Final Order No. DOH-18-2156- -MQA...STATE OF FLORIDA BOARD OF MEDICINE By: 2018 De F D LATE- I ,ir"...

STATE OF FLORIDA BOARD OF MEDICINE

By:

2018 De

F D LATE- I ,ir" artment of

If I Deputy Agency Clerk DEPARTMENT OF HEALTH,

Final Order No. DOH-18-2156- -MQA

Petitioner,

vs. DOH CASE NO.: 2009-23088

2010-02186 2010-04931 2011-07030

LICENSE NO.: ME0060344

FRED ALLAN LIEBOWITZ, M.D.,

Respondent.

FINAL ORDER

THIS CAUSE came before the BOARD OF MEDICINE (Board)

pursuant to Sections 120.569 and 120.57(4), Florida Statutes, on

December 7, 2018, in Orlando, Florida, for the purpose of

considering a Settlement Agreement (attached hereto as Exhibit

A) entered into between the parties in this cause. Upon

consideration of the Settlement Agreement, the documents

submitted in support thereof, the arguments of the parties, and

being otherwise fully advised in the premises,

IT IS HEREBY ORDERED AND ADJUDGED that the Settlement

Agreement as submitted be and is hereby approved and adopted in

toto and incorporated herein by reference.

Accordingly, the parties shall adhere to and abide by all

the terms and conditions of the Settlement Agreement.

This Final Order shall take effect upon being filed with

the Clerk of the Department of Health.

DONE AND ORDERED this

Claudia Kemp,

I V94-- day of

2018.

BOARD OF MEDICINE

J.D. xecutive Director For Jorge J. Lopez, M.D., Chair

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the

foregoing Final Order has been provided by U.S. Mail to FRED

ALLAN LIEBOWITZ, M.D., 6150 Diamond Centre Court, Suite 700-1,

Fort Myers, Florida 33912; to William E. Whitney, Esquire,

Dunlap & Ship, P.A., 60 Clayton Lane, Suite A, Santa Rosa Beach,

Florida 32459; by email to Allison Dudley, Assistant General

Counsel, Department of Health, at [email protected];

and by email to Edward A. Tellechea, Chief Assistant Akrney

General, at [email protected] this 0 day of

, 2018.

Deputy Agency Clerk

40175

STATE OF FLORIDA DEPARTMENT OF HEALTH

DEPARTMENT OF HEALTH,

Petitioner,

v. DOH Case Nos. 2009-23088 2010-02186 2010-04931 2011-07030

FRED A. LIEBOWITZ,

Respondent I

SETTLEMENT AGREEMENT

Fred A. Liebowitz, M.D., referred to as the "Respondent," and the Department of

Health, referred to as "Department," stipulate and agree to the following Agreement and

to the entry of a Final Order of the Board of Medicine, referred to as "Board,"

incorporating the Stipulated Facts and Stipulated Disposition in this matter.

Petitioner is the state agency charged with regulating the practice of medicine

pursuant to Section 20.43, Florida Statutes, and Chapter 456, Florida Statutes, and

Chapter 458, Florida Statutes.

STIPULATED FACTS

1. At all times material hereto, Respondent was a licensed physician in the

State of Florida having been issued license number ME 60344.

2. The Department charged Respondent with an Administrative Complaint that

was filed and properly served upon Respondent alleging violations of Chapter 458, Florida

DOH v. Llebowitz, M.D. Case Nos. 2009-23088, 2010-02186, 2010-04931, and 2011-07030

Page 1 of 9

40176

Statutes, and the rules adopted pursuant thereto. A true and correct copy of the

Administrative Complaint is attached hereto as Exhibit A.

3. For purposes of these proceedings, Respondent neither admits nor denies

the allegations of fact contained in the Administrative Complaint.

STIPULATED CONCLUSIONS OF LAW

1. Respondent admits that, in his/her capacity as a licensed physician, he/she

is subject to the provisions of Chapters 456 and 458, Florida Statutes, and the jurisdiction

of the Department and the Board.

2. Respondent admits that the facts alleged in the Administrative Complaint,

if proven, would constitute violations of Chapter 458, Florida Statutes.

3. Respondent agrees that the Stipulated Disposition in this case is fair,

appropriate and acceptable to Respondent.

STIPULATED DISPOSITION

1. Reprimand - The Board shall issue a Reprimand against Respondent's

license.

2. Fine - The Board shall impose an administrative fine of Thirty Thousand

Dollars and Zero Cents ($30,000.00) against Respondent's license which Respondent

shall pay to: Payments, Department of Health, Compliance Management Unit, Bin C-76,

P.O. Box 6320, Tallahassee, FL 32314-6320, within one hundred and eighty (180) days

from the date of filing of the Final Order accepting this Agreement ("Final Order"). All

fines shall be paid by cashier's check or money order. Any change in the terms of

DOH v. Liebowttz, M.D. Case Nos. 2009-23088, 2010-02186, 2010-04931, and 2011-07030

Page 2 of 9

40177

payment of any fine imposed by the Board must be approved in advance by the

Probation Committee of the Board.

RESPONDENT ACKNOWLEDGES THAT THE TIMELY PAYMENT OF THE

FINE IS HIS/HER LEGAL OBLIGATION AND RESPONSIBILITY AND

RESPONDENT AGREES TO CEASE PRACTICING IF THE FINE IS NOT PAID AS

AGREED IN THIS SETTLEMENT AGREEMENT. SPECIFICALLY, IF RESPONDENT

HAS NOT RECEIVED WRITTEN CONFIRMATION WITHIN 222 DAYS OF THE

DATE OF FILING OF THE FINAL ORDER THAT THE FULL AMOUNT OF THE FINE

HAS BEEN RECEIVED BY THE BOARD OFFICE, RESPONDENT AGREES TO CEASE

PRACTICE UNTIL RESPONDENT RECEIVES SUCH WRITTEN CONFIRMATION

FROM THE BOARD.

3. Reimbursement of Costs - Pursuant to Section 456.072, Florida Statutes,

Respondent agrees to pay the Department for the Department's costs incurred in the

investigation and prosecution of this case ("Department costs"). Such costs exclude the

costs of obtaining supervision or monitoring of the practice, the cost of quality assurance

reviews, any other costs Respondent incurs to comply with the Final Order, and the

Board's administrative costs directly associated with Respondent's probation, if any.

Respondent agrees that the amount of Department costs to be paid in this case is Thirty-

Eight Thousand Nine Hundred Twenty-Eight Dollars and Thirty-Five Cents

($38,928.35). Respondent will pay such Department costs to: Payments, Department

of Health, Compliance Management Unit, Bin C-76, P.O. Box 6320, Tallahassee, FL

32314-6320, within one hundred and eighty (180) days from the date of filing of the Final

DOH v. Liebowit, M.D. Case Nos. 2009-23088, 2010-02186, 2010-04931, and 2011-07030

Page 3 of 9

40178

Order. All costs shall be paid by cashier's check or money order. Any change in

the terms of payment of costs imposed by the Board must be approved in advance

by the Probation Committee of the Board.

RESPONDENT ACKNOWLEDGES THAT THE TIMELY PAYMENT OF THE

COSTS IS HIS/HER LEGAL OBLIGATION AND RESPONSIBILITY AND

RESPONDENT AGREES TO CEASE PRACTICING IF THE COSTS ARE NOT PAID

AS AGREED IN THIS SETTLEMENT AGREEMENT. SPECIFICALLY, IF

RESPONDENT HAS NOT RECEIVED WRITTEN CONFIRMATION WITHIN 225,

DAYS OF THE DATE OF FILING OF THE FINAL ORDER THAT THE FULL AMOUNT

OF THE COSTS NOTED ABOVE HAS BEEN RECEIVED BY THE BOARD OFFICE,

RESPONDENT AGREES TO CEASE PRACTICE UNTIL RESPONDENT RECEIVES

SUCH WRITTEN CONFIRMATION FROM THE BOARD.

5. Drug Course - Respondent shall document completion of a Board-

approved drug prescribing course within one (1) year from the date the Final Order is

filed.

6. Records Course — Respondent shall document completion of a Board-

approved medical records course within one (1) year from the date the Final Order is

filed.

7. physician Assessment - Within nine (9) months of entry of the Final

Order in this matter, Respondent shall undergo an evaluation by Florida CARES, or a

board-approved equivalent evaluator, and personally appear before the Board (Probation

Committee) with said evaluation and the evaluator's recommendations. If the evaluator

DOH v. Liebowitz, M.D. Case Nos. 2009-23088, 2010-02186, 2010-04931, and 2011-07030

Page 4 of 9

40179

recommends that Respondent undergo further evaluation for an impairment issue, such

evaluation must be done under the auspices of the Professionals Resource Network

(PRN). Upon review of the evaluation, the Board shall set forth terms of remediation and

may impose additional terms and conditions on Respondent's practice such as a

restriction or period of probation with terms and conditions to be set forth at such time.

8. Restriction Lanauage - Temporary Restriction on Prescribing/Ordering

Schedule I through V Controlled Substances - Respondent is restricted from prescribing,

ordering, and/or delegating the prescribing or ordering of, any substances listed in

Schedules I-V, as defined in Section 893.03, Florida Statutes (2018), and may from time-

to-time be redefined in Florida Statutes and/or the Florida Administrative Code, until he

personally appears before the Board with the evaluation and evaluator's

recommendations as referenced in Paragraph 7 of this agreement. Respondent further

agrees, and expressly acknowledges, that upon his appearance before the Board, the

Board will be able to impose additional restrictions and/or conditions on his ability to

practice and prescribe controlled substances pursuant to the evaluation and evaluator's

recommendations referenced in Paragraph 7 of this agreement.

STANDARD PROVISIONS

1. Appearance - Respondent is required to appear before the Board at the

meeting of the Board where this Agreement is considered.

2. No Force or Effect until Final Order - It is expressly understood that

this Agreement is subject to the approval of the Board and the Department. In this

regard, the foregoing paragraphs (and only the foregoing paragraphs) shall have no force


Page 5 of 9

40180

and effect unless the Board enters a Final Order incorporating the terms of this

Agreement.

