STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 82-115

)

ANTONIO J. MANGILIA, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on September 27, 1982, in Coral Gables, Florida.

Petitioner Department of Professional Regulation, Board of Medical Examiners, was represented by Joseph W. Lawrence, II, Esquire, Tallahassee, Florida, and Respondent Antonio J. Maniglia, M. D., was represented by Jack E. Thompson, Esquire, Miami, Florida.

Petitioner filed an Administrative Complaint against the Respondent, and Respondent timely requested a formal hearing on the allegations contained within that Administrative Complaint. Accordingly, the issues for determination are whether Respondent is guilty of the charges contained in that Administrative Complaint and, if so, what disciplinary action should be taken, if any.

Petitioner presented the testimony of Dorothy J. Faircloth, Brooks C. Harle and, by way of deposition: the testimony of Maury Braga and of Dr. George S. Palmer. Additionally, Petitioner's Exhibits numbered 1 through 15 were admitted in evidence. The Respondent testified on his own behalf, and Respondent's Exhibit numbered 1 was admitted in evidence.

Both parties have submitted posthearing findings of fact in the form of a proposed recommended order. To the extent that any proposed finding's of fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.

FINDINGS OF FACT

1. At all times, material hereto, Respondent Antonio J. Maniglia, M. D., has been licensed as a medical doctor under the laws of the State of Florida.

2. Respondent graduated from medical school in Brazil

   in December, 1962. He came to the United States in 1963, and has practiced from then until the present date. He was licensed as a medical doctor by the State of Florida in 1971.

   
   

3. On or about February 11, 1976, Maury Braga appeared at Respondent's office requesting to see him. Respondent had never before met Braga and had never heard of him.

   
   

4. Braga brought with him a letter of introduction from a processor in Brazil whom Respondent knew. Braga advised Respondent that, he was a medical doctor from Brazil, that he had attended and graduated from the Faculdade de Ciencias Medicas de Santos, Brazil, that he had practiced the profession of medicine in Brazil during the years of 1967 through 1972, that he was in the process of, obtaining his medical license in Florida, and that to complete his Florida medical application he needed statements from local doctors acknowledging that Braga was a Brazilian medical doctor. Braga showed to Respondent documentation concerning his education and practice, including his medical diploma.

   
   

5. Based upon his interview of Braga and his examination of Braga's documents, Respondent signed a form utilized by Petitioner, which form is entitled "Affidavit" and which reads, in pertinent part, as follows: -

   
   

   I, Antonio J. Maniglia, M. D., F.A.C.S.,

   of 1776 NW 10th Ave, Miami, Florida 33136, do hereby swear and affirm by my personal knowledge, that Maury Braga attended and graduated from Faculdade de Ciencias

   Medicas de Santos and did lawfully prac- tice the profession of medicine, in Brazil during the years of 1967 through 1972, and that I also practiced the same, profession in Brazil.

   
   

6. When Respondent signed the "affidavit," it was not notarized.

   
   

7. Respondent had no personal knowledge regarding whether Braga had ever attended or graduated from medical school or regarding whether Braga had ever practiced medicine in Brazil. Respondent relied totally on the information contained in the documents, Braga showed to him and upon what Braga told him.

   
   

8. After Braga left Respondent's office, he had the "affidavit" signed by Respondent notarized. He attached the "affidavit" to an Application for Examination and Course in Continuing Medical Education, which application he then submitted to the Florida Board of Medical Examiners.

   
   

9. "On February 26, 1976, the same day that Braga's application was received, the Executive Director of the Board of Medical Examiners wrote to Braga advising him that his application was received after the deadline of January 26, 1976, and was therefore rejected. The application was not returned to Braga, but rather was placed in a file opened under Braga's name to be retained in the event that Braga again applied within the next three years to take the course in continuing medical education and the examination for licensure.

10. On January 17, 1977, Braga filed a second application to take the course in continuing medical education which would then qualify him to take the examination for licensure. The second application included "affidavits" from medical doctors other than Respondent. One of Braga's two applications was approved; Braga completed the course in continuing medical education; Braga took and passed the examination for licensure; and Braga was licensed as a medical doctor in the State of Florida on March 10, 1978.

