96-003354 Board Of Medicine vs. Jesse Brancaleone Status: Closed Recommended Order on Thursday, June 5, 1997.

Summary: Nutritional counselor did not attempt to treat cancer patient.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 96-3354

)

JESSE BRANCALEONE, N.C., )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on March 12, 1997, at Fort Lauderdale, Florida, before Claude B.

Arrington, a duly designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Hugh R. Brown, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: E. Renee Alsobrook, Esquire

Alsobrook, Dove and Elliott, P.A.

Post Office Box 10426

Tallahassee, Florida 32302-2426

STATEMENT OF THE ISSUES

Whether Respondent, a licensed nutritional counselor,

committed the offenses alleged in the administrative complaint

and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

On April 25, 1996, the Petitioner filed a two-count

administrative complaint against the Respondent, a licensed

nutritional counselor. The administrative complaint alleged

certain facts pertaining to advice allegedly given by Respondent

to C. B., a cancer patient who had sought nutritional counseling

from Respondent. Based on those allegations, Petitioner alleged

in Count One that Respondent violated the provisions of Section

468.518(1)(a), Florida Statutes. Petitioner alleged in Count

Two that Respondent violated the provisions of Section

468.518(1)(j), Florida Statutes. At the start of the formal

hearing, Petitioner voluntarily dismissed Count One.

At the formal hearing, Petitioner presented the testimony

of Francisco Bellette, a medical doctor specializing in

oncology, who was C. B.’s treating physician at the times

pertinent to this proceeding. The two exhibits offered by

Petitioner were admitted into evidence. One of the Petitioner’s

exhibits was the deposition of patient C. B., who was too ill to

attend the formal hearing. The Respondent testified on his own

behalf, but offered no other testimony and no exhibit.

A transcript of the proceedings has been filed. At the

request of the parties, the time for filing post-hearing

submissions was set for more than ten days following the filing

of the transcript. Consequently, the parties waived the

requirement that a recommended order be rendered within thirty

days after the transcript is filed. Rule 60Q-2.031, Florida

Administrative Code. The Petitioner and Respondent filed

proposed recommended orders, which have been duly considered by

the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating

the practice of nutritional counseling pursuant to Section

20.42, Florida Statutes; Chapter 455, Florida Statutes, and

Chapter 468, Florida Statutes.

2. Respondent was licensed as a nutritional counselor at

all times pertinent to this proceeding. Respondent was issued

license number NC 0000427 in 1990. At the time of the formal

hearing, Respondent’s address was 6661 Royal Palm Boulevard,

Margate, Florida 33063-2108.

3. At all times pertinent to this proceeding, C. B. was a

female cancer patient of Franciso Bellette, M.D., a physician

specializing in the field of oncology.

4. Before Dr. Bellette moved to Florida in 1993, C. B. was

treated by another physician in the practice group that Dr.

Bellette subsequently joined. Prior to 1993, C. B. had

chemotherapy, which she tolerated poorly.

5. In October 1995, Dr. Bellette diagnosed C. B. as having

Stage 4 breast cancer with bony metastasis. Although the

preferred treatment was chemotherapy, C. B. refused further

chemotherapy because of her poor prior experience with

chemotherapy. As the alternative treatment, Dr. Bellette

prescribed the drug Tamoxifen for C. B., and she began taking

that medicine.

6. Tamoxifen has been used to treat cancer patients for

several years. There are documented side effects and risks

associated with taking the drug. Dr. Bellette was aware of

those side effects and risks and explained them to C. B. before

she began taking Tamoxifen. It was Dr. Bellette’s opinion that

for C. B. the benefits of taking Tamoxifen outweighed the known

side effects and risks.

7. In January 1996, C. B. traveled to Mexico to

investigate an alternative treatment plan that included special

diets. Because of the language barrier, she was not certain she

understood the nutritional counseling she had received in

Mexico. After she returned from Mexico, C. B. made an

appointment with Respondent to discuss her nutritional needs.

8. C. B. and Respondent met only on one occasion in late

January or early February 1996.

9. Respondent’s nutritional counseling typically includes

three visits. The first visit is typically an informal meeting

during which he explains nutritional counseling to the

prospective client, which includes a discussion as to the

client’s nutritional needs and goals. If the client wants to

continue with the other two visits, Respondent prepares and

thereafter implements a nutritional plan for the client.

