STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

v. ) CASE NO. 84-4444

)

MANUEL M. MARALIT, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing officer, Donald R. Alexander, on October 23, 1985, in Gainesville, Florida.

APPEARANCES

For Petitioner: Joseph L. Shields, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: John P. Gaudiosi, Esquire

3801 North Federal Highway

Fort Lauderdale, Florida 33064 BACKGROUND

By administrative complaint filed on September 25, 1984, petitioner, Department of Professional Regulation, Board of Medical Examiners, has charged that respondent, Manuel M. Maralit, a licensed medical doctor, had violated various provisions within Chapter 458, Florida Statutes. Generally, petitioner has alleged that on June 22, 1984, respondent pled guilty to four felony counts dealing witch Medicaid fraud, and that by doing so, he had (1) violated Subsection 458.331(1)(i) Florida Statutes, by willfully filing a report or reports which he knew were false (Count I), (2) violated Subsection 458.331 (1)(c), Florida Statutes, by being found guilty of a crime in a competent court of jurisdiction, said crime directly relating to the practice of medicine (Count II), and (3) violated Subsection 458.331(1)(o), Florida Statutes, by exercising influence on his patients in such a manner as to exploit the patient for financial gain (Count III).

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The matter was referred to the Division of Administrative Hearings by petitioner on December 20, 1984, with a request that a hearing officer be assigned to conduct a formal hearing. At the request of respondent's counsel, the matter was held in abeyance while respondent's criminal appeal was concluded. By notice of hearing dated July 17,

1985, the final hearing was scheduled for August 15, 1985 in Gainesville, Florida. At the request of petitioner, the matter was rescheduled to October 23, 1985, at the same location.

At final hearing petitioner presented the testimony of Lynn B. Brown and offered petitioner's exhibits 1-3. All were received in evidence. Respondent offered respondent's exhibits 1-4. All were received.

This order was prepared without the benefit of a transcript of hearing. In addition, neither party filed proposed findings of fact and conclusions of law.

At issue is whether respondent's license as a medical doctor should be disciplined for the alleged violations set forth in the administrative complaint

Based upon all of the evidence, the following facts are determined:

FINDINGS OF FACT

1. At all times relevant thereto, respondent, Manuel M. Maralit, held medical doctor license number ME 0033337 issued by petitioner, Department of Professional Regulation, Board of Medical Examiners. Maralit has been licensed as a medical doctor by the State of Florida since September 13, 1978. He has been a medical doctor since graduation from medical school in May, 1967.

   
   

2. From January 1, 1983 through September 30, 1983, Maralit practiced medicine in Alachua County, Florida. During that period of time, he filed two unauthorized claims under the Florida Medicaid Program, each having an aggregate value of $200 or more in violation of Subsection 409.325(4)(a), Florida Statutes. He also received one unauthorized payment under the same program having an aggregate value of more than $200.00 in violation of Subsection 409.325(4)(c), Florida Statutes. After an information was filed by the State Attorney on December 13, 1983, Maralit pled guilty to the above three violations, and to a fourth charge of grand larceny. For this, he received twenty years probation, 2,000 hours of community service, a $15,000.00 fine to be paid within 12 months, and was required to make restitution of $2,398.51 to the Department of Health and Rehabilitative Services and $921.00 to the Florida National Bank.

   
   

3. According to the official records of petitioner introduced into evidence, Dr. Maralit was subject to prior disciplinary action by the Medical Board in 1982 (DOAH Case No. 81-1367, Final Order entered January 4, 1982). At that time his license was suspended for thirty days, and was placed on probation for one year. The probationary period has long since expired. The violations in that proceeding are not similar in any respect to those charged in this case.

   
   

4. There is no evidence as to any damage, physical or otherwise, to specific patients caused by respondent's conduct.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

6. By having pled guilty to the charges of filing unauthorized claims under the Florida Medicaid Program (two counts), receiving one unauthorized

   payment under the same program (one count), and grand larceny in conjunction with the preceding three charges (one count), respondent is charged with three statutory violations under Chapter 458, Florida Statutes. They will be dealt with separately.

