STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF MEDICAL )

EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 81-290

) RENE ERNESTO FERNANDEZ-LOPEZ, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on May 14, and December 16-18, 1981, in Key West, Florida.

APPEARANCES

For Petitioner: Deborah J. Miller, Esquire

1492 South Miami Avenue Miami, Florida 33129

For Respondent: Hugh J. Morgan, Esquire

Post Office Box 1117

Key West, Florida 33040

ISSUE

Whether respondent's license to practice medicine in Florida should be disciplined on charges that, on August 11, 1976, he violated Section 458.1201(1)(m), Florida Statutes (1975) , which prohibits immoral or unprofessional conduct, incompetence, negligence, or willful misconduct, and Section 458.331(1)(t), Florida Statutes (1979) which prohibits gross or repeated malpractice of the failure 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.

BACKGROUND

By administrative complaint dated December 28, 1979, petitioner Department of Professional Regulation, Board of Medical Examiners ("Department"), sought to discipline the Florida medical license of respondent Rene Ernesto Fernandez- Lopez, M.D. ("respondent"). As grounds, the Department alleged that, by his conduct in the emergency room of DePoo Hospital on August 11, 1976, he violated Section 458.1201(1)(m), Florida Statutes (1979) 1/, which prohibits immoral or unprofessional conduct, incompetence, negligence, or willful misconduct, and Section 458.007(1)(t), Florida Statutes (1979), which prohibits gross or repeated malpractice or the failure 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.

On January 17, 1981, after settlement efforts failed, this case was forwarded to the Division of Administrative Hearings for assignment of a hearing officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes (1981). Hearing was thereafter set for April 23-24, 1981. On respondent's motion, and without objection by the Department, hearing was reset for May 14-15, 1981.

After commencing on May 14, 1981, the hearing -- on respondent's motion -- was adjourned and reset for August 13-14, 1981. On July 24, 1981, the Circuit Court of Monroe County entered an order temporarily enjoining the holding of the scheduled hearing. After the Third District Court of Appeal stayed the lower court's order, hearing was reset for December 16-18, 1981.

At hearing, the Department called as witnesses: Irwin E. Redlener, M.D.; Stanley Coira, M.D.; David V. Lariz; Arnaldo Boza; and Mary Josephine Boza.

Petitioner's Exhibit 2/ Nos. 1-2 were received into evidence; ruling on Petitioner's Exhibit Nos. 3-5 was reserved. The respondent called Manuel Cuervo and Patricia Fortune Davidson 3/ as witnesses; Respondent's Exhibit 2/ Nos. 1-5 4/ were received into evidence.

The parties filed proposed findings of fact and conclusions of law by May 25, 1982. Memoranda of law were also filed on issues of law which were expressly reserved for decision in this recommended order. Those issues are addressed and determined below.

I.

Statute of Limitations.

In its amended answer and motion for summary judgment, respondent contends that this license disciplinary proceeding is barred by Chapter 95, Florida Statutes (1981) the Statute of Limitations. The motion was denied at prehearing conference because the Statute of Limitations does not, by its language, apply to administrative proceedings; it applies only to civil actions or proceedings.

S. 95.011, Fla. Stat. (1981). Adjudicatory proceedings before an administrative agency are not actions at law. While the agencies' adjudicatory process may be defined as "quasi-judicial," it is not a judicial body and it may not exercise judicial powers. See, e.g., Canney v. Board of Public Instruction of Alachua County, 278 So.2d 260 (Fla. 1973). Unless specifically made applicable by statute, procedural rules which govern civil and criminal judicial proceedings do not apply to administrative proceedings. See, e.g., Gordon v. Savage, 383 So.2d 646 (Fla. 5th DCA 1980); Robert's Drugstore, Inc. v. Florida Board of Pharmacy, 346 So.2d 118 (Fla. 3d DCA 1977). If the Legislature intended to subject state administrative proceedings to the Statute of Limitations, it would have done so in clear and unequivocal language. In the absence of express language evincing such an intent, application of the Statute of Limitations to administrative proceedings is unwarranted. Cf. The Florida Bar v. McCain, 361 So.2d 700, 705 (Fla. 1978).