3. Continuing Medical Education - Unless otherwise provided in this

Agreement Respondent shall first submit a written request to the Probation Committee

for approval prior to performance of said CME course(s). Respondent shall submit

documentation to the Board's Probation Committee of having completed a CME course in

the form of certified copies of the receipts, vouchers, certificates, or other papers, such

as physician's recognition awards, documenting completion of this medical course within

one (1) year of the filing of the Final Order in this matter. All such documentation shall

be sent to the Board's Probation Committee, regardless of whether some or any of such

documentation was provided previously during the course of any audit or discussion with

counsel for the Department. CME hours required by this Agreement shall be in addition

to those hours required for renewal of licensure. Unless otherwise approved by the

Board's Probation Committee, such CME course(s) shall consist of a formal, live lecture

format.

4. Addresses - Respondent must provide current residence and practice

addresses to the Board. Respondent shall notify the Board in writing within ten (10) days

of any changes of said addresses

5. Future Conduct - In the future, Respondent shall not violate Chapter 456,

458 or 893, Florida Statutes, or the rules promulgated pursuant thereto, or any other

state or federal law, rule, or regulation relating to the practice or the ability to practice

medicine to include, but not limited to, all statutory requirements related to practitioner


Page 6 of 9

40181

profile and licensure renewal updates. Prior to signing this agreement, the Respondent

shall read Chapters 456, 458 and 893 and the Rules of the Board of Medicine, at Chapter

64B8, Florida Administrative Code.

6. Violation of Terms - It is expressly understood that a violation of the

terms of this Agreement shall be considered a violation of a Final Order of the Board, for

which disciplinary action may be initiated pursuant to Chapters 456 and 458, Florida

Statutes.

7. Purpose of Agreement - Respondent, for the purpose of avoiding further

administrative action with respect to this cause, executes this Agreement. In this regard,

Respondent authorizes the Board to review and examine all investigative file materials

concerning Respondent prior to or in conjunction with consideration of the Agreement.

Respondent agrees to support this Agreement at the time it is presented to the Board

and shall offer no evidence, testimony or argument that disputes or contravenes any

stipulated fact or conclusion of law. Furthermore, should this Agreement not be accepted

by the Board, it is agreed that presentation to and consideration of this Agreement and

other documents and matters by the Board shall not unfairly or illegally prejudice the

Board or any of its members from further participation, consideration or resolution of

these proceedings.

8. No Preclusion of Additional Proceedings - Respondent and the

Department fully understand that this Agreement and subsequent Final Order will in no

way preclude additional proceedings by the Board and/or the Department against


Page 7 of 9

40182

Respondent for acts or omissions not specifically set forth in the Administrative Complaint

attached as Exhibit A.

9. Waiver of Attorney's Fees and Costs - Upon the Board's adoption of

this Agreement, the parties hereby agree that with the exception of Department costs

noted above, the parties will bear their own attorney's fees and costs resulting from

prosecution or defense of this matter. Respondent waives the right to seek any attorney's

fees or costs from the Department and the Board in connection with this matter.

10. Waiver of Further Procedural Steps - Upon the Board's adoption of this

Agreement, Respondent expressly waives all further procedural steps and expressly

waives all rights to seek judicial review of or to otherwise challenge or contest the validity

of the Agreement and the Final Order of the Board incorporating said Agreement.

[SIGNATURE BLOCK APPEARS ON FOLLOWING PAGE]

DOH v. Uebowitz, M.D. Case Nos. 2009-23088, 2010-02186, 2010-04931, and 2011-07030

Page 8 of 9

40183

SIGNED this 0 day of fiftemier , 2018 .

Fred A Lebowitz, M.D.

STATE OF FLORIDA

COUNTY OF L

BEFORE ME rsonally appeared Fred A. Liebowitz, whose identity is known to

me or who produced ver L. arise- (type of identification) and who,

under oath, acknowledges that his/her signature appears above.

itArl SWORN TO and subscribed before me this f I day of

2011. eAs ' " Allwahrilrollmaamdlim/

MARLENYN GARCIA e A Notary Public - State of Florida - Commission * FF 967921

may `os My Comm. Expires Mar 6, 2020

NOTARY PUBLIC

My Commission Expires: RP I

APPROVED this 11 day of ce.eu..\\er , 201 .

Celeste Philip, MD, MPH Surgeon General and Secretary

By: Assistant General Counsel Department of Health

DOH v. liebowItz, M.D. Case Nos. 2009-23088, 2010-02186, 2010-04931, and 2011-07030

Page 9 of 9

It,



PETITIONER,

FILED DEPARTMENT OF HEALTH

DEPUTY CLERK

DATE EERK

JULAmber G ne

2 5 -2018

v. CASE NO. 2009-23088


RESPONDENT.

CORRECTED AMENDED ADMINISTRATIVE COMPLAINT

COMES NOW, Petitioner, Department of Health, by and through its

undersigned counsel, and files this Corrected Amended Administrative

Complaint before the Board of Medicine against Respondent, Fred Allan

Liebowitz, M.D., and in support thereof alleges:

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.

2. At all times material to this Complaint, Respondent was a

licensed physician within the State of Florida, having been issued license

number ME 60344.

12944

2945

3. Respondent's address of record is 6150 Diamond Centre Court,

Suite 700-1, Fort Myers, Florida 33912-4365.

4. At all times material hereto, between December 13, 2007, and

February 12, 2010, Respondent, while practicing medicine in the State of

Florida, treated three (3) patients for chronic pain management. These

patients are referred to by their initials JB, RD, and CH.

FACTS SPECIFIC TO PATIENT 3B

5. Patient JB first presented to Respondent on or about December

13, 2007.

6. Patient JB had a history of chronic neck, lower back, and lumbar

radicular pain. Patient JB reported that his pain began after being involved

in a motor vehicle accident on or about January 16, 2007.

7. A previous cervical MRI for patient JB was unremarkable except

for a minimal disc protrusion at C5-6.

8. Patient JB's lumbar MRI was also unremarkable except for a mild

L4-5 and L5-S1 disk bulge.

Page 2 of 33 DOH v. Fred Allan LlebowItz, MD DOH Case Number 2009-23088

12946

9. Upon his initial visit to Respondent, patient JB reported that he

had been prescribed OxyContinl, oxycodone2, alprazolam3, and Some, by a

prior treating physician, Dr. D.

10. The Respondent did not review and/or failed to document

reviewing Responnt's prior medical records from Dr. D, pharmacy records,

or any other prescription documentation confirming that the patient was

indeed prescribed these medications.

OxyContin is the extended release formulation of oxycodone. 2 Oxycodone is commonly prescribed to treat pain. According to section 893.03(2), Florida Statutes, oxycodone 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. Abuse of oxycodone may lead to severe psychological or physical dependence. A brand name for oxycodone is Roxicodone. 3 Alprazolam is prescribed to treat anxiety. Alprazolam is a benzodiazepine. According to section 893.03(4), Florida Statutes, aiprazolam 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. Abuse of alprazolam may lead to limited physical or psychological dependence relative to the substances in Schedule III. A brand name for aiprazolam is Xanax. 4 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. Abuse of carisoprodol may lead to limited physical or psychological dependence relative to the substances in Schedule III.

Page 3 of 33 DOH v, Fred Allan Liebowitz, MD DOH Case Number 2009-23088

12947

11. Respondent failed to obtain a thorough and complete history

from patient JB.

12. From on or about December 13, 2007, through on or about

August 8, 2008, Respondent provided care and treatment to patient JB.

13. During the treatment period of on or about December 13, 2007

through on or about August 8, 2008, Respondent prescribed patient JB

OxyContin, Soma, and oxycodone in various quantities, strengths, and

combinations.

14. On or about March 17, 2008, patient JB called Respondent's

office stating that his medications had been stolen from his hotel room.

When JB was Informed that his medications would not be re-issued without

a police report, JB, said that he would find a new doctor and the medical

chart notes would be requested. JB then hung up.

15. No police report related to the March 17, 2008 incident was

contained in the Respondent's medical. records.

16. There is no progress note for an office visit during the month of

May 2008. However, Respondent's master medication list indicates that on

or about May 16, 2008, Respondent began prescribing patient JB alprazolam.

Page 4 of 33 DOH v. Fred Allan Liebowitz, MD DOH Case Number 2009-23088

948

17. Respondent's medical records for patient JB poorly support a

diagnosis of anxiety and fail to justify the course of treatment.

18. On or about August 8, 2008, Respondent performed a bilateral

L5-S1 transforaminal lumbar epidural steroid injection on patient JB, and on

that same day JB submitted to a urine drug screen.

19. The results of patient JB's urine drug screen from on or about

August 8, 2008, were positive for methadone5, a controlled substance which

Respondent had not prescribed to JB.


August 8, 2008, Respondent failed to adequately document and/or support

the medical necessity of prescribing large quantities, doses, and types of

controlled substances to patient JB.

21. After on or about August 8, 2008, Respondent did not provide

care or treatment or alternatively failed to document providing care or

treatment to patient JB until on or about December 12, 2008.

5 Methadone is prescribed to treat pain. According to section 893.03(2), Florida Statutes, methadone 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. Abuse of methadone may lead to severe psychological or physical dependence.

Page 5 of 33 DOH v. Fred Allan liebowItz, MD DOH Case Number 2009-23088

22. Respondent failed to document any concern for patient JB's

absence from his practice during this time.

23. On or about October 1, 2008, Respondent's office received a fax

from the Lee County Jail requesting patient JB's medical records.

24. Respondent failed to document any concern or explanation for

patient JB's apparent incarceration.

25. Respondent resumed care and treatment of patient JB on or

about December 12, 2008, and continued providing care and treatment. to

JB through on or about August 25, 2009.

26. Upon resuming care and treatment of patient JB, Respondent

failed to discuss JB's apparent incarceration and/or failed to document such

discussion.

