Are you a doctor being investigated for prescribing legend drugs other than in the course of your professional practice?

Have you received an administrative complaint against your doctor’s license for prescribing, administering, or otherwise preparing legend drugs, other than in the course of your professional practice? If you have, it is very important that you contact an experienced health care attorney to go over the charges. These charges are serious and can have a negative impact on your license and your ability to practice as a doctor in Florida.

The Law

Florida law states that it is a violation of the law to prescribe, administer, dispense, or otherwise prepare the use of legend drugs, other than in the course of the physician’s professional practice. Florida law on point here is Florida Statute 458.331(1)(q). That statute says in particular the following:

(1) The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):

(q) Prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of the physician’s professional practice. For the purposes of this paragraph, it shall be legally presumed that prescribing, dispensing, administering, mixing, or otherwise preparing legend drugs, including all controlled substances, inappropriately or in excessive or inappropriate quantities is not in the best interest of the patient and is not in the course of the physician’s professional practice, without regard to his or her intent.

Legend drugs means prescription drugs. The statute here covers prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug; so it is broad in scope here. The statute is only violated if the physician does this other than in the course of their professional practice. However, it is very important to note here that there is a presumption. The statute says that it will be presumed that prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug inappropriately, or in excess or inappropriate quantities is not in the course of the physician’s professional practice and is not in the best interest of the patient. So even if you are in the course of your professional practice, if you prepare a legend drug inappropriately or in excess, you are presumed to not be in your professional practice and can be subject to discipline. This statute includes controlled substances as well. If you have had complaints made against your license for violation of this statute, you should contact an experienced health care attorney immediately to go over your options. There can be severe repercussions for you if you wait.

Penalties

There are a range of actions that can be taken against you should the Board of Medicine decide to take disciplinary action against you. The penalties you could face are found in the Disciplinary Guidelines for the Board of Medicine, particularly in Rule 64B8-8.001 in the Florida Administrative Code. The rule states the following for disciplinary guidelines for violation of the statute:

	MINIMUM:	MAXIMUM:
FIRST OFFENSE:	One (1) year probation	Revocation or denial and an administrative fine from $1,000.00 to 10,000.00.
SECOND OFFENSE:	Suspension, to be followed by a period of probation	Revocation or denial and an administrative fine from $5,000.00 to $10,000.00.

For a first offense, the disciplinary guidelines call for penalties ranging from one year probation to a revocation or denial of your license and a fine from $1,000 to $10,000. For a second offense, the penalties range from being suspended followed by probation, to a revocation or denial of your license and a fine from $5,000 to $10,000. Most likely you will receive a combination of financial and non-financial penalties. This is very serious. You should also be aware that these are guidelines that the board should follow in handing out discipline, but are not set in stone, and can be accompanied by other penalties or deviated from. These penalties can be found in Florida Statute 456.072(2), which you should review with your health care attorney.

Aggravating/Mitigating Circumstances

The board hearing your case can take into account various factors that could affect the discipline you receive. These factors are called aggravating and mitigating circumstances. Aggravating circumstances are factors that can hurt your case. If aggravating circumstances are proven you could face harsher penalties. Mitigating circumstances are factors that can help your case. If mitigating circumstances are proven you could face lesser penalties. These factors can also be found in rule 64B8-8.001(3) in the Florida Administrative Code. If either side can prove with clear and convincing evidence the aggravating or mitigating circumstances, the discipline you face could be altered by the board. Here are the factors:

(a) Exposure of patient or public to injury or potential injury, physical or otherwise: none, slight, severe, or death;

(b) Legal status at the time of the offense: no restraints, or legal constraints;

(c) The number of counts or separate offenses established;

(d) The number of times the same offense or offenses have previously been committed by the licensee or applicant;

(e) The disciplinary history of the applicant or licensee in any jurisdiction and the length of practice;

(f) Pecuniary benefit or self-gain inuring to the applicant or licensee;

(g) The involvement in any violation of Section 458.331, F.S., of the provision of controlled substances for trade, barter or sale, by a licensee. In such cases, the Board will deviate from the penalties recommended above and impose suspension or revocation of licensure.

(h) Where a licensee has been charged with violating the standard of care pursuant to Section 458.331(1)(t), F.S., but the licensee, who is also the records owner pursuant to Section 456.057(1), F.S., fails to keep and/or produce the medical records.

(i) Any other relevant mitigating factors.

The board can take into account any of these factors, or other factors, in your hearing. The board can deviate from the standard disciplinary guidelines if they find that any of these aggravating or mitigating circumstances exist. These are very important factors that you should discuss with your health care attorney.

Conclusion

If you are a licensed health care professional in Florida and have received an administrative complaint for violation of the statutes, you are probably concerned about how this may affect your license. To set up a FREE no obligation consultation with Jeff Howell or Rickey Strong, contact the law firm of Howell, Buchan & Strong, Attorneys at Law at 850-877-7776. We represent licensed health care professionals and facilities statewide, including out of state clients who are concerned about the status of their Florida license.