95-002467 Board Of Medicine vs. Peter Alagona, Jr. Status: Closed Recommended Order on Tuesday, May 7, 1996.

Summary: Petitioner did'nt prove sexual misconduct. Sex relation preceded doctor/patient relationship; Latter didn't induce former. Respondent used poor judgment and didn't keep proper records

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2467

)

PETER ALAGONA, M.D., )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

On February 21-22, 1996, a formal administrative hearing was held in this

case in Tampa, Florida, before J. Lawrence Johnston, Hearing Officer, Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Steven Rothenburg, Esquire

Agency for Health Care Administration

Regional Office VI-Legal Division

9325 Bay Plaza, Suite 210

Tampa, Florida 33619

For Respondent: L. D. Murrell, Esquire

319 Clematis Street, Suite 400

West Palm Beach, Florida 33401-4618

STATEMENT OF THE ISSUE

The issues in this case are: (1) whether the Respondent is guilty of

violating the Medical Practice Act, as charged in the Administrative Complaint,

AHCA Case No. 93-01257; and, if so, (2) what discipline would be appropriate.

The violations charged are: Count I, that the Respondent used the doctor-

patient relationship to induce a patient to engage in sexual activity with him,

and committed sexual misconduct, in violation of Section 458.329, Fla. Stat.;

Count II, that the Respondent failed to practice medicine in accordance with

required standards of care by not ordering the patient to receive mental health

counseling but instead inappropriately allowing the patient to remain on Tylox,

in violation of Section 458.331(1)(t), Fla. Stat.; Count III, that the

Respondent failed to keep a written record of the drugs prescribed for the

patient or the course of treatment for the patient, in violation of Section

458.331(1)(m), Fla. Stat.

PRELIMINARY STATEMENT

The Administrative Complaint was filed on September 9, 1994. The

Respondent requested a formal administrative proceeding, and the case was

referred to the Division of Administrative Hearings (DOAH), where it was given

DOAH Case No. 95-2467 and set for hearing on February 21-22, 1996.

Several motions still were pending at the start of the hearing.

One of the pending motions was the Respondent's Motion to Prohibit Use of

Deposition Testimony at Trial, which addressed the transcript of testimony given

by the patient in response to questions by counsel for the Respondent at a

deposition taken by the Respondent in North Carolina for purposes of discovery.

After the surprise eleventh-hour decision of the witness, currently a resident

of North Carolina, not to appear and testify at final hearing as anticipated by

both parties, the AHCA decided to use the deposition transcript at the final

hearing. The motion was denied.

Another pending motion was the Respondent's Motion to Dismiss, based in

part on the same ground as the Respondent's Motion to Prohibit Use of Deposition

Testimony at Trial and in part on the refusal of the witness's husband to agree

to testify at final hearing or to be deposed in North Carolina. But Rule

1.330(a)(3), Florida Rules of Civil Procedure, authorizes AHCA to use the

deposition transcript in these circumstances, and the Respondent did not

demonstrate that no North Carolina procedures were available to compel the

witnesses' depositions in that state. This motion also was denied.

A third motion still pending at final hearing was the Petitioner's Motion

to Remove Attachment to Deposition. But AHCA chose to use the entire deposition

as evidence at final hearing. Cf. Rule 1.330(a)(4). Having done so, AHCA does

not have the right to alter the exhibits attached to the deposition, and AHCA's

motion was denied. (However, it is noted that the Respondent introduced no

evidence on which it can be concluded that the attachment or the related

testimony in the deposition transcript is material or relevant to this

proceeding.)

The foregoing rulings having been made, Petitioner's Exhibit 15 (the

transcript of the patient's deposition) was admitted into evidence.

Petitioner's Exhibits 1 through 13 and 16 were stipulated in evidence. Ruling

was reserved on the Respondent's objection to Petitioner's Exhibit 14, the

transcript of the deposition of AHCA's expert witnesses, on the ground that the

witness had insufficient knowledge of the applicable standards of care and

conduct. Based on a review of the deposition transcript, the objection is

overruled, and Petitioner's Exhibit 14 also is admitted into evidence.

Other than introducing its exhibits into evidence, AHCA called just one

witness at final hearing.

The Respondent testified in his own behalf and called three other

witnesses. He also had Respondent's Exhibits 1 through 11 admitted in evidence.

