90-003591 Board Of Medicine vs. Archbold M. Jones, Jr. Status: Closed Recommended Order on Thursday, November 29, 1990.

Summary: Telephoning in a prescription is practicing medicine per 458.305 and where such act violates respondent's probation, constitutes violation of order of board

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD )

OF MEDICINE, )

)

Petitioner, )

vs. ) Case No. 90-3591

)

ARCHBOLD N. JONES, JR., N.D., )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on

September 18, 1990, in Clearwater, Florida, before Joyous D. Parrish, a

designated Hearing Officer of the Division of Administrative Hearings. The

parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Bruce D. Lamb

Chief Trial Attorney

Department of Professional

Regulation

730 S. Sterling Street, Ste. 201

Tampa, Florida

For Respondent: Jerry Gottlieb

GOTTLIEB & GOTTLIEB, P.A.

2753 State Road 580, Suite 204

Clearwater, Florida 34621

STATEMENT OF THE ISSUES

The central issue in this case is whether the Respondent is guilty of

the violations alleged in the administrative complaint; and, if so, what

penalty should be imposed.

PRELIMINARY STATEMENT

This case began on April 19, 1990, when the Department of Professional

Regulation (Department) filed an administrative complaint against the

Respondent, Archbold M. Jones, Jr., M.D., which alleged three violations of

Chapter 458, Florida Statutes. More specifically, the complaint alleged that the

Respondent had violated a term of his probation by practicing medicine without

proper supervision contrary to Section 458.331(1)(x), Florida Statutes; had

failed to notify the Department of a change of address prior to closing his

pediatric practice as required by Section 458.319(5), Florida Statutes.

(therefore constituting a second violation of Section 458.331(1)(x), Florida

Statutes); and had failed to timely pay the remaining balance of a fine due

pursuant to a prior order of the Board of Medicine also contrary to Section

458.331(1)(x), Florida Statutes. The Respondent executed an election of

rights and the matter was forwarded to the Division of Administrative Hearings

for formal proceedings on June 8, 1990.

At the hearing, the Department filed a stipulation executed by the parties

and the depositions of Dorothy Faircloth and Dr. John S. Curran. Additionally,

it presented the testimony of Rosemary T. Gazverde, former investigator

employed by the Department. Exhibits marked for identification as DPR Ex. 1 and

2 were admitted into evidence. The Respondent testified in his own behalf and

the Respondent's exhibits numbered 1 through 5 were admitted into evidence.

The transcript of the proceedings was filed with the Division of

Administrative Hearings on October 12, 1990. The parties submitted recommended

orders which have been considered in the preparation of this order. Specific

rulings on the proposed findings of fact are included in the attached appendix.

FINDINGS OF FACT

Based upon the stipulation of the parties, the testimony of the witnesses,

and the evidence received at the hearing, the following findings of fact are

made:

1. The Department is the state agency authorized to regulate the practice

of medicine within the State of Florida.

2. At all times material to the allegations of the administrative

complaint, Respondent is and has been a licensed physician in the State of

Florida having been issued license number ME 0017104.

3. On April 21, 1986, the Board of Medical Examiners, now known as the

Board of Medicine (Board), issued a final order which provided for the following

conditions in connection with a stipulated disposition of an administrative

dispute involving the Respondent. In pertinent part, that order required: the

Respondent to pay an administrative fine in the amount of $8,000 in payments of

$2,000; that the Respondent's license to practice medicine in Florida be placed

on probation for a five year period; and that a monitoring physician make

regular visits to Respondent's office and submit appropriate reports to the

Board regarding Respondent's performance.

4. On August 10, 1987, the Board of Medicine entered a final order which

accepted the recommended order entered by a Hearing Officer on July 6, 1987.

That recommended order found that the Respondent had violated the terms of the

prior final order previously entered in a disciplinary proceeding (the final

order described in paragraph 3). The Board imposed a three month suspension in

connection with the violations and further clarified the terms of Respondent's

probation.

5. On March 1, 1988, the Board of Medicine filed a final order which

extended Respondent's suspension for an additional 90 days in connection with

additional violations of chapter 458 related to his failure to comply with the

terms of the probation previously imposed upon him.

