STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION ) BOARD OF MEDICAL EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3666

)

EARL B. BRITT, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tallahassee, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on October 8, 1984, and finished on October 10, 1984. The record closed on October 25, 1984, when petitioner filed Dr. Tedrick's curriculum vitae. The Division of Administrative Hearings received the transcript of proceedings on November 16, 1984. On respondent's motion, a December 10, 1984 deadline for filing proposed recommended orders was established. The parties were represented by counsel:

For Petitioner: Joseph W. Lawrence, II, Esq.

130 North Monroe Street Tallahassee, Florida 32301

P. Kevin Davey, Esquire 1/

211 East Call Street Tallahassee, Florida 32301

For Respondent: M. Stephen Turner, Esquire

318 North Calhoun Street Tallahassee, Florida 32301

By second amended administrative complaint, filed March 9, 1984, petitioner alleges that respondent, "a licensed medical doctor," prepared "reports of his interpretation of ... [certain] real-time echocardiogram studies . . . without reviewing the existing real-time echocardiogram studies" beforehand and that the reports "were erroneous in their transmittal of interpretations that could not be made from the studies"; that respondent "issued reports of his interpretation of the real-time echocardiogram studies for Barbara Hunter, Ruby Lawrence and Addie Allen when, in fact, no real-time echocardiogram studies of these patients existed"; and "failed to fully, adequately and correctly review the real-time mode of the ... echocardiogram studies [In question] prior to rendering an interpretation," on account of all of which respondent "has violated Section 458.311(1)(1), Florida Statutes, by making deceptive, untrue or fraudulent misrepresentations in the practice of medicine . . . [which] fails to conform to the generally prevailing standards of treatment in the medical community."

Count Two reiterates the allegations of the initial count and further alleges that respondent "billed and/or received monies for his alleged review and reporting of his interpretation of the real-time echocardiogram studies . .

. from the hospital, patients and/or third party insurors . . . [and thereby] violated Section 458.331(1)(o), Florida Statutes, by exercising influence on a patient or client for financial gain of the licensee."

In Count Three, the administrative complaint realleges the same conduct and avers that respondent has thereby "violated Section 458.331(1)(i), Florida Statutes, by making or filing a report which the licensee knows to be false."

The fourth and final count again alleges the same conduct and alleges that respondent "violated Section 458.331(1)(t), Florida Statutes, by engaging in gross or repeated malpractice or 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."

ISSUES

Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?

FINDINGS OF FACT

1. Board eligible in internal medicine, respondent Earl B. Britt has staff privileges of one kind or another at Tallahassee Memorial Regional Medical Center (TMRMC), Jackson, Lykes Memorial, Tallahassee Community and Gadsden Memorial Hospitals, all Florida institutions. He studied medicine at Syracuse University, which awarded him the M.D. in 1973, then did his internship at Shands Teaching Hospital, at the University of Florida in Gainesville, and stayed on at Shands for a two-year residency in internal medicine. He spent an additional two years in Gainesville on a cardiology fellowship, which finished in 1978, at which time he moved to Tallahassee, and began in private practice. While at Shands, Dr. Britt "did extensive work with . . . M-mode echocardiography." He also read two dimensional, echocardiographic videotapes under professorial supervision, toward the end of his time in Gainesville. He is an associate professor at Florida A&M University's School of Pharmacy, and a member of several professional organizations, including the Florida Medical Association and the "Leon County Medical Association" (sic). T. 670. Dr. Britt is apparently licensed to practice medicine in Florida. Nothing in the record suggests otherwise, and he did in fact practice in Tallahassee at the time of the hearing, holding himself out as a cardiologist.

   
   

   ECHOCARDIOGRAPHY

   
   

2. At the University of Rochester in New York a "Dr. Gramiak . . . essentially invented echocardiography . . . in about 1966. . . ." (T. 590) From the beginning, the technique has been to examine the heart from different angles seriatim. Originally a single beam of ultrasonic waves was used in sonar fashion to cause a single spot on an oscilloscope to vary in brightness. Eventually "a strip chart recorder" (T. 24) was added to produce a graph representing the heart's motion over time, as well as other attributes of the heart. Many of these so-called M-mode echocardiograms are in evidence. Unedited, they are strips of paper 20 to 30 feet long. In more recent years technological advances have made two dimensional videotapes of the heart commonplace. These "real time" studies depict the moving heart and other tissues within a wedge-shaped sector. They yield information in their own

   right, and are also used to pick the axis for producing M-mode echocardiograms. Unidimensional echocardiograms produced with the two dimensional technology are known as "derived M-modes."

