final order no. doh-18-2156- -mqa...state of florida board of medicine by: 2018 de f d late- i...
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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
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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
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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
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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
DOH v. Liebowitz, M.D. Case Nos. 2009-23088, 2010-02186, 2010-04931, and 2011-07030
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
DOH v. Liebowitz, M.D. Case Nos. 2009-23088, 2010-02186, 2010-04931, and 2011-07030
Page 6 of 9
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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
DOH v. Liebowitz, M.D. Case Nos. 2009-23088, 2010-02186, 2010-04931, and 2011-07030
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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,
STATE OF FLORIDA DEPARTMENT OF HEALTH
DEPARTMENT OF HEALTH,
PETITIONER,
FILED DEPARTMENT OF HEALTH
DEPUTY CLERK
DATE EERK
JULAmber G ne
2 5 -2018
v. CASE NO. 2009-23088
FRED ALLAN LIEBOWITZ, M.D.,
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
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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
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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.
20. From on or about December 13, 2007, through on or about
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.
31. From on or about December 12, 2008, through on or about
August 25, 2009, Respondent failed to adequately document and/or support
the medical necessity of prescribing large quantities, doses, and types of
controlled substances to patient JB.
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
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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.
Page 8 of 33 DOH v. Fred Allan LlebowItz, MD DOH Case Number 2009-23088
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.
Page 9 of 33 DOH v. Fred Allan Liebowitz, MD DOH Case Number 2009-23088
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.
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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.
56. At all times material to this complaint, the prevailing standard of
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.
Page 14 of 33 DOH v. Fred Allan LlebowItz, MD DOH Case Number 2009-23088
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.
72. From on or about December 24, 2008, through on or about
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.
Page 16 of 33 DOH v. Fred Allan Liebowitz, MD DOH Case Number 2009-23088
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.
83. During the treatment period of on or about December 24, 2008
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.
84. During the treatment period of on or about December 24, 2008
through January 25, 2010, Respondent prescribed patient RD excessive
and/or inappropriate quantities or doses of controlled substances.
85. At all times material to this complaint, the prevailing standard of
care required that a physician treating patients, such as patient CH:
Page 17 of 33 DOH v. Fred Allan LiebowItz, MD DOH Case Number 2009-23088
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
Page 20 of 33 DOH v. Fred Allan LiebowItz, MD DOH Case Number 2009-23088
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);
Page 21 of 33 DOH v. Fred Allan LiebowItz, MD DOH Case Number 2009-23088
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
controlled substances to patient JB.
95. Based on the foregoing, Respondent has violated Section
458.331(1)(m), Florida Statutes (2007-2009).
COUNT III
96. Petitioner reincorporates and re-alleges paragraphs one (1)
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.
Page 24 of 33 DOH v. Fred Allan Llebowitz, MD DOH Case Number 2009-23088
2968
98. Based on the foregoing, Respondent has violated Section
458.331(1)(q), Florida Statutes (2007-2009).
COUNT N
99. Petitioner reincorporates and re-alleges paragraphs one (1)
through eighty-six (86) as if fully set forth herein.
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
101. Based on the foregoing, Respondent violated section
458.331(1)(t), Florida Statutes (2007-2009), by committing medical
malpractice.
COUNT V
102. 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.
103. Respondent failed to maintain records that justified the court
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.
104. Based on the foregoing, Respondent has violated Section
458.331(1)(m), Florida Statutes (2007-2009).
COUNT VI
105. Petitioner reincorporates and re-alleges paragraphs one (1)
through eighty-five (85) and paragraph. eighty-nine (89) as if fully set forth
herein.
106. 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, diazepam, and Soma to patient RD.
b. By excessively prescribing the controlled substances
oxycodone, Oxycontin, diazepam, and Soma to patient RD.
107. Based on the foregoing, Respondent has violated Section
458.331(1)(q), Florida Statutes (2007-2009).
Page 27 of 33 .
DOH v. Fred Allan Liebowltz, MD DOH Case Number 2009-23088
2971
COUNT VII
108. Petitioner reincorporates and re-alleges paragraphs one (1)
through eighty-six (86) as if fully set forth herein.
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.
110. Based on the foregoing, Respondent violated section
458.331(1)(t), Florida Statutes (2007-2009), by committing medical
malpractice.
COUNT VIII
111. Petitioner reincorporates and re-alleges paragraphs one (1)
through eighty-five (85) paragraphs eighty-seven (87) through eighty-eight
(88) as if fully set forth herein.
112. Respondent failed to maintain records that justified the court
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;
Page 29 of 33 DOH v. Fred Allan Liebowitz, MD DOH Case Number 2009-23088
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
113. Based on the foregoing, Respondent has violated Section
458.331(1)(m), Florida Statutes (2007-2009).
COUNT IX
114. Petitioner reincorporates and re-alleges paragraphs one (1)
through eighty-five (85) and paragraph eighty-nine (89) as if fully set forth
herein.
