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It isn't easy to take away a doctor's prescription pad

First of two parts

Dr. Ty Anderson let assistants use his name to prescribe Vicodin and other narcotic painkillers for patients — three of whom overdosed and died. Yet Anderson, arrested last year on unrelated cocaine charges, is still practicing in Largo. Dr. Philip Bagenski was arrested too, accused of prescribing Roxicodone, a powerful narcotic, in exchange for cocaine. But he's still practicing —in the same Clearwater building as Dr. Jayam Krishna-Iyer, who authorities say unlawfully prescribed painkillers to undercover detectives.

Strung-out addicts may be the face of Florida's prescription drug abuse crisis, but doctors are key figures in a scourge that now kills seven Floridians a day. While only a small number of doctors cause problems, one doctor seeing 80 patients a day — not uncommon in some pain clinics — can potentially put 20,000 pills a day in the hands of drug abusers and traffickers.

"It only takes one bad physician in the community to be a nightmare for the entire community," said Pinellas sheriff's Sgt. Dan Zsido, a member of the county's drug diversion task force.

Yet it's not easy to take away a doctor's prescription pad. A St. Petersburg Times investigation found that the system for identifying and disciplining doctors is plagued with long delays, light penalties and testy finger-pointing among regulators, law enforcement and lawmakers over who should be doing what.

The Times reviewed the cases of nearly 200 Florida medical and osteopathic doctors accused of inappropriately prescribing pain medications — the 159 doctors who have been disciplined by state health regulators since 2005, plus an additional three dozen who have come to the attention of regulators and law enforcement but have not been disciplined. These physicians are linked to at least 99 overdose deaths, yet the review found:

• More than a fourth of the disciplined doctors still have clear and active licenses, meaning they can practice and prescribe without restriction.

• Even a prison sentence is no guarantee a doctor will lose his license. Some who committed criminal acts are still allowed to practice.

• It takes an average of at least 18 months from the time the Florida Department of Health starts investigating a doctor to the time disciplinary action is taken. Some cases have languished for years without final action.

• The Florida Legislature has dragged its feet in enacting measures to curb prescription drug abuse. Even the highly touted new laws to regulate pain clinics and monitor prescription drugs contain gaping loopholes.

The Times also found that the doctors disciplined for illegal or inappropriate prescribing don't fit the stereotype of shady back-room practitioners.

Most are veteran physicians, licensed in Florida an average of 22 years. A majority graduated from U.S. medical schools. Two-thirds have specialty certification, a sign of medical expertise.

Despite their credentials, their actions have tarnished their profession.

Some prescribed drugs in exchange for sex. Some were addicts who took the drugs themselves. But many had no apparent reason for prescribing other than that it was easy — and lucrative.

"There are a lot of unscrupulous people who have seized on this need for pain medication and have filled that need for financial gain,'' said Dr. Allan Escher of Tampa, a pain management specialist and a member of the Florida board that regulates osteopaths. "We did not have enough oversight at a time when the economy was tanking and people were scrambling to find ways to make money.''

Healers or dealers?

From 2005 to 2009, Florida tallied 5,887 deaths from prescription drugs. That's three times the number of deaths from heroin, cocaine and other illegal drugs combined.

Though drug abusers can also obtain pills from friends or pushers, the road to the morgue often winds through a doctor's office. But red flags can wave for years before a doctor is stopped from dangerous patterns of prescribing.

Starting in 2002, Dr. Ephraim Aguilar prescribed narcotics to numerous patients without medical justification, health records say. One man fatally overdosed in 2003 on methadone, hydrocodone and Xanax, an anti-anxiety drug — all medications that the North Fort Myers doctor had prescribed just a day before.

Aguilar kept writing prescriptions, sometimes in amounts so excessive that a local pharmacy and a health insurer questioned them. In 2005, the Florida Department of Health received three complaints about Aguilar. But it was only after four patients died in a single month — October 2006 — that the department suspended his license.

Aguilar voluntarily gave up his right to practice medicine in 2007 — almost four years after the first reported death.

Most of the 62 doctors who lost their licenses relinquished them voluntarily rather than face further board action. Most also faced criminal charges; two were sentenced to life in federal prison.

"These doctors are dealers. That's all they are. They are dealers with an MD after their names,'' said Dr. Steven Rosenberg, a member of the Florida Board of Medicine.

But some doctors have continued to practice despite facing serious criminal charges linked to patient deaths.

At least four of Dr. John Mubang's patients had died of overdoses by the time authorities raided his Seffner clinic in 2008. He was charged with drug trafficking after prescribing drugs to undercover detectives, allegedly without examining them.

At his trial this month, Mubang testified that he did examine the agents. Circuit Judge Ronald Ficarrotta declared a mistrial when the jury was unable to reach a verdict.

