Rogers v. Dept. of Health

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED.

CASE NO.: 1D04-1153

ANTHONY GLENN
ROGERS, M.D.,

Appellant,

DEPARTMENT OF HEALTH,

Appellee.
_______________________/

Opinion filed October 18, 2005.

An appeal from an order of the Department of Health.

Lisa Shearer Nelson, Holtzman Equels, Tallahassee, for Appellant.

Dana Baird, Assistant General Counsel, Department of Health, Bureau of Health
Care, Prosecution Services Unit, Tallahassee, for Appellee.

VAN NORTWICK, J.

Anthony Glenn Rogers, M.D., challenges a final order of the Department of Health,

Board of Medicine, which placed him on probation, imposed a fine, and ordered

attendance of certain courses. Because we find that the Department erroneously re-

weighed the evidence and rejected the factual findings of the Administrative Law

Judge (ALJ) when those findings were based on competent substantial evidence, we

affirm in part and reverse in part.

Dr. Rogers is a board certified anesthesiologist and pain management specialist,

who, in 1998, undertook the care of patient N.A. This patient suffered from chronic

pain resulting from a so-called “failed back syndrome” caused by injuries sustained

in several car accidents. This patient had been in the care of other pain management

specialists before presenting to Dr. Rogers, who was not a preferred provider under

the patient’s health maintenance organization (HMO). Prior to treating with Dr.

Rogers, the patient had undergone various invasive procedures and did not want any

more surgical or invasive treatments. Dr. Roger’s treatment, therefore, involved

solely drug treatment for management of pain. The medications prescribed by Dr.

Rogers included Oxycontin, Dilaudid, Fiorcet, Demerol, and MSIR (a morphine

compound), all in substantial dosages. After approximately two years of treatment

by Dr. Rogers, the patient’s HMO contacted the Department of Health, which then

conducted an investigation.

Following the Department’s investigation, Dr. Rogers was charged, by an

administrative complaint, with three violations. In count I, the Department charged

that Dr. Rogers failed to meet the applicable standard of care by failing to document

a complete history of N.A.’s complaints; failed to properly diagnose her condition;

failed to conduct a physical examination before increasing her dosages of medication;

failed to refer the patient to any specialists for evaluation; and/or failed to order any

diagnostic testing. In count II, Dr. Rogers was charged with failure to keep adequate

medical records by failing to document the patient’s complete history, her diagnosis,

physical examinations, referrals to specialists, or the results of any diagnostic testing.

Finally, in count III, Rogers was charged with improper prescribing in that he

allegedly prescribed, dispensed or administered narcotics without first conducting a

physical examination or evaluating N.A.’s medical history.

Following a formal administrative hearing, the ALJ issued a recommended

order which found that only one count (count II – failure to keep adequate medical

records) of the administrative complaint had been proved by the Department. The

ALJ recommended that counts I and III be dismissed.

In finding insufficient evidence to support count I, the ALJ made the following

findings in paragraph 34 of the recommended order:

34. There is no clear and convincing evidence to establish
the facts upon which the violation charged in Count One of
the Administrative Complaint is predicated. There is no
clear and convincing evidence that the Respondent failed to
document a complete history of Patient N.A.’s complaints.
Rather, the greater weight of the evidence is to the effect

that the patient history documented by the Respondent was
“sufficient and appropriate.” There is no clear and
convincing evidence that the Respondent failed to properly
diagnose Patient N.A.’s condition. Rather, the greater
weight of the evidence is to the effect that the Respondent’s
diagnosis was a “sufficient diagnosis.” There is no clear
and convincing evidence that the Respondent failed to
conduct a physical examination before increasing Patient
N.A. is [sic] narcotic prescriptions. There is no clear and
convincing evidence that the Respondent failed to refer the
Patient N.A. to any specialists. Quite to the contrary, the
Respondent discussed with the patient her visits to her
psychiatrist and also urged the patient on numerous
occasions to be seen by an orthopedic surgeon. There is no
clear and convincing evidence that it would have been
useful for the Patient N.A. to be evaluated by any other
specialists. Finally, there is no clear and convincing
evidence that the Respondent failed to order any diagnostic
tests or studies for Patient N.A. To the contrary, early in
his treatment of the Patient N.A. the Respondent concluded
that an MRI examination might be used and, when the
patient’s HMO would not agree to pay for an MRI, the
Respondent spent time and effort to find another way for
the patient to receive an MRI examination.

In finding insufficient evidence to support a violation as to count III, the

ALJ made the following findings in paragraphs 41 and 42 of the recommended

order:

41. The scope of the physician misconduct encompassed
by the language of Section 458.331(1)(q), Florida Statutes,
was discussed at length in the recommended order in
Department of Health, Board of Medicine v. Leland M.
Heller, M.D., DOAH Case No. 00-4747PL, 2001 WL
666972. There the [Heller] judge stated:

* * *

“The wrongdoing that Section 458.331(1)(q)
seeks to prevent, it bears repeating, is
“prescribing . . . a legend drug . . . other than
in the course of the physician’s professional
practice.” The underlined language is the
gravamen of the offense. To establish guilt,
the Department must prove that the accused
doctor was not practicing medicine when he
prescribed the drugs in question but instead
was engaged in an illicit (and probably often
times criminal) activity, . . .” [Heller decision
quoted at greater length in the recommended
order.]

42. The observations quoted immediately above are
equally applicable here. And for those same reasons, the
charge that the Respondent in this case has violated Section
458.331(1)(q), Florida Statutes, should be dismissed.

Because of the lack of sufficient evidence as to counts I and III and the few facts

supporting a violation of count II, the ALJ recommended that Rogers be fined only

in the amount of $1,000 and be required to attend a records-keeping course.