Even if the Statute of Limitations applied to administrative proceedings, it does not bar the Department's action here. Citing Section 95.11(3)(n), respondent contends that "this license disciplinary action should have commenced within four (4) years of August 11, 1976," the date of his alleged misconduct. (Respondent's Memorandum of Fact and Law, p.3.) The filing of an administrative complaint commences agency action to discipline a licensee. See, e.g., Chavers

v. Florida Real Estate Commission, 384 So.2d 963 (Fla. 1st DCA 1980). Here, the administrative complaint was filed on or about December 28, 1979; thus, the Department commenced its action within four years from August 11, 1976, the date of respondent's alleged misconduct.

The question of the applicability of the Statute of Limitations to administrative proceedings is revisited in this recommended order because of a recent decision by the First District Court of Appeal, Bishop v. State of Florida, Division of Retirement, So.2d (Fla. 1st DCA 1982), Case No. AE- 458, opinion filed March 22, 1982. In Bishop, supra, the issue on appeal was whether the Statute of Limitations had run on a claim against the Division of Retirement brought by three retired teachers. The hearing officer and Division of Retirement concluded that it had run and that the claim was barred. On appeal, the court reversed. It held that the Statute of Limitations had not run because the Division's alleged failure to pay the teachers the monthly payments to which they were entitled constituted a continuing breach of contract:

Here, the Division issues each month to appellants a retirement payment. If each payment is less than the amount to which appellants are entitled, the Division's failure to pay the amount to which they are entitled would constitute a continuing breach of contract. We, therefore, dis- agree with the hearing officer's and the Division's conclusions that the statute of

limitations had run on this contract claim. Id.

Because the Bishop court applied, for the first time, the Statute of Limitations to an administrative proceeding, the parties were invited to submit post-hearing memoranda on Bishop and its effect on this proceeding.

After carefully reviewing the memoranda of law and the holding of Bishop, it is concluded that the court's opinion is not binding precedent for the proposition that the Statute of Limitations applies to administrative proceedings. The applicability of the statute was not addressed or decided by the court; instead, the parties and the court apparently assumed the statute applied and then directed their attention to whether it had run. A case is not binding precedent on a point of law which is not announced but merely assumed in the decision. 20 Am. Jur.2d, Courts, S 190, n. 7. Accordingly, the previous ruling in the instant case -- that the Statute of Limitations does not apply to administrative proceedings -- is unaffected by Bishop, and is now confirmed.

Laches.

Respondent contends that this proceeding is barred by statutory and common law laches. Since statutory laches applies only to actions which are subject to the Statute of Limitations, Sections 95.11(6) and 95.011, it does not apply to administrative proceedings. While the common law doctrine of laches may bar a disciplinary proceeding, cf., The Florida Bar v. McCain, supra at 705, the elements of laches must be proven. Id. at 706. In the instant case, respondent has not demonstrated that the Department unreasonably delayed its prosecution of this case or that the delay in filing the administrative complaint deprived respondent of a fair opportunity to defend himself against the accusations.

See, 35 Fla. Jur.2d, Limitations and Laches, ss 83-94. Accordingly, it is held that the Department's action in instituting this proceeding is not barred by statutory or common law laches.

Admissibility of Petitioner's Exhibit Nos. 4 and 5:

Depositions of Lynne Ticson, M.D., and Miguel Eison, M.D. Respondent objects to the introduction of Petitioner's Exhibit Nos. 4 and 5 -- the depositions of Lynne Ticson, M.D., and Miguel Eisen, M.D., on the ground that they were hearsay, and that, if they are admitted, he would be deprived of his right of cross-examination. These depositions appear to have been taken in connection with a prior action filed by Mary Boza, et al., against Rene Fernandez, M.D., et al., in the Circuit Court of Dade County. Respondent does not contest the authenticity of these depositions.

Respondent's assertion that these depositions constitute hearsay is well founded; however, hearsay is admissible in administrative proceedings "for the purpose of supplementing or explaining other evidence." s 120.58(1)(a), Fla.

Stat. (1981). Accordingly, respondent's objections are overruled and Petitioner's Exhibit Nos. 4 and 5 are admitted into evidence for the limited purpose specified by Section 120.58.