6. On June 21, 1988, the Board of Medicine filed a final order which

suspended Respondent's license to practice medicine until completion of

continuing medical education courses and further specified that upon completion

of the license suspension, Respondent's license to practice medicine would be on

probation for a period of five years. That final order amended the due dates

for the payment of the installments of the administrative fine to require a

$2000 payment no later than December, 1988, and a $2000 payment no later than

June, 1989.

7. Subsequently, the Respondent requested that the terms of probation be

modified and on March 22, 1989, an Order was entered by the Board of

Medicine which granted several modifications to the terms of Respondent1s

probation. That order provided that Dr. John S. Curran would serve as

Respondent's supervising physician for Respondent's practice of pediatric

medicine.

8. On September 19, 1989, Dr. Curran wrote to the Board of Medicine to

request that he be released from any further supervision responsibility for

the Respondent. That letter provided, in part:

Please be advised that I have received

information that Dr. Archie Jones has closed

his practice in Lutz, Florida. I last

submitted a report late July 1989 when I

visited his office and I reviewed all patient

files.

He informs me that he has seen between five

and ten patients since the time of my review

and the closure of his office approximately 12

August 1989.

It is my understanding that he intends to move

to the state of Georgia.

I would respectfully request release from any

further supervision responsibility for Dr.

Jones effective the date of closure of his

office.

9. On November 14, 1989, Dorothy Faircloth as Executive Director for the

Board of Medicine notified the Respondent that Dr. Curran had written requesting

release from any further supervision responsibility. Further, that letter

advised Respondent that:

You are advised that according to the Final

Order of the Florida Board of Medicine you may

only practice under the supervision of a board

certified pediatrician approved by the Board.

To practice without the proper supervision is

in direct violation of the Final Order and is

grounds for further disciplinary action.

The letter described above was received by the Respondent on November 27, 1989.

10. On November 28, 1989, Respondent executed a Petition for Modification

of Payment Schedule which requested an extension of time for payment of the

balance of the fine amount due November 30, 1989. Respondent sought a payment

date of May 30, 1990 for the final $2000 payment owed. That petition provided,

in part:

4. That because of adverse publicity which

negated patients, Respondents was forced to

close his office in July of 1989 and has not

been able to secure employment since that

date.

11. A letter written by Respondent to his landlords on stationery styled

"Lutz Pediatric Center" stated: "It is with a heavy heart that I write to say

that I have had to close the Lutz Pediatric Center as of 9/8/89." That letter

was dated September 14, 1989.

12. A second letter written by Respondent "To whom it may concern"

provided that: "As of 8/11/89 my office at the above address will be permanently

closed for the practice of pediatrics." This letter was purportedly written on

July 30, 1989, to advise the Department of the closure of the Respondent's

office and his new mailing address of P.O. Box 757, Safety Harbor, Florida.

13. On November 28, 1989, the Respondent telephoned in a prescription for

a patient, D.T., to Freddy's pharmacy in Tampa, Florida. This prescription, for

a legend drug known as Keflex, was requested for an adult friend of the

Respondent's for whom Respondent had not made a medical examination nor

received a fee for his services in connection with the prescription.

14. On February 17, 1990, the Respondent received a notice that his

request for an extension on the payment of the administrative fine had been

denied. That notice requested that Respondent submit the remaining $2000 to the

Board office within five days of the receipt of the letter.

15. On February 21, 1990, the Respondent filed a bankruptcy petition in

the Middle District of Florida. The discharge of debtor was entered by that

court on May 25, 1990.

16. Initially, Respondent was uncertain as to whether the administrative

fine which had been due November 30, 1989, would be discharged by the bankruptcy

proceedings. He paid the $2000 into his attorney's escrow account pending

resolution of the legal issue. The exact date of that payment is uncertain.

However, on June 20, 1990, Respondent, through his attorney, remitted the final

$2000 payment to the Board of Medicine.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has jurisdiction over the

parties to and the subject matter of these proceedings.

18. The Department bears the burden of proving the allegations of the

administrative complaint by clear and convincing evidence. Ferris v.

