereto) in the above-styled cause. Petitioner,

Department of Professional Regulation, was represented by Bruce D. Lamb,

Esquire. Respondent was not present, but was represented by Walter G. Campbell,

Jr., Esquire.

Upon review of the recommended order, the argument of the parties, and

after a review of the complete record in this case, the Board makes the

following findings and conclusions.

FINDINGS OF FACT

1. The findings of fact set forth in the Recommended Order are approved

and adopted and incorporated herein.

2. There is competent substantial evidence to support the findings of

fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to Section

120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.

2. The conclusions of law set forth in the Recommended Order are approved

and adopted and incorporated herein, with the exception of the conclusion set

forth in paragraph 4 that Respondent kept adequate medical records justifying

the course of treatment of the three patients. This conclusion of law is

rejected for the reasons set forth in Exception 2 of Petitioner's Exceptions to

Recommended Order.

3. There is competent substantial evidence to support the conclusions of

law adopted by the Board.

RULINGS ON EXCEPTIONS

The following rulings are made on the Exceptions to Recommended Order:

1. The first sentence of the exception is granted. While the weight of

the evidence might be that the patients did not have narcolepsy, the Hearing

Officer erred in asserting that there was a total lack of evidence on that

point, as shown at pages 98, 109 and 133 of the transcript.

2. Granted for the reasons set forth in the exception. The Board finds

that the statute sets the standard for adequate medical records, not the

standard of practice of other physicians.

3. Withdrawn at hearing.

4. At the hearing, Petitioner orally limited this exception to the issue

of recordkeeping. Rejected ; the Hearing Officer was authorized to believe the

witnesses who testified contrary to Petitioner's witnesses.

5. Withdrawn at hearing.

6. Withdrawn at hearing.

7. At the hearing, Petitioner orally limited this exception to urging that

a violation of Section 458.331(1)(n) Florida Statutes, be found and the penalty

be assessed accordingly. Granted for the reasons set forth in Exception 2.

Upon a complete review of the record in this case, the Board determines

that the recommendation of the Hearing Officer that the Administrative Complaint

be dismissed with prejudice must be REJECTED in light of the Board's finding of

a violation of Section 458.331(1)(n), Florida Statutes, and a penalty

appropriate to that finding should be imposed.

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED that:

1. Respondent shall be, and hereby is, given a written reprimand.

2. Respondent shall pay an administrative fine in the amount of $1,000 to

the Executive Director within 30 days of the date this order is filed.

3. Prior to December 31, 1987, Respondent shall obtain 10 hours of

Category I Continuing Medical Education in the subject area of recordkeeping.

Such continuing education hours shall be in addition to any hours required for

license renewal.

This Order takes effect upon filing.

Pursuant to Section 120.59, Florida Statutes the parties are hereby

notified that they may appeal this Final Order by filing one copy of a notice of

appeal with the clerk of the agency and by filing the filing fee and one copy of

a notice of appeal with the district court of appeal within thirty days of the

date this Order is filed, as provided in Chapter 120, Florida Statutes, and the

Florida Rules of Appellate Procedure.

DONE AND ORDERED this 16th day of December, 1986.

BOARD OF MEDICINE

______________________________

WILLIAM F. BRUNNER, M.D.

CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing FINAL ORDER

has been provided by certified mail to Virgil R. Rizzo, M.D., Post Office Box

14611, Ft. Lauderdale, Florida, 33302 and Walter G. Campbell, Jr., Esquire, 700

Southeast Third Avenue, Suite 100, Ft. Lauderdale, Florida, 33316; by U.S. Mail

to Donald R. Alexander, Hearing Officer, Division of Administrative Hearings,

2009 Apalachee Parkway, Tallahassee, Florida 32302, and by hand delivery to

Leslie Brookmeyer, Esquire, Department of Professional Regulation, 130 North

Monroe Street, Tallahassee, Florida 32301 at or before 5:00 p.m. on this 16th

day of December, 1986.