STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK ROBERT GENTILE, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 82-1994

)

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on October 14, 1982, in Tallahassee, Florida. The issue for determination at the hearing was whether petitioner's application for licensure by endorsement should be granted.

APPEARANCES

For Petitioner: Edward P. de la Parte, Jr.

de la Parte & Gilbert

705 East Kennedy Boulevard Tampa, Florida 33602

For Respondent: Chris D. Rolle

Assistant Attorney General Department of Legal Affairs Suite 1602, Capitol

Tallahassee, Florida 32301 INTRODUCTION

By "Final Order" dated June 24, 1982, the Board of Medical Examiners denied petitioner's application for licensure by endorsement, concluding that he had not met the statutory requirements pursuant to Sections 458.313 and 450.331(3), Florida Statutes. Petitioner timely requested a formal hearing, and the undersigned was designated as the Hearing Officer.

Prior to the hearing, the parties submitted a Prehearing Stipulation containing stipulations of fact. This document was received into evidence as Hearing Officer's Exhibit A. The petitioner testified in his own behalf. The respondent presented the testimony of Dorothy J. Faircloth, Executive Director of the Board of Medical Examiners, and respondent's Exhibits A through C were received into evidence at the hearing.

Subsequent to the hearing, each party filed proposed findings of fact and proposed conclusions of law, which have been fully considered. To the extent

that the parties' proposed findings of fact are not included in this Recommended Order, they are rejected as being either not supported by competent, substantial evidence adduced at the hearing, irrelevant or immaterial to the issues in dispute or as constituting conclusions of law as opposed to findings of fact.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the facts stipulated to by the parties, the following relevant facts are found:

1. Petitioner Frank Robert Gentile was born in New York on August 14, 1942, and is a citizen of this country. He attended St. John's Preparatory School in New York from 1956 through 1960, and received his undergraduate degree from Seton Hall University in New Jersey in 1964. His medical degree was received from the University of Bolgona, Bolgona, Italy, in 1972. In 1973, petitioner's credentials were evaluated by the Educational Commission for Foreign Medical Graduates and he received a passing grade on the examination administered by that organization.

   
   

2. Between July, 1972 and June, 1973, petitioner trained as a clinical clerk at Maimonides Medical Center and Wyckoff Heights Hospital in Brooklyn, New York. From July, 1973 through January, 1974, petitioner completed his medical externship at the Veteran's Administration Hospital in Brooklyn, New York. From January, 1974 through January, 1975, petitioner completed an approved internship at Jersey Shore Medical Center in Neptune, New Jersey. From July, 1975 through June, 1978, petitioner completed his residency at Methodist Hospital in Brooklyn, New York. Petitioner received a passing grade in the examination administered by the Federation of State Medical Boards of the United States, Inc. (FLEX) in September of 1977.

   
   

3. From July, 1978 through June, 1979, petitioner trained as a Hematology Fellow I at Cabrini Medical Center, New York, New York. From July, 1979 through June, 1980, petitioner trained as a Hematology Fellow II at Downstate Medical Center-Kings County Hospital Center in Brooklyn, New York. From July, 1980 through June, 1981, petitioner trained as a Medical Oncology Fellow at Downstate Medical Center-Kings County Hospital Center in Brooklyn, New York.

   
   

4. Petitioner has been continuously and actively engaged in the practice of medicine, specializing in the fields of hematology and oncology, from June, 1981 to the present.

   
   

5. Petitioner currently holds licenses to practice medicine in the states of New York and North Carolina. These licenses are in good standing, have never been revoked or suspended and petitioner is not under investigation in either state.

   
   

6. From July, 1981 through January, 1982, petitioner was employed by Memorial Hospital of Alamance County, Burlington, North Carolina, as a hematologist and oncologist. He considered this employment to be temporary and so informed the Chief of Staff. While at Memorial Hospital, petitioner treated patients, did consultations and trained the oncology nurse. During the first part of his work there, his patients and charts were reviewed by a panel of doctors. He never received any complaints from his patients or from his fellow physicians concerning his medical skills. The Medical Staff Bylaws required a six-month review. In January, 1982, petitioner was informed by the Chief of Medicine that the review board had met, that petitioner's charts were not

   complete enough and that the board felt that petitioner should immediately resign from the Hospital. When petitioner inquired as to the problems the board found with respect to his charts, he was not given a specific answer.

   Petitioner received no prior warning and he considered his charts acceptable. Rather than contesting the charges against him, petitioner resigned from Memorial Hospital inasmuch as he had no intention of remaining there on a permanent basis.