27. During the treatment period of on or about December 12, 2008,

through on or about August 25, 2009, Respondent prescribed patient JB,

aiprazolam, Soma, methadone, and oxycodone in varying quantities,

strengths, and combinations.

28. On or about January 19, 2009, JB submitted to a urine drug

screen. The results were negative for oxycodone, despite having been

Page 6 of 33 DOH v. Fred Man Liebowitz, MD DOH Case Number 2009-23088

2949

2950

prescribed this medication on or about December 12, 2008, and positive for

Propoxyphene6, a controlled substance which Respondent had not

prescribed to patient JB.

29. Respondent noted that JB reported that he last took his

medications three days prior to the January 19, 2009 urine drug screen.

30. Respondent did not discuss and/or failed to document discussion

of the results of the January 19, 2009, urine drug screen with patient JB.


August 25, 2009, Respondent failed to adequately document and/or support

the medical necessity of prescribing large quantities, doses, and types of


32. During the entirety of Respondent's treatment of patient JB,

Respondent prescribed excessive and/or inappropriate quantities or doses of

controlled substances.

6 Propoxyphene is prescribed to treat pain. It is an active ingredient In the drug Darvocet. According to section 893.03(4), Florida Statutes, propoxyphene 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. Abuse of propoxyphene may lead to limited physical or psychological dependence relative to the substances in Schedule III.

Page 7 of 33 DOH v. Fred Allan liebowitz, MD DOH Case Number 2009-23088

2951

33. During the entirety of Respondent's care . and treatment of

patient JB, Respondent failed to consider and/or failed to document

. consideration of use of other medications to reduce JB's reliance upon

opiates.

34. At all times material to this complaint, the prevailing standard of

care required that a physician treating patients, such as patient JB:

a. obtain a thorough and complete history from patient JB;

b. review medical records from JB's prior treating physician(s);

c. review JB's prior pharmacy records and/or any other

prescription documentation prior to prescribing JB large

doses, quantities, and types of controlled substances;

d. address the results of JB's urine drug screen dated on or about

January 19, 2009 with patient JB; and/or

e. consider use of other medications in his care and treatment

of patient JB.

FACTS SPECIFIC TO PATIENT RD

35. Patient RD presented to Respondent on or about, January 29,

2008.


952

36. Respondent provided care and treatment to patient RD from his

initial visit on or about January 29, 2008, through on or about February 12,

2010.

37. Notwithstanding, Respondent did not provide care or treatment

or alternatively, failed to document providing care or treatment to RD during

the month of June 2009.

38. Patient RD's history was significant for a twelve (12) year history

of chronic right shoulder pain and chronic lower back pain.

39. At the time of his initial visit to Respondent, Patient RD reported

that he was currently taking Roxicodone, OxyContin, Percocet8, and

Vicodin9.

7 Roxicodone is a brand name for the drug oxycodone. 8 Percocet is the brand name for a drug that contains oxycodone and is prescribed to treat pain. According to section 893.03(2), Florida Statutes, oxycodone 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. Abuse of oxycodone may lead to severe psychological or physical dependence. 9Vicodin is a brand name for the drug hydrocodone, which is commonly prescribed to treat pain. 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. Abuse of hydrocodone may lead to severe psychological or physical dependence.


2953

40. A urine drug screen was performed on or about January 29,

2008, and the results were positive for cocaine and marijuana, but negative

for oxycodone.

41. From on or about January 29, 2008, through on or about

February 12, 2010, Respondent prescribed patient RD oxycodone,

OxyContin, diazepam, Soma, Celebrex, and Naprosynl° in varying quantities,

strengths, and combinations.

42. Other than x-rays, Respondent failed to review and/or failed to

document review of RD's medical records from previous treating physicians,

prior to prescribing patient RD large doses and quantities of controlled

substances.

43. X-rays taken on February 6, 2008, of the lumbar spine, showed

anterior spondylitic changes, and marginal deformity of the T12 and 1..1

vertebral bodies. X-rays of the cervical spine were unremarkable.

Naprosyn (naproxen) is a nonsteroidal anti-inflammatory drug (NSAID). Naproxen works by reducing hormones that cause inflammation and pain in the body. Naprosyn is used to treat pain or inflammation caused by conditions such as rheumatoid arthritis, osteoarthritis, ankylosing spondylitis, tendinitis, bursitis, gout, or menstrual cramps.

Page 10 of 33 DOH v. Fred Man Uebowitz MD DOH Case Number 2009-23088

954

44. Respondent failed to obtain additional radiological studies of the

lumbar spine, such as a CT or MRI scan.

45. Patient RD's urine drug screen, performed on or about January

5, 2009 was positive for marijuana.

46. Respondent failed to discuss and/or failed to document

discussing the results of the January 5, 2009, urine drug screen with patient

RD.

47. On or about July 2, 2009, RD presented to Respondent, after

having been absent from Respondent's practice for the month of June 2009.

48. Respondent, failed to document how RD managed without his

monthly medications during June.

49. Patient RD's urine drug screen, performed on or about July 31,

2009, was positive for marijuana.

50. On or about January 15, 2010, patient RD executed a

Patient/Physician Contract for Narcotic/Medication Use, which induded a

prohibition on using marijuana.

Page 11 of 33 DOH v. Fred Allan Liebowilz, MD DOH Case Number 2009-23088

42955

51. On or about the same day that RD executed the

Patient/Physician Contract for Narcotic/Medication Use, a urine drug screen

was performed, and the results were positive for marijuana.

52. Respondent failed to discuss and/or failed to document

discussing the results of the January 15, 2010, urine drug screen with patient

RD.

53. Respondent failed to refer and/or failed to document referral of

patient RD to an addiction medicine physician.

54. During the treatment period of on or about January 29, 2008,

through on or about February 12, 2010, Respondent failed to adequately

document and/or support the medical necessity of prescribing large doses,

quantities and types, of controlled substances to patient RD.

55. During the treatment period of on or about January 29, 2008,

through on or about February 12, 2010, Respondent prescribed patient RD

excessive and/or inappropriate quantities or doses of controlled substances.


care required that a physician treating patients, such as patient RD:

Page 12 of 33 DOH v. Fred Man Liebowitz, MD DOH Case Number 2009-23088

a. review medical records from patient RD's previous medical

providers;

b. order additional radiological studies;

c. not prescribe patient RD large doses and quantities of

controlled substances when patient RD's urine drug screens

were negative for the prescribed medication of oxycodone

and positive for cocaine and marijuana; and/or

d. to refer patient RD to an addiction medicine physician.

FACTS SPECIFIC TO PATIENT CH

57. Patient CH first presented to Respondent on or about December

24, 2008, with complaints of lower back pain.

58. Respondent provided care and treatment to patient CH from on

or about December 24, 2008, through on or about February 8, 2010. CH was

documented as having not shown up for his February 8, 2010 appointment,

therefore, his last clinical visit to Respondent was on or about January 25,

2010.

59. Patient CH had a documented history consistent with tobacco

and marijuana use.

Page 13 of 33 DOH v. Fred Allan LiebowItz, MD DOH Case Number 2009-23088

957

60. Patient CH's history was significant for a two level ltimbar

laminectomy complicated by MRSA and sepsis, and a ten (10) plus year

history of continued and chronic back and lower extremity pain.

61. Patient CH was not referred by another medical provider. Rather,

patient CH reported that he was referred to Respondent by his mother and

the phone book.

62. Patient CH was documented as being a self-paying/cash patient.

63. Upon patient CH's initial visit, CH reported that he was currently

taking Roxicodone, OxyContln, and Percocet.

64. Although CH reported that he was currently taking oxycodone

and Percocet, there was no medical documentation to support whether CH

had ever been prescribed these medications.

65. Respondent did not conduct a pill count or contact CH's

pharmacy and/or failed to document doing so.

66. On the same date as CH's initial visit to Respondent, a urine drug

screen was performed and was positive for oxycodone.

67. Respondent failed to obtain and review patient CH's past medical

records, and/or failed to document doing so.


X2958

68. Respondent failed to communicate with any of CH's other

treating physicians, and/or failed to document any such communication.

69. The Respondent's medical records for patient CH contained a

single arrest record from on or about August 3, 2005, for possession of less

than twenty (20) grams of marijuana and DUI.

70. The Respondent failed to discuss patient CH's criminal history

with CH and/or failed to document such discussion.

71. The Respondent diagnosed patient CH with lumbar degenerative

disc disease, post laminectomy pain syndrome, lumbago and radiculopathy.


January 25, 2010, Respondent prescribed patient CH diazepam and

oxycodone, in varying quantities.

73. Respondent ordered a lumbar x-ray for patient CH, which was

performed on or about January 6, 2009. The results documented mild lumbar

degenerative changes.

74. Respondent failed to obtain additional radiological studies such

as a lumbar MRI or CT scan.

Page 15 of 33 DOH v. Fred Allan Uebowitz, MD DOH Case Number 2009-23088

2959

75. Patient CH signed a Patient/Physician Contract for

Narcotic/Medication Use on or about May 28, 2009.

76. On or about June 25, 2009, patient CH's urine drug screen was

positive for marijuana and negative for benzodiazepines11, despite having

been prescribed diazepam on or about May 27, 2009.

77. Respondent failed to discuss with patient CH and/or failed to

document discussing the June 25, 2009, urine drug screen results which

revealed use of an illicit drug and the absence of the prescribed drug

diazepam.

78. On or about December 3, 2009, a. urine drug screen was

performed and returned positive for marijuana.

79. Respondent failed to discuss with patient CH and/or failed to

document discussing the December 3, 2009, urine drug screen results which

revealed use of an illicit drug.

11 Benzodiazepines are a class of drugs that cause sedation and can be habit forming. Benzodiazepines are typically prescribed to treat anxiety or insomnia. Diazepam is a benzodiazepine.


960

80. Respondent failed to and/or failed to document referring patient

CH to a chiropractor, massage therapist, physical therapist, or other ancillary

medical professional.

