STATE OF FLORIDA DEPARTMENT OF HEALTH DEPARTMENT OF HEALTH, PETITIONER, v. CASE NO. 2009-22473 VICTORIA MACATANGAY GAUS, M.D., RESPONDENT. ADMINISTRATIVE COMPLAINT Petitioner, Department of Health, by and through its undersigned counsel, files this Complaint before the Board of Medicine against Respondent, Victoria Macatangay Gaus, 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 97569, on or about December 11, 2006. 3. Respondent is Board certified in Physical Medicine and Rehabilitation. 4. Respondent's address of record is 9877 Pines Boulevard, Pembroke Pines, Florida 33024. 5. During all times relevant to this complaint, Respondent was practicing at Medical Health and Wellness Center, Inc., located at 10946 Pembroke Road, Miramar, Florida 33025. 6. At all times relevant to this complaint, Respondent practiced medicine in the area of pain management. She was engaged in the treatment of pain by prescribing or dispensing controlled substance medications. 7. On or about April 2, 2010, a reasonable cause subpoena was issued in accordance with Section 456.067(9)(a)1, Florida Statutes (2009), to obtain the medical records of patients of Respondent at Medical Health and Wellness Center, Inc., including patients E.D., J.G., R.H., T.K., and B.M., to whom the Respondent had prescribed controlled substances. 8. The medical records obtained in response to the subpoena documented that Respondent had prescribed large amounts and doses of controlled substances to patients E.D., DOH v. Victoria Macatangay Gaus, M.D. Case Number 2009-22473 T.K., and B.M. 2 9. The Department submitted the medical records of patients E.D., J.G., T.K., and B.M. to an expert Board certified in Physical Medicine and Rehabilitation, with a subspecialty certification in Pain Medicine, for review. 10. The Expert opined that Respondent had prescribed inappropriate and excessive quantities or combinations of controlled substances to patients ED., 1G., R.H., T.K., and B.M. without medical justification. 11. The controlled substances that Respondent had prescribed in inappropriate and excessive amounts or combinations without justification were Roxicodone, Percocet, and Xanax. 12. Roxicodone is a brand name for oxycodone. Oxycodone is a semi-synthetic opioid that 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. DOH v. Victoria Macatangay Gaus, M.D. Case Number 2009-22473 3 13. 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. 14. Xanax is the brand name for alprazolam and is prescribed to treat anxiety. Alprazolam is a benzodiazepine. 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. Facts Specific to Patient E.D. 15. From on or about January 24, 2009, through on or about March 29, 2010, Respondent provided care and treatment to patient E.D., a forty— seven year old male resident of Pompano Beach, Florida, for complaints of low back pain. DOH v. Victoria Macatangay Gaus, M.D. Case Number 2009-22473 4 16. Respondent prescribed controlled substances to patient E.D. as follows: Date 01/24/2009 02/14/2009 03/14/2009 03/14/2009 03/18/2009 05/11/2009 05/11/2009 06/16/2009 06/16/2009 07/13/2009 07/13/2009 08/10/2009 08/10/2009 09/21/2009 11/03/2009 11/04/2009 12/02/2009 12/30/2009 01/26/2010 03/01/2010 03/29/2010 03/29/2010 Roxicodone 30 mg. #84 #168 #42 #84 #42 #136 #32 #100 #68 #80 #88 #115 #53 #168 #168 #48 #168 #168 #168 #180 #125 #55 Roxicodone 15 mg. Percocet 10/325 Xanax 2 mg. #28 #28 #84 #84 #28 #28 #56 #28 #56 #28 #56 #56 #28 #28 #56 #56 #56 #28 #28 #28 #28 #28 17. Patient E.D. provided a history of obtaining controlled substances illegally. 18. Patient E.D. provided a history of taking controlled substances that were prescribed to his mother. DOH v. Victoria Macatangay Gaus, M.D. Case Number 2009-22473 5 19. Respondent did not employ or document diligent efforts for the prevention of misuse or diversion of the controlled substances prescribed to patient E.D. 20. Respondent did not obtain and document a complete medical history for patient E.D. 21. Respondent did not obtain and document adequate physical examinations of patient E.D. 22. Throughout the time of Respondent's care and treatment of patient E.D., Respondent did not adequately provide or recommend other treatment modalities to patient E.D. 23. Respondent did not adequately perform or prescribe tests for evaluation of patient E.D.'s complaints. 24. Respondent did not refer patient E.D. to specialists for evaluation or treatment. 