STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-122

)

ALBERT P. OTEIZA, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on July 27, 1383, in Miami, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented upon an Administrative Complaint filed by the Petitioner, Department of Professional Regulation, Board of Medical Examiners, which alleges that the Respondent, Albert P. Oteiza, violated Section 458.331(1)(g), Florida Statutes, by aiding, assisting, procuring, or advising an unlicensed person to practice medicine; violated Section 458.331(1)(w), Florida Statutes, by delegating professional responsibilities to persons which the Respondent knew or had reason to know were not qualified by licensure; and violated Section 458.331(1)(aa), Florida Statutes, by presigning blank prescription forms. The Respondent filed a timely request for an administrative hearing, and the matter was referred to the Division of Administrative Hearings to conduct a formal hearing pursuant to the provisions of Section 120.57, Florida Statutes.

APPEARANCES

For Petitioner: Joseph W. Lawrence, II, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Blas E. Padrino, Esquire

2355 Salzedo, Suite 309 Coral Gables, Florida 33134

ISSUES

The following issues of fact were considered:

1. Did the Respondent aid, assist, procure, or advise an unlicensed person to practice medicine?

   
   

2. Did the Respondent delegate professional responsibilities to persons when he knew or had reason to know that said persons were not qualified by licensure to perform them?

3. Did the Respondent presign prescription forms?

Both parties submitted posthearing findings of fact, which were read and considered. Those findings not incorporated herein are found to be either subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.

FINDINGS OF FACT

1. The Respondent, Albert P. Oteiza, is licensed to practice medicine and surgery in the State of Florida and has been so licensed at all times relating to the charges in the Administrative Complaint.

   
   

2. The Respondent was president and director of the Union Latina Association, Inc. (the Association), located at 1313 Southwest First Street, Miami, Florida. The Respondent was paid by the Association, which provided medical services to patients who were members of the Association. The Respondent practiced at Clinical Union Latina (the Clinic), located at 1313 Southwest First Street, Miami, Florida, and was the medical director of the Clinic. The Respondent was not an officer or director of the Clinic.

   
   

3. The president of the Clinic was Rigoberto Garcia, and the business manager was Christian Carmona.

   
   

4. Florencio Sanchez-Lopez was employed as a physician's assistant at the Clinic by Christian Carmona, who assigned Sanchez-Lopez's duties. Sanchez-Lopez was not a licensed physician and was not a certified physician's assistant. Sanchez-Lopez admitted seeing and treating patients at the Clinic. Sanchez- Lopez saw those patients who were in serious condition in the presence of the Respondent. Those patients who were not in serious condition, Sanchez-Lopez saw without the Respondent being present, and Sanchez-Lopez prescribed treatment and medications for these patients. Sanchez-Lopez examined and prescribed medications and treatment for Ralph Nunez, an investigator for the Board of Medical Examiners, in the manner Sanchez-Lopez had admitted to examining and prescribing for other patients.

   
   

5. Valerio Matta was employed as a physician's assistant at the Clinic by Carmona, who assigned Matta's general duties. Matta was not a licensed physician or a certified physician's assistant. Matta saw patients at the Clinic, examining them and prescribing medications and treatment for them without the presence of a licensed physician, as he did with Georgina Jorge, an investigator with the Department of Professional Regulation. Matta also admitted that he had performed minor surgery on patients, but only when the Respondent was present in the Clinic.

   
   

6. Carlos Manuel Rodriguez-Murgia was employed as a physician's assistant at the Clinic by Carmona, who assigned Rodriguez-Murgia his general duties. Rodriguez-Murgia was not a licensed physician or certified physician's assistant. Rodriguez- Murgia saw patients at the Clinic, examining and prescribing medications and treatment for them without the presence of a licensed physician, as he did with Georgina Jorge, an investigator with the Department of Professional Regulation.

   
   

7. The acts performed by Sanchez-Lopez, Matta, and Rodriguez-Murgia all constituted the practice of medicine. However, these acts did not exceed the acts which could have been performed by a physician's assistant.

8. The Respondent was aware or should have been aware that Sanchez-Lopez, Matta, and Rodriguez-Murgia were engaged in seeing patients at the Clinic and performing acts which constituted the practice of medicine.

   
   

9. Carmona was deceased at the time of the hearing. Garcia, president of the Clinic, outlined Carmona's duties. Carmona was responsible for having Sanchez-Lopez, Matta, and Rodriguez-Murgia certified as physician's assistants. All three men confirmed that Carmona represented to them they would be licensed and they were "legal" to perform their duties.

   
   

10. Sanchez-Lopez, Matta, and Rodriguez-Murgia could not swear that it was the Respondent's signature on the prescriptions they used or that they had seen the Respondent sign the prescriptions.

    
    

11. There were other licensed physicians who worked at the Clinic.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Board of Medical Examiners has authority under Chapter 458, Florida Statutes, to discipline its licensees for violation of the statutes. This Recommended Order is entered pursuant to the provisions of Section 120.57, Florida Statutes.

