vs. ) CASE NO. 84-3198
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on December 4, 1984, in Tallahassee, Florida. The parties were allowed through December 18, 1984 to submit posthearing memoranda in this proceeding. The parties have submitted proposed recommended orders which were considered by me in preparation of this Recommended Order. 1/
Slepin, Slepin, Lambert & Waas 1114 E. Park Avenue Tallahassee, Florida 32301
The issue presented for decision herein is whether or not the Petitioner is capable of safely engaging in the practice of medicine and should be licensed as a physician by endorsement in Florida, pursuant to Chapter 458, Florida Statutes.
This proceeding arose as a result of a provisional denial of Petitioner's application to practice medicine by endorsement. The Board of Medical Examiners, in its Order rendered July 25, 1984, denied Petitioner's application to practice medicine by endorsement on the stated grounds that she (Petitioner) had not demonstrated to the Board that she is capable and safely engaging in the practice of medicine with reasonable skill and safety to her patients based upon the unfavorable evaluation of her residency training at Presbyterian University of Pennsylvania Medical Center submitted by George A. Hermann, M.D.
At the hearing, Petitioner and Respondent entered thirty exhibits pursuant to a joint pre-hearing stipulation submitted November 21, 1984. Petitioner submitted three additional exhibits and testified in her own behalf; Respondent submitted one additional exhibit.
Neither Rule 21M-21.05(5), Florida Administrative Code (effective November 29, 1984), nor Chapter 84-78, Laws of Florida, (Equal Access to Justice Act) applies to Petitioner.
The parties entered into a prehearing stipulation of facts and law which was accepted by the undersigned Hearing Officer.
Based upon my observation of the Petitioner and her demeanor while testifying, the prehearing stipulation of the parties and the exhibits accepted into evidence, the following relevant factual findings are made.
Dr. Desai received her medical degree in 1971 from B.J. Medical College, Gujarat University, Ahmedabad, State of Gujarat, India (Exhibit 12), having completed rotating internships from December 1, 1969 through November 30, 1970 at four different hospitals: Civil Hospital, Ahmedabad, Gujarat, India; Rural Health Training Center, Bawla, Gujarat, India; Gulabbhai General Hospital, Ahmedabad, Gujarat, India; and Civil Hospital, Limdi, Gujarat, India. (Exhibits 1, 9 and 10)
Dr. Desai came to the U.S.A. in January, 1969 (Exhibit 1) and passed the Educational Commission for Foreign Medical Graduates Examination (ECFMG) in January, 1975. (Exhibits 13, 21 and 22)
Dr. Desai completed a one year residency in anatomical pathology at St. Vincent Hospital Center, Erie, Pennsylvania, from July 1, 1975 through June 30, 1976. (Exhibits 23 and 27)
Dr. Desai completed a residency in anatomical and clinical pathology at Presbyterian University of Pennsylvania Medical Center, Philadelphia, Pennsylvania from July 1, 1976 through June 3, 1980. (Exhibits 10 and 26) From June 18, 1980 through June, 1984, Dr. Desai worked at Womack Army Community Hospital, Fort Bragg, North Carolina (U.S. Army) as a general medical officer in the Acute Minor Illness Clinic (outpatient walk-in clinic). (Exhibits 13, 18 and 28)
Dr. Desai was licensed to practice medicine in the states of Pennsylvania in August, 1979 (Exhibit 16) , in Georgia in April, 1984 (Exhibit
31) and in North Carolina during June of 1984.
Dr. Desai filed an application with the Board of Medical Examiners for licensure as a physician by endorsement which was received by the Department of Professional Regulation on December 30, 1983. (Exhibit 1)
Dr. Desai took and passed the FLEX examination in June of 1979. (Exhibit 2)
The Board of Medical Examiners considered Dr. Desai's application for licensure by endorsement on June 10, 1984, voting to deny the application. (Exhibit 32)
The Board's written order of denial was filed July 25, 1984, stating as grounds for the denial, "The applicant has not demonstrated to the Board that she is capable and safely engaging in the practice of medicine with reasonable skill and safety to her patients based upon the unfavorable evaluation of her residency training at Presbyterian University of Pennsylvania Medical Center submitted by George A. Hermann, M.D.." (Exhibit 33)
Dr. Desai filed a petition and request for hearing on the application denial on August 20, 1984 and the matter was referred to the Division of Administrative Hearings.
Dr. Desai has not been the subject of any malpractice
suits, disciplinary actions or complaints filed by any private individual, criminal authority or state licensing authority.
