STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-3069

)

RAFAEL PRADA, )

)

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 February 9, 1984, in North Miami, Florida.

Petitioner Department of Professional Regulation, Board of Medical Examiners, was represented by Spiro T. Kypreos, Esquire, Tallahassee, Florida; and Respondent Rafael Prada was represented by Manuel E. Oliver, Esquire, Miami, Florida.

Petitioner filed an Administrative Complaint seeking to suspend, revoke, or take other disciplinary action against Respondent as licensee and against his license to practice medicine under the laws of the State of Florida. Respondent timely requested a formal hearing on the allegations contained within that Administrative Complaint. Thereafter, Petitioner filed an Amended Administrative Complaint, and the Respondent filed an answer thereto.

Accordingly, the issues for determination are whether Respondent is guilty of the charges contained in that Amended Administrative Complaint and, if so, what disciplinary action should be taken, if any.

Petitioner presented the testimony of Xiormma Perez, Felix A. Garcia- Loredo, and, by way of deposition, Leslie L. Andrews. Additionally, Petitioner's Exhibits numbered 1-3 were admitted in evidence. Respondent testified on his own behalf, Both parties submitted posthearing proposed findings of fact in the form of a proposed recommended order. To the extent that any proposed findings 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 is and has been a physician licensed to practice medicine under the laws of the State of Florida, having been issued license number ME 0034162.

2. Between the dates of approximately December 1982 and July 1953, Respondent was associated with Felix Garcia-Loredo in the practice of medicine under the name of Hialeah Family Practice at 777 East 25th Street, Hialeah, Florida 33013, pursuant to a verbal agreement.

   
   

3. At the time that they entered into that verbal agreement, Garcia-Loredo was not licensed as a physician or as a physician's assistant, and Respondent knew that Garcia-Loredo had no license. What Garcia-Loredo did have, however, was that which Respondent lacked: the money and community contacts which Respondent needed in order to start a medical practice which might have been otherwise out of reach for Respondent, who was new to the Miami area where he knew almost no one and where he earned a living by working as a physician at two clinics. In furtherance of their agreement, Garcia-Loredo borrowed $10,000 from a bank in order to open the office and hired a secretary. Since Respondent had the only medical license between the two of them, he signed the lease for the office space in a complex of medical offices next to Hialeah Hospital. Name signs were placed outside the door of the Hialeah Family Practice: one sign bore Respondent's name, and the other read "Dr. Felix Garcia-Loredo." Although the office was open thereafter for six days a week, the only person working on a regular schedule was the secretary.

   
   

4. Xiormma Perez was the secretary at Hialeah Family Practice during substantially all the time that the office was open. She believed she worked for Felix Garcia-Loredo, since he was the one who hired her and since she did not meet Respondent until approximately a month after she had begun working for Felix Garcia-Loredo. She also believed that Garcia-Loredo was a medical doctor, since he introduced himself to her as such when she interviewed with him for employment. Additionally, the many people who came to the office to see Garcia- Loredo referred to him as Dr. Garcia-Loredo.

   
   

5. If anyone telephoned the office requesting an appointment to see a doctor, Perez gave that person an appointment to see Respondent at 5:00 p.m. or later, since Respondent was employed full-time at two clinics and that was the earliest time when he could be at the office to see a patient. According to Perez, Respondent saw only a "handful of patients" during the entire time that the office was open. Felix Garcia-Loredo, however, had numerous friends and relatives appear at the office to see him. Garcia-Loredo would take those persons into an interior office, and Perez had no knowledge as to what occurred behind the closed door. When Perez prepared insurance claim forms, she left them with Garcia-Lore do for review and did not give the insurance claim forms to Respondent, although the forms were to be signed by the physician who had rendered the medical services for which reimbursement was being sought. In fact, Garcia-Loredo signed numerous insurance claim forms on behalf of Hialeah Family Practice, and Respondent signed none.

   
   

6. The parties have stipulated that the following acts constitute medical service in the practice of medicine: performing examinations, ordering or performing laboratory tests, ordering or performing x-rays, ordering or performing treatment, and prescribing or dispensing medication. Between January 1983 and March 1983, Garcia-Lore do performed the following medical services to patient Leslie Andrews at the office of Hialeah Family Practice at 777 East 25th Street, Hialeah, Florida: Garcia-Loredo gave Andrews a complete physical examination; he ordered for Andrews laboratory tests and x-rays; he evaluated those laboratory tests and x-rays and diagnosed Andrews' symptoms based thereon; he placed Andrews on a special diet and wrote Andrews a prescription for medication. He thereafter filed a health insurance claim form for payment of medical services rendered by him to Andrews in the amount of $1,739, and he

   signed that form where the form requires the signature of physician or supplier. Not only was Respondent not present during any of the treatment rendered to Andrews, Respondent and Andrews have never met.

   
   

7. All of the patient records were kept in files in the reception area in the office of Hialeah Family Practice. Copies of the insurance claim forms were also kept in that location. Although these records were available to Respondent at all times, the only time that Respondent ever examined a file or any business record was when Garcia-Loredo needed him to admit a patient into the hospital, something which Garcia-Loredo could not do. Other than examining a patient's file for the purpose of admitting that patient into the hospital and performing whatever follow-up was required during that patient's hospitalization, Respondent never reviewed or even asked questions about any financial aspects of the medical office. During the entire time that the office was open, Respondent never received a salary or any draw from that office and did not know if the secretary or Garcia-Loredo were paid a salary or received any money in compensation for their services. Respondent had no knowledge of any insurance claim forms that were filed or of any insurance payments received. Respondent had no knowledge as to any charges made to any patient for services rendered or whether anyone had paid any of the charges. Respondent was not even aware of whether the business had any books and records.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes (1981).