   
   

3. When both M-mode and real time studies are done, the real time study yields additional information in about ten percent of the cases. The importance of the additional information varies with the case. When the M-mode graph is abnormal, the real time study is more likely to yield pertinent additional information than when the M- mode results are normal.

   
   

   A NEW DIMENSION AT TMRMC

   
   

4. Drs. Allee, Britt, McKenzie and Tedrick and perhaps others had privileges at TMRMC authorizing them to interpret M-mode echocardiograms, when the hospital acquired two dimensional Varian equipment in 1979. Unlike Dr. Britt, Doctors Allee, McKenzie and Tedrick had not trained with two dimensional technology, but "the doctors that were already there reading M-mode were, to some extent, grandfathered in and they learned as we went along," (T. 39), originally by experimenting at no charge to patients.

   
   

5. Rose Claire Caparello and Diane Nichols, both registered nurses, produced the tapes and graphs for medical staff. A sample videotape lasted 3 minutes 12 seconds, with only the final 20 seconds devoted to the apical four- chamber view. These technicians made studies from different "windows" in a standard sequence, but each had- and has-her own standard. For Ms. Caparello, it is short axis, long axis, apical four chamber. For Ms. Nichols, it is long axis, short axis, apical four chamber. Aside from the apical four-chamber view and the less common and more difficult parasternal four chamber view, parts of all four chambers are visible in subcostal long axis views. Dr. Britt agrees that a "four-chamber view" implies "that the four chambers are being seen simultaneously." Petitioner's exhibit No. 2, p. 76. About 30 percent of the time the four-chamber view is too obscure to record, a fact which the technician ordinarily makes a note of. If everything preceding the four-chamber view has been apparently normal, the technician may forego a four-chamber view.

   
   

6. By the fall of 1981, a routine was in place at TMRMC. On doctor's orders, the technician produced M-mode echocardiograms and, in most cases, videotapes, as well. The technician placed a transducer on the chest at different points to obtain several views, unobstructed by lung or bone, of each patient's heart, and to make graphs and videotapes, which a physician later interpreted. Each videotape held several patients' studies; views of one patient's heart began at or near where another's left off. In recording a new study, the technician might record over the tail end of the last "a hundredth of a second or something." (T. 488) Videotapes were identified, originally by date, then simply by number, and, for each study, a "counter number" indicated the distance in feet from the beginning of the tape to the beginning of the study. Logbook entries recorded the patient's name, number, room number, physician's name and the tape and counter numbers. Petitioner's Exhibit No. 5. "On rare occasions . . . incorrect numbers may have been put down." (T. 488-489) At first index cards listing the tapes' contents were inserted along with each cassette into its carton, then the technicians began indexing directly on the boxes in which tapes were stored. Until the videotape had been read in its entirety, it remained on a shelf with as many as half a dozen or so others.

   
   

7. The technicians prepared worksheets, which they attached to each M-mode echocardiogram. Worksheets listed the referring physician, the physician who was to render the interpretation, the diagnosis or what was being looked for,

   and indicated whether a real-time study had also been done, and, if so, where it could be found. Cardiologists had to write separate reports for M-mode and real time studies, in order for TMRMC to receive reimbursement from certain third party payors. Hospital policy required that studies be read within 24 hours, but did not impose any other requirements. In 1981 and until last year, TMRMC billed $195 for each M-mode echocardiogram and $260 for both M-mode and real time studies. During this period and to the time of hearing, physicians billed

   $46 to interpret an M-mode echocardiogram and $54 to interpret a real time study.

   
   

8. Because of staff and equipment the hospital furnishes, a cardiologist spends fifteen minutes or less on even the most demanding case, and spends less than ten minutes on cases in which both M-mode and real time studies have been done, unless test results are unusually complicated. Until recently, certain cardiologists provided the laboratory blank report forms already signed. Then, as now, a typist fills in the report forms, transcribing from dictation the doctors leave on a TMRMC Dictaphone, At the time of hearing, reports were no longer being signed before they had been completed. The cardiologists fit their visits to the laboratory around office appointments and other commitments. Studies were also checked out to physicians' offices. If a doctor overlooks a real time study, as sometimes happens, hospital employees let him know, so he can make arrangements to view the tape, and write a report. If a technician discovers that the physician has interpreted the wrong study, as also happens sometimes, she lets the physician know. A report may simply read "grossly normal." For a fee, the hospital handles billing for cardiologists who interpret echocardiograms.