81. Respondent failed to refer and/or failed to document referring

patient CH back to his orthopedic spine or neurosurgeon for additional

consultation.

82. Respondent failed to consider and/or failed to document

consideration of alternative treatment methods such as a long acting opiate

or other non-controlled substances.


through January 25, 2010, Respondent failed to adequately document

and/or support the medical necessity of prescribing large quantities, types,

and doses of controlled substances to patient RD.


through January 25, 2010, Respondent prescribed patient RD excessive

and/or inappropriate quantities or doses of controlled substances.


care required that a physician treating patients, such as patient CH:


42961

a. acknowledge and discuss patient CH's criminal history;

b. obtain and review CH's past medical records;

c. communicate with CH's other treating physicians;

d. conduct a pill count and/or contact CH's pharmacy prior to

prescribing controlled substances to CH;

e. not to assume CH's medication management with no factual

basis to support Respondent's choice, quantity, and dose of

controlled substance(s);

f. order a lumbar MRI or CT scan for patient CH;

g. discuss the results of CH's urine drug screen dated on or about

June 25, 2009, with patient CH;

h. refer CH to other ancillary medical professionals;

i. refer CH to an orthopedic spine or neurosurgeon for additional

consultation; and/or

j. consider alternative treatment methods.

SECTION 458.331(1)(t)

86. Section 458.331(1)(t), Florida Statutes (2007-2009), subjects a

licensee to discipline for committing medical malpractice as defined in section

Page 18 of 33 DOH v. Fred Allan Liebowilz, MD DOH Case Number 2009-23088

962

456.50(1)(g), Florida Statutes. Section 456.50(1)(g), Florida Statutes (2007-

2009), states that medical malpractice means the failure to practice medicine

in accordance with the level of care, skill, and treatment recognized in

general law related to health care licensure. Section 766.102, Florida

Statutes (2007-2009), provides that the prevailing standard of care for a

given healthcare provider shall be that level of care, skill, and treatment,

which in light of all relevant surrounding circumstances, is recognized as

acceptable and appropriate by reasonably prudent similar health care

providers.

SECTION 458.331(1)(m)

87. Section 458.331(1)(m), Florida Statutes (2007-2009), 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 license

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; screen results; records of drugs

Page 19 of 33 DOH v. Fred Allan Llebowitz, MD DOH Case Number 2009-23088

2963

prescribed, dispensed, or administered; and reports of consultations and

hospitalizations.

88. Rule 64B8-9.003(d)(3), Florida Administrative Code (2007-

2009), provides that medical records shall contain sufficient information to

identify the patient, support the diagnosis, justify the treatment and

document the course and results of treatment accurately, by including, at a

minimum, patient histories; examination results; screen results; records of

drugs prescribed, dispensed or administered; reports of consultations and

hospitalizations; and copies of records or reports or other documentation

obtained from other health care practitioners at the request of the physidan

and relied upon by the physidan in determining the appropriate treatment

of the patient.

SECTION 458.331(1)(q)

89. Section 458.331(1)(q), Florida Statutes (2007-2009), provides as

follows: 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 is grounds for disdpline

by the Board of Medicine. For purposed of this paragraph, it shall be legally


42964

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.

COUNT I

90. Petitioner reincorporates and re-alleges paragraphs one (1)

through eighty-six (86) as if fully set forth herein.

91. Respondent failed 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 in the

treatment of patient JB in one or more of the following ways:

a. By failing to obtain a thorough and complete history from

patient JB;

b. By failing to review medical records from JB's prior treating

physician(s);


965

c. By failing to review JB's prior pharmacy records and/or any

other prescription documentation prior to prescribing JB large

doses, quantities, and types of controlled substances;

d. By failing to address the results of JB's urine drug screen

dated on or about January 19, 2009 with patient JB; and/or

e. By failing to consider use of other medications in his care and

treatment of patient JB.

92. Based on the foregoing, Respondent violated section

458.331(1)(t), Florida Statutes (2007-2009), by committing medical

malpractice.

COUNT II

93., Petitioner reincorporates and re-alleges paragraphs one (1)

through eighty-five (85) and paragraphs eighty-seven (87) through eighty-

eight (88) as if fully set forth herein.

94. Respondent failed to maintain records that justified the court

course of treatment for patient JB in one of more of the following ways:

a. By failing to adequately document a thorough and complete

history for patient JB;

Page 22 of 33 DOH v. Fred Allan Liebowftz, MD DOH Case Number 2009-23088

966

b. By failing to adequately document review of JB's medical

records from prior treating physicians;

c. By failing to adequately document review of JB's prior

pharmacy records and/or any other prescription

documentation;

d. By failing to keep medical records that adequately justify the

course of treatment for patient JB;

e. By failing to adequately document any concern for patient JB

during periods of time when JB was absent from Respondent's

care;

f. By failing to adequately document discussion of JB's urine

drug screen results from on or about January 19, 2009;

g. By failing to adequately document any concern or explanation

for JB's apparent incarceration;

h. By failing to adequately document consideration of other

medications to reduce JB's reliance upon chronic opiates;

and/or

Page 23 of 33 DOH v. Fred Allan Lleboviltz, MD DOH Case Number 2009-23088

2967

i. By failing to adequately document and/or support the medical

necessity for prescribing large doses, quantities and types of


95. Based on the foregoing, Respondent has violated Section

458.331(1)(m), Florida Statutes (2007-2009).

COUNT III


through eighty-five (85) and paragraph eighty-nine (89) as if fully set forth

herein.

97. Respondent prescribed, dispensed, and/or administered a legend

drug, including any controlled substance, other than in the course of the

physician's professional practice in one or more of the following ways:

a. By inappropriately prescribing the controlled substances

oxycodone, Oxycontin, aiprazolam, methadone, and Soma to

patient JB; and/or

b. By excessively prescribing the controlled substances

oxycodone, Oxycontin, aiprazolam, methadone, and Soma to

patient B.


2968


458.331(1)(q), Florida Statutes (2007-2009).

COUNT N



100. Respondent failed 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 in the

treatment of patient RD in one or more of the following ways:

a. By failing to review medical records from patient RD's previous

medical providers;

b. By failing to order additional radiological studies;

c. By prescribing patient RD large doses and quantities of

controlled substances when patient RD's urine drug screens

were negative for the prescribed medication of oxycodone

and positive for cocaine and marijuana; and/or

d. By failing to refer patient RD to an addiction medicine

physician.

Page 25 of 33 DOH v. Fred Allan Llebovittz, MD DOH Case Number 2009-23088

2969



malpractice.

COUNT V


through eighty-five (85) and paragraphs eighty-seven (87) through eighty-

eight (88) as if fully set forth herein.


course of treatment for patient RD in one of more of the following ways:

a. By failing to adequately document review of RD's medical

records from prior treating physicians;

b. By failing to adequately document referring patient RD to an

addiction medicine physician;

c. By failing to adequately document providing care and

treatment to RD during the month of June 2009;

d. By failing to adequately document how RD managed without

his monthly prescribed medications during the month of June

2009;

Page 26 of 33 DOH v. Fred Allan liebowItz, MD DOH Case Number 2009-23088

2970

e. By failing to adequately document and/or support the medical

necessity for prescribing large doses, quantities, and types of

controlled substances to patient RD.



COUNT VI


through eighty-five (85) and paragraph. eighty-nine (89) as if fully set forth

herein.



physician's professional practice in one or more of the following ways:

a. By inappropriately prescribing the controlled substances

oxycodone, Oxycontin, diazepam, and Soma to patient RD.


oxycodone, Oxycontin, diazepam, and Soma to patient RD.



Page 27 of 33 .

DOH v. Fred Allan Liebowltz, MD DOH Case Number 2009-23088

2971

COUNT VII



109. Respondent failed 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 in

the treatment of patient CH in one of more of the following ways:

a. By failing to acknowledge and discuss patient CH's criminal

history;

b. By failing to obtain and review CH's past medical records;

c. By failing to communicate with CH's other treating physicians;

d. By failing to conduct a pill count and/or failing to contact CH's

pharmacy prior to prescribing controlled substances to CH;

e. By assuming CH's medication management with no factual

basis to support Respondent's choice, quantity, and dose of

controlled substance(s);

f. By failing to order a lumbar MRI or CT scan for patient CH;

Page 28 of 33 DOH v. Fred Allan Lebowitz, MD DOH Case Number 2009-23088

2972

g. By failing to discuss the results of CH's urine drug screen

dated on or about June 25, 2009, with patient CH;

h. By failing to refer CH to other ancillary medical professionals;

i. By failing to refer CH to an orthopedic spine or neurosurgeon

for additional consultation; and/or

j. By failing to consider alternative treatment methods.



malpractice.

COUNT VIII


through eighty-five (85) paragraphs eighty-seven (87) through eighty-eight

(88) as if fully set forth herein.


course of treatment for patient CH in one of more of the following ways:

a. By falling to adequately document review of patient CH's past

medical records;


2973

b. By failing to adequately document discussion of patient CH's

criminal history with patient CH;

c. By failing to adequately document conducting a pill count

and/or failing to adequately document contacting CH's

pharmacy prior to prescribing controlled substances to CH;

d. By failing to adequately document discussion of the results of

the urine drug screen performed on or about June 25, 2009

with patient CH;

e. By failing to adequately document referral of patient CH to

other ancillary paramedical professionals;

f. By failing to adequately document referral of patient CH back

to his orthopedic spine or neurosurgeon;

g. By failing to adequately document consideration of alternative

treatment methods for patient CH; and/or

h. By failing to adequately document and/or support the medical

necessity of prescribing large doses of controlled substances

to patient CH.

Page 30 of 33 DOH v. Fred Allan Uebowltz, MD DOH Case Number 2009-23088

2974



COUNT IX


through eighty-five (85) and paragraph eighty-nine (89) as if fully set forth

herein.



physician's professional practice in one or more of the following ways: •

a. inappropriately prescribing the controlled substances

oxycodone and diazepam to patient CH.


oxycodone and diazepam to patient CH.