10. C. B. decided that she did not want to pursue the

other two visits with Respondent. Consequently, Respondent did

not prepare a nutritional assessment of C. B., did not prepare a

nutritional plan for C. B., and did not become her nutritional

counselor.

11. During his meeting with C. B., Respondent discussed

her illness and the fact that she was taking Tamoxifen. C. B.

testified in her deposition that Respondent told her that

Tamoxifen was a killer drug and that she should stop taking the

drug. C. B. also testified that she was sure Respondent had

told her to stop taking Tamoxifen. Respondent testified,

credibly, that he did not tell C. B. to stop taking Tamoxifen,

but that he discussed the drug and its severe side effects with

her so she could make an informed decision as to her course of

treatment. C. B. was in hospice a t the time of her deposition

and heavily medicated. C. B. readily conceded that the

medication she was on impaired her memory. It is not clear

whether C. B. accurately recalled the statements made by

Respondent, as opposed to recalling her interpretation of what

Respondent had said. This conflict in the evidence is resolved

by finding that Respondent discussed with C. B. the severe side

effects of Tamoxifen in a manner designed to discourage C. B.

from taking the medicine. The testimony of C. B. is

insufficient to establish by clear and convincing evidence that

Respondent told her to stop taking Tamoxifen.

12. Respondent did not hold himself out as a physician or

as a pharmacist.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject of this

proceeding. Section 120.57(1), Florida Statutes.

14. Section 468.518(1)(j), Florida Statutes, provides as

follows:

(1) The following acts constitute grounds

for which the disciplinary actions in

subsection (2) may be taken:

* * *

(j) Treating or undertaking to treat human

ailments by means other than by dietetics

and nutrition practice, as defined in ss.

468.501-468.518.

15. Petitioner has the burden of proving by clear and

convincing evidence the allegations against Respondent. See

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); Evans Packing

Co. v. Department of Agriculture and Consumer Services , 550

So.2d 112 (Fla. 1st DCA 1989). Evans Packing , supra, 550 So. 2d

112, 116, fn. 5, provides the following pertinent to the clear

and convincing evidence standard:

[C]lear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

evidence must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact the firm belief of

(sic) conviction, without hesitancy, as to

the truth of the allegations sought to be

established. Slomowitz v. Walker , 429 So.2d

797, 800 (Fla. 4th DCA 1983).

16. Petitioner’s conclusion that Respondent treated or

undertook treatment of C. B.’s cancer was not supported by

expert testimony. As reflected by the findings of fact, the

record does not establish by the requisite clear and convincing

standard that Respondent told C. B. to stop taking the medicine

that had been prescribed by her oncologist. While Respondent

discussed the side effects and risks of the drug in a manner

designed to discourage its use, that does not constitute an

attempt to treat C. B.’s cancer. Because the record does not

establish, by clear and convincing evidence, that Respondent

treated or attempted to treat C. B.’s cancer, it is concluded

that Petitioner failed to establish by clear and convincing

evidence that Respondent violated Section 468.518(1)(j), Florida

Statutes. 1

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner enter a final order that

adopts the findings of fact and conclusions of law contained

herein. It is further recommended that the final order dismiss

the administrative complaint against Respondent.

DONE AND ENTERED this 5th day of June, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative

Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative

Hearings

this 5th day of June, 1997

ENDNOTES

1/ The record may have supported the conclusion that Respondent

engaged in misconduct in the practice of nutritional counseling

in violation of Section 468.518(1)(h), Florida Statutes, by

engaging in conduct he knew or should have known would impair

the physician-patient relationship. That allegation was not

made by the administrative complaint and that conclusion is not

reached by the undersigned.

COPIES FURNISHED:

Hugh R. Brown, Esquire

Agency For Health Care Administration,

Board of Medicine

1940 North Monroe Street

Tallahassee, Florida 32399-0792

E. Rene Alsobrook, Esquire

Alsobrook & Dove, P.A.

924 North Gadsden Street

Tallahassee, Florida 32303

Dr. Marm Harris, Executive Director

Board of Medicine

Agency for Health Care Administration

1940 Monroe Street

Tallahassee, Florida 32399-0792

Jerome W. Hoffman, General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Tallahassee, Florida 32309

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 should be filed with the agency that

will issue the final order in this case.