   
   

7. On March 17, 1982, petitioner applied to the Florida Board of Medical Examiners for licensure by endorsement pursuant to Section 458.313, Florida Statutes (1981). His application was complete in all respects and was accompanied by the required application fee. During the application process, petitioner was requested to furnish additional information as to what he was doing from June, 1981 to the present. He responded that he had finished his training near the end of June and then had been trying to find a place to start a private practice. He further explained that he took over a doctor's practice while that doctor was on vacation and that he had worked in the emergency rooms in the North Carolina area. No mention was made by respondent of his employment with the Memorial Hospital of Alamance County.

   
   

8. Upon a standard inquiry to the North Carolina State Board of Medical Examiners, the respondent board learned of petitioner's affiliation with the Memorial Hospital of Alamance County. That Hospital was requested to complete a form regarding petitioner. The form was completed by "Susan Denault, Assistant Administrator," and was returned to the respondent and placed in petitioner's application file. To the question "Does he perform competently?" the answer "Questionable" appears on the form. To the question "Have any restrictions ever been placed on him beyond the original period of probation?" the following answer appears:

   
   

   On January 18, 1982, the Department of Medicine reviewed the work of Dr. Frank

   R. Gentile acting in accordance with the Medical Staff Bylaws, Rules and Regula- tions which require a six-months review. At that meeting the Department of Medicine decided the work of Dr. Frank R. Gentile had not been up to the standards expected

   by the department, and was not in accordance with that standard that should be appropriate for practice in the

   Memorial Hospital of Alamance County. Before further action could be taken, Dr. Frank R. Gentile voluntarily resigned his membership and clinical privileges to the Medical Staff of Memorial Hospital of Alamance County, Inc.

   
   

9. Dorothy Faircloth, the Executive Director of the Florida Board of Medical Examiners, in response to petitioner's inquiry as to the status of his application, informed petitioner that the Board had received the form from the Memorial Hospital of Alamance County and related the contents to him. She advised petitioner that the normal procedure of her office was to request further information from an institution providing such information and also to request the applicant to provide a written response to such a report. However, petitioner indicated that he wished to personally address the Board on this

   matter at its upcoming Board meeting. Petitioner did appear at the Board meeting but felt that the Memorial Hospital matter was not fully addressed by the Board and that he was not given the opportunity to speak to the Board on that matter.

   
   

10. By Order dated June 24, 1982, the Board of Medical Examiners denied petitioner's application for licensure by endorsement, finding that

    
    

    The Petitioner has not demonstrated to the Board that he is capable of safely engaging in the practice of medicine with reasonable skill and safety to his patients based upon his voluntary resignation of his membership and clinical privileges at Memorial Hospital of Alamance County, Inc., Burlington, North Carolina, just prior to disciplinary action taken by the hospital.

    
    

    Based on this finding, the Board concluded that petitioner had not demonstrated that he meets the statutory requirements of Sections 458.313 and 458.331(3), Florida Statutes.

    
    

    CONCLUSIONS OF LAW

    
    

11. Section 458.313, Florida Statutes, provides that respondent shall issue a license by endorsement to an applicant who completes an application, remits the required fee, meets the qualifications for licensure set forth in Section 450.311, Florida Statutes and meets four additional criteria. There is no dispute in this proceeding concerning petitioner's compliance with the criteria set forth in Section 458.311 nor with three of the four additional requirements for licensure by endorsement. The parties have stipulated that petitioner filed a completed application and remitted the appropriate fee for licensure by endorsement. The issue in this proceeding is whether petitioner is

    
    

    of good moral character and has not committed any act or offense within

    or without the state which would consti- tute the basis for disciplining a physician pursuant to s. 458.331.

    
    

    in accordance with Section 458.313(1)(b), Florida Statutes, and whether he is capable of safely engaging in the practice of medicine in accordance with Section 458.331(3), Florida Statutes.

    
    

12. An applicant for a professional license has the burden of demonstrating that he meets each and every requirement and criterion for licensure. In this instance, petitioner has illustrated that he possesses the medical training and experience required by the Florida Medical Practices Act to be licensed in the State of Florida. Other than a vague reference contained in the written report received by the respondent from the Memorial Hospital of Alamance County, there has been no showing in this proceeding that petitioner committed any act which would disqualify him for licensure by endorsement in Florida. The written report from Memorial Hospital constitutes hearsay evidence and may only be considered to corroborate other evidence on that matter. It cannot be utilized to dispute petitioner's own evidence, nor can it be considered as opinion evidence concerning petitioner's medical qualifications or expertise. Even were that report to be considered otherwise competent evidence,

    it does not, by itself, sufficiently illustrate that petitioner is not of good moral character, has committed any act or offense which would constitute the basis for disciplinary action in Florida or demonstrate that petitioner is incapable of safely engaging in the practice of medicine. That report, without further identification of its author beyond the "Assistant Administrator," states only that the Department of Medicine decided that petitioner's work had not been up to the standards expected by the department and the Hospital.