WHEREFORE, 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

Pa"ge 31 of 33 DOH v. Fred Allan Llebowltz, MD DOH Case Number 2009-23088

42975

practice, imposition of an administrative fine, issuance of a reprimand,

placement of the Respondent on probation, corrective action, refund of fees

billed or collected, remedial education and/or any other relief that the Board

deems appropriate.

SIGNED this 2-5tilday of U‘A\ 2018.

Celeste Philip, M.D., M.P.H. Surgeon General and Secretary

Katelyn R. Boswell Assistant General Counsel Florida Bar Number: 124413 Prosecution Services Unit Florida Department of Health 4052 Bald Cypress Way, Bin #C-65 Tallahassee, Florida 32399-3265 Telephone: (850) 558-9865 Facsimile: (850) 245-4684 E-Mail: [email protected]

PCP DATE: July 20th, 2018 PCP MEMBERS: Georges El-Bahri, M.D.,Magda H. Averhoff, M.D., Joy Tootle


42976

NOTICE OF RIGHTS Respondent has the right to request a hearing to be conducted

in accordance with section 120.569 and 120.57, Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses and to have subpoena and subpoena duces tecum issued on his or her behalf If a hearing is requested. A request or petition for an administrative hearing must be in writing and must be received by the Department within 21 days from the day Respondent received the Administrative Complaint, pursuant to rule 28-106.111(2), Florida Administrative Code. If Respondent fails to request a hearing within 21 days of receipt of this Administrative Complaint, Respondent waives the right to request a hearing on the facts alleged in this Administrative Complaint pursuant to rule 28-106.111(4), Florida Administrative Code. Any request for an administrative proceeding to challenge or contest the material facts or charges contained in the Administrative Complaint must conform to rule 28-106.2015(5), Florida Administrative Code.

Please be advised that mediation under section 120.573, Florida Statutes, is not available to resolve this Administrative Complaint.

NOTICE REGARDING ASSESSMENT OF COSTS Respondent is placed on notice that Petitioner has incurred

costs related to the investigation and prosecution of this matter. Pursuant to section 456.072(4), Florida Statutes, the Board shall assess costs related to the investigation and prosecution of a disciplinary matter, which may indude attorney hours and costs, on the Respondent in addition to any other discipline imposed.

Page 33 of 33 DOH v. Fred Allan Llebowttz, MD DOH Case Number 2009-23088


DEPU CLERK Amber Greene

TY CLERK

DATE JUL u 3 2018 STATE OF FLORIDA

DEPARTMENT OF HEALTH


Petitioner,

v.


Respondent.

CASE NUMBER 2010-02186

AMENDED ADMINISTRATIVE COMPLAINT

COMES NOW, Petitioner, Department of Health (Department), by and

through its undersigned counsel, and files this Amended Administrative

Complaint before the Board of Medidne against Respondent, Fred Allan

Lebowitz, M.D., and in support thereof alleges:




2. Respondent's address of record is 6150 Diamond Centre Court

#700-1, Fort Myers, Florida 33912.

719

720


licensed medical doctor within in the State of Florida, having been issued

license number ME 60344.

4. At all times material to this Complaint, Respondent practiced at

the Headache and Pain Management Center of Southwest Florida

("Headache and Pain Center"), in Fort Myers, Florida.

5. From on or about January 18, 2007, through on or about July

15, 2009, Respondent treated Patient M.M. at Headache and Pain Center

for complaints of chronic lower back pain.

6. On or about January 18, 2007, Respondent obtained copies of

Patient M.M.'s medical records from Patient M.M.'s prior treating

physicians. The past medical records addressed care provided to Patient

M.M. from on or about December 2, 2003, through on or about January

15, 2007.

7. Patient M.M.'s past medical records revealed the following:

Page of 11 DOH v. Fred Man Uebowltz, MD DOH Case Number 2010-02186

a. On or about July 14, 2006, Patient M.M. tested positive

for tetrahydrocannabinols (THC)1 on a Urine drug screen;

b. On or about September 11, 2006, Patient M.M. tested

positive for cocaine on a urine drug screen. Patient M.M. also tested

negative for benzodiazepines and methadone despite having been

prescribed these medications on or about August 11, 2006. According to

the past medical records, Patient M.M. stated he ran out of these

prescribed medications ten (10) days early.

c. On or about October 23, 2006, Patient M.M. tested

positive for cocaine and negative for opiates, benzodiazepines, and

methadone on a urine drug screen, despite having been prescribed these

medications on or about September 11, 2006.

8. On or about January 18, 2007, Respondent obtained a Lee

County, Florida Arrest Bookings report from the Lee County Sheriff's Office.

The Report indicated that Patient M.M. was charged with felony obtaining

controlled substances by fraud on or about September 3, 2004, driving

1Tetrahydrocannabinols ("MC) are the psychoactive ingredients In marijuana, or cannabis. According to section 893.03(1), Florida Statutes, THC is a Schedule I controlled substance that has a high potential for abuse and has no currently accepted medical use In treatment in Florida. Its use under medical supervision does not meet accepted safety standards.

Page 3 of 11 DOH v. Fred Man Llebowltz, MD DOH Case Number 2010-02186

721

722

under the influence second offense on or about March 17, 1999, and

driving under the influence on or about November 22, 1998.

9. On or about February 15, 2007, Respondent obtained a lumbar

spine X-Ray which stated there was evidence that Patient M.M. suffered

from degenerative disc diseases at the L4-5 and L5-S1 levels.

10. Respondent failed to order subsequent lumbar spine CT/MRI

imaging studies during his treatment of Patient M.M.

11. On or about July 27, 2007, Patient M.M. tested negative for

methadone and clonazepam on a urine drug screen, despite having been

prescribed methadone and donazepam on or about June 29, 2007.

According to Respondent's medical records, Patient M.M. ran out of the

medications five days before the urine drug screen.

12. On or about October 7, 2007, Patient M.M. provided a

statement to the Cape Coral Police Department alleging that his controlled

substance medications were stolen from his home. Patient M.M. also stated

he did not wish for law enforcement to visit his home to investigate the

theft.

Page 4 of 11 DOH v. Fred Man Llebowitz, MD DOH Case Number 2010-02186

723

13. From on or about March 4, 2008, to on or about July 15, 2009,

Respondent also treated Patient M.M. for additional complaints of insomnia

and/or anxiety.

14. Respondent treated Patient M.M.'s pain, insomnia and anxiety

complaints primarily by prescribing oxycodone2, methadone31 and

clonazepa m4.

15. On or about April 1, 2008, Patient M.M. tested negative for

benzodiazepines on a urine drug screen, despite having been prescribed

clonazepam on or about March 4, 2008. Respondent's medical records for

Patient M.M. do not document whether Respondent addressed this issue

with Patient M.M.

16. Based on Patient M.M.'s history of substance abuse and

Inconsistent drug screens, Patient M.M. was at an elevated risk for drug

abuse and diversion.

2 Oxycodone is common prescribed to treat pain. According to section 893.03(2), Florida Statutes, oxycodone 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 United States. Abuse of oxycodone may lead to severe psychological or physical dependence. 3 Methadone is prescribed to treat pain. According to section 893.02, Florida Statutes, methadone 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. Abuse of methadone may lead to severe psychological or physical dependence.

Page 5 of 11 DOH v. Fred Man liebowitz, MD DOH Case Number 2010-02186

724

17. Respondent failed to refer Patient M.M. to detox, rehabilitation

or for evaluation by an addictionologist.

18. Based on Respondent chronically prescribing Patient M.M.

methadone, Respondent was required to obtain periodic laboratory and

electrocardiograms ("EKG") evaluations for Patient M.M.

19. Respondent failed to order any EKG evaluations for Patient

M.M.

20. A few days after Patient M.M.'s last visit with Respondent,

Patient M.M. died due to multiple drug toxicity, specifically methadone and

clonazepam.

21. At all times material to this complaint, the prevailing standard

of care required that a physician treating patients, such as Patient M.M.,:

a. obtain a thorough history from the patient;

b. recognize or discuss the patient's relevant criminal history

and prior toxicology results in light of prescribing large

4 Clonazepam is commonly prescribed to treat anxiety. According to section 893.03(4), Florida Statutes, donazepam Is a Schedule N controlled substance that has a low potential for abuse relative to substances in Schedule II and has a currently accepted medical use in treatment In the United States. Abuse of donazepam may lead to limited physical or psychological dependence relative to the substances in Schedule M. 5 Electrocardiogram evaluations record the electrical activity of the heart over a period of time by using electrodes placed on the skin.


725

doses and quantities of schedule 2 and 4 controlled

substances;

c. obtain additional spine imaging studies;

d. obtain periodic laboratory and EKG evaluations for a

patient who has been chronically prescribed methadone;

e. closely monitor the patient for compliance; and

f. refer the patient to detox, rehabilitation or for evaluation

by an addictionologist.

22. Section 458.331(1)(t), Florida Statutes (2007-2009), subjects a

physician to discipline for committing medical malpractice as defined in

section 456.50, Florida Statutes (2007-2009). "Medical malpractice" is

defined by section 456.50(1)(g), Florida Statutes (2007-2009), 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."

Section 456.50(1)(e), Florida Statutes (2007-2009), provides that the

"level of care, skill, and treatment recognized in general law related to

health care licensure" means the standard of care that is specified in

section 766.102(1), Florida Statutes (2007-2009), which states as follows:

The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment


726

which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.

23. Section 458.331(1)(t)1., Florida Statutes (2007-2009), directs

the Board of Medicine to give "great weight" to this provisions of section

766.102, Florida Statutes (2007-2009).

