STATE OF FLORIDA BOARD OF MEDICINE DEPARTMENT OF HEALTH, Petitioner,

VS.

Final Order No. DOH-I2-0997 FOP - MQA FILED 1),N 1,4 a not ealim212 Deputy gency C

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 abovestyled 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 Verizon Florida, Inc. v. Jacobs, 810 So. 2d 906 deference. (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.)

DONE AND ORDERED this 2012. BOARD OF MEDICINE

day of

Joy A. /T For Jas-6n

, Executive Director Rosenberg, M.D., Chair

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 #C65, Tallahassee, Florida 32399-3253 this day of

_Lkr\

, 2012.

STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF CHIROPRACTIC MEDICINE, Petitioner, vs. JOHN P. CHRISTENSEN, M.D., Respondent.

) ) ) ) ) ) ) ) ) ) )

Case No. 11-5163PL

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

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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

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 Order s/ 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

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 acquaintanceDr. Joseph Wagner, also a licensed chiropractor in the State of Floridamatriculated 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"

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 medicationsincluding 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 examineor perform treatments uponany 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

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 officedictated 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 themwithout Respondent looking at the forms beforehandto 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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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 participationwas 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.

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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 interactionof any kindoccurred between them. 16. Although Respondent had no contact whatsoever with K.R., the evidence demonstrates that Respondent permitted Dr. Wagneron the date of K.R.'s first visit and on every follow-up visit, which generally lasted no more than a few minutesto 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 12/ name for carisoprodol, a muscle relaxant); and 21 tablets of 14/ which is designed to Xanax n/ (a brand name for alprazolam, 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

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 medicationswith Respondent listed on the prescription bottles as the prescribing physicianfor 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.

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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

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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 attemptedunsuccessfullyduring 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

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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

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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.

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(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).

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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 practicei.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 doctorpatient 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.

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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

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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 practicei.e., his conduct occurred outside

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the practice of medicineon 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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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. 004747PL, 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.

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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."

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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

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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 definitionbecause 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

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explicitlyor implicitlyreject 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 practiceprecludes 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 naturallypursuant 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 representeddeceptively and untruthfullythat 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 64B88.001(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 matterthat 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

/1111s 11

1450

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. Pursuant to the parties' stipulation, the undersigned has also considered the hearing transcript from DOAH Case number 114936PL (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 4/

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

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) treat pain. Hydrocodone (opioid) is commonly prescribed to 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

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.

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

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.

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) 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

Soma (carisoprodol) 350 mg_

Norco (hydrocodone)

4563

Lortab (hydrocodone) 5/9/09 mg 40 tablets 5/21/09 Mg 40 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 8/8/09 Mg 40 tablets 15.

Soma (carisoprodol) 350 mg_

Norco (hydrocodone)

5/21/09 350 mg 50 tablets

- 7/28/09 350 mg 32 tablets

7/28/09 Mg 40 tablets

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. Xanax Hydrocodone Hydrocodone (Alprazolam) 10/650 10/500 2 mg 8/7/09 10 mg 40 tablets 7/22/2008 10 mg 270 tablets 8/19/2008 10 mg 270 tablets 9/16/2008 10 mg 270 tablets 10/14/2008 10 mg 270 tablets 11/11/2008 10 mg 270 tablets 12/9/2008 10 mg 270 tablets 1/6/2009 10 mg 270 tablets
to

7/22/2008 10/325 120 tablets 8/19/2008 10/325 120 tablets 9/16/2080 10/325 120 tablets 10/14/2008 10/325 120 tablets 11/11/2008 10/325 120 tablets 12/9/2008 10/325 120 tablets 1/6/2009 10/325 120 tablets

8/7/09 2 mg 24 tablets 7/22/2008 2 mg 60 tablets 8/19/2008 ' 2 mg 60 tablets 9/16/2008 2 mg 60 tablets 10/14/2008 2 mg 60 tablets 11/11/2008 2 mg 60 tablets 12/9/2008 2 mg 60 tablets 1/6/2009 2 mg 60 tablets

