Dr. John Christensen Complaint & Order FL BOM
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Transcript of Dr. John Christensen Complaint & Order FL BOM
FOP Final Order No. DOH-I2-0997 - MQA FILED 1),N
1,4 212 a not ealim
Deputy gency C
STATE OF FLORIDA BOARD OF MEDICINE
DEPARTMENT OF HEALTH,
Petitioner,
VS.
DOH CASE NO.: 2011-11153 DOAH CASE NO.: 11-5163PL LICENSE NO.: ME0092135
JOHN PETER CHRISTENSEN, M.D.,
Respondent.
FINAL ORDER
THIS CAUSE came before the BOARD OF MEDICINE (Board)
pursuant to Sections 120.569 and 120.57(1), Florida Statutes, on
June 1, 2012, in Orlando, Florida, for the purpose of
considering the Administrative Law Judge's Recommended Order(a
copy of which is attached hereto as Exhibit A) in the above-
styled cause. Petitioner was represented by Robert Milne,
Assistant General Counsel. Respondent was not present but was
represented by W. Grey Tesh, 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 by reference.
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's paragraphs 31 through 41 and 48 through 51 are approved
and adopted and incorporated herein by reference.
3. Paragraphs 42 through 47 are hereby rejected with the
following modifications:
a. Paragraph 42 of the Recommended Order shall now read as
follows:
"42. As concluded in the preceding section of this Recommended Order, Respondent did not act within the course of his professional practice - i.e., his conduct occurred outside the practice of medicine - on the occasions when he prescribed controlled substances to M.R., K.R., S.J., and L.J. In light of that determination, Respondent cannot be convicted, in connection with the same underlying behavior, of failing to practice medicine in accordance with the applicable standard of care. Accordingly, Counts I and III are dismissed."
b. Paragraph 43 of the Recommended Order shall now read as
follows:
"43. The Board respectfully disagrees with ALJ's legal conclusion that Sections 458.331(1)(t) and 458.331(1)(q), Florida Statutes, are mutually exclusive and rejects the ALJ's
reading of Scheininger v. Department of Professional
Regulations, 443 So.2d 387 (Fla. 1st DCA 1983) and Waters v.
Department of Health, 962 So.2d 1011 (Fla. 3d DCA 2007) as
supporting his conclusion. The ALJ cites to nothing other than his own reading of the cases to support his conclusion and ignores the Board's consistent position on this issue which was argued before the Third District Court of Appeal in the Waters case. If the Board's interpretation of the contemporaneous application of Sections 458.331(1)(t) and 458.331(1)(q), Florida Statutes, was clearly erroneous it would have been rejected by the Waters and Scheininger courts. Since it was not rejected, and the Board is charged with enforcing both statutory provisions, the Board's interpretation is entitled to great deference. Verizon Florida, Inc. v. Jacobs, 810 So. 2d 906
(Fla. 2002); Miles, Jr. v. Florida A and M University and the
Board of Regents, 813 So. 2d 242 (Fla. 1st DCA 2002). Given such, the Board believes that its conclusion of law is as reasonable or more reasonable than the ALJ's in this matter."
PENALTY
Upon a complete review of the record in this case, the
Board determines that the penalty recommended by the
Administrative Law Judge be ACCEPTED. WHEREFORE, IT IS HEREBY
ORDERED AND ADJUDGED:
1. Respondent shall pay an administrative fine in the
amount of $20,000.00 to the Board within 30 days from the date
this Final Order is filed. Said fine shall be paid by money
order or cashier's check.
2. Respondent's license to practice medicine in the State
of Florida is hereby REVOKED.
RULING ON MOTION TO ASSESS COSTS
The Board waived all the costs associated with this matter.
(NOTE: SEE RULE 64B8-8.0011, FLORIDA ADMINISTRATIVE CODE. UNLESS OTHERWISE SPECIFIED BY FINAL ORDER, THE RULE SETS FORTH THE REQUIREMENTS FOR PERFORMANCE OF ALL PENALTIES CONTAINED IN THIS FINAL ORDER.)
BOARD OF MEDICINE
Joy A. /T For Jas-6n Rosenberg, M.D., Chair
, Executive Director
DONE AND ORDERED this day of
2012.
NOTICE OF RIGHT TO JUDICIAL REVIEW
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF HEALTH AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN THIRTY (30) DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the
foregoing Final Order has been provided by Certified Mail to
JOHN PETER CHRISTENSEN, M.D., 3001 Broadway, West Palm Beach,
Florida 33407; to W. Grey Tesh, Esquire, 1610 Southern
Boulevard, West Palm Beach, Florida 33406; to Edward T. Bauer,
Administrative Law Judge, Division of Administrative Hearings,
The DeSoto Building, 1230 Apalachee Parkway, Tallahassee,
Florida 32399-3060; and by interoffice delivery to Veronica
Donnelly, Department of Health, 4052 Bald Cypress Way, Bin #C-
day of 65, Tallahassee, Florida 32399-3253 this
_Lkr\
, 2012.
STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, BOARD OF CHIROPRACTIC MEDICINE,
) ) )
Petitioner, ) )
vs. ) Case No. 11-5163PL
) JOHN P. CHRISTENSEN, M.D., )
) Respondent. )
)
RECOMMENDED ORDER
A final hearing was held in this case before Edward T.
Bauer, an Administrative Law Judge of the Division of
Administrative Hearings, on December 16, 2011, by video
teleconference at sites in Tallahassee and West Palm Beach,
Florida.
APPEARANCES
For Petitioner: Robert A. Milne, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
For Respondent: Allan L. Hoffman, Esquire W. Grey Tesh, Esquire 1610 Southern Boulevard West Palm Beach, Florida 33406
1423
STATEMENT OF THE ISSUES
The issues in this case are whether Respondent committed
the allegations contained in the Administrative Complaint, and
if so, the penalty that should be imposed.
PRELIMINARY STATEMENT
On August 25, 2011, Petitioner, Department of Health, Board
of Medicine, filed a five-count Administrative Complaint against
Respondent, Dr. John P. Christensen, the gravamen of which was
that Respondent prescribed medications in excessive and/or
inappropriate doses, violated the standards for the use of
controlled substances for pain management, maintained inadequate
medical records, and engaged in deceptive practices.
Respondent timely requested a formal hearing to contest the
allegations, and, on October 7, 2011, the matter was referred to
the Division of Administrative Hearings ("DOAH") and assigned to
Administrative Law Judge John G. Van Laningham. On December 9,
2011, Judge Van Laningham transferred the instant matter to the
undersigned.
As noted above, the final hearing in this matter was held
on December 16, 2011, during which Petitioner presented the
testimony of Respondent and Robert Yastrzemski. Without
objection, Petitioner introduced 23 exhibits into evidence,
numbered 1-23. Petitioner's exhibits included the deposition
transcripts of C.H., S.J., L.J., M.R., J.R.11; Ms. Dailyn
2
1424
Zambrano2i; and Orlando G. Florete, M.D.,3/ an expert in the field
of pain management. Respondent testified on his own behalf,
presented the testimony of Marie Altidor, and introduced four
exhibits, numbered 1-4. At the conclusion of the hearing, the
undersigned granted the parties' request for a deadline of 20
days from the filing of the final hearing transcript for the
submission of proposed recommended orders.
The final hearing transcript" was filed with DOAH on
January 13, 2012. Subsequently, on February 2, 2012, the
parties filed a joint request to extend the deadline for the
submission of proposed recommended orders to February 16, 2012.
On the following day, the undersigned issued an order that
granted the requested extension.
Both parties thereafter submitted proposed recommended
orders, which have been considered in the preparation of this
Recommended Orders/
FINDINGS OF FACT
A. The Parties
1. Petitioner Department of Health has regulatory
jurisdiction over licensed physicians such as Respondent. In
particular, Petitioner is authorized to file and prosecute an
administrative complaint, as it has done in this instance, when
a panel of the Board ,of Medicine has found probable cause exists
3
1425
to suspect that the physician has committed one or more
disciplinable offenses.
2. At all times pertinent to this cause, Respondent was a
medical doctor licensed in the State of Florida, having been
issued license number ME 92135. Although not the subject of the
instant proceeding, Respondent has also been licensed by the
State of Florida as a chiropractic physician.
B. Background / Arrangement with Dr. Wagner
3. In or around 1975, Respondent completed his education
at the National University of Health Sciences and began to
.,practice chiropractic medicine shortly thereafter.
