vs. ) CASE NO. 79-1922
) ROBERT L. THOMAS, JR., M. D., )
Respondent. )
This hearing was held pursuant to notice on November 19, 1979, in Tallahassee, Florida, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose on an Administrative Complaint filed by the Board of Medical Examiners against Dr. Robert L. Thomas, Jr., which alleged that the doctor had violated Section 458.1201(1)(b), (h) and (m), Florida Statutes. A copy of the Administrative Complaint and an election of rights form was served on the doctor, who indicated on the election of rights form through his notarized signature that he did not dispute the allegations and desired an informal hearing. Because of legislative amendment of that portion of the statutes relating to informal hearings, the Board elected to send this case to the Division of Administrative Hearings to conduct the informal hearing. Dr. Thomas was notified of the hearing in accord with the applicable statutes and rules but did not attend, and he was not represented by counsel.
For Petitioner: William B. Wiley, Esquire
For Respondent: Did not appear and was not represented.
At the opening of the hearing, the Board made a Motion for Judgment in the Pleadings, producing documentary evidence of service of the Administrative Complaint, notice to Dr. Thomas of his right to an informal conference under Section 120.65(5), Florida Statutes, notice of the hearing, and Dr. Thomas' election of rights indicating that he did not dispute the allegations of the Administrative Complaint. At the Hearing Officer's request the Board was to file a written motion with supporting memorandum and a proposed findings of fact. This was done and copy provided to Dr. Thomas on November 28, 1979. No response to this Motion and the proposed findings of fact has been received as of this date.
Having considered the Board's Motion and memorandum, the Hearing Officer concludes that the doctor's election of rights constitutes an admission of the factual allegations. Because the doctor was not required to respond via the election of rights and had the opportunity to generally deny the charges against him, he has not been forced to testify against himself. His notarized election
indicating that he did not dispute the allegations is an admission of those portions of the Administrative Complaint.
On April 24, 1979, a nineteen (19) count Administrative Complaint (Petitioner's Composite Exhibit 1) was filed against the Respondent by Petitioner charging him with violation of Section 458.1201(1)(b), Florida Statutes, which prescribes making misleading, deceptive, untrue or fraudulent representations in the practice of medicine [nine (9) counts]; Section 458.1201 (1)(h), Florida Statutes, which proscribes unethical, deceptive or deleterious conduct [nine (9) counts]; and Section 458.1201 (1)(m), Florida Statutes, which proscribes being guilty of unprofessional conduct, incompetence, or negligence (one count).
On April 28, 1979, a copy of the above described Administrative Complaint was served upon the Respondent by Certified Mail, return receipt requested, at Post Office Box 8, Lester, Alabama 35647. Said service is evidenced by the return receipt card bearing the Respondent's signature, which is attached to Petitioner's Composite Exhibit 1.
On May 17, 1979, the Respondent executed before a Notary Public of the State of Alabama an "Election of Forum" responsive pleading (Petitioner's Exhibit 2) to the above described Administrative Complaint. Said pleading denoted that:
The Respondent had read the Explanation of Rights Form attached to the Administrative Complaint;
He did not dispute the allegations in the Administrative Complaint and requested an informal proceeding; and
He would like to be present at said hearing.
On October 27, 1979, a Notice of Informal Conference was served upon the Respondent by the Petitioner via Certified Mail (Petitioner's Exhibit 3). Said conference was set for November 5, 1979, in Tallahassee, Florida, pursuant to the provisions of Section 120.60(5), Florida Statutes, in order to provide the Respondent with an opportunity to show that he has complied with all lawful requirements for the retention of his license.
On October 12, 1979, a Notice of Hearing was furnished to the Petitioner and the Respondent by the undersigned Hearing Officer setting the final hearing in this cause for November 19, 1979, in Tallahassee, Florida. On November 6, 1979, an Amended Notice of Hearing was furnished to the Petitioner and the Respondent by the undersigned. Said Amended Notice merely changed the location of the final hearing in Tallahassee, Florida, on November 19, 1979.
The Respondent failed to appear at the final hearing in this cause conducted on November 19, 1979, at 10:00 a.m. in Tallahassee, Florida.
The Respondent is deemed to have admitted the following facts:
On May 30, 1973, the Respondent examined Shirley Spillman McClain in a professional capacity and advised her that she was fourteen (14) weeks pregnant.
In June, 1973, the Respondent again examined Shirley Spillman McClain and advised her that recent blood and urinalysis tests performed by Colonial Laboratory of Orlando, Florida, confirmed his pregnancy diagnosis.