At the conclusion of the presentation of evidence, the AHCA ordered the

preparation of a transcript, and the parties requested and were given 30 days

from the filing of the transcript in which to file proposed recommended orders.

The transcript, in two volumes, was filed on March 13, 1996.

Explicit rulings on the proposed findings of fact contained in the parties'

proposed recommended orders may be found in the Appendix to Recommended Order,

Case No. 95-2467.

FINDINGS OF FACT

1. The Respondent, Peter Alagona, Jr., is licensed to practice medicine in

the State of Florida. He is board-certified in internal medicine with a

subspecialty in cardiology and has practiced cardiology since 1981. There is no

evidence that the Respondent has been the subject of professional discipline

except for this proceeding.

2. In 1989, the Respondent became acquainted with V.P., who worked as a

receptionist at a hospital where he had practice privileges. Their work

relationship became friendly and, although the Respondent was married and had

children, he and V.P. responded to each other's friendly manner by mutual

flirtation. At first, their flirting was discrete but later became more open

and romantic. The Respondent began to write V.P. notes and greeting cards and

send her flowers. In approximately May, 1989, V.P. indicated her willingness to

begin an intimate and sexual relationship. The Respondent did not hesitate to

oblige her.

3. There is no evidence that the Respondent used a doctor-patient

relationship to induce V.P. to engage in sexual activity with him, as alleged.

When the sexual relationship began, there was no doctor-patient relationship

between them. During her tenure at work at the hospital, V.P. from time to time

complained of a rapid heart beat, and one of the four cardiologists at the

hospital would respond to her complaint. The Respondent was one of the several

doctors who had occasion to respond. No treatment ever was required. V.P.'s

heart beat would soon return to normal, and everyone would return to work. No

true doctor-patient relationship was established, and neither the Respondent,

the other doctors nor V.P. ever thought one had been established.

4. The allegation that the Respondent essentially intentionally used drugs

he prescribed for V.P. during the course of their affair to control her and

prolong the sexual relationship with V.P. against her will hinges on the

following reference in V.P.'s deposition transcript:

Q. Just so that I'm clear, did Alagona

ever tell you that if you did not have sex

with him, he would not write prescriptions

for you?

A. Those aren't the words. He has made

comments about, "Where are you going to get

your prescriptions?"

Q. When did he make those comments?

A. I don't know. During the relationship,

at the end of the relationship.

Q. Give me some of the circumstances

surrounding those comments.

A. It was, I'm sure, during an argument or

something. I don't know.

In view of all the evidence, that allegation is rejected as not proven.

5. It is factual that, in another poor judgment that flowed from the poor

judgment in initiating and conducting the affair in the first place, the

Respondent began to act as V.P.'s personal physician for limited purposes during

the course of the affair. When she complained of migraine headaches, he

prescribed pain medication such as Tylox, a Schedule II controlled substance

containing oxycodone, and Inderal, a beta-blocker and a legend drug. For

stress, he prescribed Valium, which contains diazepam, also a legend drug.

Although the Respondent clearly was acting as the doctor in a doctor-patient

relationship when he prescribed these drugs, he still did not view himself as

acting in that role and did not keep a written record of the drugs or the course

of treatment in connection with those prescriptions.

6. The allegation that the Respondent failed to practice medicine in

accordance with required standards of care by not ordering the patient to

receive mental health counseling but instead inappropriately allowing the

patient to remain on Tylox also depends in large part on the testimony of V.P.

In view of all the evidence, V.P.'s testimony pertinent to this allegation is

rejected. The evidence was that the Respondent repeatedly advised V.P. to seek

counseling, albeit not for drug abuse. Until April, 1990, the Respondent was

not aware that V.P. was abusing drugs. The Respondent's Tylox prescriptions

were not excessive and would not, in and of themselves, have indicated to the

Respondent that V.P. was abusing Tylox or inappropriately remaining on Tylox;

nor did V.P. exhibit clear signs of drug abuse or addiction prior to April,

1990. However, V.P. apparently was obtaining Tylox and other legend drugs from

other sources without the Respondent's knowledge. She was seeing other

physicians for the purpose of obtaining prescriptions, and she also was forging

the Respondent's and other doctors' names to prescriptions to obtain additional

drugs illegally. (One of the doctors whose name she forged predeceased the date

of the forged prescription.)