Petitioner received outstanding recommendations as to her clinical abilities, judgment, medical knowledge and moral character from Gregory E. Whitaker, M.D., Captain, Medical Corps (Exhibit 17); Milton T. Smith, M.D., Colonel, Medical Corps, Chief, Department of Primary Care and Community Medicine, Ft. Bragg, N.C. (Exhibits 18 and 28); Frantz Latour, M.D., Associate Pathologist, Presbyterian-University of Pennsylvania Medical Center, under whom Petitioner was supervised during three years of her residency (Exhibit 29); and James R. Wheeling, M.D., Colonel, Medical Corps, Chief of Professional Clinical Services, Womack Army Hospital (Exhibit 19).
Petitioner was recommended to Respondent as qualified for licensure by both St. Vincent Health Center and Presbyterian University of Pennsylvania Medical Center where she completed her residency. (Exhibits 26 and 27)
Petitioner was a member of the staff of Womack Army Hospital, Ft. Bragg, North Carolina from June of 1980 through June of 1984.
Since July, 1984 to the present time, Petitioner has been employed by Doctors Urgent Care Center in Jacksonville, North Carolina as a physician performing minor emergency physician responsibilities and a variety of outpatient physician responsibilities. Petitioner sees an average of 35 patients daily.
While on staff at Womack Army Hospital, serving in the rank of Major in the United States Army Medical Corps, Petitioner treated approximately 35 patients daily involving a variety of medical conditions.
During the processing of Dr. Desai's application, the Board requested and received an evaluation from George A. Hermann, M.D., Chairman, Department of Pathology and Nuclear Medicine, Presbyterian University of Pennsylvania Medical Center, where Petitioner completed four of her five years of residency. Dr. Hermann indicated that on seven occasions between September 30, 1976 through September 30, 1978, evaluations of Petitioner's residency indicated that petitioner's attitude towards patients was attentive, her initiative, history- taking and general efficiency rated average, her fund of knowledge was rated doubtful, her acceptance of criticism was satisfactory, her approach to problems and judgment was rated doubtful, she was given a general grade of "C" for evaluation, commented to be a marginal resident and that her general grade for the period of evaluation was "B- to C+." During the time from September 30, 1976 through September 30, 1978, Dr. Hermann was not Petitioner's immediate supervisor. Petitioner's immediate supervisor was Frantz Latour, M.D., who
wrote the Board a letter indicating that he was her direct supervisor; that Dr. Desai proved to be a well-dedicated resident; her confidence in making satisfactory histological diagnosis was good enough; that during her last six months of training or so, she was allowed to sign out surgicals; that he could only praise her for her high degree of conscientiousness; that she was honest, very reliable, open to discussion and it was his pleasure to recommend her very warmly for licensure in Florida. (Exhibit 29) Dr. Hermann was Petitioner's supervisor from the period of June, 1979 through June, 1980 during which time Dr. Hermann rates her in his letter as having a fund of knowledge as satisfactory, a general attitude as satisfactory and her approach to problems and judgment as satisfactory. Dr. Hermann gave Petitioner a general grade of "B- to C+" for the period of evaluation during which he was her supervisor. As previously stated, Respondent bases its denial of Petitioner's application upon what Respondent considers as the unfavorable evaluation of her residency training at Presbyterian University of Pennsylvania Medical Center submitted by George A. Hermann, M.D. (Exhibit 33)
A review of the June 10, 1984 transcript of the meeting wherein Respondent reviewed Petitioner's application indicates that there was no specific reference to any of the favorable recommendations in petitioner's file found at Exhibit 17, 18, 19, 28, 27, 28 or 29.
Dr. Hermann's letter does not state that petitioner is below average or underqualified for licensure. Petitioner was rated outstanding by Dr. Hermann's colleague, Dr. Latour (Exhibit 29), was granted a certificate of successful completion of residency by the hospital at which Dr. Hermann practices (Exhibit 14), and was recommended to Respondent as qualified for licensure by Dr. Hermann's hospital after he wrote his evaluation. (See Exhibits 24 and 26) As stated earlier, during the early phase of Petitioner's evaluations as a resident at Presbyterian University of Pennsylvania Medical Center between September, 1976 and September, 1978 wherein Petitioner's fund of knowledge and her approach to problems and judgment was rated doubtful, Petitioner was still given a general grade of "C" for evaluation, was commented to be a marginal resident and an overall general grade for the period of evaluation was "B- to C+." During this phase of her residency, Dr. Hermann was not Petitioner's immediate supervisor. Her immediate supervisor, Dr. Latour, was pleased to recommend Petitioner "very warmly" for licensure in Florida. (Exhibit 29) Dr. Latour's recommendation, being the immediate supervisor and therefore more closely familiar with Petitioner's abilities as a doctor, should be given more weight than that of Dr. Hermann. Based thereon, an examination of Petitioner's complete application file reveals no unfavorable evaluations or recommendations.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.
The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.
The authority of the Respondent is derived from Chapter 458, Florida Statutes, and Rule Chapter 21M, Florida Administrative Code.