Admissibility of Petitioner's Exhibit No. 3: Deposition of Respondent. Respondent objects, on several grounds, to the admissibility of Petitioner's Exhibit No. 3 ("the deposition"), a document purporting to be the deposition of respondent taken May 5, 1977, in connection with a pending circuit court action brought by Mary Boza, et al., against Rene Fernandez, M.D., et al.

Respondent objects to the deposition on numerous grounds, one of which is lack of authenticity. The Department asserts that the deposition is a true and correct copy of an original deposition filed in the circuit court action.

Under the strict rules of evidence common to jury trials and courts, this deposition is inadmissible. No extrinsic evidence of authenticity was presented, Section 90.901, Florida Statutes (1981), and the document is not self-authenticating, Section 90.902. 5/ However, the inadmissibility of this document in a judicial proceeding is not the controlling factor here.

Rather, in Section 120.57(1) proceedings such as this, the test for admissibility is whether the evidence is of a type "commonly relied upon by reasonably prudent persons in the conduct of their affairs . . ." s 120.58(1)(a), Fla. Stat. (1981). The deposition in question does not pass this test. It appears to be an incomplete, and thus an inaccurate copy because page

70 is -- inexplicably -- missing. Page numbers skip from 69 to 71. The question on the bottom of page 69, line 25, ends in mid-sentence; page 71 begins with a new sentence. Although proffered as an accurate and complete copy of an original deposition, it appears to be otherwise. A reasonably prudent person -- in conducting his serious affairs -- would not rely on a document which has not been shown to be authentic and which, on its face, appears to be an incomplete and inaccurate copy of the original. The deposition must, therefore, be rejected. In light of this ruling, it is unnecessary to reach respondent's remaining objections to Petitioner's Exhibit No. 3. (P-3.)

Based on the evidence presented at hearing, the following facts are determined:

FINDINGS OF FACT

I.

1. Respondent is a medical doctor licensed by the Department. At all times pertinent to the administrative complaint, he was a licensed physician who practiced medicine in Key West, Florida. (Testimony of Coira; P-5, R-4.)

   
   

2. At approximately 5:35 p.m. on August 11, 1976, Arnaldo Boza entered the hallway outside the emergency room of DePoo Hospital. He was carrying his 14- month-old baby son, Oswaldo ("the baby"). The baby was choking and gasping for air. Patricia Fortune, the emergency room clerk on duty, asked Mr. Boza what was wrong with the baby; he answered that the baby had swallowed beans and was choking. (12/18/81, p. 30; 12/17/81, p. 5; R-3.) Ms. Fortune took the baby from Mr. Boza and shouted for the first floor nurse, Patricia Baldwin. Ms. Baldwin responded immediately and, with Ms. Fortune carrying the baby, the two women entered the emergency room. At the same time, Ms. Fortune was telling nurse Baldwin that the baby had swallowed some beans. (Testimony of Fortune; R- 3.)

   
   

   II.

   
   

3. While Ms. Fortune held the baby, nurse Baldwin inserted her fingers into his mouth and removed a bean. He then began crying and appeared to be breathing normally. He no longer gasped for breath or made choking noises. (Testimony of Fortune.)

   
   

4. Ms. Fortune then laid the baby on the emergency room table and started making cooing sounds to him. Approximately one minute later, the baby vomited some uncooked beans and other unidentified material. They turned the baby on his side. Immediately prior to or at the time the baby vomited, the respondent arrived at the emergency room. (Testimony of Fortune.)

   
   

5. The Department contends that respondent stood by and permitted emergency room personnel to induce the baby to vomit. (It is improper to induce vomiting in a person experiencing respiratory difficulties. The vomitus can be aspirated and cause respiratory distress. 12/16/81, p. 86.) The Department's contention is unsubstantiated since the emergency room staff did not induce the baby to vomit. (Testimony of Fortune; 12/18/81, p. 75.)

   
   

   III.

   
   

6. The baby then was raised to a sitting position. Respondent held the baby while suction and oxygen were applied. Both respondent and nurse Baldwin then used stethoscopes on the front and back of the baby. The baby appeared to be continuing to breathe normally. (Testimony of Fortune.)

   
   

7. Respondent then ordered chest x-rays. Ms. Fortune handed the baby to Mr. Boza while she telephoned the x-ray technician, filled out the necessary x- ray authorization forms, and returned to her office. X-rays were then taken and the baby continued to breathe normally. The respondent examined the x-rays and detected no respiratory blockages. The baby was returned to the emergency room. (Testimony of Fortune.)