In July, 1973, the Respondent again examined Shirley Spillman McClain and, after taking a series of x-rays, advised her that her pregnancy was following a normal progression.
In August, 1973, the Respondent again saw Shirley Spillman McClain and advised her that the x-rays taken in July, 1973, did not show bone structure attributable to a baby. However, the Respondent further indicated that he detected the heartbeat of her baby.
In September, 1973, the Respondent again examined Shirley Spillman McClain for a routine pregnancy check-up and informed her that her pregnancy was normal.
In October, 1973, the Respondent again examined Shirley Spillman McClain and advised her that her pregnancy was normal.
On two (2) occasions in November, 1973, the Respondent examined Shirley Spillman McClain and on each occasion advised her that her pregnancy was normal.
On December 1, 1973, the Respondent again examined Shirley Spillman McClain and informed her that her baby should be due on or about December 1, 1973.
Subsequent to December 1, 1973, the Respondent examined Shirley Spillman McClain on a weekly basis and advised her that her pregnancy was normal, and that first pregnancies are generally either early or late.
On December 27, 1973, the Respondent took further x-rays of Shirley Spillman McClain and advised her that there was a large mass growing on her right side, and that she was not pregnant.
On January 4, 1974, Shirley Spillman McClain was examined by Irvin Colwin, M. D., who diagnosed her condition as being bilateral cystadenocarcinoma with bladder-peritoneal metastasis.
On January 10, 1974, Irvin Colvin, M. D., performed a hysterectomy and exploratory surgery on Shirley Spillman McClain which confirmed his diagnosis of January 4, 1974.
Based on the above allegations, Shirley Spillman McClain brought an action for malpractice against the Respondent in the United States District Court for the Northern District of Alabama, Northeast Division, and a judgment based upon a jury verdict was entered against him on November 4, 1974, for damages of $25,000.
On October 10, 1972, the Respondent was suspended from the staff at Mercy Hospital in Orlando, Florida.
On September 12, 1973, the Respondent was informed by the Board of Trustees of Mercy Hospital in Orlando, Florida, that his petition for Reinstatement of Staff Privileges was denied.
On September 13, 1973, Pedro F. Hiribarne, M. D., Chief of OB-GYN at Mercy Hospital in Orlando, Florida, informed the Respondent that after October 1, 1973, he could no longer handle patients forwarded by Respondent to Mercy Hospital in Orlando, Florida, for childbirth and delivery.
Subsequent to September 12, 1973, the Respondent continued to accept patients for care and treatment without informing them of his lack of hospital privileges.
Subsequent to October 1, 1973, the Respondent continued to forward his patients to Mercy Hospital in Orlando, Florida, for childbirth and delivery under the care of Pedro F. Hiribarne, M. D., without informing them that he had no hospital privileges, and without informing either Pedro F. Hiribarne, M. D., or Mercy Hospital in Orlando, Florida, of his referral of these patients.
On November, 30, 1973, Annie Brown, a patient under the Respondent's care and treatment throughout her entire prenatal period, pursuant to his instructions, called him and informed him that she was starting labor. The Respondent informed her that he was leaving town, and instructed her to check into Mercy Hospital in Orlando, Florida, under the care of Pedro F. Hiribarne,
M. D.
At no time was Annie Brown informed by the Respondent of his lack of hospital privileges at Mercy Hospital in Orlando, Florida.
At no time prior to her starting labor was Annie Brown informed by the Respondent that he would be unable to deliver her child.
On November 30, 1973, Annie Brown entered Mercy Hospital in Orlando, Florida, and gave birth on December 1, 1973. The baby was delivered by an associate of Pedro F. Hiribarne, M.D.
In August, 1973, the Respondent informed Kitty Ellison, a patient under his care and treatment throughout her entire prenatal period, that she was to come to whichever area hospital where he would have privileges at the time that she would begin labor for the delivery of her child.
At no time during the course of his physician-patient relationship with Kitty Ellison did the Respondent inform her that he did not possess hospital privileges at any area hospital, and that he would be unable to deliver her child.
On December 30, 1973, the Respondent instructed William Ellison to take Kitty Ellison to Mercy Hospital in Orlando, Florida, for the delivery of her child. The Respondent informed William Ellison that Pedro F. Hiribarne, M. D., would deliver the child.
The Respondent failed to inform Pedro F. Hiribarne, M.D., of his forwarding Kitty Ellison to Mercy Hospital in Orlando, Florida, for his professional services.