24. Respondent failed to meet the prevailing standard of care In his

treatment of Patient M.M. by:

a. failing to obtain a thorough history from Patient M.M.;

b. failing to recognize or discuss Patient M.M.'s relevant

criminal history and prior toxicology results in light of

prescribing exceedingly large doses and quantities of

schedule 2 and 4 controlled substances;

c. failing to obtain additional spine imaging studies;

d. falling to obtain periodic laboratory and EKG evaluations

for a patient who has been chronically prescribed

methadone;

e. failing to closely monitor Patient M.M. for compliance;

and/or

Page 8 of 11 DOH v. Fred Allan LlebowItz, MD DON Case Number 2010-02186

727

f. failing to refer Patient M.M. to detox, rehabilitation or for

evaluation by an addictionologist.


458.331(1)(t), Florida Statutes (2007-2009), by failing to meet the

standard of care in his treatment of Patient M.M. as outlined above.





placement of the Respondent on probation, corrective action, refund of

fees billed or collected, remedial education and/or any other relief that the

Board deems appropriate.

[signature appears on following page]

Page 9 of 11 DOH v. Fred Man Lleboadtz, MD Doll Case Number 2010-02186

728

ezta SIGNED this ,--1 day of StA\‘k , 2018.

Celeste Philip, M.D., M.P.H. Surgeon General and Secretary

Christopher R. Dierlam Assistant General Counsel Office of the General Counsel Prosecution Services Unit Florida Department of Health 4052 Bald Cypress Way, Bin #C-65 Tallahassee, Florida 32399-3265 Telephone: (850) 245-4640, Ext. 8220 Facsimile: (850) 245-4684 Email: [email protected] Florida Bar Number: 102266

CRD/bjj PCP: June 29, 2018 PCP Members: Georges El-Bahrl, M.D.; Gary Dolin, M.D.


729

NOTICE OF RIGHTS

Respondent has the right to request a hearing to be conducted in accordance with section 120.569 and 120.57, Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses and to have subpoena and subpoena duces tecum issued on his or her behalf if a hearing is requested.

A request or petition for an administrative hearing must be in writing and must be received by the Department within 21 days from the day Respondent received the Administrative Complaint, pursuant to rule 28-106.111(2), Florida Administrative Code. If Respondent fails to request a hearing within 21 days of receipt of this Administrative Complaint, Respondent waives the right to request a hearing on the facts alleged in this Administrative Complaint pursuant to rule 28-106.111(4), Florida Administrative Code. Any request for an administrative proceeding to challenge or contest the material facts or charges contained in the Administrative Complaint must conform to rule 28-106.2015(5), Florida Administrative Code.

Mediation under section 120.573, Florida Statutes, is not available to resolve this Administrative Complaint.

NOTICE REGARDING ASSESSMENT OF COSTS

Respondent is placed on notice that Petitioner has incurred costs related to the investigation and prosecution of this matter. Pursuant to section 456.072(4), Florida Statutes, the Board shall assess costs related to the investigation and prosecution of a disciplinary matter, which may include attorney hours and costs, on the Respondent in addition to any other discipline imposed.

Page 11 of 11 DOH v. Fred Allan Llebowftx, MD DOH Case Number 2010-02186

40571



Petitioner,


DEPUTY CLERK CLERK Amber Greene DATE JUL 0 3 2018

v. CASE NUMBER 2010-04931


Respondent. /









2. Respondent's address of record Is 6150 Diamond Centre Court

#700-1, Fort Myers, Florida 33912-4365.

DOH v. Uebowitz, M.D. Case Number 2010-04931

Page 1 of 14

40572


licensed medical doctor within the State of Florida, having been issued





S. On or about April 16, 2007, Patient M.M., a thirty-one (31)

year-old male, presented to the Headache and Pain Center with complaints

of pain in the upper back and intermittent neck pain.

6. On or about April 16, 2007, Patient M.M. reported to

Respondent that he was currently taking Prozacl, Klonopin2 and Ultram3.

1 Prozac is the brand name for fluoxetine and is an antidepressant. It is mainly used to treat major depression, obsessive-compulsive disorder, and panic disorder. 2 Klonopin is the brand name for donazepam and is prescribed to treat arndety. According to section 893.03(4), Florida Statutes, clonazepam 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. Abuse of donazepam may lead to limited physical or psychological dependence relative to the substances in Schedule III. 3 Ultram is the brand name for Tramadol. Tramadol is an opiold-class narcotic medication prescribed to treat pain. According to 'Title 21, Section 1308.14, code of Federal Regulation, tramadol is a Schedule IV controlled substance. Tramadol, like all opiold-class drugs, can affect mental alertness, is subject to abuse, and can be habit forming.

DOH v. Liebowit, M.D. Case Number 2010-04931

Page 2 of 14

40573

Respondent also stated that he was currently taking Suboxone4 and

informed Respondent he had a history of opioid abuse.

7. Respondent failed to contact and/or obtain information from

Patient M.M.'s prior treating physician(s) concerning Patient M.M.'s history

of opioid abuse and use of Suboxone before prescribing Patient M.M.

opioids.

8. Respondent continued to provide treatment to Patient M.M.

from on or about April 16, 2007, through on or about May 10, 2010,

("treatment period") for cervical, lumbar, and thoracic spine pain.

9. Throughout the treatment period Patient M.M.'s thoracic MRI

studies were consistently unremarkable and Patient M.M.'s cervical MRI

scans demonstrated mild cervical disc bulges.

10. Also throughout the treatment period, Respondent performed

multiple cervical and thoracic epidural steroid injections, diagnostic cervical

medial nerve branch blocks, and radiofrequency neural ablation procedures

that were documented to have improved Patient M.M.'s pain.

4 Suboxone contains naloxone (Narcan) an opioid antagonist that minimizes the CNS effects of opioid drugs — often used to manage chronic pain in an opioid/opiate dependent person or to wean an opioid/oplate dependent person. Suboxone also contains buprenorphine and is prescribed to treat pain. According to section 893.0.3(5), Florida Statutes, buprenorphine Is a Schedule V controlled substance that has a low potential for abuse relative to the substances in Schedule IV and has a currently accepted medical use in treatment in the United States. Abuse of buprenorphine may lead to limited physical or psychological dependence relative to the substances In Schedule N.

DOH v. Liebowitz, M.D. Case Number 2010-04931

Page 3 of 14

40574

11. From on or about April 16, 2007, through on or about

November 21, 2007, Respondent prescribed Patient M.M. varying doses

and quantities of oxycodones, fentanyl6, cyclobenzaprine7, morphine

sulfate8, duloxetine9, and alprazolamw.

12. Further, from on or about November 30, 2007, through on or

about May 10, 2010, Respondent prescribed excessive and/or

inappropriate quantities or doses, of oxycodone, fentanyl, and aiprazolam.

13. On or about April 16, 2009, Patient M.M. tested positive for

amphetamines and methadone on a urine drug screen despite not having

a prescription for either.

5 Oxycodone Is commonly prescribed to treat pain. According to Section 893.03(2), Florida Statutes, oxycodone 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. Abuse of oxycodone may lead to severe psychological or physical dependence. 6 Fentanyl is prescribed to treat pain. According to section 893.03(2), Florida Statutes, fentanyl 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. Abuse of fentanyl may lead to sever psychological or physical dependence. 7 Cydobenzaprine is a musde relaxant that is used to treat pain and stiffness caused by musde spasms.

Morphine is prescribed to treat pain. According to section 893.03(2), Florida Statutes, morphine is a Schedule II controlled substance that has a high potential for abuse and has a current accepted but severely restricted medical use in treated in the Unites States. Abuse of morphine may lead to severe psychological or physical dependence. 9 Duloxetine is a nerve pain medication and antidepressant that Is used to treat depression, anxiety, and chronic musde or bone pain. io Alprazolam Is prescribed to treat anxiety. According to section 893.03(4), Florida Statutes, aiprazolam is a Schedule IV controlled substance that has a low potential for abuse relative to the substances in Schedule II and has a currently accepted medical use in treatment in the United States. Abuse of aiprazolam may lead to limited physical or psychological dependence relative to the substances in Schedule M. DOH v. Liebowit; M.D. Case Number 2010-04931

Page 4 of 14

10575

14. Respondent failed to submit the positive drug screen for

confirmation testing to determine if Patient M.M. was taking medications

for which he was not prescribed.

15. Respondent failed to closely monitor Patient M.M. to ensure his

appropriate use of controlled substances in light of his documented history

of substance abuse.

16. Respondent also failed to refer Patient M.M. to an

addictionlogist for further evaluation and detox.

17. Respondent's medical records do not adequately justify

Respondent's course of treatment for Patient M.M.

18. Throughout the treatment period Respondent also documented

Patient M.M. was suffering from hypertension.

19. Respondent failed to refer Patient M.M. to a primary care

physidan, cardiologist, or urgent care center for treatment of his

hypertension.


of care dictated that a physician treating patients, such as Patient M.M.,:

a. contact and/or obtain information from Patient M.M.'s

prior treating physician(s). concerning Patient M.M.'s

DOH v. Liebow112, M.D. Case Number 2010-04931

Page 5 of 14

40576

history of complaints, opiold abuse, and use of Suboxone

before prescribing Patient M.M. controlled substances;

b. refer the patient to a primary care physician, cardiologist,

or urgent care center for further evaluation and

treatment of hypertension;

c. take appropriate action in light of the patient's recurring

inconsistent urine drug screen results; and

d. submit inconsistent presumptive positive drug screens for

confirmation testing.

COUNT I

21. Petitioner realleges and incorporates by reference the

allegations in paragraphs one (1) through twenty (20) as if fully set forth

herein.

22. Section 458.331(1)(t)1., Florida Statutes (2007-2009), subjects

a physician to discipline for committing medical malpractice as defined in




treatment recognized in general law related to health care licensure."

DOH v. Uebovdtz, M.D. Case Number 2010-04931

Page 6 of 14

40577





The prevailing profession standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant supporting circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.