The Department filed numerous exceptions to the recommended order.

Thereafter, the Board of Medicine issued a final order which adopted the ALJ’s

findings of fact, but which also adopted the exceptions of the Department relating to

paragraphs 34, 41, and 42 of the recommended order. Given the adoption of these

exceptions, the Board found a sufficient basis to find violations of counts I and III of

the administrative complaint. The finding of a violation as to count II was sustained.

On appeal, Rogers argues that the Board erred in adopting the exceptions of the

Department relating to paragraphs 34, 41 and 42 of the recommended order, and, as

a result, the Board erred in finding that the Department adequately proved counts I and

III of the administrative complaint. We agree and reverse the final order of the Board

insofar as violations of counts I and III are found.

An agency may adopt the recommended order of the ALJ, or the agency may

reject or modify the findings of fact. § 120.57(1)(l), Fla. Stat. (2001). An agency may

not reject or modify findings of fact in a recommended order, however, unless the

agency states with particularity in its final order that the findings were not based upon

competent substantial evidence or that the proceedings on which the findings are

based did not comply with the essential requirements of law. Id.; Gross v. Dep’t of

Health, 819 So. 2d 997, 1000-01 (Fla. 5th DCA 2002). The agency is not permitted

to reweigh the evidence or judge the credibility of the witnesses. Aldrete v. Dep’t of

Health, Board of Medicine, 879 So. 2d 1244, 1246, (Fla. 1st DCA 2004). If there is

competent substantial evidence in the record to support the ALJ’s findings of fact, the

agency may not reject them, modify them, substitute its findings, or make new

findings. Pillsbury v. Dep’t of Health, 744 So. 2d 1040, 1041 (Fla. 2d DCA 1999);

Fonte v. Dep’t of Envtl. Regulation, 634 So. 2d 663 (Fla. 2d DCA 1994)(noting that

an agency may only reject a hearing officer’s findings of fact if it determines from a

review of the complete record that the findings were not based upon competent,

substantial evidence); Kinney v. Dep’t of State, Div. of Licensing, 501 So. 2d 129,

132 (Fla. 5th DCA 1987)(“Although an agency may reject or modify the conclusions

of law and interpretation of administrative rules of the hearing officer, it may not

reject or modify findings of fact where those findings of fact are based on competent

substantial evidence.”).

The ALJ in the case before us did not accept the testimony of the expert for the

Department as to the inadequacy of the physical examinations undertaken by Dr.

Rogers. While the Board did not rely on the Department’s expert in finding a

violation as to count I, the Board indicated that Rogers’ own testimony, and that of his

expert, Daniel Brookoff, M.D., was a sufficient basis to find a violation as to this

count. However, to read Dr. Rogers’ and Dr. Brookoff’s testimony as establishing

that the minimally required examinations were not given on certain dates is to engage

in a fact-finding exercise. The weighing of evidence is solely a matter for the ALJ.

Aldrete, 879 So. 2d at 1246. It is apparent from the final order that the Board, in

finding a violation as to count I, simply reweighed the evidence presented to the ALJ

and reached a different result. This was reversible error. See Gross; Aldrete.

Further, the Board erred in finding a violation of count III. In rejecting

paragraphs 41 and 42 of the recommended order and thereby finding a violation of

count III, the Board concludes in the final order:

15. The findings of fact outlined in paragraphs 12 through
20 of the recommended order, the mixed findings of fact
and law outlined in paragraph[s] 4 through 11, and the
conclusions of law outlined in paragraphs 13 and 14
support a finding that the Respondent did indeed prescribe,
dispense, administer, mixed, or otherwise prepared a legend
drug, including any controlled substance, other than in the
course of his professional practice as a physician.
Therefore, he
in violation of Section
found
is
458.331(1)(q), Florida Statutes, as charged in count 3 of the
administrative complaint.

(Italics added).

Section 458.331(1)(q) forbids the prescribing, dispensing, administering,

mixing or otherwise preparing a legend drug “other than in the course of the

physician’s professional practice.” The statute further provides that the “prescribing,

dispensing, administering, mixing or otherwise preparing legend drugs, including

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 . . . .” (Italics added). There is no finding by the ALJ that the

dosages prescribed for patient N.A. were inappropriate or excessive. The Department

argues on appeal that the prescriptions were inappropriate because they were not

preceded by focused medical examinations. Without affirming the Department’s

view of subsection (q) that inappropriate dispensing occurs when a prescription is

given without a physical examination, we find the Department’s argument to be

without evidentiary support. As noted previously, the ALJ did not find that Dr.

Rogers failed to undertake an appropriate examination before prescribing medication.

Such a finding was supplied by the Board when it rejected the ALJ’s findings and

conclusions regarding count I, and we have already found the Board’s action in

reweighing the evidence relating to count I to be reversible error. Accordingly, the

Board may not premise a violation of count III on its erroneous ruling as to count I.

Dr. Rogers also argues on appeal that the Board erred in increasing the penalty

recommended by the ALJ. Because we find that the Board erred in finding a violation

as to counts I and III, the penalty imposed by the Board is reversed in its entirety. As

was the case in Aldrete, the Board is not precluded on remand from imposing the same

or similar discipline as before with respect to count II, so long it is within the statutory

range. On remand, should the Board impose its “Standard Terms” upon Rogers, it

shall justify such terms by reference to a promulgated rule or other appropriate

authority.

Accordingly, the final order of the Board of Medicine is affirmed in part,

reversed in part, and remanded for further proceedings consistent with this opinion.

POLSTON AND THOMAS, JJ., CONCUR.