But the jury never heard about the deaths. Some of the victims were addicts who got pills from other doctors, too, so the prosecution couldn't prove that drugs prescribed by Mubang caused their deaths. Nor was there any way to prove that cars with out-of-state tags seen near Mubang's clinic belonged to his patients.

Mubang, who did not respond to a request for comment for this story, continued to practice and prescribe in the two years it took for his case to come to trial. His license remains clear as prosecutors consider whether to retry him.

"How many people have to die before they take away his license? How many mothers have to cry themselves to sleep?" asked Victoria Gabriello, whose 32-year-old son, Michael Tarantola, was one of Mubang's patients who died.

Sometimes, even a felony conviction isn't enough to revoke a doctor's license.

Dr. Rene Guerra of Miami was sentenced to 18 months in federal prison after pleading guilty in 2006 to prescribing controlled drugs over the Internet. The medical board fined him $10,000, but his medical license today is clear.

Guerra, who did not respond to a request for comment, is free to practice.

Prescription for abuse

Starting in the 1990s, the use of legal narcotics grew as the medical community recognized chronic pain as a significant problem warranting powerful treatment.

The number of prescriptions for the painkiller OxyContin soared from fewer than a half-million in 1996 to more than 7 million in 2002, a government analysis found. Escher, of the osteopathic board, recalls drug company representatives aggressively lobbying doctors to prescribe OxyContin.

At the same time, law enforcement was continuing to crack down on street drugs.

"There was a war on illicit drugs,'' Escher said, "and I think that left the door open for a great expansion of licit drugs.''

Many people have been helped by the drugs. But the subjective nature of pain can make it hard to determine if a patient really needs a powerful drug like OxyContin or only wants to get high.

"There's no such thing as a pain meter, so doctors basically have to trust their patients,'' said Ronald Libby, a University of North Florida professor and author of The Criminalization of Medicine: America's War on Doctors.

"They have no control over what these patients do when they leave the office. They don't know if they mix drugs with alcohol and tranquilizers or inject them. To blame doctors for that is absurd."

Still, authorities say some doctors are clearly stretching the boundaries between appropriate standards of care and dangerous overprescribing.

"People can't hide behind white coats and medical degrees,'' said Mark Trouville, special agent in charge of the Drug Enforcement Administration's Miami field office. "If you are doing the right thing, you are doing the right thing. If you are just selling dope for profit, then you are not.''

Florida is now home to 98 of the top 100 doctors in the United States who dispense oxycodone right out of their offices. That practice is a telltale sign of a pill mill, Trouville said, and one reason Florida is known as the epicenter of the nation's prescription drug abuse crisis.

Pill mills rising

State health regulators acknowledge they were slow to respond to the crisis, in part because they were often the last to hear about problem doctors.

"It was a community and law enforcement problem long before complaints were being received'' by the state health department, said Lucy Gee, head of the agency's investigatory arm.

Tips from the public and a former employee led in 2005 to the first major investigation of a Tampa Bay pain clinic.

Cars clogged the streets near Doctors Urgent Care, a St. Petersburg walk-in clinic that advertised easy access to Vicodin, Percocet and other drugs. Detectives watched people limp in with braces and canes, than race out a few minutes later waving prescriptions.

"Going by it was like a lunchtime at Publix,'' said Zsido of the Pinellas drug task force. "You couldn't get by because of the gridlock. Any legitimate clinic would not be able to see that many patients in that period of time.''

Dr. Ty Anderson, the clinic's medical director, was rarely there, according to detectives. Instead, he signed stacks of blank prescriptions and sent them by courier from his main office in Seminole.

Among the patients: Todd Brazis, a 28-year-old cook from Charlotte County. On March 10, 2006, he paid the clinic $249 and got three prescriptions — all with Anderson's initial — for a total of 330 Xanax, Roxicodone and methadone pills.

Two days later, Brazis' girlfriend found him dead of an overdose.

In May 2006, the Pinellas Sheriff's Office raided the clinic and arrested Dr. Mary Jane Eicher, then 71, who had lost her own prescribing privileges and had written prescriptions on forms Anderson signed. Also arrested were the clinic's owner and two physician assistants.

But Anderson wasn't charged. Though detectives said he had signed "boxes and boxes'' of blank prescription forms used by others, that's a civil violation, not a crime.

The state health department suspended Anderson's license and fined him $12,500, but he was back at work within two months. He has an active license and a family practice in Largo even though he is awaiting trial on a felony charge of possessing cocaine. Anderson did not respond to calls or a certified letter seeking comment.

Pinellas detectives say they're frustrated that Anderson and the physician assistants didn't lose their licenses.