7. In April, 1990, the Respondent was notified that V.P. had been

hospitalized for a drug overdose. In response to the request for advice from

the attending physician, the Respondent recommended a psychiatrist for

counseling. However, V.P. did not cooperate. She attended only one counseling

session and refused further counseling.

8. After the overdose hospitalization, the Respondent did not prescribe

any more Tylox. However, again without the Respondent's knowledge, V.P.

continued to obtain Tylox and other drugs from her other sources.

9. The Respondent's judgment continued to be distorted and poor as a

result of his intense sexual and romantic relationship with V.P. He continued

to urge V.P. to obtain counseling for several reasons but, again, not

specifically for drug abuse. By mid-1990, V.P. had dissolved her marriage, and

she began putting pressure on the Respondent to divorce his wife and marry her.

She began acting erratically, and her judgment also was poor. During a week-

long visit to her family's home during the summer of 1990, she contacted an old

boy friend, married him, changed her mind, and began annulment proceedings. By

late 1990, V.P. started dating another doctor, and the pressure on both V.P. and

the Respondent increased. The Respondent was unable to decide what to do, and

the stress got ever greater as V.P. threatened to end the affair with the

Respondent. While probably genuinely concerned for V.P.'s welfare, the

Respondent probably also believed that, if V.P. got counseling, she would "see

the light" and decide not to end their affair. Finally, the Respondent himself

felt the need for counseling due to the stress of the affair, and he probably

believed that she felt the same stress.

10. Eventually, in early 1991, V.P. followed through on her threat and

made it known to the Respondent that she was dropping him and choosing the other

doctor. For some time, the Respondent was devastated and continued to try to

persuade V.P. to return to him. Meanwhile, V.P. remained less than resolute,

holding out to the Respondent some hope that she would return to him if he

divorced his wife. Finally, practically an emotional wreck and despairing of

any other way to get over his affair with V.P., the Respondent checked himself

into an out-of-town residential psychiatric program. He purposely did not tell

V.P. where he was, but she found out and, on the day of his discharge, sent him

flowers with a card saying that she would never let him go. Eventually, the

affair ended, and V.P. married the other doctor soon after.

CONCLUSIONS OF LAW

11. Section 458.329, Fla. Stat. (1989), provided:

The physician-patient relationship is founded

on mutual trust. Sexual misconduct in the

practice of medicine means violation of the

physician-patient relationship through which

the physician uses said relationship to induce

or attempt to induce the patient to engage,

or to engage or attempt to engage the patient,

in sexual activity outside the scope of the

practice or the scope of generally accepted

examination or treatment of the patient.

Sexual misconduct in the practice of medicine

is prohibited.

12. Section 458.331, Fla. Stat. (1989), provided in pertinent part:

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(m) Failing to keep written medical records

justifying the course of treatment of the

patient, including, but not limited to, patient

histories; examination results; test results;

records of drugs prescribed, dispensed, or

administered; and reports of consultations

and hospitalizations.

* * *

(t) Gross or repeated malpractice or the

failure to practice medicine with that level

of care, skill, and treatment which is

recognized by a reasonably prudent similar

physician as being acceptable under similar

conditions and circumstances. The board shall

give great weight to the provisions of

s. 766.102 when enforcing this paragraph. As

used in this paragraph, "repeated malpractice"

includes, but is not limited to, three or more

claims for medical malpractice within the

previous 5-year period resulting in in-

demnities 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 malpractice" or "the fai-

lure to practice medicine with that level of

care, skill, and treatment which is recognized

by a reasonably prudent similar physician as

being acceptable under similar conditions and

circumstances," shall not be construed so as

to require more than one instance, event, or

act. Nothing in this paragraph shall be

construed to require that a physician be incom-

petent to practice medicine in order to be dis-

ciplined pursuant to this paragraph.

* * *

(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.

(2) When the board finds any person guilty

of any of the grounds set forth in subsection

(1), including conduct that would constitute

a substantial violation of subsection (1)

which occurred prior to licensure, it may

enter an order imposing one or more of the

following penalties:

(a) Refusal to certify, or certification

with restrictions, to the department an

application for licensure, certification,

or registration.

(b) Revocation or suspension of a license.

(c) Restriction of practice.