4. Some fifteen years later, Respondent and an
acquaintance—Dr. Joseph Wagner, also a licensed chiropractor in
the State of Florida—matriculated at a medical school in the
Dominican Republic. Although both Respondent and Dr. Wagner
ultimately earned Doctor of Medicine ("MD") degrees in the mid
1990s, Respondent was not licensed in Florida to practice as an
MD until early 2006. Significantly, however, Dr. Wagner never
obtained licensure as a medical doctor. Consequently,
Dr. Wagner is prohibited by statute (with two exceptions,
neither of which is applicable in this case61) from prescribing
any medicinal drug.
5. In 2007, Respondent and Dr. Wagner entered into a joint
venture designed, in the words of Respondent, to "expand"
4
1426
Dr. Wagner's chiropractic practice. At that time, and for the
duration of their business agreement, Respondent's principal
place of business was located in Palm Beach County, while
Dr. Wagner practiced chiropractic medicine in Daytona Beach.
6. Under the joint venture (which continued until August
2011, when both their offices were raided by the Federal Bureau
of Investigation), Respondent traveled to Daytona Beach several
times each month and interacted with Dr. Wagner concerning some,
but not all, of Dr. Wagner's chiropractic clients (hereinafter
"joint-venture clients" or "JVCs").
7. From what can be gleaned of the credible portions of
Respondent's deposition and final hearing testimony, it appears
that Respondent's activity with respect to JVCs included a
review of client files, and, in some cases, a determination that
one or more medications—including narcotics--should be
prescribed. Indeed, Respondent's level of participation was so
minimal that his face-to-face interaction with JVCs consisted,
at most, of an initial introduction, and on no occasion did
Respondent personally examine—or perform treatments upon—any
JVC.
8. As a consequence of Respondent's phantom-like presence
at Dr. Wagner's clinic, it was common for a JVC who presented
for routine follow-up appointments, which for some clients
occurred as frequently as once time per week, to be seen only by
5
1427
Dr. Wagner or Dr. Wagner's son, John Wagner, who was also a
chiropractor. Troublingly, these visits frequently ended
(without Respondent having seen or spoken with the JVC on that
day) with Dr. Wagner phoning in a prescription refill.7/
9. At the conclusion of a JVC's office visit, Dr. Wagner—
and possibly Respondent, if the JVC was seen on a day when
Respondent was actually present in the Daytona office—dictated
medical notes that Dr. Wagner usually transcribed at a later
time. Subsequently, and with Respondent's blanket
authorization, Dr. Wagner would create a claim form (if the JVC
had insurance coverage) to submit to the insurance carrier for
reimbursement.
10. Incredibly• Respondent also granted Dr. Wagner
complete authority to affix his signature to reimbursement
claims and submit them—without Respondent looking at the forms
beforehand—to insurance carriers. This was accomplished not by
the use of a stamp, which medical professionals often provide to
their subordinates to expedite business affairs, but by
Dr. Wagner manually signing, in cursive, "John P. Christensen"
inside the box of the claim form labeled "signature of the
physician or supplier.
11. Another unusual aspect of the joint venture was the
manner in which Respondent and Dr. Wagner dealt with
reimbursement checks from insurance carriers. By agreement,
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1428
reimbursement checks for claims that related to JVCs were
received by mail at Dr. Wagner's place of business in Daytona
Beach. Upon their receipt, Dr. Wagner deposited the checks into
a SunTrust checking account for which Respondent had sole
signatory authority. At the end of each month, Respondent
transferred the entire balance of the SunTrust account into his
business account at PNC Bank. Respondent would subsequently
draft a check on the PNC account to Dr. Wagner in an amount
equal to 50 percent of the monthly proceeds.
12. As Respondent readily admits, his joint venture with
Dr. Wagner yielded substantial financial remuneration. Over a
four-year period, reimbursement from insurance carriers totaling
$800,000--a tidy sum in light of Respondent's nominal
participation—was deposited into Respondent's SunTrust account,
the proceeds of which were split 50/50 with Dr. Wagner.
13. Against the foregoing backdrop, the undersigned will
address, on a client-by-client basis, the specific wrongdoing
alleged in the Administrative Complaint.
C. Client K.R.
14. On or about August 25, 2010, K.R. presented to Dr.
Wagner's clinic for treatment of a back injury she sustained in
an automobile accident approximately eight months earlier. K.R.
continued to be seen at Dr. Wagner's clinic, on a weekly basis
and as a JVC,8/ until November 11, 2010.
7
1429
15. During K.R.'s initial office visit, no examination was
conducted, nor did Dr. Wagner order that any diagnostic scans
(such as x-rays) be taken. Instead, Dr. Wagner simply asked
K.R. about her injuries and "cracked" her back for several
minutes. While the evidence does not foreclose the possibility
that K.R. was introduced briefly to Respondent during the first
appointment, it is clear that no further interaction—of any
kind—occurred between them.
16. Although Respondent had no contact whatsoever with
K.R., the evidence demonstrates that Respondent permitted
Dr. Wagner—on the date of K.R.'s first visit and on every
follow-up visit, which generally lasted no more than a few
minutes—to telephone a local pharmacy on his behalf and direct
that certain prescriptions be filled. Specifically, each week
from August 25, 2010, through November 10, 2010, K.R. was
prescribed seven-day supplies, Of the following medications: 40
tablets of Lortab9" (the brand name for the formulation of
hydrocodoneni and acetaminophen); 21 tables of Somali/ (the brand
name for carisoprodol,12/ a muscle relaxant); and 21 tablets of
Xanaxn/ (a brand name for alprazolam,14/ which is designed to
treat anxiety).
17. Petitioner's expert witness in this proceeding, Dr.
Orlando Florete, credibly testified that the dosages of Lortab,
Xanax, and Soma prescribed to K.R. were excessive, and that the
8
1430
combination of the three medications was inappropriate due to an
unacceptably heightened risk of respiratory depression and
death.
D. Client M.R.
18. In late July or early August 2009, M.R. presented to
Dr. Wagner's clinic for treatment of leg, back, and neck pain.
M.R. returned for follow-up appointments at least one time per
week for the next several months.
19. At no time did M.R. undergo a medical examination
during his visits, which consisted of having his back cracked by
either Dr. Wagner or his son (and, on occasion, the use of a bed
with heat).
20. Notwithstanding that Respondent and M.R. neither met
nor had contact of any kind, Respondent considered M.R. to be a
JVC.15/ As a consequence, Respondent allowed Dr. Wagner to
phone-in the following medications—with Respondent listed on
the prescription bottles as the prescribing physician—for M.R.,
on a weekly basis, from August 7, 2009, through October 16,
2009: 40 tablets of hydrocodone, with each pill containing 10
-adlligrams of hydrocodone and 500 milligrams of acetaminophen;
and 24 tablets of Xanax, each in two milligram doses
E. Clients L.J., S.J., and J.J.
21. In or around August 2009, S.J., J.J. (S.J's cousin),
and L.J. (S.J's mother) were involved in an automobile accident.
9
1431
Thereafter, in late 2009 and early 2010, S.J., J.J., and L.J.
presented themselves on multiple occasions for chiropractic
treatment at Dr. Wagner's office in Daytona Beach.
22. Although there is insufficient evidence as to what
occurred during J.J.'s office visits (no testimony of J.J. has
been introduced), S.J. and L.J. were seen initially by Dr.
Wagner's son, and later by Dr. Wagner himself during follow-up
appointments.
23. As with patient M.R., both S.J. and L.J. neither met
nor had any contact whatsoever with Respondent. Nevertheless,
as clients that were within the ambit of Respondent and
Dr. Wagner's joint venture,I61 Respondent allowed Dr. Wagner to
phone-in prescriptions for S.J. and L.J. as follows: Lortab (40
tablets) and Soma (20 tablets) for L.J. on January 30, 2010; and
Lortab and Soma (40 and 20 tablets, respectively) for S.J. on
November 7, 2009, January 2, 2010, and February 27, 2010. As
with the JVCs discussed previously, Respondent was listed in the
pharmacy records and on the medication bottles as the
prescribing physician.