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

19. Section 458.331(1), Florida Statutes, provides that a physician may be

disciplined by revocation or suspension for the commission of any of the

violations described in that subsection. Pertinent to this case is the

following subsection of that provision:

(x) Violating any provision of this chapter,

a rule of the board or department, or a lawful

order of the board or department previously

entered in a disciplinary hearing or failing

to comply with a lawfully issued subpoena of

the department.

20. The final orders described in the findings of fact above constitute

lawful orders previously entered in a disciplinary hearing. Accordingly, the

Respondent was obligated to comply with the terms of the orders.

21. In this case, the Department has established by clear and convincing

evidence that the Respondent practiced medicine in violation of the orders of

the Board of Medicine by telephoning the prescription for the patient on

November 28, 1989. That act constitutes the practice of medicine as defined

in Section 458.305, Florida Statutes, and was in violation of the specified

terms of Respondent's probation. Moreover, that act was committed after

Respondent was aware that his supervising physician had requested to be released

from his supervisory responsibilities and after Respondent had (by any of his

alleged dates of closure) ended his practice of medicine at the Lutz Pediatric

Center. Consequently, it was improper for him to telephone the

prescription. Respondent's indifference to the terms of his probation cannot be

excused by his perceived need to help a friend obtain an antibiotic. Had

he been in active practice, under the terms of his probation, Respondent was

only to engage in pediatric medicine.

22. The Department has not established that the Respondent failed to

notify the Board of Medicine regarding his change of address nor the closure of

his office. While the record is conflicting as to exactly when Respondent

ceased to operate the Lutz Pediatric Center and examine patients, it would

appear the Board was apprised of a current and valid address for the

Respondent and that the monitoring physician did not have difficulties

coordinating with Respondent during the review period.

23. Additionally, the Department has not established that the Respondent

failed to remit the administrative fine. While it is certain that the payment

of that fine was untimely, the reasons offered by Respondent, although

erroneous, justified his course of conduct under the circumstances. Had the

Respondent not gone through bankruptcy proceedings, the nonpayment would not

be excused.

24. Rule 21M-20.001, Florida Administrative Code, provides the

disciplinary guidelines regarding violations of Section 458.331(1), Florida

Statutes. That rule provides, in pertinent part:

RECOMMENDED RANGE

VIOLATION OF PENALTY

(x) Violation of law (x)From a reprimand to

rule, order, or revocation or denial,

failure to comply with and an administrative

subpoena. fine from $250.00 to

(458.331(1)(x)F.S. $5,000.00.

25. The Board is authorized to deviate from the recommended range of

penalties when there are aggravating or mitigating factors in an individual

case. Among such factors are: the number of counts or separate offenses

established; the disciplinary history of the applicant or licensee in

any jurisdiction and the length of practice; and any other relevant mitigating

factors. See Rule 21M-20.001(3), Florida Administrative Code.

RECOMMENDATION

Based upon the foregoing, it is

RECOMMENDED:

That the Board of Medicine enter a final order finding that the Respondent,

Archbold M. Jones, M.D., violated Section 458.331(1)(x), Florida Statutes, and

suspending his license for a period of two years.

DONE and ENTERED this __29__ day of November, 1990, in Tallahassee, Leon

County, Florida.

_________________________

Joyous D. Parrish

Hearing Officer

Division of Administrative Hearings

1230 Apalachee Parkway

Tallahassee, Florida 32301

[phone]

Filed this __29__ day of November,

1990 with the Clerk of the Division

of Administrative Hearings.

APPENDIX TO CASE NO. 90-3591

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER:

1. Paragraphs 1 through 3 are accepted.

2. With regard to paragraph 4, it is accepted that the Respondent was to

pay an administrative fine in the amount of $8,000 with installments of $2000.

Otherwise, rejected as irrelevant or immaterial to the allegations of this

case. It is undisputed that the final $2000 payment was not remitted by

Respondent until June, 1990.

3. Paragraphs 5 and 6 are accepted in substance.

4. To the extent that a clarification of the terms of

Respondent's probation were required incidental to a subsequent disciplinary

action, paragraph 7 is accepted.