(d) Imposition of an administrative fine

not to exceed $5,000 for each count or

separate offense.

(e) Issuance of a reprimand.

(f) Placement of the physician on probation

for a period of time and subject to such cond-

itions as the board may specify, including,

but not limited to, requiring the physician

to submit to treatment, to attend continuing

education courses, to submit to reexamination,

or to work under the supervision of another

physician.

(g) Issuance of a letter of concern.

(h) Corrective action.

(i) Refund of fees billed to and collected

from the patient. In determining what action

is appropriate, the board must first consider

what sanctions are necessary to protect the

public or to compensate the patient. Only

after those sanctions have been imposed may

the disciplining authority consider and in-

clude in the order requirements designed to

rehabilitate the physician. All costs asso-

ciated with compliance with orders issued

under this subsection are the obligation of

the physician.

(3) In any administrative action against a

physician which does not involve revocation

or suspension of license, the division shall

have the burden, by the greater weight of the

evidence, to establish the existence of

grounds for disciplinary action. The division

shall establish grounds for revocation or

suspension of license by clear and convincing

evidence.

13. These 1989 statutory provisions, which apply to the alleged violations

in this case, are the same statutes in effect today.

14. The sexual misconduct charges in this case were made under Sections

458.331(1)(x) and 458.329. AHCA has made no reference to Section 458.331(1)(j),

Fla. Stat. (1989), which also is the same as the corresponding statutory

provision still in effect today. Paragraph (j) makes a ground for discipline:

Exercising influence within a patient-

physician relationship for purposes of

engaging a patient in sexual activity. A

patient shall be presumed to be incapable

of giving free, full, and informed consent

to sexual activity with his physician.

It is not clear why AHCA chose to ignore paragraph (j) in this case. Perhaps it

is because, the sexual relationship preceded the doctor-patient relationship,

and the evidence is that V.P. clearly gave her consent to the sexual

relationship before there was any doctor-patient relationship.

15. Consistent with the evidence and the findings, it is concluded that no

real doctor-patient relationship existed by virtue of the time or two in early

1989 when the Respondent responded, as opposed to one of the other cardiologists

working at the hospital who also similarly responded on other occasions, to

notification that the unit receptionist, V.P., appeared to be experiencing a

rapid heart beat. All the Respondent (or any of the other doctors) did was make

sure nothing serious was involved and have V.P. calm down. There is no evidence

that any of them examined, diagnosed or treated V.P. They responded to her as

being an employee of the hospital, not as being a patient. None of them--

neither V.P. nor any of the doctors--were of the belief that a doctor-patient

relationship was established by virtue of those episodes.

16. AHCA concedes that, in order to establish a violation of Section

458.329, it must prove more than just the co-existence of a doctor-patient and a

sexual relationship between the Respondent and V.P. AHCA also must prove that

the Respondent used, or attempted to use, the doctor-patient relationship to

influence V.P. in some way in the sexual relationship. Ordinarily, where the

sexual relationship proceeds from the doctor-patient relationship, this is

relatively easy to prove. See Final Order, Board of Medicine v. Weldon, M.D.,

DOAH Case No. 94-6032, entered Dec. 22, 1995). Indeed, Section 458.331(1)(j)

creates a presumption to aid in the proof of this element of the charge. See

Final Order, Board of Medicine v. Rophie, DOAH Case No. 92-0025, entered Oct.

26, 1992). But in this case, the sexual relationship already existed before any

doctor-patient relationship began. The evidence cannot support a finding or

conclusion that the Respondent "use[d] said [physician-patient] relationship to

induce or attempt to induce [V.P.] to engage, or engage or attempt to engage

[V.P.], in sexual activity." As a married man, the Respondent clearly was

engaged in sexual misconduct in the context of his marriage; but his sexual

activity with V.P. was not "sexual misconduct" under Section 458.329.

17. The charge that the Respondent violated Section 458.331(1)(t) also was

not proven. It depended on V.P.'s unconvincing and unreliable testimony that

the Respondent overprescribed for her. Setting aside her allegations, the

Respondent can only be questioned for not recognizing allegedly apparent

indications that V.P. was addicted. But in view of the apparent similar

inability of anyone else to see through V.P.'s manipulative lies and deceptions,

it is not surprising--and should not be a basis for license discipline--that the

Respondent also did not recognize them.