8. Respondent and Mr. Boza asked Ms. Fortune to contact the baby's regular pediatrician, Dr. Stanley Coira. She called Dr. Coira's answering service.

   Soon thereafter, Dr. Coira received a call at home from an unidentified female employee at DePoo Hospital who told him to come to the emergency room, that an infant child was having respiratory problems but that there was no acute emergency. He said he could get to the hospital in about 20 minutes and asked if that was okay; the female caller said that was all right. Dr. Coira then left for the hospital. (Testimony of Coira, Fortune.)

   
   

9. Respondent told Mr. Boza that the baby was fine, that there was nothing wrong with the child except a cold and that he would give the baby two shots, one for the cold and one to prevent pneumonia. Mr. Boza protested that the baby was screaming a lot. Respondent told him to take the baby home and take him to Mr. Boza's regular doctor the next day. (Testimony of A. Boza, 12/17/81, pp. 9- 10, 12; Testimony of M. Boza, 12/17/81, pp. 92-93.)

   
   

10. Believing that his baby was still in danger, Mr. Boza became upset and declined to take him home. He insisted that Dr. Coira be summoned, then called the police and complained that the hospital refused to treat his son. While Mr. Boza was holding the baby in the emergency room area, his wife, Mary Boza, called the emergency room. She was at Keys Memorial Hospital, where she worked as a dietician. Nurse Baldwin reassured her the baby was fine, that it was not necessary that she come to the hospital, and that Mr. Boza would be bringing the baby home. But when Mr. Boza was called to the phone, he told her that the baby was in bad shape, that if she wanted to see him alive, she had better come to the hospital. She left Keys Memorial Hospital immediately and rushed to DePoo Hospital. (Testimony of A. Boza, M. Boza, Lariz.)

    
    

11. Several minutes later, Mrs. Boza and David Lariz, a Key West policeman, arrived at the emergency room. The baby was being held by Mr. Boza in the hallway outside the emergency room. The baby was not having any apparent trouble breathing. (12/16/81, p. 222.) Mr. Boza handed the baby to Mrs. Boza. The baby's condition worsened. He began gasping for air and emitting a wheezing sound when he breathed. (12/16/81, p. 222; 12/17/81, p. 103; 12/18/81, p. 21.

    ). He was sweaty, cold, and crying. (12/17/81, p. 104.) Mrs. Boza told respondent that the child had something stuck in his throat and appeared to be in pain. Respondent replied that all she had to do was take him home and take him to his doctor the next day. She again stated that the baby was in pain and having trouble breathing. (12/17/81, p. 104.) Respondent thought the baby had a cold and agreed to give him an injection. (12/17/81, pp. 126-127.) She replied that her baby needed oxygen because he wasn't breathing very well. Respondent then agreed and they entered the emergency room. Mrs. Boza held the baby in her arms for about five minutes, waiting for the nurse to arrive to give the injection. She told respondent that it looked like the baby was having trouble breathing and again asked if he was going to give him oxygen. Respondent agreed. She then laid the baby on the emergency room table; at that moment, the baby stopped breathing. (12/17/81, p. 107; 12/16/81, p. 224.)

    
    

12. Mrs. Boza became scared and yelled to respondent that her baby had stopped breathing. Respondent, who was seated at his desk 7-to-8 feet across the room 7/, looked up at her. She told him again that the baby wasn't breathing and asked for help. (12/17/81, p. 108; 12/16/81, p. 224.) He then got up out his chair and walked toward the table where the baby lay. She asked again if she could give him oxygen. He agreed. Mrs. Boza, with the help of the policeman, then attempted to give him oxygen. But a mask was not attached to the oxygen tank. Then someone brought a mask and put it on the baby; but the baby still was not breathing. The mask was foggy and appeared to have water

    drops on it. Mrs. Boza lifted the mask and discovered no oxygen coming through. Someone turned a valve on the equipment, but, still, no oxygen came through.

    Mrs. Boza's niece looked in through the doorway and, when told there was no oxygen, said she would "go into surgery and bring the oxygen." (12/17/81, pp. 108-110.)(Testimony of Lariz, M. Boza.)