"The problem,'' said Detective Phillip Mansfield, "is not with law enforcement.''

Disciplinary pipeline

State Sen. Mike Fasano, who sponsored legislation to curb prescription drug abuse, says he has been frustrated by what he calls the "professional courtesy'' extended to doctors by the boards that discipline them.

"They would just get a slap on the wrist and go back to work,'' said Fasano, a New Port Richey Republican.

But board members say state law does not give them authority to hunt for those who may be misprescribing.

"The biggest problem is. we can't discipline anybody unless a complaint is filed," said Rosenberg, a West Palm Beach dermatologist on the Board of Medicine. "And drug addicts aren't about to complain about their drug dealer."

He and others acknowledged, though, that the state disciplinary process can take too long.

The Times found that an average of at least 18 months elapses between the time a complaint is received and when regulators take action.

Though a long delay means an accused doctor can continue to prescribe, physicians have the same right as others to maintain their innocence until proven guilty.

"On the one hand, we want to stop all bad medicine," said Escher of the osteopathic board. "On the other hand, we have to (protect) physicians from wrongful prosecution.''

After the health department receives a complaint — sometimes from parents who lost a child to an overdose — authorities must find "probable cause" to proceed. Investigators say it can take months to obtain patient records from doctors that would prove a pattern of excessive prescribing.

The department also must have a medical expert review the records. It's a time-intensive effort that doesn't always hold up.

Consider the case of Dr. De Nguyen.

Patients from as far away as Pensacola flocked to the Kissimmee clinic where Nguyen worked. Pharmacists complained to the health department about the large quantities of oxycodone and other drugs Nguyen prescribed. Six of his patients died of overdoses.

In 2005, the health department called Nguyen an "immediate serious danger'' to the public and issued an emergency order that barred him from prescribing controlled drugs.

But the state dropped the case after Nguyen and his attorney showed that the department's expert had made several errors in his report.

"I was falsely accused,'' Nguyen, 68, told the Times. He said he retired when the state began investigating him but his license is clear, meaning he could resume practicing if he chose.

Other cases drag on for years.

Mazhar Nawaz, a surgeon in Kissimmee, already had been fined $20,000 for signing blank prescription forms when the health department received a new complaint against him in 2004. It alleged that Nawaz had inappropriately prescribed pain medications to several patients, including one who came in complaining of back pain and toenail fungus and walked out with a prescription for 150 pain pills.

But the department did not file a formal complaint against Nawaz until 2009, and it has yet to take any action. So Nawaz, who did not respond to the Times request for comment, can continue to practice at several Orlando-area hospitals where he has staff privileges.

Spreading the blame

Some doctors escape health department scrutiny altogether.

Though they often work closely with each other, police aren't required to tell the health department when a doctor is arrested.

Though Florida medical examiners inventory prescription drugs found with overdose victims, they aren't required to tell the health department who prescribed them.

"We're not the doctor police,'' said Dr. Vernard Adams, chief medical examiner for Hillsborough County.

And though the DEA can revoke a doctor's registration to prescribe controlled drugs, it doesn't have to tell the health department when it does so.

In 2000, Dr. Jayam Krishna-Iyer of Clearwater was arrested on a federal charge after prescribing painkillers to three undercover agents even though they told her they were not in pain. The investigation stemmed from numerous complaints about Iyer.

The charges were dropped when Iyer completed a pretrial diversion program. Nonetheless, the DEA revoked her registration in 2006, saying she had violated federal law.

An appeals court set aside the DEA order in 2007, enabling Iyer to resume prescribing. Last year, the agency renewed Iyer's DEA registration on the condition she file monthly reports with the agency for a year.

Today, anyone checking Iyer's record on the health department's website would find no evidence the department knew of her arrest.

Did it? The agency won't say.

Iyer, who did not respond to a request for comment, runs the Creative Health Center in Clearwater. Its website says it is dedicated to making patients "feel young and vibrant'' with Botox and other treatments. Listed last among its services is "pain management.''

Iyer is fighting a lawsuit that accuses her of negligence in prescribing drugs to a 44-year-old woman who fatally overdosed six years ago.

Laws and loopholes

Regulatory boards say they are cracking down on doctors who misprescribe. Among them: Ricardo Sabates, a Delray Beach physician accused of prescribing excessive amounts of narcotics.

Sabates, a doctor for 33 years, defended his actions even though he conceded that "the pill mill problem,'' as he called it, had given him pause.

"I think that medical pain management is a very necessary specialty,'' Sabates told the Board of Medicine in August. "I think I am very highly qualified. I stayed up on all the information. I treat my patients very well. I have had no complaints from my patients.''