   
   

   ON THE BLINK

   
   

9. On October 26, 1981, Ms. Caparello performed echocardiographic studies first on Barbara Hunter, an out-patient in Dr. Britt's care, then on one of Dr. St. Petery's patients, and then on one of Dr. Tedrick's patients. The following day the same videotape was used in an attempt to record a study on a fourth patient.

   
   

10. Shortly afterward, Dr. Tedrick reported that he had been unable to get an image when he played the videotape at the counter number the worksheet specified for the study of his patient done the previous day. Ms. Caparello ran the tape from the beginning, and found that it was blank. She tried but was unable to record anything on the videotape until she switched video cassette recorders. Dr. Tedrick "decided just to go with the M-mode." (T. 95) When Ms. Caparello called Dr. St. Petery to report what had happened, he asked that the study on his patient be redone.

    
    

11. Before she telephoned Dr. Britt, she came across a report on Barbara Hunter in Dr. Britt's handwriting "a report on both the M-mode and 2-D study," (T. 96), viz.:

    
    

    Petitioner's Exhibit No. 4.

    
    

    After telling others in authority at TMRMC, and on their advice, Ms. Caparello raised the matter with Dr. Britt who said, "Well, I must have picked up the wrong tape," (T. 97), and told her not to bother redoing the study. Dr. Britt did not say, "Well, do you want to repeat it and I will redictate it." Petitioner's Exhibit 2, p. 54.

12. On Barbara Hunter's M-mode graph, Dr. Britt wrote "MVP" signifying mitral valve prolapse or spooning. Dr. Britt read the Hunter M-mode echocardiogram but he never saw a videotape of Barbara Hunter's heart because none existed. It is highly unlikely that he looked at the beginning of the wrong videotape. Barbara Hunter "had a very young, healthy heart," (T. 98), in sharp contrast to the heart depicted at the beginning of the preceding videotape which had many abnormalities including an artificial mitral valve and left ventricular enlargement. The man's heart studied on October 15, 1981, and depicted at the beginning of the next preceding videotape was "a very thick, sluggish heart." (T. 98)

    
    

    NO REAL TIME STUDY

    
    

13. On January 5, 1981, Ruby Lawrence had an echocardiogram done. Ms. Caparello and Ms. Nichols conferred and decided to do M-mode only, they felt that her heart was "perfectly normal." (T. 128) Although Dr. Webster had ordered the test, it fell to Dr. Britt to read the results. With respect to Ruby Lawrence, Dr. Britt dictated the following:

    
    

    Dictation on Ruby Lawrence: M-mode echocardio- grams: Mitral valve shows normal E-F slope, slightly increased echoes in and about the anterior leaflet probably representative of myxomatosis valve with redundancy rather than true aortic insufficiency. There is bowing of the posterior mitral valve leaflet in mid-

    to-late systole of greater than two millimeters consistent with mitral valve prolapse. Posterior mitral valve leaflet moves well. Slight increased echos are seen in and about the posterior mitral valve leaflet and annulus of questionable consistency with calcification in the annulus; however,

    there is no restriction of the motion of the posterior leaflet. Aortic roots, valve 3-cusp valve good undulation. Left atrium is normal in size. Inter ventricular septum, walls, normal motion pattern, normal thickness. Tricuspid valve not seen. No pericardial effusion seen.

    Echocardiogram is consistent with mid-to-late prolapse and other mitral valve leaking into

    the left atrium consistent with Barlows syndrome. This may also be a source of recurrent emboli.

