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.
September 13, 1984.
Rehearing Denied October 12, 1984.
456 So.2d 939
WIGGINTON, Judge.
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
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.
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.
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
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
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
In our view, the circumstances of this case do not present a unique question that is not susceptible to ordinary methods of proof, resolution of which falls within the special expertise of the board to the point that the board may overturn the findings of the hearing officer when those findings are based upon competent substantial evidence in the record. In the absence of a special expertise situation, the board is bound by the findings of fact of a hearing officer as long as competent substantial evidence supports those findings. See Dade County Police Benevolent Association v. City of Homestead, 444 So.2d 465 (Fla. 3d DCA 1984). We find that competent substantial evidence supports the hearing officer‘s findings in this case.
Even when an agency is justified in substituting its own findings of fact for that of the hearing officer in cases where the expertise of the agency is a valid factor, in reviewing such a decision, this Court must consider the substantiality of the evidence supporting the agency‘s substituted findings. Westchester General Hospital v. Dept. of Health, 419 So.2d 705 (Fla. 1st DCA 1982). According to this Court‘s decision in Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981), in a license discipline proceeding, “the term `substantial competent evidence’ takes on vigorous implications that are not so clearly present on other occasions for agency action under
[w]e differentiate between evidence which “substantially” supports conventional forms of regulatory action and evidence which is required to support “substantially” a retrospective characterization of conduct requiring suspension or revocation of the actor‘s license. At 171.
The court went on to hold:
[w]e glean a requirement for more substantial evidence from the very nature of licensee discipline proceedings: when the standards of conduct to be enforced are not explicitly fixed by statute or by rule, but depend on such debatable expressions as “in the applicable regular course of business“; when the conduct to be assessed is past, beyond the actor‘s power to conform it to agency standards announced prospectively; and when the proceeding may result in the loss of a valuable business or professional license,
the critical matters in issue must be shown by evidence which is indubitably as “substantial” as the consequences. At 172.
Even if the board were within an area of its special expertise, the evidence in support of the board‘s action does not meet that substantiality requirement. Compare Robinson v. Florida Bd. of Dentistry, 447 So.2d 930 (Fla. 3d DCA 1984). Neither the transcript of the board meeting nor the written final order of the board sets forth a reasonable basis in the form of articulation of the underlying medical reasons for invocation of the board‘s special insight and expertise, leaving this Court no avenue for review of the propriety of the board‘s rejection of the otherwise competent substantial evidence supporting the hearing officer‘s recommendation. That form of discipline affords licensees inadequate forewarning of proscribed priorities and subjects them to the possibility of an arbitrary judgment that
Dr. Johnston has petitioned this Court for an award of attorney‘s fees and costs pursuant to
In the event a court reverses the order of an agency, the court in its discretion may award attorney‘s fees and costs to the aggrieved prevailing party.
In his petition, Dr. Johnston charges that the department and the board have relentlessly prosecuted him in an egregious manner thereby causing him to incur total attorney‘s fees, expenses and costs in the amount of $39,825.41. The board, having made no presentation whatsoever in this appeal, has not responded to the motion for attorney‘s fees and costs. The department has neither filed a response or objection thereto nor did the attorney for the department, upon direct questioning at oral argument, raise any objection to the request. The record reveals that this case has been brought before a hearing officer on two different occasions and that on each the hearing officer recommended dismissal of the charges. Additionally, in light of the overwhelming evidence in favor of Dr. Johnston which the board callously overlooked behind its veil of “special insight,” we find that application of
REVERSED AND REMANDED.
SMITH, and WENTWORTH, JJ., concur.
Notes
10. The Respondent prescribed Dilaudid to patient ... for severe chronic pain associated with multiple medical problems, primarily related to his severe degenerative rheumatoid arthritis. [The patient] 49 years of age, had a long history of multiple joint pains, degeneration of his normal joints, chronic pain in his joints, swelling and abnormal laboratory tests. He had been diagnosed as having rheumatoid arthritis since 1976 by a neurosurgeon, confirmed by blood tests and x-rays. He was classified as 100 percent disabled in 1977 by the Veterans Administration because of the chronic joint pains of rheumatoid arthritis. He had been seen by numerous doctors and treated with various pain medications including Dilaudid, which was the only drug that allowed him to function. The pains, discomfort and disability that [the patient] suffered were located in most of the joints of his body, especially in his lumbosacral spine, with involvement in the left hip, shoulder areas, both knees and elbows, with swelling and deformity in the hands. Practically every joint in his body was involved. [The patient] frequently used a cane for walking, and occasionally used crutches. He had difficulty in standing from a sitting position and on occasion he used a wheelchair. The Respondent tried several different medications to treat his rheumatoid arthritis, in addition to physical therapy, and used various pain medications, but Dilaudid proved to be the best when used in conjunction with treatment medications that would allow [the patient] sufficient relief to work and function in a reasonably normal life-style. The Respondent prescribed 4 mg. Dilaudid tablets to [the patient] to be taken in doses within the limits recommended by the Physician‘s Desk Reference (PDR) in that the overall quantity prescribed for him did not exceed the maximum limit recommended by the PDR. [The patient] also had other medical problems appropriately treated by the Respondent, such as subdeltoid bursitis, lateral ankylosing spondylitis, spondylolisthesis, Reiter‘s Syndrome, cervical spondylosis and diabetes.
The oral route of administration is effective for the treatment of moderate to severe pain. The usual oral dose is two milligrams every four to six hours as necessary. The dose must be individually adjusted according to severity of pain, patient response, and patient size. More severe pain may require three to four milligrams every four to six hours. If the pain increases in severity or relief is not adequate or a tolerance occurs, a gradual increase in dosage may be required. (At 1009).