    
    

13. In the meantime, Dr. Coira arrived at the hospital and headed to the emergency room. Sergeant Lariz, who had just left the emergency room, met him in the hallway and told him the child had stopped breathing (12/16/81, p. 226) or that the baby was in bad shape. (12/16/81, p. 64.) A few seconds later, Dr. Coira entered the emergency room and found the baby lying on the table with an oxygen mask on his face, vomitus in his nose and mouth, and no respiratory or heart rate. The baby was clinically dead. (12/16/81, p. 51.) Respondent was sitting at his desk, looking down. (12/16/81, p. 71.)

    
    

14. From the time the baby first stopped breathing to Dr. Coira's arrival in the emergency room, approximately one minute elapsed. (12/16/81, p. 239; 12/16/81, p. 141.) During this time interval, respondent did not touch the baby; he authorized oxygen but did not help Mrs. Boza -- who was medically unqualified -- to administer it. He did not order replacement equipment when the oxygen tank was found to be inoperative, and did not otherwise assist in resuscitating the baby. 8/ Except for a few moments when respondent was near the table after being summoned by Mrs. Boza, he remained in the background, either standing by or seated at his desk. (Testimony of M. Boza, A. Boza, Lariz.)

    
    

    IV.

    
    

15. When Dr. Coira entered the emergency room, he pushed Mrs. Boza aside and angrily shouted, "what the hell is going on here," or "what the hell have you all been doing." (12/16/81, p. 247.) He immediately ordered an I.V. tray so an intravenous line could be inserted to administer medications and began to apply external cardiac message. He began suctioning the baby as soon as a suction machine became available. He asked respondent to assist in starting an I.V.; respondent turned around and walked out of the room. (12/16/81, p. 82.) Dr. Coira's efforts to initiate the I.V. were unsuccessful. (Since the baby was small and chubby, it was difficult to locate a vein and insert the catheter.)

    He then used an ambu bag to fill the baby's lungs with air.

    
    

16. At this point, Manuel Cuervo, an emergency room technician at DePoo Hospital, arrived at the emergency room. Mr. Cuervo noted that the baby was vomiting and slightly breathing. He grabbed for the suction machine, but it was inoperable; so he asked that another one be brought from upstairs. He yelled for a pediatric intravenous setup -- the one in the emergency room was too large

    -- so someone ran to pediatrics to get one. He then administered mouth-to-mouth resuscitation and the baby vomited.

    
    

17. Within minutes after the arrival of Dr. Coira and Mr. Cuervo, Drs. Lynne Ticson, Miguel Eisen, and an anesthetist arrived and rendered assistance. Dr. Eisen, a surgeon, was able to successfully do a cut-down and insert the I.V. The baby was given an intracardial injection of Epinephrine to stimulate his heart. (Testimony of Cuervo, Coira; P-4. P-5.)

18. During the 3-or-4 minute interval before Dr. Ticson and Mr. Cuervo arrived, Dr. Coira needed another physician's assistance in treating the baby. Respondent was present but either sat at his desk or walked over to the counter where the nurse was standing and made no effort to assist. (12/16/81, p. 82; 12/17/81, pp. 190, 199.)(Testimony of Cuervo, Coira; P-5.)

    
    

19. After these resuscitative efforts, by Dr. Coira and Mr. Cuervo, the baby's condition improved and he began breathing on his own. Then the baby developed a left pneumothorax, a collapse of his left lung; he became cyanotic and suffered seizures. A tube was inserted to remove the air and expand the lung. His condition improved but remained critical. That evening, Dr. Coira transferred him to Jackson Memorial Hospital in Miami, Florida. Physicians at Jackson Memorial Hospital decided to perform a bronchoscopy, a surgical procedure to remove an obstruction in the lung, but delayed the operation until later in the morning on August 12, 1976. They decided the baby's condition had stabilized and that an emergency bronchoscopy was unnecessary. But the baby died in the early morning hours before the bronchoscopy was performed. Later, a bean was found in his right lung. If the bronchoscopy had been performed earlier, it is likely that the baby would have survived. The baby's death did not result from respondent's actions or inactions during the one-minute interval between the baby's respiratory failure and the arrival of Dr. Coira. (Testimony of Redlener; P-4, P-5.)

