Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal hearing in this case on August 4, 1983, in Ocala, Florida. The transcript was received on August 24, 1983, and the parties requested 15 days thereafter to submit proposed findings of fact and conclusions of law. These were received from the Petitioner on September 14, 1983, and from the Respondent on September 19, 1983, after a delay in obtaining a copy of the transcript, and have been considered.
Where not adopted and incorporated herein, they were found to be irrelevant or immaterial, or not supported by the weight of the evidence, and have been rejected.
For Petitioner: Barbara K. Hobbs, Esquire
and Diane K. Kiesling, Esquire
For Respondent: Victor J. Musleh, Esquire
By Administrative Complaint filed on May 5, 1952, the Respondent was charged with treating five patients subsequent to an Order of the Board of Medical Examiners limiting his practice to the evaluation and examination of individuals to determine their eligibility for life insurance, in violation of Sections 458.327(1)(a) and (b) and 458.331(1)(x), Florida Statutes.
Specifically, the Complaint charges the Respondent with practicing medicine without an active license, with the use of a license to practice medicine which is suspended or revoked, and with violating a lawful Order of the Board previously entered in a disciplinary hearing.
The Petitioner's case was presented by stipulated facts, 11 exhibits which were received in evidence, including the deposition of the Veterans Administration representative in charge of payment of outpatient bills, and the affidavit of a Tallahassee physician stating his opinion on the matter of what
constitutes medical treatment which was received pursuant to stipulation of counsel, and the testimony of the Respondent.
The Respondent also testified in his own behalf, and presented five witnesses who were either character witnesses or patients of the Respondent, or both.
The Respondent, T. Hartley Davis, is a medical doctor holding license number ME 0001423. His address is 1309 Southeast 17th Street, Ocala, Florida 32670.
On February 13, 1981, prior to this proceeding, an Administrative Complaint was filed against the Respondent alleging violations of Chapters 458 and 893, Florida Statutes. On September 25, 1981, the Board of Medical Examiners entered a Final Order adopting a stipulation between the Respondent and the Department of Professional Regulation. This stipulation provided, in pertinent parts, that the Respondent's license to practice medicine in the State of Florida would be limited to the evaluation and examination of individuals to determine their eligibility for life insurance. This limitation was to continue until the Respondent had completed a Board approved Clinical Training Program and submitted evidence of his ability to practice medicine with reasonable skill and safety to his patients.
On May 5, 1952, the Administrative Complaint which is the subject of this proceeding was filed against the Respondent, alleging that he had violated the provisions of the Final Order of the Board of Medical Examiners entered on September 25, 1981.
On approximately September 30, October 15, and November 5, 1981, the Respondent examined and treated Mr. Vernon E. Sowers as a patient in his office in Ocala, Florida, for neurodermatitis.
The Respondent's examination and treatment of this patient was not in order to determine his eligibility for life insurance.
On approximately October 2, October 22, and November 23, 1981, the Respondent examined Mr. Tommy L. Smith as a patient in his office in Ocala, Florida, after the amputation of his left leg and right arm.
The Respondent's examination of Mr. Tommy L. Smith was not in order to determine his eligibility for life insurance.
On approximately October 4, October 28, and November 23, 1981, the Respondent examined Mr. James W. Adams as a patient in his office in Ocala, Florida, for psychoneurosis.
Respondent's examination of Mr. Adams was not in order to determine his eligibility for life insurance.
On approximately September 27, September 30, October 7, October 20, November 2, November 12, November 19, November 27, and December 9, 1981, the Respondent examined and treated Mr. Oakley S. Walter as a patient in his office in Ocala, Florida, for multiple sclerosis.
The Respondent's examination and treatment of Mr. Walter was not in order to determine his eligibility for life insurance.
On approximately October 28, November 5, and November 16, 1981, the Respondent examined and treated Mr. James A. Swain as a patient in his office in Ocala, Florida, for arthritis and other problems.
The Respondent's examination and treatment of Mr. Swain was not in order to determine his eligibility for life insurance.
The Respondent prescribed A.P.C. tablets (containing aspirin, phenacitin and caffeine) for Mr. Swain, B-12 injections and an electric wheelchair for Mr. Walter, and topical corticosteriod ointment ("Halog") for Mr. Sowers.
The Respondent submitted his statement of professional services rendered for each of the above patients to the Veterans Administration Medical Center in Bay Pines, Florida, for payment.
The Veterans Administration paid the amounts of these statements for each of the above patients.
Pursuant to the request or demand of the Veterans Administration for a refund from the Respondent of funds paid for professional services rendered to the above patients, for the reason that he was not eligible to write prescriptions, the Respondent refunded to the Veterans Administration the money he had been paid.