24. Consistent with the terms of the joint venture,
Dr. Wagner submitted reimbursement claims to Direct General
Insurance Company ("DGIC," a personal injury protection carrier)
for services purportedly rendered to S.J., L.J:, and J.J during
their office visits. In particular, clear and convincing
10
1432
evidence exists that Dr. Wagner, with Respondent's knowledge and
authorization, submitted reimbursement claims to DGIC in
connection with S.J., J.J., and L.J. that bear the following
dates: January 30, 2010 (S.J.); January 30, 2010, and March 13
and 27, 2010 (L.J.); and April 10 and 24, 2010 (J.J.).17/
25. While the exact services billed to DGIC varied by
patient and date, the content of each of these claim forms
represented unambiguously that the examinations and/or
treatments were performed by Respondent and no other. This was
unquestionably deceptive in light of Respondent's consistent
testimony that he never physically conducted medical
examinations or treatments in connection with any JVC.
F. Client C.H.
26. In or around December 2008, C.H. was referred to Dr.
Wagner's clinic by her personal injury attorney. Over the next
four months, C.H. was treated by Dr. Wagner and/or Dr. Wagner's
son during multiple office visits.
27. In stark contrast to Respondent's position with
respect to patients discussed above (Respondent admitted during
his deposition that K.R., M.R., S.J., L.J., and J.J. were JVCs,
yet attempted—unsuccessfully—during the final hearing to
retract such testimony), Respondent has consistently maintained
that C.H. was not a JVC, that he had no knowledge of C.H., and
that any prescription phoned in by Dr. Wagner in connection with
11
4_1433
C.H. was without his knowledge or authorization. As the
undersigned credits this portion of Respondent's testimony, any
events that occurred at the clinic with respect to C.H. cannot
serve as a basis to discipline Respondent.
G. Findings of Ultimate Fact
28. The undersigned finds, as a matter of ultimate fact,
that Respondent violated section 458.331(1)(q), Florida
Statutes, by prescribing controlled substances to K.R., M.R.
S.J., and L.J. outside the course of his professional practice
as a medical doctor.
29. It is further determined, as a matter of ultimate
fact, that Respondent engaged in deceptive conduct related to
the practice of medicine, contrary to section 458.331(1)(k),
Florida Statutes.
30. Finally, the undersigned finds, as matters of ultimate
fact, that Respondent is not guilty of violating subsections
458.331(1)(m), (1)(t), and (1)(nn), Florida Statutes.
CONCLUSIONS OF LAW
A. Jurisdiction
31. The Division of Administrative Hearings has
jurisdiction over the parties and subject matter of this cause,
pursuant to section 120.57(1), Florida Statutes.
12
1434
B. The Burden and Standard of Proof
32. This is a disciplinary proceeding in which Petitioner
seeks to discipline Respondent's license to practice medicine.
Accordingly, Petitioner must prove the allegations contained in
the Administrative Complaint by clear and convincing evidence.
Dep't of Banking & Fin., Div. of Secs. & Investor Prot. v.
-Osborne Sterne, Inc., 670 So. 2d 932, 935 (Fla. 1996); Ferris v.
Turlington, 510 So. 2d 292, 294 (Fla. 1987).
33. Clear and convincing evidence:
[R]equires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and lacking in confusion as to the facts in issue. The evidence must be of such a weight that it produces in the mind of the trier of fact a firm belief or 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).
C. Petitioner's Authority to Impose Discipline; The Charges Against Respondent
34. Section 458.331(1), Florida Statutes, authorizes the
Board of Medicine to impose penalties ranging from the issuance
of a letter of concern to revocation of a physician's license to
practice medicine in Florida if a physician commits one or more
acts specified therein.
35. In its Administrative Complaint, Petitioner alleges
that Respondent is guilty of: committing medical malpractice
13
4.1435
(Count I); prescribing a legend drug other than in the course of
his professional practice (Count II); violating the standards
for the use of controlled substances for pain control (Count
III); failing to keep sufficient medical records (Count IV); and
engaging in deceptive or fraudulent practices related to the
practice of medicine (Count V). For ease of discussion, the
undersigned will begin with Count Two.
D. Count II
36. In Count II of the Administrative Complaint,
Petitioner contends that Respondent violated section
458.331(1)(q), which provides:
(1) The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2);
* * *
(q) Prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of the physician's professional 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, inappropriately 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 or her intent.
(emphasis added).
14
1436
37. As detailed in the findings of fact above, Respondent
issued prescriptions to K.R., M.R., L.J., and S.J. (and in
potentially lethal doses and combinations in K.R.'s case) for
Lortab, Xanax, and/or Soma, all of which are controlled
substances. Accordingly, the central inquiry is whether those
medications were issued in the course of Respondent's
professional practice—i.e., was Respondent actually engaged in
the practice of medicine?
38. Critical to the resolution of this issue is the fact
that Respondent never developed legitimate doctor-patient
relationships with any of the clients in question. Indeed, the
evidence demonstrates that K.R., M.R., L.J., and S.J. had no
contact whatsoever with, nor were they examined by, Respondent
or any other licensed medical doctor at any time before or after
Respondent's issuance of the prescriptions. As the controlled
substances were not prescribed to the JVCs as part of a doctor-
patient relationship, it is concluded that Respondent was not
acting within the course of his medical practice. See Dep't of
Health, Bd. of Med. v. Rodriguez, Case No. 10-1835PL, 2010 Fla.
Div. Adm. Hear. LEXIS 125 (Fla. DOAH Sept. 29, 2010)(concluding
that physician prescribed oxycodone outside the course of his
medical practice, contrary to section 458.331(1)(q), due to
limited interaction between physician and recipient of the
medication). Respondent is therefore guilty of Count II.
15
1437
E. Counts I and III
39. Turning to Count I of the Administrative Complaint,
Petitioner alleges that Respondent's conduct violated section
458.331(1)(t), which provides three grounds for disciplinary
action:
1. Committing medical malpractice as defined in s. 456.50. The board shall give great weight to the provisions of s. 766.102 when enforcing this paragraph. Medical malpractice shall not be construed to require more than one instance, event, or act.
2. Committing gross medical malpractice.
3. Committing repeated medical malpractice as defined in s. 456.50. A person found by the board to have committed repeated medical malpractice based on s. 456.50 may not be licensed or continue to be licensed by this state to provide health care services as a medical doctor in this state.
(emphasis added).
40. Of the three forms of malpractice detailed above,
Petitioner asserts only that Respondent is guilty of "medical
malpractice," which is defined, in relevant part, as the
"failure to practice medicine in accordance with the level of
care, skill and treatment recognized in general law related to
health care licensure." § 456.50(1)(g), Fla. Stat. (emphasis
added).
41. As an interrelated charge, Petitioner contends in
Count III that Respondent violated Florida Administrative Code
16
1438
Rule 64B8-9.013(3), a rule that defines, to the extent of its
reach, the standard of care for a physician's use of controlled
substances:
(3) Standards. The Board has adopted the following standards for the use of controlled substances for pain control:
(a) Evaluation of the Patient. A complete medical history and physical examination must be conducted and documented in the medical record. The medical record should document the nature and intensity of the pain, current and past treatments for pain, underlying or coexisting diseases or conditions, the effect of the pain on physical and psychological function, and history of substance abuse. The medical record also should document the presence of one or more recognized medical indications for the use of a controlled substance.
(b) Treatment Plan. The written treatment plan should state objectives that will be used to determine treatment success, such as pain relief and improved physical and psychosocial function, and should indicate if any further diagnostic evaluations or other treatments are planned. After treatment begins, the physician should adjust drug therapy to the individual medical needs of each patient. Other treatment modalities or a rehabilitation program may be necessary depending on the etiology of the pain and the extent to which the pain is associated with physical and psychosocial impairment.
(emphasis added).
42. As concluded in the preceding section of this
Recommended Order, Respondent did not act within the course of
his professional practice—i.e., his conduct occurred outside
17
1439
the practice of medicine—on the occasions when he prescribed
controlled substances to M.R., K.R, S.J., and L.J. In light of
that determination, Respondent cannot be convicted, in
connection with the same underlying behavior, of failing to
practice medicine in accordance with the applicable standard of
care. This principle has been explained succinctly as follows:
Thus, Sabates is correct that it would be unfair to punish him for both a [violation of sections 458.331(1)(q) and 458.331(1)(t)] based on the same conduct. The unfairness would stem, however, not from the problem of multiplicitous charges, as Sabates argues, but rather from the impossibility of having committed both offenses at the same time, vis-a-vis the same putative patient. The bottom line is that a t violation and a q violation are mutually exclusive theories of potential liability; either a physician was practicing medicine, which would disprove an element of an alleged q violation, or he was not practicing medicine, which would disprove an element of an alleged t violation.