25. The Department submitted the medical records of patient E.D to an expert Board certified in Physical Medicine and Rehabilitation, with a subspecialty certification in Pain Medicine, for review. DOH v. Victoria Macatangay Gaus, M.D. Case Number 2009-22473 6 26. The Expert opined that Respondent had prescribed inappropriate and excessive quantities or combinations of controlled substances to patient E.D. without medical justification. Facts Specific to Patient J.G. 27. From on or about June 19, 2009, through on or about August 8, 2009, Respondent provided care and treatment to patient J.G., a fortyseven year old male resident of Fort Lauderdale, Florida, for complaints of neck and low back pain. 28. Respondent prescribed controlled substances to patient J.G. as follows: Date Roxicodone 30 mg. #126 #168 #168 06/19/2009 07/11/2009 08/08/2009 29. Roxicodone 15 mg. #42 #84 #84 Xanax 2 mg. #42 #56 #56 Respondent did not employ or document diligent efforts for the prevention of misuse or diversion of the controlled substances prescribed to patient J.G. 30. Respondent did not obtain and document a complete medical history for patient J.G. DOH v. Victoria Macatangay Gaus, M.D. Case Number 2009-22473 7 31. Respondent did not obtain and document adequate physical examinations of patient J.G. 32. Throughout the time of Respondent's care and treatment of patient 1G., Respondent did not adequately provide or recommend other treatment modalities to patient J.G. 33. Respondent did not adequately perform or prescribe tests for evaluation of patient J.G.'s complaints. 34. Respondent did not refer patient J.G. to specialists for evaluation or treatment. 35. The Department submitted the medical records of patient J.G to an expert Board certified in Physical Medicine and Rehabilitation, with a subspecialty certification in Pain Medicine, for review. 36. The Expert opined that Respondent had prescribed inappropriate and excessive quantities or combinations of controlled substances to patient J.G. without medical justification. Facts Specific to Patient R.H. 37. From on or about June 13, 2009, through on or about December 28, 2009, Respondent provided care and treatment to patient DOH v. Victoria Macatangay Gaus, M.D. Case Number 2009-22473 8 R.H., a fifty-one year old female resident of Sunrise, Florida, for complaints of lower leg pain, foot pain, and right arm pain. 38. Respondent prescribed controlled substances to patient R.H. as follows: Date 06/13/2009 06/13/2009 07/22/2009 08/15/2009 08/15/2009 09/12/2009 09/12/2009 10/15/2009 10/15/2009 11/09/2009 11/28/2009 12/28/2009 01/18/2010 01/18/2010 02/12/2010 03/05/2010 04/03/2010 Roxicodone 30 mg. #100 Xanax 0.25 mg. #84 No amount written on prescription. Instructions: One to two tabs every 4 to 6 hours for pain not to exceed 8 tabs/day X 28 days. #100 #36 #80 #144 #100 #124 #224 #214 #28 #200 #120 #80 #200 #160 #180 DOH v. Victoria Macatangay Gaus, M.D. Case Number 2009-22473 Xanax 2 mg. #14 #14 #28 #21 #28 9 39. Respondent did not employ or document diligent efforts for the prevention of misuse or diversion of the controlled substances prescribed to patient R.H. 40. Respondent did not obtain and document a complete medical history for patient R.H. 41. Respondent did not obtain and document adequate physical examinations of patient R.H. 42. Throughout the time of Respondent's care and treatment of patient R.H., Respondent did not adequately provide or recommend other treatment modalities to patient R.H. 43. Respondent did not adequately perform or prescribe tests for evaluation of patient R.H.'s complaints. 44. Respondent did not refer patient R.H. to specialists for evaluation or treatment. 45. The Department submitted the medical records of patient R.H. to an expert Board certified in Physical Medicine and Rehabilitation, with a subspecialty certification in Pain Medicine, for review. DOH v. Victoria Macatangay Gaus, M.D. Case Number 2009-22473 10 46. The Expert opined that Respondent had prescribed inappropriate and excessive quantities or combinations of controlled substances to patient R.H. without medical justification. Facts Specific to Patient T.K. 47. From on or about March 9, 2009, through on or about November 21, 2009, Respondent provided care and treatment to patient T.K., a thirty-four year old male resident of Fort Lauderdale, Florida, for complaints of low back pain, at Medical Health and Wellness Center, Inc. Respondent previously provided care to patient T.K. at Boca East Pain Management, LLC, located at 880 N.W. 13th Street, Suite 2-A, Boca Raton, Florida, beginning on or about August 13, 2008, through on or about February 6, 2009. 48. Respondent prescribed controlled substances to patient T.K. as follows: Date 08/13/2008 01/05/2009 02/06/2009 03/19/2009 03/21/2009 03/21/2009 05/06/2009 05/06/2009 Roxicodone 30 mg. #168 #168 #168 Roxicodone 15 mg. #84 #84 #84 #42 #126 #120 #48 #21 #63 #84 DOH v. Victoria Macatangay Gaus, M.D. Case Number 2009-22473 Xanax 2 mg. #56 #56 #56 #56 #56 11 Date 06/06/2009 06/06/2009 07/06/2009 08/03/2009 09/11/2009 09/11/2009 10/23/2009 11/21/2009 49. Roxicodone 30 mg. #103 #77 #168 #168 #100 #68 #168 #168 Roxicodone 15 mg. #90 Xanax 2 mg. #60 #84 #84 #84 #56 #56 #56 #84 #84 #56 #56 On or about August 13, 2008, patient T.K. provided a history to Respondent of taking Roxicodone (a brand name for oxycodone) and Xanax (a brand name for alprazolam, which is a benzodiazepine). 