18. The only charge proven by AHCA was the violation of Section

458.331(1)(m) for failure to keep proper medical records. The evidence was that

the violation is an isolated aberration from the Respondent's normal practice.

There was no indication that the Respondent needs to learn how records are

supposed to be kept. Rather, he did not keep the records because, at the time,

he did not recognize that he was acting as V.P.'s physician and saw no reason to

keep records. As with the decision to enter into the extramarital affair in the

first place, the decision to act from time to time as V.P.'s physician and many

other decisions the Respondent made, his decision not to keep proper records is

yet another indication that the Respondent allowed his apparently otherwise good

judgment to become distorted and poor as a result of his intense sexual and

romantic relationship with V.P.

19. Although failure to keep adequate medical records can in some cases

expose a patient to a health risk, the evidence in this case was that the

Respondent's violation did not actually seriously endanger V.P. or any other

patient. The Respondent testified credibly that, in the case of this

extraordinary patient, he was able to mentally monitor how much medication he

prescribed for her and that he did not, in his opinion, overprescribe. What he

could not keep track of, regardless of the state of his medical records, was how

many drugs V.P. was getting surreptitiously from other sources through lies,

deceit, manipulation and forgery.

20. Giving due consideration to the aggravating and mitigating factors

described in F.A.C. Rule 59R-8.001(3), it is believed that discipline within the

range of the discipline guidelines set out in (2) of the rule for a violation of

Section 458.331(1)(m) is adequate and that a $2,500 fine is appropriate

discipline in this case. Hopefully, the Respondent has learned his lesson; but,

if additional medical education is required, courses dealing with the physician-

patient relationship and the prudence of avoiding the dual sexual/physician-

patient relationship would be more relevant for the Respondent than the course

on record-keeping suggested by AHCA for this violation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

recommended that the Board of Medicine enter a final order: (1) finding the

Respondent not guilty under Counts I and II but guilty under Count III; (2)

placing him on probation for two years; (3) requiring him to take appropriate

continuing medical education, if available, dealing with the physician-patient

relationship and the prudence of avoiding the dual sexual/physician-patient

relationship; and (4) imposing on him an administrative fine in the amount of

$2,500.

DONE and ENTERED this 7th day of May, 1996, in Tallahassee, Florida.

_____________________________________

J. LAWRENCE JOHNSTON, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of May, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2467

To comply with the requirements of Section 120.59(2), Florida Statutes

(1995), the following rulings are made on the parties' proposed findings of

fact:

Petitioner's Proposed Findings of Fact.

1.-5. Accepted and incorporated to the extent not subordinate or

unnecessary. However, as to second sentence of 5., although he cannot now

remember when he prescribed Tylox, the Respondent's testimony is accepted that,

at the time, and for this extraordinary patient, he was able to bear in mind

adequately approximately when and what he last prescribed so as not to expose

V.P. to a health risk.

6. Accepted and incorporated to the extent not subordinate or unnecessary.

However, as to the last sentence, although he cannot now remember his

prescriptions, the Respondent's testimony is accepted that, at the time, and for

this extraordinary patient, he was able to bear in mind adequately when and what

he last prescribed so as not to expose V.P. to a health risk.

7.-9. Accepted and incorporated to the extent not subordinate or

unnecessary.

10. Rejected as not proven that patients need to be kept under

"surveillance." Otherwise, accepted and incorporated to the extent not

subordinate or unnecessary.

11. As to last sentence, rejected as not proven that all "drugs," in all

doses, "control a patient's emotional state and level of pain." Accepted that

some can, in certain doses, and otherwise accepted and incorporated to the

extent not subordinate or unnecessary.

12. Accepted that it is not the only indication; subordinate to facts

contrary to those found, and unnecessary.

13.-16. Accepted and incorporated to the extent not subordinate or

unnecessary.

17. Rejected as not proven that the Respondent "did not follow through

with V.P.'s medical problems." Otherwise, accepted and incorporated to the

extent not subordinate or unnecessary.

18. Accepted and incorporated to the extent not subordinate or

unnecessary.

19. First two sentences, rejected as not proven; third, accepted that she

said it, but subordinate to facts contrary to those found.

20. First sentence, rejected as not proven; rest, accepted that she said

it, but subordinate to facts contrary to those found.