    Suggest anti-platelet therapy. Real-time echocardiogram:

    Short axis view of the aortic valve shows no evidence of restriction of motion, no evidence of IHSS represented by premature closure and reopening. Short axis view

    of the mitral valve shows no evidence of stenosis, papulary muscles have normal motion pattern. Long axis view shows left atrium left ventricle to be of normal size or a slightly small left ventricular cavity. The anterior leaflet of the mitral valve does occasionally kiss the septum. Again there is spooning of the

    posterior leaflet into the left atrium consistent with mitral valve prolapse of a myxomatosis valve. No IHSS is seen. Four-chamber view

    shows normal A-V valve relationship. Echo- cardiogram is remarkable for findings of myxomatosis mitral valve prolapse, which may very well be the source of recurrent emboli

    in this patient. Suggest anti-platelet therapy." (T. 134-135)

    On a form entitled "CARDIAC REAL-TIME SECTOR SCAN REPORT," at the bottom of which was the stamped signature, "Earl B. Britt, M.D." a hospital employee dutifully transcribed the last paragraph Dr.Britt dictated. Petitioner's Exhibit No. 6.

    
    

14. When Ms. Caparello brought this to the attention of hospital authorities, Dr. Harrison asked her to examine laboratory files on Dr. Britt's patients and suggested that she "set up a controlled situation." (T. 144) Dr. Britt testified that he did not know for a fact that he reviewed the real time study on this patient, "[b]ecause [he] ha[s] no way of knowing of the display data on a screen that [he] ha[s] seen that had Ruby Lawrence's name on it or had some means of identifying Ruby Lawrence to correlate the findings of the information displayed as to what the findings of the echo report said." Petitioner's Exhibit No. 2, p. 51. Dr. Britt never reviewed a real time videotape of Ruby Lawrence's heart, because none was ever recorded.

    
    

    THE EMPTY WEDGE

    
    

15. Addie Allen's was the first heart depicted on videotape No. 79 on January 18, 1983. She was one of Dr. Britt's patients and her heart appeared normal. Ms. Caparello removed tape No. 79 from the recording machine, put the videotape in its case, taped the case shut, placed it on a shelf so that its number could not be seen, and balanced a pencil on it. The next morning, Ms. Nichols began another videotape, which she also numbered 79, with a segment less than a minute long of a blank wedge, the two-dimensional format sans patient, and indexed this part of the tape as a real time study of Addie Allen. The first patient on the tape after the specious Addie Allen segment was a child in Dr. St. Petery's care who had significant abnormalities. Over the next weekend, Dr. Britt dictated the following:

    
    

    "Dictating M-mode echocardiogram study on Ms. Addie Allen: Mitral valve normal EF slope.

    Increased "B" point consistent with increases left ventricular end diastolic pressure.

    Posterior mitral valve leaflet, no evidence of mitral valve prolapse. No aortic stenosis.

    Pulmonic valve, tricuspid valve not seen. Left ventricle: Normal thickness, good wall motion. Right ventricular outflow tract normal size.

    Left atrial view normal size.

    
    

    There is a minimal pericardial effusion seen posteriorly of no hemodynamic significance.

    
    

    Echocardiogram shows no evidence of valvular abnormality or hypertrophic changes of the

    septum or left ventricular posterior wall.

    No echocardiographic findings to suggest cause of patient's chest pain.

    
    

    Real-time echocardiogram: Short axis view of the aortic valve shows non-restriction of its leaflets. Short axis view of the mitral valve shows no restriction of its leaflets. No evidence of aortic insufficiency. Long axis view of the left ventricle shows no IHSS or mitral valve prolapse.

    
    

    4-chamber view shows normal AV valve relationship. No segmental wall motion abnormality.

    
    

    Echocardiogram is grossly normal." (T.160-161)

    Later a technician found the first tape No. 79, with the videotape record of Addie Allen's heart, which did not include an apical four-chamber view, still in its case, pencil and scotch tape intact.

    
    

    PAST REPORTS EXAMINED

    
    

16. As a result of searching laboratory files for reports on which nonexistent four-chamber views were discussed, a group of Dr. Britt's cases was assembled. As it happened, each case in the group was that of a person with a normal heart. Between October of 1979 and December of 1982, Dr. Britt rendered reports on 1187 M-mode echocardiograms and 882 two dimensional, real time echocardiograms. During that time, he never complained of an inability to locate any study.

    
    

17. Several knowledgeable physicians examined this collection, many of whom testified in person or on deposition with respect to the cases. In several instances, including the cases of Lizzie Davis, Jordan Thompson, Mahala Bacon, Sonja Jackson, Mabel Hill, James Harris, Mary Parks, Lillian Haygood, and Mary Hartsfield, Dr. Britt never reported seeing four-chamber views, although he discussed attributes all four chambers shared. In other instances, like the cases of Evelyn Edenfield and Barbara Baggett, reports were ambiguous on the existence of four-chamber views.