50. On or about August 13, 2008, patient T.K. provided a history of taking controlled substances that were prescribed to his wife. 51. On or about August 15, 2008, laboratory analysis of urine collected from patient T.K. on or about August 13, 2008, was negative for oxycodone and benzodiazepines. 52. Respondent did not employ or document diligent efforts for the prevention of misuse or diversion of the controlled substances prescribed to patient T.K. 53. Respondent did not obtain and document a complete medical history for patient T.K. DOH v. Victoria Macatangay Gaus, M.D. Case Number 2009-22473 12 54. Respondent did not obtain and document adequate physical examinations of patient T.K. 55. Throughout the time of Respondent's care and treatment of patient T.K., Respondent did not adequately provide or recommend other treatment modalities to patient T.K. 56. Respondent did not adequately perform or prescribe tests for evaluation of patient T.K.'s complaints. 57. Respondent did not refer patient T.K. to specialists for evaluation or treatment. 58. The Department submitted the medical records of patient T.K. to an expert Board certified in Physical Medicine and Rehabilitation, with a subspecialty certification in Pain Medicine, for review. 59. The Expert opined that Respondent had prescribed inappropriate and excessive quantities or combinations of controlled substances to patient T.K. without medical justification. Facts Specific to Patient B.M. 60. From on or about December 10, 2008, through on or about March 11, 2009, Respondent provided care and treatment to patient B.M., DOH v. Victoria Macatangay Gaus, M.D. Case Number 2009-22473 13 a fifty-two year old male resident of Davie, Florida, for complaints of low back pain. 61. Respondent prescribed controlled substances to patient B.M. as follows: Date 12/10/2008 12/31/2008 01/21/2009 02/11/2009 03/04/2009 03/04/2009 03/30/2009 05/11/2009 05/11/2009 62. Roxicodone 30 mg. #168 #168 #168 #168 #112 #50 #168 #168 #56 Xanax 2 mg. #21 #12 #12 Respondent did not employ or document diligent efforts for the prevention of misuse or diversion of the controlled substances prescribed to patient B.M. 63. Respondent did not obtain and document a complete medical history for patient B.M. 64. Respondent did not obtain and document adequate physical examinations of patient B.M. DOH v. Victoria Macatangay Gaus, M.D. Case Number 2009-22473 14 65. Throughout the time of Respondent's care and treatment of patient B.M., Respondent did not adequately provide or recommend other treatment modalities to patient B.M. 66. Respondent did not adequately perform or prescribe tests for evaluation of patient B.M.'s complaints. 67. Respondent did not refer patient B.M. to specialists for evaluation or treatment. 68. The Department submitted the medical records of patient B.M. to an expert Board certified in Physical Medicine and Rehabilitation, with a subspecialty certification in Pain Medicine, for review. 69. The Expert opined that Respondent had prescribed inappropriate and excessive quantities or combinations of controlled substances to patient B.M. without medical justification. COUNT I — Pt. E.D. 70. Petitioner re-alleges and incorporates paragraphs one (1) through twenty-six (26) as if fully set forth herein. 71. Section 458.331(1)(t), Florida Statutes (2008-2009), provides that committing medical malpractice constitutes grounds for disciplinary action by the Board of Medicine. Medical Malpractice is defined in Section DOH v. Victoria Macatangay Gaus, M.D. Case Number 2009-22473 15 456.50(g), Florida Statutes, 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. For purposes of Section 458.331(1)(t), Florida Statutes, the Board shall give great weight to the provisions of Section 766.102, Florida Statutes, which provides that the prevailing professional standard of care for a given health care 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. 72. 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 E.D. in one or more of the following ways: a. By failing to obtain a complete medical history; b. By failing to perform a complete physical examination; c. By prescribing excessive and/or inappropriate amounts of controlled substances without medical justification; d. By failing to develop an appropriate treatment plan; e. By failing to refer the patient to specialists; DOH v. Victoria Macatangay Gaus, M.D. Case Number 2009-22473 16 f. By failing to adequately provide or recommend other treatment modalities; and g. By failing to employ and document diligent efforts for the prevention of misuse or diversion of the controlled substances prescribed to patient E.D. 73. Based on the foregoing, Respondent violated Section 458.331(1)(t), Florida Statutes (2008-2009), by committing medical malpractice in her care and treatment of patient E.D. COUNT II — Pt. E.D. 74. Petitioner re-alleges and incorporates paragraphs one (1) through twenty-six (26) as if fully set forth herein. 