   
   

9. Count One of the Amended Administrative Complaint charges Respondent with having violated the following subsections of Section 458.331(1), Florida Statutes:

   
   

   1. Failing to report to the department any person who the licensee knows is in violation of this chapter or of the rules of the depart- ment or the board.

   2. Aiding, assisting, procuring, or advis- ing any unlicensed person to practice

      medicine contrary to this chapter or to a rule of the department or the board.

      (w) Delegating professional responsibili- ties to a person when the licensee deleating such responsibilities knows or has reason to know that such person is not qualified by

      training, experience, or licensure to perform them.

      
      

      Although Respondent admits he knew at the time that Garcia-Loredo was not licensed to practice medicine as a physician or as a physician's assistant, Respondent opened a medical practice with Garcia-Loredo, although Respondent incurred no financial responsibility in conjunction with opening or operating that office and although Respondent was employed at two clinics during the mornings and afternoons and could not treat patients at that office during normal business hours and although no mention was made by either of those two gentlemen to each other regarding accounts payable or receivable or regarding whether either of them would receive any income from the operation of their office. Respondent's testimony that Garcia-Loredo's only role in the office of the Hialeah Family Practice was to write down the medical histories of patients

      (although he also testified there were essentially no patients) and to be an administrative assistant in charge of the administrative and clerical staff (composed of only one secretary) is simply not credible. If Respondent was unaware of what was really transpiring at the office of Hialeah Family Practice, it is only because he intentionally avoided knowing anything. Petitioner has clearly met its burden of proving that Respondent has violated the statutory prohibitions with which he is charged in Count One of the Amended Administrative Complaint.

      
      

10. Count Two of the Amended Administrative Complaint charges Respondent with having violated Section 458.331(1)(t), Florida Statutes, by failing 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. Since no evidence was introduced to show that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, then Petitioner has clearly failed to meet its burden of proving that Respondent failed to practice medicine in accordance with that standard. Accordingly, Petitioner has failed to prove the allegations contained in Count Two of the Amended Administrative Complaint.

    
    

11. In its proposed recommended order, the Department of Professional Regulation recommends that Respondent be assessed an administrative fine in the amount of $1,000. There being neither aggravating evidence nor mitigating evidence in the record in this cause, the maximum administrative fine is reasonable and therefore appropriate.

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

allegations contained in Count One of the Amended Administrative Complaint, dismissing Count Two of the Amended Administrative Complaint with prejudice, and assessing against Respondent an administrative fine in the amount of $1,000 to be paid by a date certain.

DONE and RECOMMENDED this 4th day of May 1984, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 4th day of May 1984.

COPIES FURNISHED:

Spiro T. Kypreos, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Manuel E. Oliver, Esquire

275 SW 13th Street Miami, Florida 33130

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. DOAH CASE NO. 93-3069

DPR CASE NO. 3D975

RAFAEL PRADA, M.D.

LICENSE No. ME 34162

Respondent.

/

FINAL ORDER OF

THE BOARD OF MEDICAL EXAMINERS

This cause came before the Board of Medical Examiners (Board) pursuant to Section 120,57(1)(b)(9), Florida Statutes, on August 4, 1984, in Tampa, Florida, for the purpose of considering the hearing officer's recommended order (a copy of which is attached hereto) in the above-styled cause. Petitioner, Department of Professional Regulation, was represented by Stephanie Daniel, Esquire; Respondent, Rafael Prado, M.D. was represented by Manuel E. Oliver, Esquire.

Upon review of the recommended order, the argument of the parties, and after a review of the complete record in this case, the Board makes the following findings and conclusions:

FINDINGS OF FACT

1. Respondent's exceptions to the findings of fact are rejected as unsupported by competent, substantial evidence.

   
   

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

   
   

3. There is competent, substantial evidence to support the Board's findings of fact.

CONCLUSIONS OF LAW

1. Respondent's exceptions to the conclusions of law are rejected as being unsupported by competent substantial evidence.

   
   

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

   
   

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

PENALTY

Upon a review of the complete record in this cause and upon consideration of the gravity of Respondent's offense, the Board determines that the penalty recommended by the hearing officer be increased. WHEREFORE, it is hereby,

ORDERED AND ADJUDGED that Respondent shall pay an administrative fine of

$1,000.00 to the Board within 39 days from the effective date of this Order. Further, Respondent's license to practice medicine shall be suspended for a period of three months commencing on the effective date of this Order and shall be automatically reinstated after the suspension. Upon reinstatement, Respondent shall be placed on probation for a period of three years during which time he shall appear semiannually before the Board. Respondent has waived confidentiality with regard to the investigative reports prepared by the department during probation. A violation of the conditions of probation shall result in an automatic suspension of Respondent's license with an emergency hearing being provided as necessitated by Chapter 120, Florida Statutes. This Order takes effect upon filing.

DONE AND ORDERED this 11th day of September 1984.

Board of Medical Examiners

Richard J. Feinstein, M.D. Chairman

cc: All Counsel of Record Rafael Prada, M.D.

Docket for Case No: 83-003069

Orders for Case No: 83-003069