The health department proposed a $60,000 fine. But after questioning Sabates about his specialty certification in pain management (none) and whether his practice was all cash (yes), board members voted to revoke his license. They noted he had been fined $10,000 three years ago for sloppy record-keeping and other violations, yet was back before them again.

"The doctor just cannot follow the rules," Dr. Lisa Tucker, a Pensacola ob/gyn, said as she made a motion for revocation, which Sabates is appealing. "We've not gotten his attention yet."

Board members say they have long begged the Florida Legislature for more safeguards against prescription drug abuse.

"I'm sometimes frustrated that we haven't gotten more credit for really trying to bring this issue out to the public's attention," Rosenberg said.

Finally, seven years after it was introduced, state lawmakers passed a bill last year that creates a prescription drug monitoring system. Florida is the largest of about a dozen states without such a system, designed to catch patients who doctor-shop for drugs.

"There were many members in the House who didn't believe we should care about the prescriptions people were taking,'' said Fasano, who introduced the bill in the Senate.

But because of delays, the monitoring system is not expected to start operating until early next year. And the Legislature failed to provide money for the program, which is relying on a federal grant and donations for start-up funding.

The system has a major loophole — doctors aren't required to check it. So patients might still be able to score thousands of pills in the 15-day lag time between when the drugs are dispensed and must be logged into the system.

Nor will medical examiners be required to log in the names of doctors who prescribe drugs contributing to fatal overdoses.

Florida is one of just three states imposing tough new requirements on pain clinics, defined as those that advertise pain management or employ a doctor who primarily prescribes painkillers.

Since January, pain clinics have been required to register with the state health department and submit to annual inspections. Starting Friday, clinics must be owned by doctors licensed to practice in Florida. They soon will have to adhere to clinical guidelines developed by the state medical boards.

"Unfortunately, in any business, there are criminals," said Dr. Fred Bearison, a Valrico internist on the Board of Medicine. "Hopefully, one of the biggest impacts that will help to clean this thing up a little bit is the clinic inspections."

Skirting the rules

But here's the biggest catch of all: The new rules target doctors working in pain clinics, but many who prescribe narcotics work in other settings.

The Times found that all types of doctors have been disciplined for inappropriately prescribing painkillers — internists, family physicians, gynecologists and urologists. There's even a pediatrician from South Florida, Sergio Rodriguez, who faces first-degree murder charges for prescribing painkillers that killed three adults.

And one chain of pain clinics has already notified the state that it now runs "injury clinics.''

"I'll bet you're going to see an explosion in injury clinics,'' said Escher of the osteopathic board. "You'll see a lot of unscrupulous people rebrand enterprises as injury clinics and they're not going to advertise Vicodin and OxyContin. But people who doctor shop all talk to each other. They know where to go and when one place shuts down they go to another.''

Dr. Rafael Miguel, a Tampa pain medicine specialist and former member of the Board of Medicine, says he thinks the new regulations will give law enforcement better ammunition. That will help the medical boards take action.

"A lot of the legwork will be done now by law enforcement because they will have specific laws to point to and say, 'This is being violated.' " he said.

But some law enforcement officials say the medical boards need to better control doctors who practice outside the bounds of accepted medicine, not just those who break criminal laws.

"Professional self-regulation needs to be much more part of the answer because it has historically been more part of the problem," said Palm Beach County State Attorney Michael McAuliffe, whose office has been aggressive in filing charges against doctors.

"Some of the misconduct may very well fall short of trafficking and criminal activity, but nonetheless is outside the scope of what a physician should be doing, McAuliffe said.

"That's why there is an opportunity for self-policing to be part of the answer."

Starting Friday, the Board of Medicine will take up the cases of several doctors accused of prescription drug improprieties. Among those on the agenda: Bagenski, the Clearwater doctor accused of prescribing Roxicodone in exchange for cocaine.

In 2008, he pleaded no contest to a felony charge of possessing cocaine and was put on probation for three years.

But the medical board allowed Bagenski to keep practicing under the supervision of another doctor.

He now wants an early end even to that restriction.

Times researchers Carolyn Edds, John Martin and Natalie Watson contributed to this report. Letitia Stein can be contacted at lstein@sptimes.com. Susan Taylor Martin can be contacted at susan@sptimes.com.

About this story

These stories are based on documents obtained from the Florida Department of Health, which was asked for records on every doctor disciplined for prescription drug violations since 2005, plus pending complaints. The Times also reviewed actions taken by the federal Drug Enforcement Administration, federal and state courts and law enforcement. The Times interviewed members of the state medical boards, health regulators, law enforcement officials and sought interviews, by certified letter, with the doctors whose cases are cited.

It isn't easy to take away a doctor's prescription pad 09/24/10 [Last modified: Sunday, September 26, 2010 1:35pm]

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