75. Section 458.331(1)(q), Florida Statutes (2008-2009), subjects a licensee to discipline, including suspension, 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 purposes of Section 458.331(1)(q), 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 DOH v. Victoria Macatangay Gaus, M.D. Case Number 2009-22473 17 interest of the patient and is not in the course of the physician's professional practice, without regard to his or her intent. 76. Respondent prescribed, dispensed, and/or administered controlled substances other than in the course of his professional practice by prescribing, dispensing, and/or administering controlled substances inappropriately, without regard to the patient's best interests or in excessive or inappropriate quantities to patient E.D. on or about the above described dates and in the above described quantities and combinations. 77. Based on the foregoing, Respondent violated Section 458.331(1)(q), Florida Statutes (2008-2009), by inappropriately prescribing excessive and inappropriate quantities of controlled substances to patient E.D. COUNT III Pt. J.G. 78. Petitioner re-alleges and incorporates paragraphs one (1) through fourteen (14) and twenty-seven (27) through thirty-six (36) as if fully set forth herein. 79. Section 458.331(1)(t), Florida Statutes (2008-2009), provides that committing medical malpractice constitutes grounds for disciplinary action by the Board of Medicine. Medical Malpractice is defined in Section DOH v. Victoria Macatangay Gaus, M.D. Case Number 2009-22473 18 456.50(g), Florida Statutes, 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. For purposes of Section 458.331(1)(t), Florida Statutes, the Board shall give great weight to the provisions of Section 766.102, Florida Statutes, which provides that the prevailing professional standard of care for a given health care 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. 80. 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 J.G. in one or more of the following ways: a. By failing to obtain a complete medical history; b. By failing to perform a complete physical examination; c. By prescribing excessive and/or inappropriate amounts of controlled substances without medical justification; d. By failing to develop an appropriate treatment plan; e. By failing to refer the patient to specialists; DOH v. Victoria Macatangay Gaus, M.D. Case Number 2009-22473 19 f. By failing to adequately provide or recommend other treatment modalities; and g. By failing to employ and document diligent efforts for the prevention of misuse or diversion of the controlled substances prescribed to patient J.G. 81. Based on the foregoing, Respondent violated Section 458.331(1)(t), Florida Statutes (2008-2009), by committing medical malpractice in her care and treatment of patients J.G. COUNT IV Pt. J.G. 82. Petitioner re-alleges and incorporates paragraphs one (1) through fourteen (14) and twenty-seven (27) through thirty-six (36) as if fully set forth herein. 83. Section 458.331(1)(q), Florida Statutes (2008-2009), subjects a licensee to discipline, including suspension, 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 purposes of Section 458.331(1)(q), it shall be legally presumed that prescribing, dispensing, administering, mixing, or otherwise preparing legend drugs, including all controlled substances, DOH v. Victoria Macatangay Gaus, M.D. Case Number 2009-22473 20 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. 84. Respondent prescribed, dispensed, and/or administered controlled substances other than in the course of his professional practice by prescribing, dispensing, and/or administering controlled substances inappropriately, without regard to the patients' best interests or in excessive or inappropriate quantities to patient J.G. on or about the above described dates and in the above described quantities and combinations. 85. Based on the foregoing, Respondent violated Section 458.331(1)(q), Florida Statutes (2008-2009), by inappropriately prescribing excessive and inappropriate quantities of controlled substances to patient J.G. COUNT V — Pt. R.H. 86. Petitioner re-alleges and incorporates paragraphs one (1) through fourteen (14) and thirty-seven (37) through forty-six (46) as if fully set forth herein. 