STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JOSE A TORRES, M.D., )
)
Petitioner, )
)
vs. ) CASE NO. 85-0533
) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )
)
Respondent. )
)
RECOMMENDED ORDER
Upon due notice, formal hearing was held before Ella Jane
P. Davis, a duly designated Hearing Officer of the Division of Administrative Hearings, on May 14, 1985 in Fort Lauderdale, Florida.
APPEARANCES
For Petitioner: Charles L. Curtis, Esquire
Allaworth, Doumar, Cazel Curtis 1177 Southeast Third Avenue
Ft. Lauderdale, Florida 33316
For Respondent: M. Catherine Lannon, Esquire
Assistant Attorney General Department of Legal Affairs Room LL-04 - The Capitol Tallahassee, Florida 32301
PROCEDURAL BACKGROUND
Petitioner, Dr. Jose A. Torres' license to practice medicine was revoked by action taken at a Board of Medical Examiners meeting April 9, 1983. This action was not reduced to a formal order until June 15, 1983.1
On November 8, 1984 Petitioner filed a "Request for Consideration of Petition for Re-Instatement of Medical
License," hereafter referred to as "Petition".2 At its meeting on December 1, 1984, the Board considered the Petition, which it voted (with one dissent) to deny. This action was committed to an Order dated January 16, 1985. That Order states that the Petition was denied:
". . on the grounds that the gravity of the violations which led to revocation of Respondent's license as expressed in the Board's Final Order filed June 15, 1983 shows such a lack of judgment and lack of ability or willingness to conform to the law that his license should never be reinstated."
Petitioner then timely filed a Petition for Formal Administrative Hearing3 resulting eventually in the May 14, 1985 hearing before the undersigned.
RULINGS AT TRIAL TO ESTABLISH THE ISSUES
In the course of the formal hearing, a number of motions and evidentiary problems were considered and ruled upon.
It was Respondent's position that the only issue before the Hearing Officer was whether or not the Board had correctly determined that the original offense (set out in its 6/15/83 final order by which Petitioner's license was originally revoked in 1983) was so grave and indicated such a lack of ability or willingress to conform to the law that Petitioner's license should never be reinstated and moved orally to limit all evidence solely to this issue. Although couched in terms of "relevancy," this motion inherently embraced the question for determination of whether or not Petitioner must re-submit his plan of reinstatement to the Respondent Board.4 This Motion was denied, the undersigned determining that regardless of how a pleading is captioned, the Petition for Reinstatement is now properly before the Division of Administrative Hearings as part of the Petition for Administrative Hearing, and the Hearing Officer has jurisdiction to consider it on its merits and de novo.5
The issue was accordingly determined to be:
Has Petitioner been rehabilitated so that he can safely engage in the practice of
medicine6 and is he entitled to be reinstated?
INTRODUCTION
Petitioner presented the live expert testimony of Drs. E.
V. Coopersmith, Horace Seidel, Victor H. Shabanah, Videonia B. Bautista and Leonard C. Bass,and lay witnesses, Lawrence Esteban and Tom Mulroney: and deposition or affidavit testimony of Drs. Salvatore Di Giorgi, Mathias Piskur, William Rand, and Robert Katims. The Petitioner also testified in his own behalf. Petitioner proffered the testimony of Patsy Blackwelder, Gregorio Liboon, Betty Bradley, Maxwell Russell and Mrs. Albert Sasson.7 Respondent offered no witnesses.
Petitioner had admitted into evidence P-1-12 and P-15-17.8 Petitioner's 13 and 14 were not admitted but were judicially noticed.
Respondent's Exhibit A was admitted in evidence.
Judicial notice was taken of Chapter 458 Florida Statutes and all of the rules of the Board of Medical Examiners, Chapter 21-M Florida Administrative Code.
Petitioner filed transcript of the May 14, 1985 formal hearing on June 3, 1985, and each party has filed proposed findings of fact which have been duly considered.
When a party's proposed findings of fact were consistent with the weight of the credible evidence admitted, they were adopted and are reflected in this Recommended Order, but to the extent proposed findings of fact were not consistent with the weight of the credible evidence, they have been rejected or, where possible, modified to conform to the evidence. To the extent proposed findings of fact have not been adopted or are inconsistent with the findings herein, they have been specifically rejected as irrelevant or not supported by the evidence. A ruling on each proposed finding of fact has thereby been made either directly or indirectly as more specifically set out in the Appendix to the Recommended Order. See dicta contained in Island Harbor Beach Club Ltd. et al. v. Department of Natural Resources et al., 1st D.C.A. Case Nos. BE-335 and BE
352 (opinion filed October 10, 1985).
FINDINGS OF FACT
Petitioner Jose A. Torres was a licensed medical doctor, having been issued License No. ME0029982. By Administrative Complaint filed March 23, 1982, he was charged with 31~counts of violations of Chapter 458, Florida Statutes. Dr. Torres entered an admission as to seven counts of that Administrative Complaint and the other counts were dismissed prior to hearing. The matter came before the Board of Medical Examiners as an informal hearing and the Board voted to revoke Dr. Torres' license to practice medicine (P-3).
