Clark v. Department of Professional Regulation, Bd. of Medical Examiners, 83-675

• Decision Date: 04 January 1985
• Docket Number: No. 83-675,83-675
• Citation: 10 Fla. L. Weekly 119,463 So.2d 328
• Parties: 10 Fla. L. Weekly 119 Daniel J. CLARK, M.D., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS, Appellee.
• Court: Florida District Court of Appeals

Page 328

463 So.2d 328

10 Fla. L. Weekly 119

Daniel J. CLARK, M.D., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS, Appellee.

No. 83-675.

District Court of Appeal of Florida,

Fifth District.

Jan. 4, 1985.

Rehearing Denied Feb. 7, 1985.

Andrew A. Graham, of Reinman, Harrell, Silberhorn, Moule & Graham, P.A., Melbourne, Algis Augustine, of Augustine and Associates, Ltd., Chicago, Ill; and Steven I. Kern, P.A., Elizabeth, N.J., for appellant.

Joseph W. Lawrence, II, Chief Atty., and John E. Hale, Legal Assistant, Department of Professional Regulation, Tallahassee, for appellee.

ORFINGER, Judge.

This is an administrative appeal from an order of the Board of Medical Examiners of the Department of Professional Regulation permanently revoking appellant Daniel Clark's medical license based on findings that Clark violated several provisions of the Florida Medical Practices Act, Chapter 458, Florida Statutes (1979) in his treatment of Verdi Hammond Burroughs and Charles Kirk. ¹

The scope of review of administrative action is narrow. Section 120.68(10), Florida Statutes (1983) provides that the reviewing court may not substitute its judgment for that of the agency on any disputed finding of fact, and may only set aside agency action which depends on findings of fact not supported by competent substantial evidence in the record. We are therefore bound to affirm administrative determinations or findings unless there is no competent substantial evidence to support them. Dade County Police Benevolent Assn. v. City of Homestead, 444 So.2d 465 (Fla. 3d DCA 1984).

The factual background of the case is set forth in the hearing examiner's findings of fact. The selective portion of these findings set forth below, all of which are amply supported by the record, chronicle Clark's treatment of patient Burroughs:

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3. Since 1979, he [Dr. Clark] has practiced medicine in Ormond Beach, Florida. Initially, his practice included gynecology, family practice, and general nutrition. He then began to treat cancer patients with metabolic (nutritional) therapy. The purpose of such therapy is to enhance the immunological and biological capacities of a patient--nutritionally, immunologically, and physiologically--in order to improve the patients [sic] performance in combating cancer. This cancer treatment includes the administration of Amygadalin [sic] (Laetrile), vitamins, herbal teas and detoxifiers, and the application of salves and packs to cause localized hyperthermia. It is not a conventional, orthodox, or widely practiced form of cancer treatment. No other physician in Volusia County uses it. Most accredited medical schools in the United States do not teach it. The American Medical Association (AMA) considers it to be experimental. Eventually, respondent's metabolic treatment of cancer patients began to account for 15% to 20% of his practice.

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12. Ms. Burroughs became respondent's patient on October 7, 1980, when she came to his office for medical treatment. He performed a complete workup, physical examination, and medical history, and reviewed the results of the lab blood tests. He concluded that her condition was essentially normal except for her right breast, which was severely inflamed and the nipple retracted. In addition, the lymph nodes under her right armpit were palpable and enlarged. His initial impression was that she had inflamatory [sic] carcinoma (cancer) of the right breast with lymph gland involvement. He then scheduled her for a biopsy, which was necessary before he could determine the type of cancer involved.

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14. During the October 7, 1980, office visit, respondent explained to Ms. Burroughs the alternative methods of cancer treatment, including their potential for cure. The methods discussed included surgery, radiation, chemotherapy, and metabolic therapy. She refused to undergo radiation or surgical treatment, explaining that her husband died of lung cancer after receiving surgery, radiation, and chemotherapy. She agreed however, to consider chemotherapy in conjunction with metabolic therapy. He explained to her that metabolic therapy was not a treatment against the cancer, per se, but that it would help "build up her body to where her own immune system would help her fight the cancer." She agreed to accept this treatment--chemotherapy with metabolic therapy--then signed four separate affidavits on forms provided by respondent. The affidavits acknowledged her consent to the ordering and administration of Laetrile. Respondent, however, did not inform Ms. Burroughs in writing (by these affidavits or any other documents), that Laetrile has not been approved as a treatment or cure by the Food and Drug Administration of the United States Department of Health and Human Services. She also did not sign a written release, releasing him from any liability from the administration of Laetrile. ²

15. During the October 7, 1980, visitation--after the affidavits were signed--respondent began treating her with metabolic therapy, consisting of Laetrile I.V., Vitamin C, B Vitamins, B-15, B-12, and crude liver injections. Metabolic therapy was commenced without obtaining her [Burroughs'] prior written consent.