Dep't of Health, Bd. of Med. v. Sabates, Case No. 10-9430PL
(Fla. DOAH Oct. 29, 2010)(Order on Motion to Dismiss); Dep't of
Health, Bd. of Med. v. Genao, Case No. 10-3348, 2010 Fla. Div.
Adm. Hear. LEXIS 190 (Fla. DOAH Nov. 30, 2010)("The Department
cannot, however, as it does here, seek to punish the identical
conduct as both being within the practice of medicine and
outside the practice of medicine. If the legislature did not
consider the acts that constitute a violation of section
458.331(1)(q) to be separate and distinct from, and more serious
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1440
than, the negligent acts that constitute medical malpractice
pursuant to section 458.331(1)(t) . . . there would be no need
for it to identify separate violations"); Dep't of Health, Bd.
of Med. v. Tobkin, Case No. 05-2590PL, 2006 Fla. Div. Adm. Hear.
LEXIS 273 (Fla. DOAH June 26, 2006)("[T]he act of prescribing a
controlled substance for improper purposes or improper reasons
is an act that is 'other than in the course of the physician's
professional practice.' And inasmuch as such an act is outside
the scope of the practice of medicine, section 458.331(1)(t)
. . does not appear to apply to such an act because, by its
terms, section 458.331(1)(t) appears to be limited in
application to acts performed in the course of the practice of
medicine"); Dep't of Health, Bd. of Med. v. Heller, Case No. 00-
4747PL, 2001 Fla. Div. Adm. Hear. LEXIS 2686 (Fla. DOAH June 12,
2001),
43. Although not cited by Petitioner, the undersigned is
aware that the Board of Medicine has, in recent years, relied
intermittently upon two decisions--Scheininger v. Department of
Professional Regulation, 443 So. 2d 387 (Fla. 1st DCA 1983) and
Waters v. Department of Health, 962 So. 2d 1011 (Fla. 3d DCA
2007)--for the proposition that sections 458.331(1)(t) and
458.331(1)(q) are not mutually exclusive theories. As explained
below, however, neither opinion so holds.
19
1441
44. In Scheininger, the court affirmed the suspension of a
physician's license based on findings that he had committed acts
punishable under sections 458.331(1)(t) and 458.331(1)(q). The
court held that the record supported the hearing officer's
finding that the doctor had "on two occasions" prescribed
controlled substances to his patients without first giving them
physical examinations "as required by the minimum acceptable
prevailing community medical standard." Id. at 387-88 (emphasis
added). This obvious reference to the standard of care makes
clear that the finding in question supported a determination of
guilt with regard to the offense defined in section
458.331(1)(t), i.e., medical malpractice. The court further
held that the hearing officer's findings supported the
conclusion that the doctor had "routinely dispensed said drugs
to weight control patients on a continuing basis without
appropriate follow-up care contrary to the best interests of the
patients." Id. at 388 (emphasis added). This was clearly a
reference to the offense defined in section 458.331(1) (q). That
statute creates a presumption which (if not rebutted) requires a
finding that the doctor was "not [acting] in the best interest
of the patient and [was] not [operating] in the course of [his]
professional practice" based upon clear and convincing proof
that the doctor prescribed controlled substances
"inappropriately or in excessive or inappropriate quantities."
20
1442
The court did not state that the doctor had committed both
offenses at the same time, vis-a-vis the same putative patients,
and such an interpretation of the case is unwarranted, given
that the medical malpractice had occurred only on two occasions,
whereas the dispensing of controlled substances other than in
the course of the doctor's professional practice had taken place
on a continuing basis.
45. In Waters v. Dep't of Health, 962 So. 2d 1011 (Fla. 3d
DCA 2007), the court affirmed an order revoking a doctor's
license based on charges grounded in sections 458.331(1)(m),
458.331(1)(q), and 458.331(1)(t). The ALJ had recommended that
the charge based on subsection (q) be dismissed because the
Department's interpretation of that provision was "unsettled."
Id. at 1012. The Department had rejected the ALJ's
"interpretation of the requirements of subsection (q)," id. at
1013, and the court held that doing was "within the agency's
delegated range of discretion." Id. The court did not,
however, state what the Department's interpretation of
subsection (q) was, much less announce that it agreed with such
interpretation. Nor did the court articulate the "judge's legal
position with regard to the subsection (q) charges," id. at
1012, which it found the Department had not erred in rejecting.
Rather, the court described the ALJ's belief that the Department
had issued "two conflicting prior orders," "one seeming to
21
1443
require proof that the accused doctor was engaged in illicit
activity when prescribing the drugs in question while the other
merely required proof that the doctor prescribed the drugs
inappropriately or in excessive or inappropriate quantities."
Id. It is reasonable to infer that the AUJ had agreed with one
or the other of these positions.
46. Neither of these "interpretations" of subsection (q)
is wholly accurate as stated. First, proof of "illicit
activity" is not required to sustain a finding of guilt under
subsection (q). What is required is proof that the accused
doctor was not practicing medicine when he prescribed the drugs
in question. Such conduct, of course, would be illicit by
definition—because it is not permitted under subsection (q)--
and perhaps criminal in nature, but the gravamen of the offense
is not merely "illicit activity." The gravamen of the
subsection (q) offense, rather, is dispensing a legend drug
other than in the course of the physician's professional
practice. Second, subsection (q) does not require proof of
inappropriate prescribing. Subsection (q) permits such proof as
the basis for a rebuttable presumption that the physician was
acting outside the course of his professional practice.
Consequently, Waters establishes nothing more than that the
agency did not err in rejecting a flawed interpretation of
subsection (q). At any rate, the Waters court did not
22
1444
explicitly—or implicitly—reject the proposition that
subsection (t) and subsection (q) prescribe mutually exclusive
theories for imposing administrative discipline.
47. For the reasons expressed above, the undersigned's
finding of guilt with respect to section 458.331(1)(q)--that
Respondent's issuance of the prescriptions occurred outside the
course of his practice—precludes a determination that
Respondent violated section 458.331(1)(t) and rule 64B8-9.013,
where each charge is predicated upon the same underlying
behavior. Accordingly, Counts I and III must be dismissed.
G. Count IV
48. Petitioner further contends, in Count IV of the
complaint, that Petitioner has violated section 458.331(1)(m),
which proscribes the following conduct:
Failing to keep legible, as defined by department rule in consultation with the board, medical records that identify the licensed physician or the physician extender and supervising physician by name and professional title who is or are responsible for rendering, ordering, supervising, or billing for each diagnostic or treatment procedure and that justify 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.
(emphasis added).
23
1445
49. As reflected by the foregoing language, section
458.331(1)(m) requires a physician to create appropriate records
that justify a patient's course of treatment. Therefore, it
follows naturally—pursuant to the reasoning expressed above
with respect to Counts I and III--that no violation of section
458.331(1)(m) can be sustained in connection with M.R., K.R.,
L.J., and S.J., as those individuals, although connected to
Respondent through the joint venture and prescribed medications
in furtherance thereof, were never treated by Respondent as
patients in the course of his professional practice. Count IV
must therefore be dismissed.
H. Count V
50. Finally, in Count V of the Complaint, Petitioner
alleges that Respondent violated section 458.331(1)(k), which
provides that a physician is subject to discipline for:
Making deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employing a trick or scheme in the practice of medicine.
(emphasis added).
51. As detailed in the findings of fact contained herein,
there is clear and convincing evidence that Respondent knowingly
authorized Dr. Wagner to submit written claims for reimbursement
that represented—deceptively and untruthfully—that he
(Respondent) provided treatments and services to patients S.J.,
24
1446
L.J, and J.J. Although Respondent's conduct did not occur in
the practice of medicine, see Elmariah v. Department of
Professional Regulation, Board of Medicine, 574 So. 2d 164 (Fla.
1st DCA 1990)(holding that physician's submission of false
information in connection application for staff privileges did
not occur in the practice of medicine, as untruthful
representations were not made in the diagnosis, treatment,
operation, or prescription for any human disease), 18/ the
undersigned concludes that the false representations contained
within the claim forms related to the practice of medicine. See
Doll v. Department of Health, 969 So. 2d 1103, 1104-05 (Fla. 1st
DCA 2007)(holding that submission of fraudulent reimbursement
claims related to the practice of medicine; licensee falsely
represented in the claims that he had conducted technical
components of magnetic resonance imaging testing); cf. Rush v.