    
    

13. The Respondent is charged with violation of three distinct provisions of law, Sections 458.331(1)(g), (w), and (aa), Florida Statutes, which provide that it is a disciplinary violation if a licensee is guilty of:

    
    

    (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.

    * * *

    (w) Delegating professional responsibilities to a person when the licensee delegating such responsibilities knows or has reason to know that such person is not

    qualified by training, experience, or licensure to perform them.

    * * *

    (aa) Presigning blank prescription forms.

    
    

14. Addressing the last charge first, the evidence does not show that the Respondent presigned the prescriptions which Matta, Sanchez-Lopez, and Rodriguez-Murgia gave to various patients. They could not positively identify the signature as that of the Respondent and had not seen him sign the prescriptions. Violation of Section 458.331(1)(aa), Florida Statutes, was not proven.

    
    

15. Concerning the remaining charges, the Respondent contends that Carmona was responsible to have the men certified and that the Respondent is not guilty of violating Sections 458.331(1)(g) and (w), Florida Statutes, as alleged. The men were hired by Carmona, and their general duties were assigned by Carmona. Carmona was responsible for the administrative act of having the men certified. However, the Respondent was the medical director of the Clinic and a practicing

physician at the Clinic. Physician's assistants are not licensed in the conventional sense. Rather, physicians are certified by the Board of Medical Examiners to supervise physician's assistants. An application must be made by a physician or group of physicians to supervise a physician's assistant. The application must include the professional background and experience of the physician or physicians, a description of his or their practice, and the way the physician's assistant or assistants are to be utilized. As medical director, and as a physician practicing at the Clinic, the Respondent would have had to participate in the process of certifying the individuals. Therefore, the Respondent "had reason to know" that the actions to certify Sanchez-Lopez, Matta, and Rodriguez-Murgia had not been taken. The Respondent delegated duties to Sanchez-Lopez, Matta, and Rodriguez-Murgia as physician's assistants. It is concluded that the Respondent is not guilty of violating Section 488.331(1)(g), Florida Statutes, but is guilty of three counts of violating Section 458.331(1)(w), Florida Statutes.

RECOMMENDATION

Having found the Respondent guilty of three counts of violating Section 458.331(1)(w), Florida Statutes, as alleged in the Administrative Complaint, it is recommended that the Board of Medical Examiners suspend the license of the Respondent, Albert P. Oteiza, for a period of 12 months and assess a civil penalty against him of 3,000.

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

STEPHEN F. DEAN, 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 October, 1983.

COPIES FURNISHED:

Joseph W. Lawrence, II, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Blas E. Padrino, Esquire 2355 Salzedo, Suite 309 Coral Gables, Florida 33134

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Dorothy Faircloth, Executive Director

Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

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

================================================================= BEFORE THE BOARD OF MEDICAL EXAMINERS

DEPARTMENT OF PROFESSIONAL REGULATION

Petitioner,

vs. Case No. 83-122

ALBERT P. OTEIZA, M.D.,

License No. 20879

Respondent.

/

FINAL ORDER OF

THE BOARD OF MEDICAL EXAMINERS

This matter c before the Board of Medical Examiners (Board hereinafter) pursuant to Section 120.57(1)(b)9., Florida Statutes, on December 3, 1983, in Miami, Florida, for the purpose of considering the hearing officer's Recommended Order (a copy of which is attached hereto) in the above-styled matter. The Petitioner was represented by Joseph W. Lawrence, II, Esquire. The Respondent was represented by Blas E. Padrino, Esquire. After review of the Recommended Order, the argument of the parties, and after a review of the complete record in this matter, the Board makes the following findings and conclusions.

FINDINGS OF FACT

1. The hearing officer's findings of fact are approved and adopted in toto and are incorporated herein by reference.

   
   

2. There is competent, substantial evidence to support the board's findings of fact.

CONCLUSIONS OF LAW

1. The hearing officer's conclusions of law are approved and adopted in toto and are incorporated herein by reference.

   
   

2. There is competent, substantial evidence to support the Board's conclusions of law.

   
   

3. The hearing officer's recommendation that the Respondent's license be suspended for twelve months and that he pay a $3,000.00 administrative fine is accepted in part and rejected in part. The Board concludes that the suspension period should be longer in view of the seriousness of the charge proven. The Board accepts the recommended fine.

WHEREFORE, it is ORDERED AND ADJUDGED that the Respondent, Albert P. Oteiza, M.D., is guilty of three (3) violations of Section 458.331(1)(w), Florida Statutes, as charged in Count II of the Administrative Complaint. The Florida medical license of the Respondent is suspended for a period of three (3) years beginning the effective date of this Order. Upon completion of his suspension. Respondent shall be placed on probation for a period of five (3) years. The Board shall not entertain a petition for reinstatement during the first eighteen (18) months of Respondent's suspension. Further, Respondent is assessed an administrative fine in the amount of three thousand dollars ($3,000.00). This Order becomes effective upon filing.

DONE AND ORDERED this 13th day of December, 1983.

BOARD OF MEDICAL EXAMINERS

Richard J. Feinstein, M.D. Chairman, Board of Medical Examiners

Docket for Case No: 83-000122

Orders for Case No: 83-000122