   
   

7. Initially, it is noted that petitioner has offered in evidence certified copies of the Order Withholding Adjudication of Guilt and Placing Defendant on Probation and the information filed by the state attorney. In this regard, a judgment of conviction in a criminal prosecution cannot be given in evidence in a civil action to establish the truth of the facts on which it was rendered. Stevens v. Duke, 42 So.2d 361 (Fla. 1949); State v. Dubose, 152 Fla. 304, 11 So.2d 477 (1943). However, through counsel, respondent has stipulated to paragraphs 3, 4 and 5 of the administrative complaint insofar as they allege that Dr. Maralit filed two claims for patient visits or for services which were not performed (Counts 1 and 13 of Information). The evidence will accordingly be viewed in this light.

   
   

8. Count I - It is charged in Count I that Dr. Maralit willfully filed reports which he knew to be false in violation of Subsection 458.331(1)(i), Florida Statutes. The evidence disclosed that he filed two such reports, and that a violation of the statute has occurred.

   
   

9. Count II - This allegation concerns a charge that Dr. Maralit pled guilty to a crime directly related to the practice of medicine in violation of Subsection 458.331(1)(c). By pleading guilty to Counts 1, 2 and 13 of the Information, which involve filing two unauthorized Medicaid claims, and receiving one unauthorized Medicaid payment, Dr. Maralit is guilty as charged in the administrative complaint.

   
   

10. Count III - This count alleges that Dr. Maralit "has violated Section 458.331(1)(o), Florida Statues, by exercising influence on his patients in such a manner as to exploit the patient for financial gain." There being no evidence to support this charge other than the certified copy of the judgment of conviction, the final count must fail. Stevens v. Duke, supra.

    
    

11. Rule 21M-20.01, Florida Administrative Code, sets forth disciplinary guidelines to be used in assessing a penalty upon a medical doctor. Paragraph

    1. thereof prescribes the factors that may be taken into account in determining appropriate disciplinary action. They include:

       
       

       1. the severity of the offense;

       2. the danger to the public;

       3. the number of specific offenses;

       4. the length of time since the date of the violation;

       5. the length of time the licensee has practiced his profession;

       6. the actual damage, physical or otherwise, to specific patients;

       7. prior discipline imposed upon the licensee;

       8. the deterrent effect of the penalty imposed;

       9. the effect of the penalty upon the licensee;

       10. efforts by the licensee towards rehabilitation; and

       11. any other mitigating or aggravating circumstances.

    
    

12. Utilizing these guidelines, it is noted that the four offenses to which respondent plead guilty involve less than $2,400.00 in unauthorized claims and compensation under the Medicaid program. They occurred over two years ago, and cannot be construed as a danger to the public from a health and safety standpoint. Dr. Maralit has been a practicing physician for eighteen years. There is no evidence that any specific patients were harmed in any way by his actions. Respondent has been the subject of one prior disciplinary action, which involved unrelated charges, and had his license suspended for thirty days and placed on one year's probation.

    
    

13. Through argument of respondent's counsel, leniency has been requested due to the severe financial hardship placed on Dr. Maralit by the imposition of a $15,000.00 criminal fine, and 2,000 hours of community service, and his inability to repay other outstanding and substantial debts without an active license. According to counsel, Dr. Maralit has limited his practice in the past to primarily Medicaid patients, resulting in annual incomes of less than

    $25,000.00. Therefore, counsel argues that respondent's license should be subjected to minimal disciplinary action so that he can begin to repay his debts to society.

    
    

14. Given the above circumstances, and the nature of the offenses, it is recommended that Dr. Maralit's license be suspended for one year, with six months suspension stayed, and that he be placed on three years' probation. 1/

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in Counts I and II

of the administrative Complaint, and that his medical license be suspended for one year with six months' suspension stayed and his license be placed on three years probation. Count III should be dismissed.

DONE and ORDERED this 4th day of December, 1985, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 4th day of December, 1985.

ENDNOTE

1/ This penalty is consistent with a penalty given by the Board to another medical doctor who pled nolo contendere to one count of submitting a false and fraudulent insurance claim and one count of grand theft. For that the respondent received three months' suspension and one year's probation. Louis A. Ayala v. Department of Professional Regulation, So.2d (Fla. 1st DCA 1985) 10 FLW 2525.

COPIES FURNISHED:

Joseph L. Shields, Esquire

130 N. Monroe Street Tallahassee, Florida 32301

John P. Gaudiosi, Esquire 3801 N. Federal Highway

Ft. Lauderdale, Florida 33064

Docket for Case No: 84-004444

Orders for Case No: 84-004444