21. Rejected as not proven that he reviewed all of the prescription and

hospital records. Otherwise, accepted and incorporated to the extent not

subordinate or unnecessary.

22. Accepted and incorporated.

23. To the extent not conclusion of law, accepted and incorporated.

24. First sentence, rejected as not proven; second, cumulative; third, in

part cumulative and in part rejected as not proven (that he had no

justification); fourth, accepted but subordinate to facts contrary to those

found (he did some diagnostic testing); and last two rejected as not proven in

that the evidence was that V.P. rejected the Respondent's repeated

recommendations to her that she seek mental health counseling, but otherwise

accepted and incorporated to the extent not subordinate or unnecessary.

25. Last sentence, accepted but not necessary; rest, rejected as not

proven.

Respondent's Proposed Findings of Fact.

1.-22. Accepted and incorporated to the extent not subordinate or

unnecessary.

23. Accepted but subordinate.

24. Conclusion of law.

25. Accepted and incorporated.

26.-27. Accepted and incorporated to the extent not subordinate or

unnecessary.

28. Accepted but subordinate and unnecessary.

29. In large part, argument and conclusion of law; in part, accepted but

largely subordinate and unnecessary.

30. Rejected as contrary to the greater weight of the evidence that it is

"clear . . . that V.P. feels that Alagona left her." (Much of their behavior is

difficult to explain, such as why V.P. would act as if she did not want to let

Alagona go, while chosing Palay over Alagona.) Otherwise, accepted but largely

subordinate and unnecessary.

31. Accepted but largely subordinate and unnecessary.

32. Last sentence of C), rejected as contrary to the greater weight of the

evidence that it is "safe to infer that V.P. forged these prescriptions." (The

evidence raises the question and possibility of forgery, especially in the

absence of testimony on the subject from V.P. and Palay, but it is not "safe to

infer.") Otherwise, accepted but largely subordinate and unnecessary.

33. First four sentences, argument and subordinate. Rest, generally

accepted and incorporated to the extent not subordinate or unnecessary.

(However, while V.P. may have been "in the emotional driver's seat," it does not

appear that she knew where she was going.)

34. Accepted but subordinate and unnecessary.

35. Last sentence, rejected as contrary to the greater weight of the

evidence in that the Respondent did not suggest psychiatric counseling.

Otherwise, accepted but subordinate to facts found, and unnecessary.

36. Second sentence, rejected as contrary to the greater weight of the

evidence in that the Respondent did not suggest psychiatric counseling.

Otherwise, accepted but subordinate to facts found, and unnecessary.

37. Second sentence, rejected as contrary to the greater weight of the

evidence in that the Respondent did not suggest psychiatric counseling.

Otherwise, accepted but subordinate to facts found, and unnecessary.

38. As to the third and fourth sentences, there was no evidence as to the

nature of doctors' "orders." But, based on the evidence, the Respondent did not

"order" counseling. He suggested or recommended it and offered to help her get

it, and V.P. declined. If the Respondent had "ordered" counseling, the patient

still may or may not have followed his "order." In either case, it would appear

that the critical decision is what a physician does in the face of the patient's

failure to comply. It would seem that the only thing a physician reasonably can

do in this situation is stop prescribing and, if necessary, terminate the

physician-patient relationship. As to the rest, accepted but subordinate to

facts found, and unnecessary.

39.-42. Accepted but subordinate and unnecessary.

43. Accepted and incorporated to the extent not subordinate or

unnecessary.

44. Accepted but subordinate and unnecessary.

45. Accepted and incorporated.

COPIES FURNISHED:

Steven Rothenburg, Esquire

Agency for Health Care Administration

Regional Office VI-Legal Division

9325 Bay Plaza, Suite 210

Tampa, Florida 33619

L. D. Murrell, Esquire

319 Clematis Street, Suite 400

West Palm Beach, Florida 33401-4618

Dr. Marm Harris

Executive Director

Board of Medicine

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Douglas M. Cook, Director

Agency for Health Care Administration

2727 Mahan Drive

Tallahassee, Florida 32308

Jerome W. Hoffman, Esquire

General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Tallahassee, Florida 32308-5403

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Board of Medicine 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 consult with the Board of

Medicine concerning its rules on the deadline for filing exceptions to this

Recommended Order.