Section 458.313, Florida Statutes, sets forth the required qualifications for licensure by endorsement. That section provides in pertinent part that
The Department shall issue a license by endorsement to any applicant who, upon applying to the Department and remitting a fee not to exceed $250 set by the Board, demonstrates to the Board that (s)he has met the qualifications
for licensure in Section 458.311 and: (a) is more than 18 years of age; (b) is of good moral character and has not committed any act or offense within or without the state which would constitute the basis for disciplining a physician pursuant to Section 458.331; (c) is
a graduate of a medical school or college maintaining a standard and reputation approved by the Board pursuant to Section 458.311; and
(d) has been certified by licensure examination of the Federation of State Medical Boards of the United States, Inc. (FLEX) or is certified by the National Board of Medical Examiners as having completed its examination; provided that said examination required shall have been so certified within the ten years immediately preceding the filing of his (her) application for licensure under this section.
A review of the relevant portions of Section 458.313(1), Florida Statutes, reveals that the Petitioner meets the requirements for licensure by endorsement in all relevant means.
Section 458.311, Florida Statutes, sets forth the requirements for licensure by examination, including those for graduates of foreign medical schools. A review of those requirements when contrasted with Petitioner's application, reveals that she meets all such qualifications for graduates of foreign medical schools.
Rule 22M-22.16, Florida Administrative Code, sets forth the deadlines for action by Respondent on applications for licensure by endorsement. It is undisputed that Petitioner met the application deadline.
Rule 21M-22.17, Florida Administrative Code, sets forth practice requirements for licenses issued by endorsements to physicians under the requirement of Section 458.313(3), Florida Statutes, requiring that an applicant who has been issued a license by endorsement to actively engage in the practice of medicine within the State of Florida for a period of one year within the following three years after licensure. It is undisputed that Rule 21M-22.17, Florida Administrative Code, is inapplicable to Petitioner since she has not been licensed by endorsement.
Respecting counsel for Respondent's argument that the entire provisions of Section 458.331(3), Florida Statutes (1983) is applicable herein, it is concluded that only the second portion of that provision, that is, "that such person is capable of safely engaging in the practice of medicine, is the only section of that provision which is applicable herein.
Competent and substantial evidence was offered herein (by Petitioner) evidencing that she is capable of safely engaging in the practice of medicine as those requirements are set forth in Section 458.331(3), Florida Statutes (1983).
Petitioner has presented herein, by competent and substantial evidence, that she is capable of safely engaging in the practice of medicine with reasonable skill and safety to her patients as those requirements are set forth in Sections 458.313 and 458.311, Florida Statutes (1983), based on the credited testimony that Petitioner has safely engaged in the practice of medicine for the preceding 4 years, without incident.
The evaluation of Petitioner's residency training at Presbyterian University of Pennsylvania Medical Center as submitted by George A. Hermann, M.D., is not unfavorable as stated by the Board in its denial of Petitioner's application for licensure by endorsement as cited in its written order of denial filed July 25, 1984 and thus provides no basis to support the Board's provisional denial of Petitioner's application to practice medicine by endorsement.
Even considering Dr. Hermann's evaluations in the light most favorable to the Board, the most that can be said by Dr. Hermann's letter is that Petitioner's performance during her residency was of "average performance."
Such an evaluation cannot be turned into a conclusion that Petitioner is incapable of safely engaging in the practice of medicine with reasonable skill or safety to her patients. Such a conclusion becomes even more compelling when consideration is given to the outstanding recommendation as to Petitioner's clinical abilities, judgment, medical knowledge and moral character as represented, without dispute, by Doctors Gregory K. Whitaker, Milton T. Smith, Franz Latour and James R. Wheeling. (Exhibits 17, 18, 28, 29 and 19, respectively) Given the strength of these recommendations, the certificates of completion and Petitioner's practice in the North Carolina area of approximately five years, without incident or charge by any regulatory body, all point to the inescapable conclusion that she has amply demonstrated that she is capable of safely engaging in the practice of medicine with reasonable skill and safety to her patients.
Based on the foregoing findings of fact and conclusions of law, it is recommended that the Board of Medical Examiners enter a Final Order approving Petitioner's application for licensure by endorsement to practice medicine.
RECOMMENDED this 28th day of January, 1985, in Tallahassee, Florida.
JAMES E. BRADWELL
FILED with the Clerk of the Division of Administrative Hearings this 28th day of January, 1985
1/ A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary.
Paul W. Lambert, Esquire Fred Roche 1114 E. Park Avenue Secretary
Tallahassee, Fl. 32301 Department of Professional
Regulation Susan Tully, Esquire 130 N. Monroe St.
Room 1601-The Capitol Tallahassee, Fl. 32301 Tallahassee, Fl. 32301