On December 31, 1973, Pedro F. Hiribarne, M. D., delivered the child of Kitty Ellison at Mercy Hospital in Orlando, Florida.
In or about 1973, Katherine Curry was a patient under the Respondent's care and treatment during her entire prenatal period.
The Respondent informed Katherine Curry that when she went into labor he would meet her at one of the area hospitals.
At no time did the Respondent inform Katherine Curry that he did not possess hospital privileges and would be unable to deliver her child.
When Katherine Curry went into labor, in December of 1973, the Respondent instructed her to check into Mercy Hospital in Orlando, Florida. Upon admittance, she was informed that Pedro F. Hiribarne, M. D., would handle her case. When she called the Respondent's office to inquire why he was not handling her case, she was informed that the Respondent was out of town.
Pedro F. Hiribarne, M. D., delivered Katherine Curry's child at Mercy Hospital in Orlando, Florida, on December 7, 1973.
In or about 1973, Terri Haire was a patient under the Respondent's care and treatment for her entire prenatal period.
The Respondent did not inform Terri Haire that he did not possess hospital privileges, and that he would be unable to deliver her child.
Terri Haire was led to believe by the Respondent's conduct and representations that he would deliver her child.
Terri Haire was admitted to Mercy Hospital in Orlando, Florida, and her child was delivered by Pedro F. Hiribarne, M.D., on November 29, 1973.
In or about 1973, Alyune V. Scott was a patient under the Respondent's care and treatment for her entire prenatal period.
Alyune V. Scott was led to believe by the Respondent's conduct and representations that he would deliver her child.
At no time did the Respondent inform Alyune V. Scott that he did not possess hospital privileges and would be unable to deliver her child.
Pursuant to the Respondent's instructions, Alyune V. Scott checked into Mercy Hospital in Orlando, Florida, on December 5, 1973, and gave birth to her child, which was delivered by Pedro F. Hiribarne, M. D.
In or about 1973, Louise A. McDaniel was a patient under the Respondent's care and treatment for her entire prenatal period.
The Respondent did not inform Louise A. McDaniel of his lack of hospital privileges, and that he would be unable to deliver her child.
Louise A. McDaniel was led to believe by the Respondent's conduct and representations that he would be able to deliver her child.
Pursuant to the Respondent's instructions, Louise A. McDaniel checked into Mercy Hospital in Orlando, Florida, for the delivery of her child in December of 1973.
The Respondent did not make arrangements with Mercy Hospital in Orlando, Florida, or with Pedro F. Hiribarne, M. D., for the care and treatment of Louise A. McDaniel or for the delivery of her child.
Louise A. McDaniel gave birth on December 28, 1973, at Mercy Hospital in Orlando, Florida, and the child was delivered by Pedro F. Hiribarne, M. D.
In or about 1973, Margo Teruso was a patient under the Respondent's care and treatment for her entire prenatal period.
The Respondent did not inform Margo Teruso that he did not possess hospital privileges and would be unable to deliver her child.
Margo Teruso was led to believe by the Respondent's conduct and representations that he would deliver her child.
Pursuant to the Respondent's instructions, Margo Teruso entered Mercy Hospital in Orlando, Florida, and gave birth on December 17, 1973. Her child was delivered by Pedro F. Hiribarne, M. D.
57 In or about 1973, Elizabeth J. Williams was a patient under the Respondent's care and treatment for her entire prenatal period.
(b) Making misleading, deceptive, untrue, or fraudulent representations in the practice of medicine; employing a trick or scheme in
the practice of medicine; practicing fraud or deceit in obtaining a license to practice medicine; or making a false or deceptive annual registration with the board....
(h) Engaging in any unethical, deceptive, or deleterious conduct or practice harmful to the public, in which proceeding proof of actual injury need not be established....
(m) Being guilty of immoral or unprofessional conduct, incompetence, negligence, or willful misconduct. Unprofessional conduct shall include any departure from, or the failure to conform to, the standards of acceptable and prevailing medical practice in his area of expertise as determined
by the board, in which proceeding actual injury to a patient need not be established when the same is committed in the course of his practice, whether committed within or without this state.
Based upon these facts, Dr. Thomas did violate Sections 458.1201(1)(b), (h) and (m), Florida Statutes. The Board has sustained its Administrative Complaint against Dr. Thomas.
Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Board of Medical Examiners revoke the license of Robert L. Thomas, Jr., M. D.
DONE and ORDERED this 19th day of December, 1979, in Tallahassee, Leon County, Florida.
STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
William B. Wiley, Esquire
Robert Lee Thomas, Jr., M. D. Post Office Box 8