Dep't of Prof'l Reg., Bd. of Podiatry, 448 So. 2d 26, 27-28
(Fla. 1st DCA 1984)(holding that conviction for conspiracy to
import marijuana related to the practice of podiatric medicine).
Accordingly, Respondent is guilty of Count V.
I. Penalty
52. In determining the appropriate punitive action to
recommend in this case, it is necessary to consult the Board of
Medicine's disciplinary guidelines, which impose restrictions
and limitations on the exercise of the Board's disciplinary
25
1447
authority under section 458.331. See Parrot Heads, Inc. v.
Dep't of Bus. & Prof'l Reg., 741 So. 2d 1231, 1233-34 (Fla. 5th
DCA 1999).
53. The Board's guidelines for violations of section
458.331(1)(q) and (1)(k) are enumerated in Florida
Administrative Code Rule 64B8-8.001. As it relates to
Respondent's violation of section 458.331(1)(q), rule 64B8-
8.001(2){q) provides for a penalty range (for a first offense)
of one year probation to revocation, 50 to 100 hours of
community service, and an administrative fine from $1,000 to
$10,000. With respect to the violation of 458.331(1)(k), rule
64B8-8.001(2)(k) penalty that ranges from probation to
revocation, 50 to 100 hours of community service, and a fine of
$1,000 to $10,000.
54. Rule 64B8-8.001(3) provides that, in applying the
penalty guidelines, the following aggravating and mitigation
circumstances may be taken into account:
(a) Exposure of patient or public to injury or potential injury, physical or otherwise: none, slight, severe, or death;
(b) Legal status at the time of the offense: no restraints, or legal constraints;
(c) The number of counts or separate offenses established;
26
1448
(d) The number of times the same offense or offenses have previously been committed by the licensee or applicant;
(e) The disciplinary history of the applicant or licensee in any jurisdiction and the length of practice;
(f) Pecuniary benefit or self-gain inuring to the applicant or licensee;
(g) The involvement in any violation of Section 458.331, F.S., of the provision of controlled substances for trade, barter or sale, by a licensee. In such cases, the Board will deviate from the penalties recommended above and impose suspension or revocation of licensure.
(h) Where a licensee has been charged with violating the standard of care pursuant to Section 458.331(1)(t), F.S., but the licensee, who is also the records owner pursuant to Section 456.057(1), F.S., fails to keep and/or produce the medical records.
(i) Any other relevant mitigating factors.
(emphasis added).
55. Notwithstanding Respondent's lack of disciplinary
history, his egregious conduct in this matter—that exposed at
least one individual to a potentially fatal drug interaction—
warrants the revocation of his license to practice medicine and
the imposition of the maximum fine. See Dep't of Health, Bd. of
Med. v. Rodriguez, Case No. 10-1835PL, 2010 Fla. Div. Adm. Hear.
LEXIS 125 (Fla. DOAH Sept. 29, 2010)(recommending revocation and
maximum fine where physician violated section 458.331(1)(q),
among other statutory provisions).
27
1449
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of
Law, it is RECOMMENDED that a final order be entered by the
Board of Medicine:
1. Finding that Respondent violated section 458.331(1)(q),
Florida Statutes, as charged in Count II of the Administrative
Complaint;
2. Finding that Respondent violated section 458.331(1)(k),
as charged in Count V of the Complaint;
3. Dismissing Counts I, III, and IV of the Administrative
Complaint;
4. Revoking Respondent's license to practice medicine; and
5. Imposing a total administrative fine of $20,000.00.
DONE AND ENTERED this 16th day of March, 2012, in
Tallahassee, Leon County, Florida.
EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2012.
28
1450 /1111■11
ENDNOTES
Although not objected to, the deposition transcripts of C.H., S.J., L.J., M.R., and K.R. are hearsay, see Dinter v. Brewer, 420 So. 2d 932, 933 (Fla. 3d DCA 1982), and, under the circumstances presented, neither Florida Rule of Civil Procedure 1.330 nor the rules of evidence authorize the use of the transcripts beyond the supplementation or explanation of other evidence. See Dep't of Health, Bd. of Chiropractic Med. v. Christensen, Case No. 11-4936 (Fla. DOAH March 16, 2012) (discussing at length, in the companion case to the instant proceeding, the potential application of rule 1.330 and the evidence code to the deposition transcripts). Nevertheless, the nature and extent of Respondent's incriminating admissions in this proceeding, as supplemented by the transcripts of S.J., L.J., M.R., J.R., provide clear and convincing evidence of Respondent's misconduct.
V Pursuant to Florida Rule of Civil Procedure 1.330(a)(3)(B), the deposition transcript of Ms. Zambrano may be used in this proceeding for any purpose.
Florida Rule of Civil Procedure 1.330(a)(3)(F) permits the use of Dr. Florete's deposition transcript for any purpose.
4/ Pursuant to the parties' stipulation, the undersigned has also considered the hearing transcript from DOAH Case number 11- 4936PL (that relates to Respondent's chiropractic license and was heard on December 15, 2011), which has been included as part of the record.
s/ Unless noted otherwise, all statutory references are to the codification in effect at the time of Respondent's alleged misconduct.
fii See § 460.403(9)(c)2., Fla. Stat. (providing that chiropractic physicians are authorized to administer certain topical anesthetics in aerosol form, and, for emergency purposes, medical oxygen).
7/ Respondent essentially conceded as much in his deposition testimony. See Pet. Ex. 7, pp. 13 & 41.
e/ See Pet. Ex. 7, pp. 93-97.
91 Each Lortab tablet prescribed to K.R. consisted of 10 milligrams of hydrocodone and 500 milligrams of acetaminophen.
29
1451
10/ In the dosage prescribed, hydrocodone is a Schedule III controlled substance, the abuse of which "may lead to moderate or law physical dependence or high psychological dependence." § 893.03(3), Fla. Stat.
12/ Each tablet contained 350 milligrams of carisoprodol.
12/ Carisoprodol is a Schedule IV controlled substance, the abuse of which may lead to "limited physical or psychological dependence relative to the substances in Schedule III." § 893.03(4), Fla. Stat.
n/ Each tablet contained 2 milligrams of alprazolam.
14/ Alprazolam is a Schedule IV controlled substance. § 893.03(4)(a), Fla. Stat.
15/ See Pet. Ex. 7, pp. 100-102. To the extent that Respondent attempted during the final hearing to completely disavow any knowledge of M.R., such testimony is rejected.
See Pet. Ex. 7, pp. 11, 18, 45, & 55.
17/ See Pet. Ex. 7, pp. 31-32; 43-44; 50-53.
15/ Elmariah interpreted section 458.331(1)(1), Florida Statutes (1983), which prohibited the making of "deceptive, untrue, or fraudulent representations in the practice of medicine." That section, later redesignated as (1)(k), was amended in 1989 to prohibit the making of "deceptive, untrue, or fraudulent representations in or related to the practice of medicine." (emphasis added). In dicta, the court in Elmariah noted that while the conduct at issue in that case predated the amended statute, the added "or related to" language should "give pause to those who might assume that actions similar to [the physician's] remain unpunishable." 574 So. 2d at 165 n.l.
COPIES FURNISHED:
Robert Milne, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
30
1452
Allan L. Hoffman, Esquire W. Grey Tesh, Esquire 1610 Southern Boulevard West Palm Beach, Florida 33406
Nicholas Romanello, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701
Bruce Deterding, Executive Director Board of Chiropractic Medicine Department of Health 4052 Bald Cypress Way, Bin C-07 Tallahassee, Florida 32399
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.
31
1453
STATE OF FLORIDA DEPARTMENT OF HEALTH
DEPARTMENT OF HEALTH,
PE 11110NER,
CASE NO.: 2011-11153
JOHN CHRISTENSEN, M.D.,
RESPONDENT.
ADMINISTRATIVE COMPLAINT
COMES NOW, Petitioner, Department of Health, by and through
its undersigned counsel, and files this Administrative Complaint
before the Board of Medicine against Respondent, John Christensen,
M.D., and in support alleges as follows:
1. Petitioner is the state department charged with regulating
the practice of medicine pursuant to Section 20.43, Florida Statutes;
Chapter 456, Florida Statutes; and Chapter 458, Florida Statutes.
4556 Filed October 7, 2011 2:46 PM Division of Administrative Hearings
2. At all times material to this Complaint, Respondent was a
licensed physician within the State of Florida, having been issued
license number ME 92135.