    
    

11. Maury Braga did not attend or graduate from the Faculdade de Ciencias Medicas de Santos, and did not lawfully practice the profession of medicine in Brazil during the years 1967 through 1972.

    
    

12. Braga's license to practice medicine in the State of Florida has been revoked. At least prior to the revocation of his license, Braga's file with the Petitioner contained both the application he filed in 1976 and the application he filed in 1977 No evidence was introduced to show which application was reviewed when Braga's application to take the educational course and examination for licensure was approved.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties here to. Section 120.57(1), Florida Statutes (1981).

    
    

14. Count One of the Administrative Complaint charges the Respondent with violating Section 458.1201(1)(b), Florida Statutes (1977) [now codified at Section 458.331(1)(a) , Florida Statutes (1979)], by practicing fraud or deceit in obtaining a license to practice medicine. Section 458.1201(1)(b) , in effect at the time Respondent signed the Board's "affidavit," provides as follows:

    
    

    1. The board shall have authority to deny an application for a license or to discipline a physician licensed under this chapter or any antecedent law who, after hearing, has been adjudged unquali- fied or guilty of any of the following:

       (b) Making misleading, deceptive, untrue, or fraudulent representations in the practice of medicine; employing a trick or scheme in the practice of medi- cine; practicing fraud or deceit in obtaining a license to practice medicine; or making a false or deceptive annual registration with the board.

       
       

       Although that Section was repealed, it was substantially reenacted by Section 458.331(1)(a), Florida Statutes (1979), which provides as follows:

       
       

       1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

          1. Attempting to obtain, obtaining,

       or renewing a license to practice medicine

       by bribery, by fraudulent misrepresentations, or through an error of the department or the board.

       Since both sections clearly apply to one practicing fraud or deceit in the obtaining of his or her own license to practice medicine, Petitioner has failed to prove that Respondent has violated the statutory prohibition alleged in Count One of the Administrative Complaint.

       
       

15. Count Two charges Respondent with violating Section 458.1201(1)(j), Florida Statutes (1977) [now codified at Section 458.331(1)(g), Florida Statutes (1979)], by knowingly aiding, assisting, procuring, or advising an unlicensed person to practice medicine contrary to the Medical Practice Act or to the rules and regulations of the Board of Medical Examiners. Section 458.1201 (1)(j), Florida Statutes (1977), in effect at the time that Respondent signed the Board's form, provided as follows:

    
    

    (1)(j) Knowingly maintaining a professional connection or association with any person who Is in violation of this chapter or rules or regulations of the board or knowingly aiding, assisting, procuring, or advising any unlicensed person to practice medicine contrary to this chapter or to rules and regulations of the board.

    
    

    Although that Section was repealed, it was substantially reenacted by Section 458.331(1)(g), Florida Statutes (1979), which provides as follows:

    
    

    (1)(g) Aiding, assisting, procuring, or advising any unlicensed person to practice medicine contrary to this chapter or to a rule of the department or the board.

    
    

    The factual allegations in the Administrative Complaint charge Respondent with swearing and subscribing to certain information in an affidavit submitted to the Board of Medical Examiners, which information was based upon personal knowledge, when in fact Respondent had no personal knowledge of the statements to which he swore and affirmed in the affidavit. Although the form signed by Respondent is entitled "affidavit," Respondent did not swear, affirm or subscribe to the information contained in that form, and the form was not executed in the presence of a notary public. Although Braga had the notarization portion of the document executed at a later time, the document cannot be elevated to the status of an affidavit simply by entitling it as such in the circumstances where it is not executed in the presence of a notary public. Accordingly, Petitioner has failed to prove that Respondent executed an affidavit as charged; however, Petitioner has clearly proven that Respondent executed a statement in which he stated that he had personal knowledge as to the truth of the facts contained in the statement. At the time that Respondent signed the form, he knew that the form would be submitted to the Board of Medical Examiners in order that Braga could obtain licensure by the State of Florida. He intended to assist Braga in obtaining licensure at a time when he had no personal knowledge that Braga was entitled to licensure pursuant to the Medical Practice Act or the rules and regulations of the Board of Medical Examiners. He relied totally upon false statements made by Braga and falsified documents. Respondent had never met Braga or heard of him before Braga appeared in his office in 1976, and Respondent had left Brazil 13 years prior to the time that he "knew" Braga was practicing medicine in Brazil. Since Respondent admits the statement he signed was intended to aid and assist Braga in obtaining licensure, Petitioner has