23. Section 458.331(1)(t)1, Florida Statutes (2009-2010), directs

the Board of Medicine to give "great weight" to this provision of section


24. Respondent failed to meet the prevailing standard of care and

therefore violated Section 458.331(1)(t)1, Florida Statutes (2007-2009), in

one or more of the following ways:

a.

failing to contact and/or obtain information from Patient

M.M.'s prior treating physidan(s) concerning Patient

M.M.'s history of complaints, opioid abuse, and use of

Suboxone before prescribing Patient M.M. controlled

substances;


Page 7 of 14

40578

b. failing to refer the patient to a primary care physician,

cardiologist, or urgent care center for further evaluation

and treatment of hypertension;

c. failing to take appropriate action in light of the patient's

recurring inconsistent urine drug screen results; and/or

d. failing to submit inconsistent presumptive positive drug

screens for confirmation testing.

25. Based on the forpgoing, Respondent violation Section

458.331(1)(t), Florida Statutes (2007-2009), by failing to practice in

accordance with the prevailing standard of care as outlined above.

COUNT II


allegations in paragraphs one (1) through nineteen (19) as if fully set forth

herein.

27. Section 458.331(1)(q), Florida Statutes (2007-2009), subjects a

licensee to discipline 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 the paragraph, it shall be legally presumed that prescribing,


Page 8 of 14

40579

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.

28. Respondent prescribed, dispensed, and/or administered a

legend drug, including any controlled substance, other than in the course

of the physician's professional practice in one or more of the following

ways:

a. by inappropriately prescribing the controlled substances

oxycodone, fentanyl, and alprazolam to Patient M.M.,

and/or

b. by excessively prescribing the controlled substances

oxycodone, fentanyl, and alprazolam to Patient M.M. in

excessively large doses and/or quantities.


458.331(1)(q), Florida Statutes (2007-2009), by prescribing, dispensing,

and/or administering a legend drug, including any controlled substance

DOH v. Uebowttz, M.D. Case Number 2010-04931

Page 9 of 14

40580

other than in the course of the physician's professional practice, as

outlined above.

COUNT III


allegations in paragraphs one (1) through nineteen (19) as if fully set forth

herein.

31. Section 458.331(1)(m), Florida Statutes (2007-2009), 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.

32. Rule 6488-9.003(d)(3), Florida Administrative Code (2007-

2009), provides that medical records shall contain sufficient information to


DOH v. Llebowitz, M.D. Case Number 2010-04931

Page 10 of 14

40581


minimum, patient histories; examination results; test results; records of

drugs prescribed, dispensed, or administered; reports of consultations and


obtained from other health care practitioners at the request of the

physician and relied upon by the physician in determining the appropriate

treatment of the patient.

33. In the alternative the allegations contained in Paragraph 24,

Respondent failed to maintain records that justified the course of

treatment for Patient M.M. in one or more of the following ways:

a. failing to document contacting and/or obtain information

from Patient M.M.'s prior treating physician(s) concerning

Patient M.M.'s history of complaints, °piaci abuse, and

use of Suboxone before prescribing Patient M.M. opioids;

b. failing to document referring the patient to a primary

care physician, cardiologist, or urgent care center for

further evaluation and treatment of hypertension;

c. falling to document closely monitoring the patient to

ensure appropriate use of controlled substances; and


Page 11 of 14

40582

d. failing to document submitting inconsistent presumptive

positive drug screens for confirmation testing.


458.331(1)(m), Florida Statutes (2007-2009), by failing to maintain records

that justified the course of treatment for Patient M.M. as outlined above.

WHEREFORE, the Petitioner respectfully requests that the Board of


permanent revocation or suspension of Respondent's license, imposition of

an administrative fine, issuance of a reprimand, placement of the

Respondent on probation, corrective action, refund of fees billed or

collected, remedial education and/or any other relief that the Board deems

appropriate.

[signature appears on following page]


Page 12 of 14

40583

va‘ S SIGNED this day of tAV\

2018.

Celeste Philip, M. Surgeon u ral

D., M.P.H. and Secretary

Christopher R. Dierlam Assistant General Counsel Florida Bar No. 102266 DOH-Prosecution Services Unit 4052 Bald Cypress Way-Bin C-65 (850) 558-9833 phone (850) 245-4684 fax [email protected]

CD/bjj PCP: June 29, 2018 PCP Members: Georges El-Bahri, M.D.; Gary Dolin, M.D.

DOH v. Uebow112, M.D. Case Number 2010-04931

Page 13 of 14

40584

NOTICE OF RIGHTS

Respondent has the right to request a hearing to be conducted in accordance with section 120.569 and 120.57, Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses and to have subpoena and subpoena duces tecum issued on his or her behalf if a hearing is requested.

A request or petition for an administrative hearing must be in writing and must be received by the Department within 21 days from the day Respondent received the Administrative Complaint, pursuant to Rule 28-106.111(2), Florida Administrative Code. If Respondent fails to request a hearing within 21 days of receipt of this Administrative Complaint, Respondent waives the right to request a hearing on the facts alleged in this Administrative Complaint pursuant to Rule 28-106.111(4), Florida Administrative Code. Any request for an administrative proceeding to challenge or contest the material facts or charges contained in the Administrative Complaint must conform to Rule 28-106.2015(5), Florida Administrative Code.

Mediation under section 120.573, Florida Statutes, is not available to resolve this Administrative Complaint


Respondent is placed on notice that Petitioner has incurred costs related to the investigation and prosecution of thli matter. Pursuant to section 456.072(4), Florida Statutes, the Board shall assess costs related to the investigation and prosecution of a disciplinary matter, which may include attorney hours and costs, on the Respondent in addition to any other discipline imposed.

DOH v. LlebowItz, M.D. Case Number 2010-04931

Page 14 of 14



Petitioner,


DEPUTY CLERK CLERK Amber Greene DATE JUL 0 3 2018

184

v.


Respondent.

CASE NUMBER 2011-07030









2. Respondent's address of record is 6150 Diamond Centre Court

#700-1, Fort Myers, Florida 33912-4365.

185


licensed medical doctor within the State of Florida, having been issued





5. Respondent provided care and treatment to Patient S.M. at

Headache and Pain Center from on or about December 17, 2008, through

on or about June 18, 2009, for complaints of low back and right ankle

pain. During this treatment period Respondent prescribed Patient S.M.

morphine sulfate' and oxycodone2 in varying quantities and strengths.

6. Respondent did not provide any care or treatment to Patient

S.M. from on or about June 19, 2009, through on or about April 20, 2010.

7. Respondent next provided care and treatment to Patient S.M.

on or about April 21, 2010, for the same low back pain but also

documented additional complaints of neck and right shoulder pain.

Morphine is prescribed to treat pain. According to section 893.03(2), Florida Statutes, morphine Is a Schedule II controlled substance that has a high potential for abuse and has a current accepted but severely restricted medical use In treated In the Unites States. Abuse of morphine may lead to severe psychological or physical dependence.

Page 2 of 17 DOH v. Fred Man liebowItz, MD DOH Case Number 2011-07030

186

Respondent also documented that the Patient complained of an increase in

right ankle pain.

8. On or about April 21, 2010, Respondent documented Patient

S.M. had previously been under the care of a physician who prescribed

Patient S.M. oxycodone and alprazolam3.

9. On or about April 21, 2010, Patient S.M. provided a urine

analysis which demonstrated the existence an unknown opiate and

benzodiazepine.

10. Respondent failed to refer Patient S.M.'s April 21, 2010 urine

analysis for confirmation testing.

11. Respondent failed to obtain, or document obtaining, adequate

histories from Patient S.M. regarding Patient S.M.'s absence from his

practice starting on or about June 19, 2009, through on or about April 20,

2010.

2 Oxycodone is common prescribed to treat pain. According to section 893.03(2), Florida Statutes, oxycodone 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 United States. Abuse of oxycodone may lead to severe psychological or physical dependence. 3 Alprazolam is a benzodiazepine 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. Abuse of alprazolam may lead to limited physical or psychological dependence relative to the substances in Schedule III.

Page 3 of 17 DOH v. Fred Man Liebowttz, MD DOH Case Number 2011-07030

12. Respondent also failed to discuss, or document discussing, his

April 21, 2010 findings regarding Patient S.M.'s ankle pain with Patient

S.M.'s primary treating orthopedic and ankle surgeon.

13. From on or about April 21, 2010, through on or about June 15,

2010, Respondent prescribed excessive and/or inappropriate quantities or

doses of oxycodone and alprazolam to Patient S.M.

14. From on or about April 21, 2010, through on or about June 15,

2010, Respondent failed to adequately document and/or support the

medical necessity of prescribing the quantities and/or doses of controlled

substances to Patient S.M.

15. Respondent did not provide any care or treatment to Patient

S.M. from on or about June 16, 2010, through on or about September 16,

2010.

16. Respondent next provided care and treatment to Patient S.M.

on or about September 17, 2010, for complaints of low back and right

ankle pain.

17. On or about September 17, 2010, Patient S.M. informed

Respondent that she "stretched out" her supply of pain medications due to

her being absent from Respondent's practice for 3 months.

Page 4 of 17

0187

DOH v. Fred'Allan IMbowitz, MD DOH Case Number 2011-07030

188

18. Respondent failed to obtain, or failed to document obtaining,

adequate histories from Patient S.M. regarding the patient's 3-month

absence from his practice.

19. From on or about September 17, 2010, through on or about

May • 10, 2011, Respondent continued to prescribe excessive and/or

inappropriate quantities or doses of oxycodone and aiprazolam to Patient

S.M.

20. Further, from on or about December 13, 2010, through on or

about May 10, 2011, Respondent prescribed excessive and/or

inappropriate quantities or doses of oxymorphone4 to Patient S.M.

21. From on or about April 21, 2010, through on or about May 10,

2011, Respondent failed to adequately document and/or support the

medical necessity of prescribing said quantities or doses of controlled

substances to Patient S.M.


2011, Respondent did not obtain, or failed to document obtaining, medical

records, from Patient S.M.'s other health care providers.

4 Oxymorphone is prescribed to treat pain. According to section 893.03(2), Florida Statutes, oxyrnorphone 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. Abuse of oxymorphone may lead to severe psychological or physical dependence.