115. 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. inappropriately prescribing the controlled substances
oxycodone and diazepam to patient CH.
b. By excessively prescribing the controlled substances
oxycodone and diazepam to patient CH.
116. Based on the foregoing, Respondent has violated Section
458.331(1)(q), Florida Statutes (2007-2009).
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
Page 32 of 33 DOH v. Fred Allan Llebowitz, MD DOH Case Number 2009-23088
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
FILED DEPARTMENT OF HEALTH
DEPU CLERK Amber Greene
TY CLERK
DATE JUL u 3 2018 STATE OF FLORIDA
DEPARTMENT OF HEALTH
DEPARTMENT OF HEALTH,
Petitioner,
v.
FRED ALLAN LIEBOWITZ, M.D.,
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:
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. Respondent's address of record is 6150 Diamond Centre Court
#700-1, Fort Myers, Florida 33912.
719
720
3. At all times material to this Complaint, Respondent was a
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.
Page 6 of 11 DOH v. Fred Man Llebowitz, MD DOH Case Number 2010-02186
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
Page 7 of 11 DOH v. Fred Man Llebowitz, MD DOH Case Number 2010-02186
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.
25. Based on the foregoing, Respondent violated section
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.
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
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.
[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.
Page 10 of 11 DOH v. Fred Allan Llebowitz, MD DOH Case Number 2010-02186
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
STATE OF FLORIDA DEPARTMENT OF HEALTH
DEPARTMENT OF HEALTH,
Petitioner,
FILED DEPARTMENT OF HEALTH
DEPUTY CLERK CLERK Amber Greene DATE JUL 0 3 2018
v. CASE NUMBER 2010-04931
FRED ALLAN LIEBOWITZ, M.D.,
Respondent. /
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 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. 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
3. At all times material to this Complaint, Respondent was a
licensed medical doctor within 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.
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.
20. At all times material to this complaint, the prevailing standard
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
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."
DOH v. Uebovdtz, M.D. Case Number 2010-04931
Page 6 of 14
40577
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 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
766.102, Florida Statutes (2007-2009).
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;
DOH v. Liebowitz, M.D. Case Number 2010-04931
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
26. Petitioner realleges and incorporates by reference the
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,
DOH v. Liebowitz, M.D. Case Number 2010-04931
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.
29. Based on the foregoing, Respondent violated section
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
30. Petitioner realleges and incorporates by reference the
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
identify the patient, support the diagnosis, justify the treatment and
DOH v. Llebowitz, M.D. Case Number 2010-04931
Page 10 of 14
40581
document the course and results of treatment accurately, by including, at a
minimum, patient histories; examination results; test 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
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
DOH v. Uebowitz, M.D. Case Number 2010-04931
Page 11 of 14
40582
d. failing to document submitting inconsistent presumptive
positive drug screens for confirmation testing.
34. Based on the foregoing, Respondent violated section
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
Medicine enter an order imposing one or more of the following penalties:
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]
DOH v. Uebowitz, M.D. Case Number 2010-04931
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
NOTICE REGARDING ASSESSMENT OF COSTS
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
STATE OF FLORIDA DEPARTMENT OF HEALTH
DEPARTMENT OF HEALTH,
Petitioner,
FILED DEPARTMENT OF HEALTH
DEPUTY CLERK CLERK Amber Greene DATE JUL 0 3 2018
184
v.
FRED ALLAN LIEBOWITZ, M.D.,
Respondent.
CASE NUMBER 2011-07030
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 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. Respondent's address of record is 6150 Diamond Centre Court
#700-1, Fort Myers, Florida 33912-4365.
185
3. At all times material to this Complaint, Respondent was a
licensed medical doctor within 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. 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.
22. From on or about April 21, 2010, through on or about May 10,
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
23. From on or about April 21, 2010, through on or about May 10,
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.
34. At all times material to this complaint, the prevailing standard
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
Page 8 of 17 DOH v. Fred Man Llebowitz, MD DOH Case Number 2011-07030
191
192
section 456.50, Florida Statutes (2009-2010). "Medical malpractice" is
defined by section 456.50(1)(g), Florida Statutes (2009-2010), 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 (2009-2010), 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 (2009-2010), which states as follows:
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
766.102, Florida Statutes (2007-2009).
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;
39. Based on the foregoing, Respondent violated section
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:
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DOH Case Number 2011-07030
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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.
43. Based on the foregoing, Respondent violated section
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,
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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
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; test 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
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;
Page 13 of 17 DOH v. Fred Man Llebowitz, MD DOH Case Number 2011-07030
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;
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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;
48. Based on the foregoing, Respondent violated section
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.
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
practice, imposition of an administrative fine, issuance of a reprimand,
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.
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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
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 17 of 17 DOH v. Fred Allan Llebowitz, MD DOH Case Number 2011-07030