87. Section 458.331(1)(t), Florida Statutes (2008-2009), provides that committing medical malpractice constitutes grounds for disciplinary DOH v. Victoria Macatangay Gaus, M.D. Case Number 2009-22473 21 action by the Board of Medicine. Medical Malpractice is defined in Section 456.50(g), Florida Statutes, 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. For purposes of Section 458.331(1)(t), Florida Statutes, the Board shall give great weight to the provisions of Section 766.102, Florida Statutes, which provides that the prevailing professional standard of care for a given health care 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. 88. 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 patients R.H. in one or more of the following ways: a. By failing to obtain a complete medical history; b. By failing to perform a complete physical examination; c. By prescribing excessive and/or inappropriate amounts of controlled substances without medical justification; d. By failing to develop an appropriate treatment plan; DOH v. Victoria Macatangay Gaus, M.D. Case Number 2009-22473 22 e. By failing to refer the patient to specialists; f. By failing to adequately provide or recommend other treatment modalities; and g. By failing to employ and document diligent efforts for the prevention of misuse or diversion of the controlled substances prescribed to patient R.H. 89. Based on the foregoing, Respondent violated Section 458.331(1)(t), Florida Statutes (2008-2009), by committing medical malpractice in her care and treatment of patients R.H. COUNT VI — Pt. R.H. 90. Petitioner re-alleges and incorporates paragraphs one (1) through fourteen (14) and thirty-seven (37) through forty-six (46) as if fully set forth herein. 91. Section 458.331(1)(q), Florida Statutes (2008-2009), subjects a licensee to discipline, including suspension, 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 purposes of Section 458.331(1)(q), it shall be legally presumed that prescribing, dispensing, administering, mixing, or DOH v. Victoria Macatangay Gaus, M.D. Case Number 2009-22473 23 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. 92. Respondent prescribed, dispensed, and/or administered controlled substances other than in the course of his professional practice by prescribing, dispensing, and/or administering controlled substances inappropriately, without regard to the patients' best interests or in excessive or inappropriate quantities to patients R.H. on or about the above described dates and in the above described quantities and combinations. 93. Based on the foregoing, Respondent violated Section 458.331(1)(q), Florida Statutes (2008-2009), by inappropriately prescribing excessive and inappropriate quantities of controlled substances to patient R. H . COUNT VII— Pt. T.K. 94. Petitioner re-alleges and incorporates paragraphs one (1) through fourteen (14) and forty-seven (47) through fifty-nine (59) as if fully set forth herein. DOH v. Victoria Macatangay Gaus, M.D. Case Number 2009-22473 24 95. Section 458.331(1)(t), Florida Statutes (2008-2009), provides that committing medical malpractice constitutes grounds for disciplinary action by the Board of Medicine. Medical Malpractice is defined in Section 456.50(g), Florida Statutes, 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. For purposes of Section 458.331(1)(t), Florida Statutes, the Board shall give great weight to the provisions of Section 766.102, Florida Statutes, which provides that the prevailing professional standard of care for a given health care 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. 96. 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 patients T.K. in one or more of the following ways: a. By failing to obtain a complete medical history; b. By failing to perform a complete physical examination; DOH v. Victoria Macatangay Gaus, M.D. Case Number 2009-22473 25 c. By prescribing excessive and/or inappropriate amounts of controlled substances without medical justification; d. By failing to develop an appropriate treatment plan; e. By failing to refer the patient to specialists; f. By failing to adequately provide or recommend other treatment modalities; and g. By failing to employ and document diligent efforts for the prevention of misuse or diversion of the controlled substances prescribed to patient T.K. 97. Based on the foregoing, Respondent violated Section 458.331(1)(t), Florida Statutes (2008-2009), by committing medical malpractice in her care and treatment of patients T.K. COUNT VIII — Pt. T.K. 98. Petitioner re-alleges and incorporates paragraphs one (1) through fourteen (14) and forty-seven (47) through fifty-nine (59) as if fully set forth herein. 99. Section 458.331(1)(q), Florida Statutes (2008-2009), subjects a licensee to discipline, including suspension, for prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including any DOH v. Victoria Macatangay Gaus, M.D. Case Number 2009-22473 26 controlled substance, other than in the course of the physician's professional practice. For purposes of Section 458.331(1)(q), 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. 