There is no evidence that the medical license of the Respondent was placed on an inactive status by the Board, or that the Respondent's license had been either suspended or revoked by the Board, during the times he examined or treated the above patients. The Board's Order dated September 25, 1981, placed a limitation on the Respondent's license, precluding any medical practice except the evaluation and examination of individuals to determine their eligibility for life insurance, but no other sanction was imposed by the Board.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this action. Section 120.57(1), Florida Statutes.
Section 458.327(1)(a), Florida Statutes, provides that the practice of medicine without an active license constitutes a felony of the third degree, and this is one of the grounds for disciplinary action by the Board of Medical Examiners under Section 458.331(1)(x), Florida Statutes. However, there is no evidence in the record to support a conclusion that the Respondent practiced medicine without an active license. No evidence was presented to demonstrate that any Order of the Board placed the Respondent's license on an inactive status, and the Board's Order dated September 25, 1981, contained no such provision. Thus, the Respondent is not guilty of violating Section 458.327(1)(a), Florida Statutes.
Section 458.327(1)(b), Florida Statutes, provides that the use or attempted use of a license to practice medicine which is suspended or revoked constitutes a felony of the third degree, and this is one of the grounds for disciplinary action by the Board of Medical Examiners under Section
458.33LA(1)(x), Florida Statutes. However, there is no evidence in this record to support a conclusion that the Respondent used a suspended or revoked license to practice medicine. No evidence was presented to show that any Order of the Board either suspended or revoked the Respondent's license, and the Board's Order dated September 25, 1981, contained no such provision. Thus, the Respondent is not guilty of violating Section 458.327 (1)(b), Florida Statutes.
Section 458.331(1)(x), Florida Statutes, provides that the violation of any provision of Chapter 458, Florida Statutes, or the violation of a lawful Order of the Board of Medical Examiners, constitutes grounds for disciplinary action by the Board.
Because the Respondent's examination and/or treatment of patients, Mr. Vernon E'. Sowers, Mr. Tommy L. Smith, Mr. James W. Adams, Mr. Oakley S. Walter and Mr. James A. Swain, was not in connection with applications for life insurance policies, and because the Board's Order dated September 25, 1981, limited the Respondent's medical practice to the evaluation and examination of individuals to determine their eligibility for life insurance, the Respondent is guilty of five counts of violating Sections 455.331(1)(x), Florida Statutes.
The Respondent contends that what he did for the five patients whom he saw during the time the Board had placed its limitation on his license, did not constitute treatment of patients because he only took blood pressure, prescribed over-the-counter medications, or gave B-12 to a patient's wife to be injected by her, and because he refunded the amounts paid by the Veterans Administration for these patients. Nevertheless, the Respondent did schedule appointments for the five patients in question, he did examine them (he testified that he examined all patients), he prescribed medications, albeit over-the-counter remedies, and he made charges for his medical services when he submitted bills to the Veterans Administration. The Respondent's refund of the amounts he received does not exonerate him.
The plain meaning of the word "treat" in the medical sense is found in Webster's New Collegiate Dictionary, and means "To care for or deal with medically or surgically also, to seek cure or relief of (a disease, etc.) by treatment."
Generally, treatment is defined in 70 C.J.S., Physicians and Surgeons 1, p.517, which states:
In common parlance, and often in the
law, "treatment" is a broad term covering all steps taken to effect a cure of an injury or disease. The word includes examination and diagnosis as well as application of remedies; it includes. . . the preliminary examination. Treatment may, and generally does, include three steps, namely, preliminary, main, and final; and whatever is done to the patient or administered to him . . . in any one of these states is properly included under the term "treatment" even though it may not be an indispensable prerequisite.
Specifically, in these other jurisdictions, treatment includes examination and diagnosis as well as application of remedies. See Stephens v. Williams, 147 So.
605 (Ala. 1933); Hester v. Ford, 130 So.203 (Ala. 1930); Order of United Commercial Travelers of America v. Shane, 64 F.2d 55 (5th Cir.1933); Lucito v. Louisiana Hospital Service, Inc., 392 So.2d 700 (La.Ct.App. 1980); Baque v. Pan American Life Insurance Co., 313 So.2d 293 (La.Ct.App. 1975); Bickel v. City of Chicago, 323 N.E.2d 532 (III.Ct.App. 1975); Goodrich v. Tinker, 437 S.W.2d 552 (Tex.Ct.App. 1969); Simon v. Hospital Service Association of Pittsburg, 159 A.2d
52 (Pa.Sup.Ct. 1960); Kirschner v. Equitable Life Assurance Soc. of U.S., 254
N.Y.S. 506 (N.y.Mun.Ct. 1935).
The Respondent further contends that he was instructed by a representative of the Department of Professional Regulation that he was authorized to perform physical examinations of his patients. However, this