    Without further elaboration, such a decision by a Hospital medical staff does not constitute grounds for disciplinary action in Florida pursuant to Section 458.331, does not illustrate a lack of good moral character pursuant to Section 458.313(1)(b) and does not illustrate that petitioner is incapable of safely engaging in the practice of medicine. It does not even establish, as found by the respondent Board, that the Memorial Hospital was contemplating "disciplinary action" against petitioner.

    
    

13. The only competent evidence as to the referenced negative decision reached by the review team at Memorial Hospital came from the petitioner, who related that the problem concerned the keeping of medical charts. Florida Statutes, Section 458.331 (1)(n), provides that a ground for which disciplinary action may be taken against a physician is

Failing to keep written medical records justifying the course of treatment of

the patient, including, but not limited to, patient histories, examination results,

and test results.

There was absolutely no evidence in this proceeding that the medical records maintained by petitioner did not justify the course of treatment of his patients. Absent such evidence, and petitioner having otherwise demonstrated that he possesses the qualifications for licensure by endorsement, he is entitled to the same.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that petitioner's application for licensure by endorsement be GRANTED.

Respectfully submitted and entered this 17th day of January, 1983, in Tallahassee, Florida.

DIANE D. TREMOR, 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 January, 1983.

COPIES FURNISHED:

Edward P. de la Parte, Jr., Esquire de la Parte & Gilbert

705 East Kennedy Boulevard Tampa, Florida 33602

Chris D. Rolle, Esquire Assistant Attorney General Department of Legal Affairs Suite 1602, Capitol

Tallahassee, Florida 32301

Dorothy Faircloth Executive Director

Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

=================================================================

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICAL EXAMINERS

FRANK ROBERT GENTILE, M.D.

Petitioner,

vs. DOAH CASE NO. 82-1994

DEPARTMENT OF PROFESSIONAL REGULATION and BOARD OF MEDICAL EXAMINERS,

Respondent.

/

FINAL ORDER

This matter came before the Board of Medical Examiners at their duly noticed meeting of February 12, 1983, for final consideration. Appearing before the Board were Petitioner, represented by Edward P. de la Parte, Esquire, and the Respondent, represented by Chris Rolle, Esquire. Upon a complete review of the entire record herein, including the pleadings, transcript, and exhibits and recommended order, the Board finds and concludes as follows:

FINDINGS OF FACT

1. The Board hereby adopts the Findings of Fact contained in the Recommended Order dated January 17, 1983, as its own and incorporates the same into the body of this Order with the additional factual finding

   
   

   The Board specifically finds based upon the foregoing that Petitioner was not responsive nor truthful to the Board inquiries concerning the nature and history of his employment at the Memorial Hospital.

   
   

2. This factual finding is supported by competent and substantial evidence in the record of the proceedings.

   
   

   CONCLUSIONS OF LAW

   
   

3. The conclusions of law of the Hearing Officer contained in the first paragraph and the first sentence of the second paragraph of the Conclusions of Law portion of the Recommended Order, are hereby adopted by the Board, which state as follows:

   
   

   "Section 458.313, Florida Statutes, provides that respondent shall issue a license by en- dorsement to an applicant who completes an application, remits the required fee, meets the

   qualifications for licensure set forth in Section 458.331, Florida Statutes and meets four additional criteria. There is no dispute in

   this proceeding concerning petitioner's compli- ance with the criteria set forth in Section

   458.331 nor with three of the for additional requirements for licensure by endorsement.

   The parties have stipulated that petitioner filed a completed application and remitted the appropriate fee for licensure by endorsement. The issue in this proceeding is whether the petitioner is of

   
   

   good moral character and has not committed any act or offense within or without the state which would con- stitute the basis for disciplining

   a physician pursuant to s. 458.331.

   
   

   in accordance with Section 458.313(1)(b) Florida Statutes, and whether he is capable of safely engaging in the practice of medicine in accordance with Section 458.331(3), Florida Statutes.

   
   

   An applicant for a professional license has the burden of demonstrating that he meets each and every requirement and criterion for licensure.

   
   

4. The Board rejects the remaining conclusions of law of the Hearing Officer and substitutes in its place the conclusion that the findings of fact do

   not support the conclusion that Petitioner is of good moral character nor do they support the conclusion that Petitioner is capable of safely engaging in the practice of medicine.

   
   

5. Based upon the foregoing, Petitioner has failed to demonstrate he meets the statutory requirements of Sections 458.313 and 458.331(3), Florida Statutes. Petitioner has failed to demonstrate that he possesses the qualifications for licensure by endorsement pursuant to Chapter 458, Florida Statutes.

IT IS THEREFORE, ORDERED AND ADJUDGED:

Based upon the findings of fact and conclusions of law recited above, the Petitioner's application for licensure by endorsement be denied.

* NOTE: The Agency Final Order filed with the Division does not have an issue date or signature.

Docket for Case No: 82-001994

Orders for Case No: 82-001994