3. Respondent's address of record is 3001 Broadway, West
Palm Beach, Florida 33407.
4. At all times material to this complaint, Respondent was
practicing as a physician and a dispensing practitioner in the State of
Florida, pursuant to Chapter 458, Florida Statutes, but was not
certified by the American Board of Medical Specialties in pain
management.
5. Between May 2008 and June 2011, several law en-
forcement agencies commenced an investigation into Respondent's
medical practices after two separate narcotics trafficking suspects
reported that Respondent had prescribed controlled substances in
exchange for cash and without performing any medical examination
of these patients.
6. In or about June 2008, the United States Secret Service
(USSS) informed the Florida Department of Law Enforcement (FDLE)
that it had interviewed witness BH, who reported that several
2
4557
doctors, including Respondent, had been selling illegal narcotics
prescriptions to adults in Palm Beach County. FDLE Investigator SB
interviewed witness BH in July 2008, at which time 81-I advised FDLE
that her boyfriend, JH, purchased illegal prescriptions from
Respondent, without an examination. Investigator SB then
interviewed JH, who stated advised that he had been seen by
Respondent and that the Respondent had issued prescriptions for
him without an MRI or an examination.
7. During the aforementioned investigations, Detective SB
observed a pattern, which indicated that Respondent had been
prescribing medications in multiple offices, located In several
counties, on the same days. In particular, investigators learned that
Respondent was engaged in a business arrangement with a JW, and
JW2 father and son and both licensed chiropractors located in
Daytona Beach, Florida. In particular, law enforcement began
investigating Respondent's activities wherein he allowed his DEA
prescribing privileges to be used by JW and 3W2 to prescribe
Schedule III and Schedule IV controlled substances to JW and 3W2's
chiropractic patients located In Daytona Beach. The controlled
3
4558
substances were prescribed under Respondent's name and DEA
registration number to patients without Respondent ever evaluating
or meeting them.
8. Respondent then billed and received payments from
insurance companies for non-existent evaluations. In doing so
Respondent defrauded various Insurance companies by submitting
fraudulent invoices and by preparing fake medical records which
were inserted into those patients' charts for non-existent treatments.
Respondent and JW and JW2 have been conducting these activities
in their Daytona Beach, Port St Lucie and West Palm Beach offices.
9. Between January 2009 and November 2010, Respondent's
medical records indicate that he prescribed controlled substances to
Patients CH, MR, KR, U, 3.] and SI In particular, Respondent
prescribed the following controlled substances:
a) Hydrocodone (opioid) is commonly prescribed to
treat pain. According to Section 893.03(2), Florida Statutes,
hydrocodone is a Schedule II controlled substance that has a high
potential for abuse and has a currently accepted but severely
restricted medical use in treatment in the United States, and abuse of
4
4559
hydrocodone may lead to severe psychological or physical
dependence.
b) Lortab is a brand name for the formulation of
hydrocodone and acetaminophen (Tylenol). Lortab is prescribed to
treat pain. According to Section 893.03(3), Florida Statutes,
hydrocodone, in the dosages found in hydrocodone/APAP is a
Schedule III controlled substance that has a potential for abuse less
than the substances in Schedules I and II and has a currently
accepted medical use in treatment in the United States, and abuse of
the substance may lead to moderate or low physical dependence or
high psychological dependence.
c) Soma is the brand name for carisoprodol, a muscle
relaxant commonly prescribed to treat muscular pain. According to
Section 893.03(4), Florida Statutes, carisoprodol is a Schedule IV
controlled substance that has a low potential for abuse relative to the
substances in Schedule III and has a currently accepted medical use
in treatment in the United States, and abuse of carisoprodol may lead
to limited physical or psychological dependence relative to the
substances in Schedule HI.
5
4560
d) Xanax (brand name for alprazoiam, benzodiazepine)
is prescribed to treat anxiety. According to Section 893.03(4), Florida
Statutes, alprazolam is a Schedule IV controlled substance that has a
low potential for abuse relative to the substances in Schedule III and
has a currently accepted medical use in treatment in the United
States and abuse of the substance may lead to limited physical or
psychological dependence relative to the substances in Schedule III.
FACTS SPECIFIC TO PATIENT CH
10. Between in or about December 2008, and on or about
February 6, 2009, Patient CH presented to 3W with complaints of
lower back pain. CH was insured by Direct General Insurance
Company (DGIC).
11. On or about September 17, 2009, CH provided a sworn
statement to DGIC Investigators, stating that she first presented to
Chiropractor JW after being injured in a car accident in December of
2008. CH stated that on her initial presentation to JW, JW instructed
her to sign several blank CMS 1500 Health Insurance Claim Forms.
These insurance forms are filled out by medical licensees and
provided to insurance companies so that the licensees can obtain
6
4561
reimbursement for medical services provided. She asked 3W why he
needed the forms pre-signed and he told her; We use them
whenever they need them." After receiving a chiropractic
adjustment, JW told CH she would receive prescriptions for Lortab
pain medication and Xanax. When CH retrieved the prescriptions
from the pharmacy, the prescriptions were issued by Dr. John P.
Respondent, M.D., DEA Number BC6009016, Florida license No.
ME92135. Under oath, CH stated under that she was never
examined, evaluated, diagnosed nor treated by Respondent.
12. CH presented to JW on several more occasions and
began receiving bills for treatments and injections that she never
received from Respondent.
13. Between in or about January 2009, and on or about July
28, 2009, Respondent submitted 17 CMS 1500 forms to DGIC for
treatments he claimed to have provided to CH, including injections.
DGIC paid Respondent $4,157.08 for the services he allegedly
provided to CH in Daytona Beach between on or about January 24,
2009, and on or about July 28, 2009. Respondent deposited the
payments received into his bank account.
7
4562
14. Respondent's medical records indicate that he prescribed
multiple prescriptions for Lortab, Soma and Xanax as summarized in
the following table:
Lortab (hydrocodone)
Soma (carisoprodol)
350 mg_
Norco (hydrocodone)
1/24/09 mg
40 tablets 2/13/09
mg 40 tablets 2/24/09
mg 40 tablets
3/4/09 mg
40 tablets 3/13/09
mg 40 tablets 3/21/09
mg 40 tablets
4/4/09 350 mg
40 tablets 4/14/09
mg 40 tablets
4/25/09 350 mg
40 tablets
8
4563
Lortab (hydrocodone)
Soma (carisoprodol)
350 mg_
Norco (hydrocodone)
5/9/09 mg
40 tablets 5/21/09
Mg 40 tablets
5/21/09 350 mg
50 tablets 5/30/09
Mg 40
6/5/09 Mg
40 tablets 6/11/09
Mg 40 tablets 6/19/09
Mg 40 tablets 7/28/09
Mg 40 tablets
- 7/28/09 350 mg
32 tablets
7/28/09 Mg
40 tablets 8/8/09
Mg 40 tablets
15. Respondent's medical records did not contain medical
justification for the prescription of these controlled substances in that
the medical records were prepared and signed by Respondent to
substantiate a paper record in support of his billing DGIC for
treatments that he never provided to CH.
9
4564
FACTS SPECIFIC TO PATIENT MR
16. Between on or about July 30, 2009, and on or about
December 9, 2009, Patient MR presented to JW2 with complaints of
lower back pain. At that time, JW2 had MR sign blank CMS 1500
forms and instructed Patient MR not to date the documents.