4565

Xanax Hydrocodone Hydrocodone (Alprazolam) 10/650 10/500 2 mg 2/5/2009 10/325 120 tablets 2/5/2009 10 mg 270 tablets 3/5/2009 10 mg 270 tablets 4/2/2009 10 mg 270 tablets 4/30/2009 10 mg 270 tablets 5/28/2009 10 mg 270 tablets 6/28/2009 10 mg 270 tablets 7/23/2009 10 mg 270 tablets 8/20/2009 10 mg 270 tablets 9/17/2009 10 mg 270 tablets 10/15/2009 10 mg 270 tablets 11/12/2009 10 mg 360 tablets 2/5/2009 2 nig 60 tablets

9/17/2009 10/325 120 tablets 10/15/2009 10/325 120 tablets 11/12/2009 10/325 120 tablets

4/2/2009 2mg 60 tablets 4/30/2009 2mg 60 tablets 5/28/2009 2mg 60 tablets 6/28/2009 2mg 60 tablets 7/23/2009 2mg 60 tablets 8/20/2009 2mg 90 tablets 9/17/2009 2 mg 90 tablets 10/15/2009 2 mg 90 tablets 11/12/2009 2 mg 90 tablets

11.

4566

Xanax Hydrocodone Hydrocodone (Alprazolam) 10/650 10/500 2 mg 12/9/2009 10/325 120 tablets 17. 12/9/2009 10 mg 360 tablets 12/9/2009 2 mg 90 tablets

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 8/25/10 10 mg 40 tablets

,Soma
(carisoprodol) 350 mg 8/25/10 350 mg 21 tablets

Xanax (aiprazolam) 2mg 8/25/10 2mg 21 tablets

13

4568

Lortab (hydrocodone) 10 mg 9/1/10 10 mg 40 tablets 9/8/10 10 mg 40 tablets 9/15/10 10 mg 40 tablets 9/22/10 10 mg 40 tablets 9/29/10 10 mg 40 tablets 10/6/10 10 mg 40 tablets 10/13/10 10 mg 40 tablets 10/20/10 10 mg 40 tablets 10/27/10 10 mg 40 tablets 11/3/10 10 mg 40 tablets 11/10/10 10 mg 40 tablets

Soma (carisoprodol) 350 mg 9/1/10 350 mg 21 tablets 9/8/10 350 mg 21 tablets 9/15/10 350 mg 21 tablets 9/22/10 350 mg 21 tablets 9/29/10 350 mg 21 tablets 10/6/10 350 mg 21 tablets 10/13/10 350 mg 21 tablets 10/20/10 350 mg 21 tablets 10/27/10 350 mg 21 tablets 11/3/10 350 mg 21 tablets 11/10/10 350 mg 21 tablets

Xanax (alprazolam) 2mg 9/1/10 2mg 21 tablets 9/8/10 2mg 21 tablets 9/15/10 2mg 21 tablets 9/22/10 2mg 21 tablets 9/29/10 2mg 21 tablets 10/6/10 2mg 21 tablets 10/13/10 2mg 21 tablets 10/20/10 2mg 21 tablets 10/27/10 2mg 21 tablets 11/3/10 2mg 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: Soma Lortab (carisoprodol) (hydrocodone) 350 mg. 10)500 1/30/10 1/30/10 10 mg 350 mg 20 tablets 40 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: Soma (carisoprodol) 350 mg. 2/13/10 350 mg 20 tablets

Lortab (hydrocodone) 10/500 2/13/10 10 mg 40 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. Soma (carisoprodol) 350 mg. 11/7/09 350 mg 20 tablets 1/2/10 350 mg 20 tablets 2/27/10 350 mg 20 tablets

Lortab (hydrocodone) 10/500 11/7/09 10 mg 40 tablets 1/2/10 10 mg 40 tablets 2/27/10 10 mg 40 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

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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
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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.

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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

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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

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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

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

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s Is