    
    

    V.

    
    

20. There was conflicting testimony on what occurred in the emergency room immediately before, during, and after this one- minute interval. The testimony of Mr. Boza, Mrs. Boza, Dr. Coira, and Sergeant Lariz was, in the main, consistent. The testimony of Ms. Fortune, on some points, sharply conflicts with their testimony. When these conflicts were irreconcilable, they were resolved by giving Ms. Fortune's testimony less weight. Her testimony was occasionally inconsistent (12/18/81, p. 30); at times she appeared to be uncertain and to be having difficulty recalling the events in question.

    
    

21. Sergeant Lariz testified that a nurse carried the baby into the emergency room, advised respondent first that the baby was having trouble breathing, then, that the baby had stopped breathing. (12/16/81, pp. 223-224.) This conclusion that a nurse carried the baby into the emergency room is rejected as contrary to the weight of the evidence. The woman who carried the baby into the room and said the things which Sergeant Lariz attributed to a nurse was Mrs. Boza, the baby's mother, who, from all outward appearances appeared to be a nurse. She was wearing a nursing uniform, the uniform for dieticians at Key Memorial Hospital. Sergeant Lariz thought he had kept the baby's mother (Mrs. Boza) and family members outside of the emergency room and did not recall seeing the mother in the emergency room. During the event in question, he had (incorrectly) called the mother "nurse." Sergeant Lariz' description of what the "nurse" did is strikingly similar to what Mrs. Boza did. Mrs. Boza's testimony, corroborated by her husband, was detailed and her demeanor showed her to be a forthright witness. Her description of her involvement in ,the event is accepted as credible and persuasive. (Testimony of Lariz, M. Boza.)

    VI.

    
    

22. During the one-minute interval between the baby's respiratory failure and the arrival of Dr. Coira, respondent failed to provide medical care and treatment which a reasonably prudent physician would have provided under similar conditions and circumstances. A reasonably prudent physician' would have initiated or begun to initiate (1) an I.V. so that the necessary medications could be given; (2) external cardiac massage; and (3) suction of the baby's airways to remove any vomitus from his nose, mouth, and pharynx. Respondent failed to take these actions. Except for authorizing the administration of oxygen (by the baby's mother and a policeman), he took no other discernible steps to resuscitate the baby. (Testimony of M. Boza, Coira.)

    
    

23. The Department contends that respondent fell below acceptable standards of medical practice by refusing to assist Dr. Coira in his immediate efforts to resuscitate the baby. There is no evidence that respondent refused to assist Dr. Coira. Respondent left the area or remained in the background. When Dr. Coira first arrived, he was angry and distraught; he questioned respondent in English, but respondent apparently understood only Spanish, not English. Mrs. Boza had to act as an interpreter. (12/17/81, p. 117.) Communication between these two doctors was difficult because of language differences and the emotion of the moment. It was clear that Dr. Coira, the baby's regular doctor, was taking over responsibility for treating the baby.

    Dr. Coira's request for an I.V. was made in English, a language which respondent did not understand. Under these circumstances, the evidence does not convincingly establish that respondent's failure to comply with the I.V. request constituted a departure from acceptable standards of medical treatment. (Testimony of M. Boza, Coira.)

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. s. 120.57(1), Fla. Stat. (1981).

    
    

25. The Department seeks to discipline respondent's medical license on the ground that, by his conduct in the emergency room on August 11, 1976, he violated Section 458.1201(1)(m) Florida Statutes, (1975), as substantially reenacted by Section 458.331(1)(t), Florida Statutes (1979); essentially, it alleges that his performance fell below standards of medical practice acceptable to his professional peers.

    
    

26. The burden is on the Department to prove its allegations by clear and convincing evidence. Walker v. State, 322 So.2d 612 (Fla. 3d DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966). When, such as here, it is alleged a licensee breached a standard of conduct not explicitly fixed by statute or rule, "the critical matters in issue must be shown by evidence which is indubitably as 'substantial' as the consequences." Bowling v. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981).

    
    

27. Measured by these standards, it is concluded that the evidence establishes that respondent violated Section 458.1201(1)(m) Florida Statutes (1975), as substantially reenacted by Section 458.331(1)(t), Florida Statutes (1979), in the manner specifically described in paragraph 22 above. Any and all other allegations of misconduct have not been established and should be dismissed.