    
    

18. But, in the cases of Shelly Robinson, Lillie Mae Moore, Laura Brown, Jimmy Lee Elliot, Sarah P. Jones, Carol Scarborough, Mozell Lewis, Luceal Wilson, Lula Davis, Fred Blackshear, Laura Brown, T. C. Hudson, Susan Hampton, Eloise Williams, Cecilia Beckwith and Everett Fleming, Dr. Britt reported seeing four- chamber views in real time studies even though the real time studies did not include four-chamber views. The study following Shelly Robinson's included a four-chamber view, as did the studies preceding those of patients Moore, Jones, Scarborough, Wilson, Davis, Blackshear, Hudson and Williams. In addition to noting the absence of certain four-chamber views, some of the cardiologists who reviewed real time studies on which Dr. Britt reported disagreed with him about what some of the studies showed.

19. Reporting on studies or aspects of studies never performed amounts to a failure to practice medicine with the level of care and skill which is recognized by reasonably prudent similar physicians as being acceptable under similar conditions and circumstances.

    
    

    DOCTORS CONFER

    
    

20. Charles Holland was chairman of the medical staff at TMRMC in January of 1983. He met with Dr. Britt, Dr. Harrison and Mr. Mustian and told Dr. Britt of the allegations against him. Dr. Britt asked to see the tapes in question. The same persons attended a second meeting the following day, and soon thereafter a third meeting, which Dr. Brickler also attended. At the last meeting, "Dr. Britt brought out the fact that a mistake had been made" (T. 442) and offered "to make amends for what had happened." (T. 442)

    
    

    POSTHEARlNG SUBMISSIONS CONSIDERED

    
    

21. Both parties filed pleadings posthearing containing proposed findings of fact that have been considered in preparation of the foregoing. To the extent that the proposed findings of fact have not been adopted in substance, they have been deemed cumulative, subordinate or immaterial; and to the extent proposed findings conflict with the foregoing they have been rejected as unsupported by the weight of the evidence.

    
    

    CONCLUSIONS OF LAW

    
    

22. Petitioner is authorized to take disciplinary action, including imposing an administrative fine, entering a reprimand, placing a physician on probation, and suspending or revoking a physician's license, Section 458.331(2), Florida Statutes (1983), whenever a physician has been guilty of:

    
    

    1. Making or filing a report which the licensee knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing or inducing another person to do so. Such reports or records shall include only those which are signed in the capacity as a licensed physician.

       (l) Making deceptive, untrue, or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine when such scheme or trick fails to conform to the generally prevailing standards of treatment in the medical community.

       (o) Exercising influence on the patient or client in such a manner as to exploit the patient or client for financial gain of the licensee or of a third party which shall include, but not be limited to, the promoting or selling of services, goods, appliances, or drugs

       and the promoting or advertising on any prescription form of a community pharmacy unless the form shall also state "This prescription may be filed at any pharmacy of your choice."

       (t) Gross or repeated malpractice or the failure 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. The board shall give great weight to the provisions

       of s. 768.45 when enforcing this paragraph. Section 458.331(1), Florida Statutes (1983).

       Respondent cites Snell v. Commonwealth State Examining Board, 416 A.2d 468 (Pa. 1980), in connection with Section 458.331(1)(i), Florida Statutes (1983), for the proposition that "Actual knowledge of wrongdoing or intent to defraud cannot be presumed" 418 A.2d at 469-70, from "signatures" affixed by rubber stamp.

       
       

23. In a matter as grave as license revocation proceedings, the duty allegedly breached by the licensee must appear clearly from applicable statutes or rules or have a "substantial basis," Bowling v. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981), in the evidence. Disciplinary licensing proceedings like the present case are potentially license revocation proceedings, even in the absence of a recommendation of revocation, since the penalty for the infraction alleged lies within the discretion of the disciplining authority, if allegations of misconduct are established at a hearing. Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla. 1979). License revocation proceedings have been said to be "penal in nature." State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz v. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979) (reh. den. 1980).