Hydrocodone 10/650
Hydrocodone 10/500
Xanax (Alprazolam)
2 mg
8/7/09 10 mg
40 tablets
8/7/09 2 mg
24 tablets 7/22/2008
10/325 120 tablets
7/22/2008 10 mg
270 tablets
7/22/2008 2 mg
60 tablets 8/19/2008
10/325 120 tablets
8/19/2008 10 mg
270 tablets
8/19/2008 ' 2 mg
60 tablets 9/16/2080
10/325 120 tablets
9/16/2008 10 mg
270 tablets
9/16/2008 2 mg
60 tablets 10/14/2008
10/325 120 tablets
10/14/2008 10 mg
270 tablets
10/14/2008 2 mg
60 tablets 11/11/2008
10/325 120 tablets
11/11/2008 10 mg
270 tablets
11/11/2008 2 mg
60 tablets 12/9/2008
10/325 120 tablets
12/9/2008 10 mg
270 tablets
12/9/2008 2 mg
60 tablets 1/6/2009 10/325
120 tablets
1/6/2009 10 mg
270 tablets
1/6/2009 2 mg
60 tablets
to
4565
Hydrocodone 10/650
Hydrocodone 10/500
Xanax (Alprazolam)2 mg
2/5/2009 10/325
120 tablets
2/5/2009 10 mg
270 tablets
2/5/2009 2 nig
60 tablets 3/5/2009
10 mg 270 tablets 4/2/2009
10 mg 270 tablets
4/2/2009 2mg
60 tablets 4/30/2009
10 mg 270 tablets
4/30/2009 2mg
60 tablets 5/28/2009
10 mg 270 tablets
5/28/2009 2mg
60 tablets 6/28/2009
10 mg 270 tablets
6/28/2009 2mg
60 tablets 7/23/2009
10 mg 270 tablets
7/23/2009 2mg
60 tablets 8/20/2009
10 mg 270 tablets
8/20/2009 2mg
90 tablets 9/17/2009
10/325 120 tablets
9/17/2009 10 mg
270 tablets
9/17/2009 2 mg
90 tablets 10/15/2009
10/325 120 tablets
10/15/2009 10 mg
270 tablets
10/15/2009 2 mg
90 tablets 11/12/2009
10/325 120 tablets
11/12/2009 10 mg
360 tablets
11/12/2009 2 mg
90 tablets
11.
4566
Hydrocodone 10/650
Hydrocodone 10/500
Xanax
(Alprazolam)2 mg
12/9/2009 12/9/2009 12/9/2009 10/325 10 mg 2 mg
120 tablets 360 tablets 90 tablets
17. The above chart represents the Hydrocodone and
Alprazolam prescribed by Respondent to MR over the course of five
months. However, Patient MR neither met nor was evaluated by
Respondent.
18. MR stated in his State Farm examination under oath
that he had never met or seen Respondent and State Farm
determined that no medical notes from Dr Respondent were in the
claim file.
19. Respondent's medical records did not contain medical
justification for the prescription of these controlled substances in that
the medical records were prepared and signed by Respondent to
substantiate a paper record in support of his fraudulent billing of the
insurance company for non-existent treatments that he had never
provided.
12
4567
FACTS SPECIFIC TO PATIENT KR
20. Between on or about August 18, 2010, and November
5, 2010, Patient KR presented to JW with complaints of lumbar pain
as the result of a motor vehicle accident.
21. On the date of her initial presentation, JW evaluated
• the patient and provided a back adjustment and an injection of
Vitamin D. At her subsequent appointments, 3W did not perform any
physical adjustment of her back.
22. KR obtained controlled substances from various
pharmacies in Daytona Beach, which were prescribed under
Respondent's name, Respondent's medical records indicate that he
prescribed multiple and simultaneous prescriptions for large
quantities of Hydrocodone 10 milligrams, Carisporodol 350 mg, and
Xanax 2 milligrams for KR on the dates and In the quantities
described in the following table:
Lortab (hydrocodone)
10 mg
,Soma (carisoprodol)
350 mg
Xanax (aiprazolam)
2mg 8/25/10 10 mg
40 tablets
8/25/10 350 mg
21 tablets
8/25/10 2mg
21 tablets
13
4568
Lortab (hydrocodone)
10 mg
Soma (carisoprodol)
350 mg
Xanax (alprazolam)
2mg 9/1/10 10 mg
40 tablets
9/1/10 350 mg
21 tablets
9/1/10 2mg
21 tablets 9/8/10 10 mg
40 tablets
9/8/10 350 mg
21 tablets
9/8/10 2mg
21 tablets 9/15/10 10 mg
40 tablets
9/15/10 350 mg
21 tablets
9/15/10 2mg
21 tablets 9/22/10 10 mg
40 tablets
9/22/10 350 mg
21 tablets
9/22/10 2mg
21 tablets 9/29/10 10 mg
40 tablets
9/29/10 350 mg
21 tablets
9/29/10 2mg
21 tablets 10/6/10 10 mg
40 tablets
10/6/10 350 mg
21 tablets
10/6/10 2mg
21 tablets 10/13/10
10 mg 40 tablets
10/13/10 350 mg
21 tablets
10/13/10 2mg
21 tablets 10/20/10
10 mg 40 tablets
10/20/10 350 mg
21 tablets
10/20/10 2mg
21 tablets 10/27/10
10 mg 40 tablets
10/27/10 350 mg
21 tablets
10/27/10 2mg
21 tablets 11/3/10 10 mg
40 tablets
11/3/10 350 mg
21 tablets
11/3/10 2mg
21 tablets 11/10/10
10 mg 40 tablets
11/10/10 350 mg
21 tablets
11/10/10 2mg
21 tablets
14
4569
23. The above chart represents the controlled substances
prescribed for KR over the course of five months. Patient KR neither
met nor was evaluated by Respondent at any of her appointments
with JW.
24. Respondent's medical records did not contain medical
justification for the prescription of these controlled substances in that
the medical records were prepared and signed by Respondent to
substantiate a paper record in support of his billing DGIC for
treatments that ne never provided
FACTS SPECIFIC TO PATIENT LI
25. Between on or October 2, 2009, and on or about
February 10, 2010, Patient U presented to 3W2 with complaints
subsequent to be involved In vehicle accident. 3W2 evaluated the
patient.
26. Records submitted by Respondent to DGIC indicate
that he personally treated Patient U on or about January 16, 2010,
January 30, 2010, and March 13, 2010. However, Patient U stated
that she never met nor was evaluated by Respondent.
15
4570
27. Respondent's medical records indicate that he
prescribed simultaneous prescriptions for Hydrocodone, 10 milligrams
and Carisporodol, 350 mg. for U on the dates, and in the quantities
described, in the following table:
Lortab (hydrocodone)
10)500
Soma (carisoprodol) 350 mg.
1/30/10 10 mg
40 tablets
1/30/10 350 mg
20 tablets
28. The above chart represents a total of Lortab and Soma •
prescribed for U by Respondent over the course of a month.
However, Patient U never met nor was evaluated by Respondent.
29. Respondent's medical records did not contain medical
justification for the prescription of these controlled substances in that
the medical records were prepared and. signed by Respondent to
substantiate a paper record In support of his billing DGIC for
treatments that he never provided.
16
4571
•
FACTS SPECIFIC TO PATIENT
30. Between on or about October 2, 2009, and on or about
March 4, 2010, Patient 33 presented to JW for treatment subsequent
to a vehicle accident.
31. Insurance records submitted by Respondent indicate
that he personally treated Patient JJ on or about January 9, 2010,
February 13, 2010, April 10, 2010, and April 24, 2010. However,
Patient 'SJ stated that she never met nor was evaluated by
Respondent.
32. Respondent's medical records show that he prescribed
Hydrocodone, 10 mg. and Carisporodol, 350 milligrams for JJ on the
dates, and in the quantities described in the following table:
Lortab (hydrocodone)
10/500
Soma (carisoprodol)
350 mg.
2/13/10 10 mg
40 tablets
2/13/10 350 mg
20 tablets
33. The above chart represents the Hydrocodone and
Carisporodol, prescribed for 33 over the course of one month by
17
4572
Respondent. However, Patient U never met nor was evaluated by
Respondent.
34. Respondent's medical records did not contain medical
justification for the prescription of these controlled substances in that
the medical records were prepared and signed by Respondent to
substantiate a paper record in support of his billing the Insurance
company for treatments that he never provided.
FACTS SPECIFIC TO PATIENT SJ
35. Between on or about September 28, 2009, and on or
about March 2, 2010, Patient SJ presented to JW2 with complaints
subsequent to a vehicle accident. JW2 evaluated the patient.
36. Insurance documents submitted by Respondent
indicate that Respondent personally provided treatment to Patient Si
on or about November 7, 2009, January 2, 2010, January 16, 2010,
January 30, 2010, February 13, 2010, February 27, 2010, and March
13, 2010. However, Patient SJ stated that she never met nor was
evaluated by Respondent.
18
4573
37. Respondent's medical records show that he prescribed
Si Hydrocodone, 10 mg. and Carisporodol, 350 mg, on the dates,
and in the quantities described in the following table.
Lortab (hydrocodone)
10/500
Soma (carisoprodol)
350 mg.
11/7/09 10 mg
40 tablets
11/7/09 350 mg
20 tablets 1/2/10 10 mg
40 tablets
1/2/10 350 mg
20 tablets 2/27/10 10 mg
40 tablets
2/27/10 350 mg
20 tablets
38. The above chart represents the Hydrocodone and
Carisporodol that Respondent Prescribed for Si over the course of
four months.