28. Penalty. The Department's investigative report, as offered into evidence by respondent (R-4), indicates that respondent obtained his license in 1976; has practiced medicine in Key West since that date; and that, other than the matters at issue here, "no complaints involving the quality of medical care delivered by . . . [him] have surfaced in . . . Key West In its post- hearing submittal, the Department concedes that "[t]here is no evidence in the record that the Respondent's action was the result of malice. Rather, it appears evident that . . . [he] was ill-equipped to respond to a medical emergency." (Department's Proposed Recommended Order, p. 12.) The Department recommends limiting the scope of his practice, requiring the supervision of another physician, requiring that he successfully complete a retraining program, and placing him on probation for three years.

    
    

29. The evidence in this case shows that, in a life-threatening emergency spanning approximately one minute, respondent was unable to render minimally acceptable medical treatment; he failed to take the decisive action required by the circumstances. Therefore, respondent's medical license should be restricted to exclude practice in emergency room settings, unless and until the Board of Medical Examiners is shown that respondent has proved himself capable of safely practicing in such a setting. Since medical emergencies may also occur in other than emergency room settings, respondent should be placed on probation for a minimum of three years and allowed to practice medicine only under the close supervision of a licensed physician. The supervising physician and the conditions of supervision should be approved, in advance, by the board. If, after at least three years of supervised practice, respondent proves to the board's satisfaction that he is capable of safely resuming the practice of medicine without the supervision of another physician, the board should terminate his probation. If the board is not satisfied, the probation should be continued for a reasonable period of time. See, s. 458.331(2)(c), (f), Fla. Stat. (1981).

    
    

30. The rulings of law or issues reserved for disposition in this recommended order are incorporated as conclusions of law.

    
    

31. The parties' proposed findings of fact are adopted to the extent they are incorporated in this recommended order. Otherwise, they are rejected as unsupported by the necessary quantum of evidence or unnecessary to resolution of the issues presented.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That respondent be found guilty of violating Chapter 458, Florida Statutes, and his medical license be disciplined in accordance with this recommended order.

DONE AND RECOMMENDED this 23rd day of July, 1982, in Tallahassee, Florida.

R. L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1982.

ENDNOTES

1/ On the Department's motion, this statutory reference was subsequently corrected to read Section 458.331(1)(t), Florida Statutes (1979).

2/ Petitioner's and Respondent's Exhibits will be referred to as "P- ," and "R- ," respectively.

3/ This is her married name. At the time of the incident in question, her name was Patricia Fortune. For purposes of clarity, she will be referred to throughout this recommended order as Patricia Fortune.

4/ The hearing transcript consists of six volumes with pages numbered separately for each day of hearing. Pages in the transcript will be referred to by date of hearing and page number: "5/14/81, p. 14."

5/ The Department's attempt to attach authenticating documents to its post- hearing memorandum was unauthorized and is rejected.

6/ "Evidence which is 'substantial' for one purpose may be less so on another, graver occasion. One takes a stranger's name at his word upon a chance meeting, but wants better proof to cash his check. . . . [I]n a world ensnarled by false assumptions and hasty judgments, let the prosecutor's proof be as serious- minded as the intended penalty is serious." Bowling v. Department of Insurance, 394 So.2d 165, 171, 172 (Fla. 1st DCA 1981)

7/ The emergency room was approximately 20 feet long and 15 feet wide. (12/18/81, p. 26; 12/16/81, pp. 224, 235; R-2.)

8/ Ms. Fortune testified that respondent ordered suction and that the suction machine was turned on. This assertion was not corroborated by Sergeant Lariz, Mr. Boza, or Mrs. Boza. Taking into account Ms. Fortune's demeanor and her apparent difficulty in remembering the details of this incident, which occurred six years ago, her testimony on this point is not persuasive.

COPIES FURNISHED:

Deborah J. Miller, Esquire 1492 South Miami Avenue Miami, Florida 33129

Hugh J. Morgan, Esquire Post Office Box 1117 Key West, Florida 33040

Dorothy Faircloth Executive Director

Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

Samuel R. Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-000290

Orders for Case No: 81-000290