    
    

24. Here the evidence clearly and convincingly established that Dr. Britt fabricated more than one report on real time echocardiogram videotapes after perusing more or less normal M-mode echocardiograms done on the same patients. The evidence suggested that he assumed that, when M-mode echocardiograms were normal, the real time studies would not reveal anything significant, and that he was mostly right. By dictating and drafting reports for real time studies he had not looked at, however, Dr. Britt misrepresented to the patients and others, in violation of Section 458.331(1)(e), Florida Statutes, that he had examined the videotape; and made or filed a report in violation of Section 458.331(1)(i), Florida Statutes, known to be false, not in its substance but in the necessary implication that the author was familiar with the real time study on which he reported. Dr. Britt represented to his colleagues that he had viewed the real time studies, bringing to bear his undisputed expertise, when in fact he had not done so. With respect to the Ruby Lawrence dictation, the dictation itself, not Dr. Britt's stamped signature on the form onto which the dictation was transcribed, evidences his involvement and culpability. The evidence overwhelmingly established that respondent was guilty of repeated malpractice in the preparation of real time study reports, in violation of Section 458.331(1)(t), Florida Statutes, but did not prove that any patient was harmed or mistreated. The evidence did not clearly and convincingly show that Dr. Britt exercised influence on a patient for his own financial gain in violation of Section 458.331(1)(O), Florida Statutes. People were billed for work not done, fifty-six dollars for each real time study report; but there was no proof that Dr. Britt knew before ordering tests (or interpreting tests others ordered) that the M-mode would in fact be normal, or that he would for some other reason not bother to look at the real time study.

RECOMMENDATION

In petitioner's proposed recommended order, petitioner asks for a license suspension of thirty days, followed by a probationary period, and imposition of a fine of two thousand dollars. In view of this and in light of the foregoing, it is

RECOMMENDED:

That petitioner suspend respondent's license for thirty (30) days and impose an administrative fine in the amount of two thousand dollars ($2,000.00).

DONE and ENTERED this 27th day of March, 1985, in Tallahassee, Florida.

ROBERT T. BENTON II

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 27th day of March, 1985.

ENDNOTE

1/ Mr. Davey's participation as counsel concluded with submission of respondent's final (written) argument on December 11, 1984. On January 8, 1985, he was invested as a Judge of the Circuit Court for the Second Judicial Circuit of Florida.

COPIES FURNISHED:

Joseph W. Lawrence, II, Esq. Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

P. Kevin Davey, Esq.

211 East Call Street Tallahassee, Florida 82301

M. Stephen Turner, Esq.

318 North Calhoun Street Tallahassee, Florida 32301

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Dorothy Faircloth, Executive Director Department of Professional Regulation 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. 83-3666

DPR Case No. 0036070

EARL B. BRITT, M.D., License No. ME26016

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 June 1, 1965, in Palm Beach, 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 Joseph W. Lawrence II, Esquire; Respondent was present and represented by M. Stephen Turner, 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. The exceptions to the findings of fact in the Recommended Order presented by Respondent are rejected because there is competent substantial evidence to support the findings made by the hearing officer.

   
   

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 in the record to support the Board's findings of fact.

   CONCLUSIONS OF LAW

   
   

4. The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.

   
   

5. The exceptions to the conclusions of law in the Recommended Order are rejected. The hearing officer's conclusions of law are approved and adopted in toto and are incorporated by reference herein.

   
   

6. There is competent substantial evidence in the record to support the Board's conclusions of law.

DISPOSITION

Upon a complete review of the record in this case, the Board determines that the penalty recommended by the hearing officer is rejected. The Board rejects the penalty of the hearing officer as too lenient based on the gravity of the offenses. The members of the Board, most of whom are physicians, are in a better position to recognize the potential for harm arising from the offense than is the hearing officer. Further, the offenses constitute a branch of trust which the patient places with his physician. WHEREFORE,

IT IS HEREBY ORDERED AND ADJUDGED that:

1. Respondent's license to practice medicine in Florida be suspended for three (3) months.

   
   

2. Respondent shall pay an administrative fine of Two Thousand Dollars ($2,000) within thirty (30) days of the date this order is filed.

This Order takes effect upon filing.

Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this Final Order by filing one copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of Appeal within thirty days of the date this order is filed, as provided in Chapter 120, Florida Statutes, and the Florida Rules of Appellate Procedure.

DONE AND ORDERED this 6th day of July, 1985.

BOARD OF MEDICAL EXAMINERS

J. DARRELL SHEA, M.D. Chairman

Docket for Case No: 83-003666

Orders for Case No: 83-003666