39. Respondent's medical records did not contain medical
justification for the prescription of these controlled substances in that
the medical records were prepared and signed by Respondent to
substantiate a paper record in support of his billing DGIC for
treatments that he never provided.
19
4574
COUNT I
40. Paragraphs 1 through 38 are adopted and realleged as
though fully set forth.
41. Section 458.331(1) (t), Florida Statutes (2009-2010),
provides that committing medical malpractice constitutes grounds for
disciplinary action by the Board of Medicine. Medical Malpractice is
defined in Section 456.50, Florida Statutes (2005-2009), as the
failure to practice medicine in accordance with the level of care, skill,
and treatment recognized in general law related to health care
licensure. For purposes of Section 458.331(1) (t), Florida Statutes
(2005-2009), the Board shall give great weight to the provisions of
Section 766.102, Florida Statutes (2005-2009), which provide that
the prevailing professional standard of care for a given health care
provider shall be that level of care, skill, and treatment which, in tight
of all relevant surrounding circumstances, is recognized as acceptable
and appropriate by reasonably prudent similar health care providers.
42. Respondent failed to practice medicine with that level of
care, skill and treatment in violation of Section 458.331(1) (t), Florida
Statutes (2009-2010), which is recognized by a reasonably prudent
20
4575
similar physician as being acceptable under similar conditions and
circumstances in the treatment of patients CH, MR KR U JJ & Si in
one or more of the following ways:
a. by prescribing excessive and/or inappropriate quantities of
opioids and benzodiazepines;
b. by failing to order urine drug screening in view of the high
dosages of opioids and benzodiazepines being prescribed;
c. by violating the standards for the use of controlled substances
for pain management provided by the Board of Medicine in Rule
64B8-9.013(3), Florida Administrative Code as more particularly
described in paragraph 46 herein;
d. by inappropriately prescribed excessive and inappropriate
quantities and combinations of controlled substances without ever
seeing the patients and doing so with total disregard to the health
and safety of these patients and the general public by placing
them at great risk of physical injury or death,
43. Based on the foregoing respondent has violated Florida
Statutes 458.331(1)(t) (2009-2010).
21
4576
COUNT II
44. Paragraphs 1 through 38 are adopted and realleged
as though fully set forth.
45. 'Section 458.331(1)(q), Florida Statutes (2009-2010),
subjects a licensee to discipline, including suspension, for prescribing,
dispensing, administering, mixing, or otherwise preparing a legend
drug, including any controlled substance, other than in the course of
the physician's professional practice. For purposes of this paragraph,
it shall be legally presumed that prescribing, dispensing,
administering, mixing, or otherwise preparing legend drugs, including
all controlled substances, inappropriately 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 or his intent.
46. Respondent prescribed, dispensed, and/or admini-
stered inappropriately and/or prescribed controlled substances other
than in the course of his professional practice by prescribing
controlled substances in excessive or inappropriate quantities to
patients 'CH, MR, KR, LJ, JJ, and SJ on or about the dates and in the
2,2
4577
quantities and combinations more particularly described above in the
foregoing paragraphs, that were not in the patient's best interests.
47. Based on the foregoing Respondent violated Section
458.331(1)(q), Florida Statutes (2009-2010).
COUNT III
48. Paragraphs 1 through 38 are adopted and realleged
as though fully set forth.
49. Section 458.331(1)(nn), Florida Statutes (2009-
2010), provides that violating any provision of chapters 456 or 458,
Florida Statutes, or any rules adopted pursuant thereto, is grounds
for discipline by the Board of Medicine.
50. Rule 64B8-9.013(3), Florida Administrative Code (FAC),
provides, in part, as follows:
The Board has adopted the following standards for the use of controlled substances for pain control:
(a) Evaluation of the Patient. A complete medical history and physical examination must be conducted and documented In the medical record. The medical record should document the nature and intensity of the pain, current and past treatments for pain, underlying or coexisting diseases or conditions, the effect of the pain on physical and psychological function, and history of substance abuse. The medical record also should
23
4578 11111111M11
document the presence of one or more recognized medical indications for the use of a controlled substance.
(b) Treatment Plan. The written treatment plan should state objectives that will be used to determine treatment success, such as pain relief and improved physical and psychosocial function, and should indicate if any further diagnostic evaluations or other treatments are planned. After treatment begins, the physician should adjust drug therapy to the individual medical needs of each patient. Other treatment modalities or a rehabilitation program may be necessary depending on the etiology of the pain and the extent to which the pain is associated with physical and psychosocial impairment.
* * *
51. On or about the dates set forth above, Respondent
violated Rule 64B8-9.013(3), FAC, by prescribing one or more of the
following controlled substances; Hydrocodone or SoMa to patients
CH, MR KR LJ 33 & SJ, without conducting or documenting complete
medical histories or physical examinations of the patients; without
documenting one or more of the following: the nature and intensity
of the patients' pain, current and past treatments for pain, underlying
or coexisting diseases or conditions, the effect of the pain on physical
and psychological function, history of substance abuse, the presence
of one or more recognized medical indications for the use of a
controlled substance; and without documenting written treatment
24
4579
plans that state objectives that will be used to determine treatment
success or indicate if any further diagnostic evaluations or other
treatments are planned.
52. Based on the foregoing Respondent violated Section
458.331(1)(nn), Florida Statutes (2009-2010).
COUNT IV
53. Paragraphs 1 through 38 are adopted and realleged as
though fully set forth.
54. Section 458.331(1)(m), Florida Statutes (2009-2010),
subjects a licensee to discipline for failing to keep legible, as defined
by department rule in consultation with the board, medical records
that identify the licensed physician or the physician extender and
supervising physician by name and professional title who is or are
responsible for rendering, ordering, supervising, or billing for each
diagnostic or treatment procedure and that justify 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.
25
4580
55. Respondent violated Section 458.331(1)(m), Florida
Statutes (2009-2010), by failing to keep medical records that justified
the course of treatment of one or more of the following patients: CH,
MR, KR, U, 3) and S.1 by failing to document the justification for
prescribing benzodiazepines in such high doses by failing to note in
the medical records in prescribing benzodiazepines that the patient
was suffering from an anxiety disorder; by failing to show in the
medical record the justification for prescribing opioicis in the dosages
prescribed in that the medical records prepared 'by Respondent were
to substantiate a substantiate a paper record in support of his billing
insurance' companies for treatments that he never provided.
56. Based on the foregoing Respondent violated Section
458.331(1)(m), Florida Statutes (2009-2010).
COUNT V
57. Paragraphs 1 through 38 are adopted and
realleged as though fully set forth.
58. Section 458.331(1)(k), Florida Statutes (2009-2010),
allows the Board of Medicine to impose discipline against a licensee
making deceptive, untrue,. or fraudulent representations in or related
26
4581
to the practice of medicine or employing a trick or scheme in the
practice of medicine.
59. Respondent made deceptive, untrue, or fraudulent
representations in or related to the practice of medicine or employed
a trick or scheme in the practice of medicine by having patients
evaluated by 3W and/or 3W2, by having prescriptions called in to
pharmacies using his name and DEA registration without evaluating
the patients, and/or by submitting documentation to insurance
companies purporting to have treated the patients when, in actuality,
Respondent did not treat the patients.
60. Based on the foregoing Respondent violated Section
458.331(1)(k), Florida Statutes (2009-2010).
WHEREFORE, the Petitioner respectfully requests that the
Board of Medicine enter an order imposing one or more of the
following, penalties: permanent revocation or suspension of
Respondent's license, restriction of practice, imposition of an
administrative fine, issuance of a reprimand, placement of the
Respondent on probation, corrective action, refund of fees billed or
27
4582
collected;',Temedial education and/or any other relief that the Board
deems appropriate.
SIGNED this 2.54 day of
2011.
H. Frank Farmer, Jr, MD, PhD, FACP State Surgeon General
4
FILED DEPARTMENT OF HEALTH
DEPUTY CLERK
CLERK Angel Sanders DATE 'AUG 2 5 2011
Robert Milne Assistant General Counsel DOH Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL 32399-3265 Florida Bar # 622338 (850) 245-4640 (850) 245-4681 FAX
PCP: (1 A3/ aoo 1
PCP Members: Le-Ott) -
2-061(aA;46 LEO/A-Z-1
■I■
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4583