Page 5 of 17 DOH v. Fred Man UebowItz, MD DOH Case Number 2011-07030

0189


2011, Respondent failed to contact, or failed to document contacting,

other health care providers about their treatment of Patient S.M. for times

when Patient S.M. was absent from Respondents care..

24. On or about January 20, 2011 and April 12, 2011, Respondent

was advised by a family member that Patient S.M. had been in drug

rehabilitation, had been observed possibly overmedicating, and that her

medications had been diverted to others.

25. Respondent failed to counsel, or failed to document counseling,

Patient S.M. regarding her reliance on controlled substances and the

potential of referring her to an addictionologist for detox and rehabilitation.

26. Respondent did not refer, or failed to document referring,

Patient S.M. to a specialist in substance abuse for evaluation following

reported prior treatment for substance abuse.

27. Respondent did not discuss, or failed to document discussing,

with Patient S.M. possible diversion of her medication following a family

member's report that Patient S.M.'s medications had been diverted to

others.

Page 6 of 17 DOH v. Fred Allan liebowitz, MD DOH Case Number 2011-07030

190

28. Respondent did not counsel, or failed to document counseling,

Patient S.M. on reduction of her reliance on benzodiazepines and opiates.

29. Respondent did not appropriately prescribed alternatives to

controlled substances for the management of Patient S.M.'s pain.

30. On or about January 14, 2011, Respondent documented that

Patient S.M. had gained 27 pounds since April 21, 2010.

31. Respondent failed to recognize and discuss, or failed to

document recognizing and discussing, Patient S.M.'s significant weight gain

and hypertension with Patient S.M.

32. Respondent did not refer Patient S.M. to other health care

providers for evaluation of hypertension and weight gain.

33. Respondent also documented Patient S.M. was prescribed

Clonidine5 0.1 mg but, failed to document as to why, or by whom, Clonidine

had been prescribed.


of care dictated that a physician treating patients, such as Patient S.M.,:

a.

obtain adequate histories for the patient's complaints and

Respondent's physical findings;

5 Clonidine is a sedative and antihypertensive drug that is used to treat high blood pressure. Page 7 of 17

DOH v. Fred Man Llebowttz, MD DOH Case Number 2011-07030

b. discuss the significantly different physical findings of the

patient's April 21, 2010 evaluation with the patient's

other providers;

c. counsel the patient regarding her reliance on controlled

substances;

d. refer the patient to a specialist for evaluation of

substance abuse;

e. discuss possible diversion of the patient's medication;

f. counsel the patient on her reliance on controlled

substances and reduction of controlled substances;

g. provide non-controlled substance pain treatment to the

patient; and

h. refer the patient to a specialist for evaluation of her

weight gain and hypertension.

COUNT I

35. Petitioner re-alleges and incorporates paragraphs one (1)

through thirty-four (34) as If fully set forth herein.

36. Section 458.331(1)(t)1., Florida Statutes (2009-2010), subjects

a physician to discipline for committing medical malpractice as defined in


191

192




treatment recognized in general law related to health care licensure."





The prevailing profession standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant supporting circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.

37. Section 458.331(1)(t)1, Florida Statutes (2009-2010), directs

the Board of Medicine to give "great weight" to this provision of section


38. Respondent fell below the minimum standard of care in his

treatment of Patient S.M. in one or more of the following ways:

a. failing to obtain adequate histories for Patient S.M.'s

complaints and Respondent's physical findings;

Page 9 of 17 DOH v. Fred Allan Uebowltz, MD DOH Case Number 2011-07030

b. failing to discuss the significantly different physical

findings of Patient S.M.'s April 21, 2010 evaluation with

Patient S.M.'s other providers;

c. failing to counsel Patient S.M. regarding her reliance on

controlled substances;

d. failing to refer Patient S.M. to a specialist for evaluation

of substance abuse;

e. failing to discuss possible diversion of Patient S.M.'s

medication;

f. failing to counsel Patient S.M. on her reliance on

controlled substances and reduction of controlled

substances;

g. failing to provide non-controlled substance pain

treatment to Patient S.M.; and/or

h. failing to refer Patient S.M. to a specialist for evaluation

of her weight gain and hypertension;


458.331(1)(t), Florida Statutes (2009-2010), by failing to practice medicine

in accordance with the standard of care as outlined above.

Page 10 of 17 DOH v. Fred Man Llebown; MD DOH Case Number 2011-07030

40194

COUNT II

40. Petitioner re-alleges and incorporated paragraphs one (1)

through thirty-three (33) as if fully set forth herein.

41. Section 458.331(1)(q), Florida Statutes (2009-2010), subject a

licensee to discipline 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 the 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.

42. Respondent prescribed, dispensed, and/or administered a

legend drug, including any controlled substance, other than in the course

of the physician's professional practice in one or more of the following

ways:

DOH v. Fred Allan LlebowItz, MD Page 11 of 17

DOH Case Number 2011-07030

195

a. by inappropriately prescribing the controlled substances

hydromorphone, oxycodone, and/or alprazolam to Patient

S.M., and/or

b. by prescribing the controlled substances hydromorphone,

oxycodone and/or alprazolam in excessive or

inappropriate quantities to Patient S.M.


458.331(1)(q), Florida Statutes (2009-2010), by prescribing, dispensing,

and/or administering a legend drug, including any controlled substance,

other than in the course of the physician's professional practice, as

outlined above.

COUNT III

44. Petitioner re-alleges and incorporated paragraphs one (1)

through thirty-three (33) as if fully set forth herein.

45. 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,

Page 12 of 17 DOH v. Fred Man UebowItz, MD DOH Case Number 2011-07030

40196

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 consultation

and hospitalizations.

46. Rule 64B8-9.003(d)(3), Florida Administrative Code (2009-

2010)1 provides that medical records shall contain sufficient information to



minimum, patient histories; examination results; test results; records of

drugs prescribed, dispensed, or administered; reports of consultations and


obtained from other health care practitioners at the request of the

physician and relied upon by the physician in determining the appropriate

treatment of the patient.

47. Respondent failed to maintain records that justified the course

of treatment for Patient S.M. in one or more of the following ways:

a.

failing to adequately document Patient S.M.'s right

shoulder and ankle injury;


b. failing to document obtaining records from Patient S.M.'s

additional treating physicians;

c. failing to adequately document and/or support the

medical necessity of prescribing the doses and quantities

of controlled substances prescribed to Patient S.M.;

d. in the alternative to the allegations contained in

Paragraph 38(a), failing to adequately document

obtaining histories for Patient S.M.'s complaints and

Respondent's physical findings;

e. in the alternative to the allegations contained in

Paragraph 38(b), failing to document discussions

regarding the physical findings of Patient S.M.'s April 21,

2010 evaluation with Patient S.M.'s other providers;

f. in the alternative to the allegations contained In

Paragraph 38(c), failing to document counseling Patient

S.M. on her reliance on controlled substances;

g. in the alternative to the allegations contained in

Paragraph 38(d), failing to document referral of Patient

S.M. to specialists for evaluation of substance abuse;

Page 14 of 17 DOH v. Fred Man Uebowltz, MD DOH Case Number 2011-07030

4 198

h. in the alternative to the allegations contained in

Paragraph 38(e), falling to document discussing possible

diversion of medication with Patient S.M.;

i. in the alternative to the allegations contained in

Paragraph 38(f), failing to document counseling Patient

S.M. on reduction of her reliance on controlled

substances;

in the alternative to the allegations contained in

Paragraph 38(h), failing to document referring Patient

S.M. to a specialist for evaluation of her weight gain and

hypertension;


458.331(1)(m), Florida Statutes (2009-2010), by failing to maintain records

that justified the course of treatment for Patient S.M. as outlined above.





placement of the Respondent on probation, corrective action, refund of

Page 15 of 17 DOH v. Fred Man Uebowltz, MD DOH Case Number 2011-07030

fees billed or collected, remedial education and/or any other relief that the

Board deems appropriate.

SIGNED this _D day of J tA\A

2018.

199

Celeste Philip, M.D., M.P.H. Surgeon G- feral and Secretary

Christopher R. Dierlam Assistant General Counsel Office of the General Counsel Prosecution Services Unit Florida Department of Health 4052 Bald Cypress Way, Bin #C-65 Tallahassee, Florida 32399-3265 Telephone: (850) 245-4640, Ext. 8220 Facsimile: (850) 245-4684 Email: [email protected] Florida Bar Number: 102266

CD/bjj PCP: June 29, 2018 PCP Members: Georges El-Bahri, M.D.; Gary Dolin, M.D.

Page 16 of 17 DOH v. Fred Adair liebowItz, MD DOH Case Number 2011-07030

0200

NOTICE OF RIGHTS

Respondent has the right to request a hearing to be conducted in accordance with section 120.569 and 120.571 Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses and to have subpoena and subpoena duces tecum issued on his or her behalf if a hearing is requested.

A request or petition for an administrative hearing must be in writing and must be received by the Department within 21 days from the day Respondent received the Administrative Complaint, pursuant to rule 28-106.111(2), Florida Administrative Code. If Respondent fails to request a hearing within 21 days of receipt of this Administrative Complaint, Respondent waives the right to request a hearing on the facts alleged in this Administrative Complaint pursuant to rule 28-106.111(4), Florida Administrative Code. Any request for an administrative proceeding to challenge or contest the material facts or charges contained in the Administrative Complaint must conform to rule 28-106.2015(5), Florida Administrative Code.

Mediation under section 120.573, Florida Statutes, is not available to resolve this Administrative Complaint


Respondent is placed on notice that Petitioner has incurred costs related to the investigation and prosecution of this matter. Pursuant to section 456.072(4), Florida Statutes, the . Board shall assess costs related to the investigation and prosecution of a disciplinary matter, which may include attorney hours and costs, on the Respondent in addition to any other discipline Imposed,.


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Final Order No. DOH-18-2156- -MQA...STATE OF FLORIDA BOARD OF MEDICINE By: 2018 De F D LATE- I ,ir"...

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