100. Respondent prescribed, dispensed, and/or administered controlled substances other than in the course of his professional practice by prescribing, dispensing, and/or administering controlled substances inappropriately, without regard to the patients' best interests or in excessive or inappropriate quantities to patients T.K. on or about the above described dates and in the above described quantities and combinations. 101. Based on the foregoing, Respondent violated Section 458.331(1)(q), Florida Statutes (2008-2009), by inappropriately prescribing excessive and inappropriate quantities of controlled substances to patient T.K. DOH v. Victoria Macatangay Gaus, M.D. Case Number 2009-22473 27 COUNT IX — Pt. B.M. 102. Petitioner re-alleges and incorporates paragraphs one (1) through fourteen (14) and sixty (60) through sixty-nine (69) as if fully set forth herein. 103. Section 458.331(1)(t), Florida Statutes (2008-2009), provides that committing medical malpractice constitutes grounds for disciplinary action by the Board of Medicine. Medical Malpractice is defined in Section 456.50(g), Florida Statutes, 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. For purposes of Section 458.331(1)(t), Florida Statutes, the Board shall give great weight to the provisions of Section 766.102, Florida Statutes, which provides that the prevailing professional standard of care for a given health care 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. 104. Respondent failed to practice medicine with that level of care, skill and treatment, which is recognized by a reasonably prudent similar DOH v. Victoria Macatangay Gaus, M.D. Case Number 2009-22473 28 physician as being acceptable under similar conditions and circumstances, in the treatment of patient B.M. in one or more of the following ways: a. By failing to obtain a complete medical history; b. By failing to perform a complete physical examination; c. By prescribing excessive and/or inappropriate amounts of controlled substances without medical justification; d. By failing to develop an appropriate treatment plan; e. By failing to refer the patient to specialists; f. By failing to adequately provide or recommend other treatment modalities; and g. By failing to employ and document diligent efforts for the prevention of misuse or diversion of the controlled substances prescribed to patient B.M. 105. Based on the foregoing, Respondent violated Section 458.331(1)(t), Florida Statutes (2008-2009), by committing medical malpractice in her care and treatment of patients B.M. DOH v. Victoria Macatangay Gaus, M.D. Case Number 2009-22473 29 COUNT X — Pt. B.M. 106. Petitioner re-alleges and incorporates paragraphs one (1) through fourteen (14) and sixty (60) through sixty-nine (69) as if fully set forth herein. 107. Section 458.331(1)(q), Florida Statutes (2008-2009), subjects a licensee to discipline, including suspension, 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 purposes of Section 458.331(1)(q), 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. 108. Respondent prescribed, dispensed, and/or administered controlled substances other than in the course of his professional practice by prescribing, dispensing, and/or administering controlled substances inappropriately, without regard to the patients' best interests or in excessive or inappropriate quantities to patients B.M. on or about the DOH v. Victoria Macatangay Gaus, M.D. Case Number 2009-22473 30 above described dates and in the above described quantities and combinations. 109. Based on the foregoing, Respondent violated Section 458.331(1)(q), Florida Statutes (2008-2009), by inappropriately prescribing excessive and inappropriate quantities of controlled substances to patient B. M . 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. SIGNED this a/ day of , 2012. John H. Armstrong, M.D. Surgeon General and Secretary of Health Florida Department of Health John Fricke, Jr. Assi nt General Counsel DOH v. Victoria Macatangay Gaus, M.D. Case Number 2009-22473 31 FILED DEPARTMENT OF HEALTH DEPU'TY CLERK CLERK DATE el S 0 feis DOH Prosecution Services Unit 4052 Bald Cypress Way, BIN C-65 Tallahassee, FL 32399-3265 Florida Bar #0901910 Telephone (850) 245-4640 Fax (850) 245-4681 3 BF/cry PCP: September 28, 2012 PCP: Members: Dr. Thomas, Dr. Winchester & Mr. Levine DOH v. Victoria Macatangay Gaus, M.D. Case Number 2009-22473 32 DOH v. Victoria M. Gaus, M.D. Case Number 2009-22473 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. 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. DOH v. Victoria Macatangay Gaus, M.D. Case Number 2009-22473 33