Johnston v. Department of Professional Regulation, Bd. of Medical Examiners, AX-322

• Decision Date: 13 September 1984
• Docket Number: No. AX-322,AX-322
• Citation: 456 So.2d 939
• Parties: Glenn R. JOHNSTON, M.D., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS, Appellee.
• Court: Florida District Court of Appeals

Page 939

456 So.2d 939

Glenn R. JOHNSTON, M.D., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS, Appellee.

No. AX-322.

District Court of Appeal of Florida First District.

Sept. 13, 1984.

Rehearing Denied Oct. 12, 1984.

Paul Watson Lambert, of Slepin, Slepin, Lambert & Waas, Tallahassee, for appellant.

William M. Furlow, Dept. of Professional Regulation, Tallahassee, for appellee.

WIGGINTON, Judge.

Appellant, Dr. Johnston, appeals a final order of the Board of Medical Examiners (Board) which rejected the hearing officer's recommendation that charges against appellant of violation of sections 458.331(1)(q) and (t), Florida Statutes, be dismissed. Appellant was charged by administrative complaint with thirteen counts of violations of section 458.331(1), Florida Statutes, concerning the inappropriate prescribing of controlled substances to four patients. At the hearing, eight of the thirteen counts were dismissed, leaving five counts to be prosecuted as to violations of section 458.331(1)(q) and (t). We reverse and remand for entry of an order dismissing the administrative complaint with prejudice.

Dr. Johnston is a board certified family practice physician with over fourteen years experience. He served four years as Chief of the Family Practice Department at the Naval Regional Medical Center in Orlando. He is now engaged in private practice. He never before had been the subject of an investigation by the Department of Professional Regulation (Department) until the filing of the charges in this case.

Section 458.331(1)(q), Florida Statutes, provides for the taking of disciplinary action against a physician 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 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 intent.

Section 458.331(1)(t) provides for disciplinary action to be taken against a physician for:

Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The board shall give great weight to the provisions of s. 768.45 when enforcing this paragraph.

At the hearing, the evidence showed that between the dates of approximately July 1, 1980, and November, 1981, appellant prescribed large doses of Dilaudid (a schedule II controlled substance) to four patients, all of whom have serious medical problems and suffer chronic severe pain, for which Dilaudid provides the only substantial relief. ¹ The department presented the testimony of only one witness, a general practitioner who is not board certified. The witness was of the opinion that Dr. Johnston's prescribing of Dilaudid in the quantities alleged to each of the four patients was not medically justifiable and that the quantities were excessive. However, he neither saw nor examined the patients and was not able to tell from reviewing their records how much pain any of the four patients was experiencing. He conceded that a medically justifiable purpose in treating a patient is achieved by a treatment that enhances the well-being of the patient and enhances the quality of the patient's life. He felt that Dr. Johnston's prescription of the quantities of Dilaudid in question to a patient with any history other than terminal cancer was a gross departure from acceptable medical practice and that three months is the maximum length of time Dilaudid should be prescribed to a patient. However, he could testify as to no physical harm to any of the four patients resulting from appellant's treatment and could not testify that appellant prescribed Dilaudid other than in the course of his medical practice.

Dr. Johnston presented the testimony of three expert medical witnesses, all of whom are board certified in family practice. Except for the agreement of all four testifying doctors that the four patients suffered no physical harm from their treatment by Dr. Johnston and that Dr. Johnston prescribed the drug to the four patients in the course of his medical practice, the testimony of Dr. Johnston's three witnesses contradicted the testimony of the department's witness in that those three doctors felt that Dr. Johnston acted reasonably in his treatment of the four patients. The evidence also showed that the Physician's Desk Reference (PDR) does not place a cap on the quantity of Dilaudid to be prescribed for a patient in chronic moderate to severe pain. ² The amounts of Dilaudid prescribed for each of the four patients did not exceed the PDR recommendations. The evidence also indicated that at least some of the four patients were possibly already habituated or tolerant to the drug Dilaudid at the time Dr. Johnston prescribed it for them.

Relying upon the testimony of the three board certified family practice physicians, the testimony of Dr. Johnston and the PDR, the hearing officer found that prescribing Dilaudid to a patient who is already habituated or tolerant to the drug and who has chronic moderate to severe pain can be medically justifiable since the patient should be given relief from pain. He determined that appellant's prescriptions of the quantities of Dilaudid for the four patients during the time period alleged in the complaint were neither excessive nor inappropriate, especially considering the severe conditions of each of the patients. He concluded that the evidence presented by the department was not substantially sufficient to establish violations of section 458.331(1)(q) or (t), especially in light of Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981). He found that appellant's treatment of the four patients was reasonable under the circumstances.

Upon consideration by the board, the members, with one dissent, voted to reject the hearing officer's findings of fact and conclusions of law and to adopt the allegations of the administrative complaint as the statements of fact in this case. However, in its final written order, the board stated that with two exceptions it approved and adopted the hearing officer's findings. The first exception was the finding that appellant's prescriptions of Dilaudid to the four patients in the quantities alleged were appropriate and not excessive and did not constitute the failure to practice medicine with the level of care, skill and treatment which is recognized by a reasonable and prudent physician as being acceptable. The board also rejected the hearing officer's finding that to treat with Dilaudid a patient who suffers chronic moderate to severe pain and who is already habituated to the drug is medically proper. The board based its rejection of the above findings on the board's special knowledge and expertise in the practice of medicine, in reliance on the recognition in McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), that an agency may interpose its own special expertise in an area to override a hearing officer. The board then made its own findings that: to continue to treat a non-terminally ill patient for chronic moderate to severe pain by...