16. Several days later, on October 13, 1980, respondent began treating her with small doses of chemotherapy in conjunction with the metabolic therapy. The chemotherapy treatment plan was based on a phone call to Dr. Donald Cole, a New York oncologist. Respondent described the type and extent of Ms. Burroughs cancer and Dr. Cole recommended small 100 milligram doses of 5-FU twice weekly, two to five milligrams of Laetrile twice weekly, and 50 milligrams of Cytoxin PO orally. Respondent administered this regimen until he discontinued chemotherapy at the end of November, 1980.

17. These doses and intervals of chemotherapy did not conform to the manufacturers' recommended doses contained in the Physician's Desk Reference, a standard reference used by practicing physicians. The doses administered by respondent were lower than those normally used in chemotherapy and are considered to be in the research or experimental stage.

18. Chemotherapy and metabolic therapy are incompatible--they work at cross-purposes. Chemotherapy drugs are strong immunosuppressants. They are toxic and intended to poison cancer cells; their effect is to suppress the body's immunological system. In contrast, the purpose of metabolic therapy is to enhance that same immunological system. For this reason, the use of chemotherapy is not included within the protocols for metabolic therapy found in International Protocols in Cancer Management. Respondent concedes that this publication is authoritative and contains the standard protocols for metabolic therapy.

19. Ms. Burroughs [sic] chemotherapy stopped at the end of November, 1980, but her metabolic therapy continued. By March, 1981, her right arm was beginning to swell because of enlarging lymph nodes. On the March 2, 1981 office visit, respondent told her that Laetrile was not stopping the cancer, and discussed restarting chemotherapy. He increased her Vitamin C, and began administering herbal cleaners and botanical medicines containing red clover, chapparral, myrr, goldenseal, yellow dot, juniper berries, yuva, ursaberries, conch grass, and dandelion. Respondent categorizes these medicines as blood purifiers, lymph purifiers, liver cleaners, and kidney cleaners.

20. By June, 1981, respondent believed the cancer had metastasized to Ms. Burroughs' right lung. During office visits in early June, he rubbed herbal ointment or liniment, Vitamins E and F, into her rib cage area. He also prescribed herbal packs and poultices to cause localized hyperthermia (heat increase). He prescribed dark and yellow herbal salves and instructed her to apply them to her right breast and underarm area, explaining that they would draw out and break down the cancer tumor.

21. These salves--strong and painful--caused pieces of gray tissue to fall off her breast and underarm area. Respondent reacted by encouraging her, telling her that the salves were breaking down the cancerous tumor. He now admits, however, that the herbal ointments and salves would have been ineffective in treating the cancer which had metastasized to her lungs. He also prescribed a tea which tasted like black pepper. She forced herself to swallow it because he told her that it would break up the cancer in her body. This representation was also untrue.

22. In administering metabolic therapy to Ms. Burroughs, respondent also prescribed whole-body hyperthermia for the purpose of stimulating her immune system. This required her to totally submerge herself in bath water which was as hot as she could tolerate. According to the standardized protocols for metabolic therapy, as stated in International Protocols in Cancer Management, such "whole-body hyperthermia, while successful in some cases, is dangerous and considered experimental."

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24. Metabolic therapy is not approved or recognized as acceptable for cancer treatment by a respectable minority of the medical profession. This finding is based on the opinion of Alvin Edward Smith, M.D., board certified in oncology and internal medicine, and a Fellow of the American College of Physicians. He has treated cancer patients since 1978. His opinion on this issue is considered more credible than the contrary opinion of Rodrigo Rodriquez, M.D., who practices medicine in Tijuana, Mexico, who is not licensed to practice medicine in the United States, and who--other than acting as a guest resident at Kings County Hospital in Brooklyn, New York--has never practiced medicine in the United States.

Section 458.331(1), Florida Statutes (1979) empowers the Board of Medical Examiners to revoke, suspend or otherwise discipline a licensed medical doctor for:

(h) Failing to perform any statutory or legal obligation placed upon a...