5. Paragraphs 8 through 10 are accepted.

6. Paragraph 11 is accepted in that it accurately depicts the action

taken by the probationary committee, however, that information was not

contemporaneously shared with Respondent. The Respondent was, by then, not

practicing at the Lutz Pediatric Center and therefore not in need of supervision

(theoretically) since he was not supposed to be practicing. That he did so by

issuing the prescription on November 28, 1989, is the crux of this case.

7. As explained in paragraph 6 above, paragraph 12 is accepted. It should

be noted that Respondent was not to be practicing medicine at the time in issue

(November 28, 1989) at all.

8. With regard to paragraph 13, it is accepted that the Respondent

did not have an office at the Lutz address in October, 1989; otherwise, rejected

as inaccurate statement of fact.

9. Paragraph 14 is rejected as contrary to the weight of the evidence.

10. Paragraph 15 is accepted but is irrelevant.

11. Paragraph 16 is accepted but the Respondent has presented a reasonable

explanation for the failure to timely remit the payment.

12. Paragraph 17 is accepted.

13. Paragraph 18 is accepted.

14. Paragraph 19 is rejected as hearsay not supported by direct

evidence.

15. With regard to paragraph 20, it is accepted that at the time the

prescription was telephoned in, Respondent's Lutz office was closed; otherwise

rejected as speculation or irrelevant since at that time Respondent was not

supposed to be practicing medicine at all.

16. With regard to paragraph 21, it is accepted that Respondent by

prescribing the substance practiced medicine other than as required under the

terms of his probation. Otherwise, rejected as contrary to the evidence or

irrelevant. See comments above.

17. Paragraphs 22 and 23 are accepted.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT:

1. Paragraphs 1 and 2 are accepted.

2. Paragraph 3 is accepted but is irrelevant since at the time the

prescription was made Respondent knew that Dr. Curran had requested to be

released because Respondent was closing his office and would not be in the

practice of medicine. But for Respondent's insistence that the office would be

closed, Dr. Curran would not have requested release.

3. Paragraph 4 is rejected as contrary to the weight of the credible

evidence. Respondent's account of whether he would or would not have issued the

prescription was totally incredible. Respondent took the position that

telephoning the prescription was not practicing medicine, a totally fallacious

assertion. But for his license, Respondent would not be privileged to

request prescriptions on behalf of others.

4. Paragraph 5 is rejected as irrelevant.

5. With regard to paragraph 6, the exact time Respondent notified the

Board or the Department became aware of Respondent's accurate address is not

established by this record. It is accepted that the Board did have access to

Respondent's whereabouts at all material times. Otherwise the paragraph is

rejected as not supported by the weight of the credible evidence.

6. Paragraphs 7, 8 and 9 are rejected as irrelevant or argument; see

comment to paragraph 6 above.

7. Paragraphs 10 and 11 are accepted.

8. With regard to paragraph 12, it is accepted that Respondent requested

an extension within which to pay the final $2000 installment. Otherwise,

rejected as irrelevant or unsupported by the evidence.

9. Paragraph 13 is accepted.

10. Paragraphs 14 and 15 are rejected as irrelevant, argument, or

unnecessary to the resolution of the issues of this case.

11. Paragraph 16 is accepted in substance; the exact date the monies were

placed in escrow is not known.

12. With regard to paragraph 17, it is accepted that ultimately the

Respondent remitted the final $2000 payment and that such payment was made

approximately one month after the discharge was entered by the bankruptcy court.

COPIES FURNISHED:

Bruce D. Lamb

Chief Trial Attorney

Department of Professional

Regulation

730 South Sterling Street

Suite 201

Tampa, Florida 33609

Jerry Gottlieb

GOTTLIEB & GOTTLIEB, P.A.

2753 State Road 580, Suite 204

Clearwater, Florida 34621

Dorothy Faircloth

Executive Director

Board of Medicine

Department of Professional

Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Kenneth E. Easley

General Counsel

Department of Professional

Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED

ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT

WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT

WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL

ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS

TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE

FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.