    proven that Respondent violated both Section 458.1201(1)(j), Florida Statutes (1977), and Section 458.331(1)(g), Florida Statutes (1979), as charged.

    
    

16. Count Three of the Administrative Complaint charges Respondent with violating Section 458.1201(1)(m), Florida Statutes (1977), by being guilty of immoral or unprofessional conduct, incompetence, negligence or willful misconduct. That statutory prohibition provided as follows:

    
    

    (1)(m) Being guilty of immoral or unprofessional conduct, incompetence, negligence, or willful misconduct.

    Unprofessional conduct shall include any departure from, or the failure to con- form 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.

    
    

    Petitioner has failed to prove the violation charged in Count Three of the Administrative Complaint for two reasons. First, that statute has been repealed, and Petitioner has not charged Respondent with violating any reenacted statutory provision. Accordingly, Respondent cannot now be found guilty of violating a statute no longer in effect. Second, that statute clearly relates to conduct relating to the treatment of patients, and the Administrative Complaint contains no allegations regarding Respondent's conduct as to the treatment of patients.

    
    

17. Count Four of the Administrative Complaint charges Respondent with violating Section 458.1201 (1)(h) , Florida Statutes (1977), by engaging in any unethical, deceptive, or deleterious conduct or practice harmful to the public. That statute provides as follows:

    
    

    (1)(h) Engaging in any unethical, deceptive, or deleterious conduct or prac- tice harmful to the public, in which proceeding proof of actual injury need not be established.

    
    

    Petitioner has failed to allege the violation of any reenacted statute, and Section 458.1201(1)(h), Florida Statutes (1977), has been repealed. Petitioner has failed to prove the violation of this statutory prohibition for the same reasons that Petitioner has failed to prove the violation alleged in Count Three.

    
    

18. In its Proposed Recommended Order, Petitioner has recommended that the license of Respondent be placed on probation for a period of one year, subject to terms and conditions set forth by the Board, including 125 hours of pro bono community service and payment of the administrative costs of this proceeding in the form of an administrative fine of $1500. Section 458.1201(3), Florida Statutes (1977), established the penalties assessable by the Board for violations of the Medical Practice Act at the time that Respondent signed the false statement in question. That Section does not provide authority for the imposition of an administrative fine and further does not provide authority for

requiring a practitioner to contribute 125 hours of pro bono community service. It does, however, authorize Petitioner to place a practitioner on probation for a statutory violation. But for the signing of the statement in question, Respondent's record as a medical practitioner in the State of Florida for the last 11 years is unblemished. Additionally, it must be remembered that Respondent did in fact interview Braga and did review the documentation before he signed the statement reciting the information contained in those documents. Respondent's conduct in stating that he had personal knowledge when he knowingly did not does require some disciplinary action; however, it must be remembered that five other medical doctors who signed the affidavits supporting both Braga's 1976 and 1977 applications and the Board of Medical Examiners itself were also deceived by Braga. It is unlikely that Respondent will repeat the conduct of which he has been found guilty in this cause.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the

violation charged in Count Two of the Administrative Complaint, dismissing

Counts One, Three and Four of the Administrative Complaint, and placing Respondent's license on probation for a period of one year, subject to terms and conditions set forth by the Board.

DONE and RECOMMENDED this 17th day of February, 1983, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT, 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 17th day of February, 1983.

COPIES FURNISHED:

Joseph W. Lawrence, II, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Jack E. Thompson, Esquire Ingraham Building, Suite 516

25 SE Second Avenue Miami, Florida 33131

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Dorothy J. Faircloth, Executive Director

Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-000115

Orders for Case No: 82-000115