The undersigned ruled at formal hearing, contrary to Petitioner's urging, that it is inappropriate to go behind the formal final order of revocation to vary the circumstances leading up to that revocation.9 At that time, by requesting an informal proceeding pursuant to Section 120.57(2), Torres admitted not simply to conclusions of law as to what statutory violation was found, but also to there being no disputed issues of material fact as alleged in the Administrative Complaint. Accordingly, the specific facts admitted by Torres related to the treatment of seven different patients and the prescription of controlled substances to each of those patients in the following amounts over the following time period:
John Dodge 852 Dilaudid Less than 3 months Joann Diaz 425 Dilaudid Less than 2 months Robert Pendegar 427 Dilaudid Two and one half months Richard Pendegar 168 Dilaudid Less than 1 month Charles Penno 330 Dilaudid Less than 3 months Robin Simpson 174 Dilaudid Less than 6 months Graham Boylan 130 Dilaudid Less than 1 month
In addition to admitting the facts relating to the number of pills prescribed over a specified period of time as to each individual patient, Torres admitted (See P-3-4) that each patient:
Was a drug abuser, a fact that was or should have been known to Respondent [Dr. Torres]. Respondent did not prescribe above- prescribed controlled substance for a medically-justified purpose. Said prescriptions were inappropriate or excessive and inappropriate quantities.10
It was based upon those admissions of fact that the Board of Medical Examiners determined that Torres had violated Section 458.331(1)(q), Florida Statutes, for prescribing a
controlled substance other than in the course of his professional practice in each of the seven counts and revoked his medical
license. He has been without his license for approximately 29 months at this writing.
It was stipulated, and is accordingly found, that Petitioner has never previously nor subsequently been charged with or been found in violation of any provision of the Medical Practices Act (Chapter 458, Florida Statutes) nor any rule of the Board of Medical Examiners, other than those which were committed in 1981 and which led to the revocation of Petitioner's license on June 15, 1983.
It was stipulated, and is accordingly found, that Petitioner falls in the category of persons applying for and eligible for reinstatement pursuant to Board policy in effect prior to June 5, 1983.
There are no statutes or written rules or policies of Respondent defining what is a "grave" violation nor what "grave" violation(s) would show "such a lack of judgment and lack of ability or willingness to conform to the law" so as to guide Petitioner in applying such criteria in the reinstatement process.
Both Drs. Katims and Bass testified that each Board member's decision on what was or was not a "grave" offense was based upon their own subjective interpretation and criteria, and that for persons in the Petitioner's pre-June 5, 1983 category, the Board did not consider any particular formula nor any one factor but looked at the totality of the circumstances in arriving at conclusions concerning who should be reinstated and who should not be reinstated.
Respondent had not, prior to the time Petitioner filed his Petition for Reinstatement, adopted any written reinstatement rules which covered persons in Petitioner's category of those applying for reinstatement. Rule 21M-20.03 Florida Administrative Code became effective on January 3, 1985. Any effect or lack of effect thereof is considered infra under "Conclusions of Law".
Petitioner's Exhibit 6 seeks to establish incipient policy by a summary of prior actions taken by the Board of Medical Examiners. Of the seventeen cases listed in the summary, all but one involved charges of inappropriate and
excessive prescriptions. Only three involved revoked licenses. One of those three with revoked license was Petitioner herein; one was Dr. Richard S. Flatt, one was Dr. Newell Griffith.ll All of the other cases documented in P-6 were ones in which the initial discipline imposed fell short of revocation,l2 and one of those was the acceptance of a voluntary relinquishment of licensure with leave to request reinstatement. In addition, documentation on which the summary was based was introduced as Composite P-17. A review of those materials reveals that procedurally, only five of the cases cited, in addition to the case of Petitioner Torres, were before the Board for informal proceedings. Five were stipulations accepted by the Board, none of which contained admissions as to the truth of the allegations of fact in the Administrative Complaint. Four were before the Board after formal hearings at which the case was fully tried and evidence of violations or defenses thereto was fully available. The remaining cases involved one voluntary relinquishment (Major) and one case (Flats) in which the documents relate to reinstatement and do not reveal the procedural posture of the underlying discipline. Of all of the informal hearings reflected in the documentation, only two of the Respondents failed to make an appearance, either in person or through counsel, to offer an explanation of their conduct or offer evidence in mitigation at the time the Board was imposing discipline: this Petitioner Torres and Dr. Newell Griffith.
Petitioner Torres states that he did not appear at his April 9, 1983, hearing due to faulty advice concerning the date thereof given him by his former attorney. Dr. Newell Griffith's situation is discussed in greater detail, infra.
In only one of the other cases (Seller) involving an informal hearing did the Administrative Complaint contain the specific allegations of fact that the patient was a known drug abuser and that the Respondent did not prescribe the controlled substance for a medically-justified purpose (Seller). In one other case (Waldheim) the allegations did include an allegation that the prescriptions were not for a medically-justified purpose, but there was no allegation therein with respect to the fact that the patient was a known drug abuser.
Although both parties have argued a variety of similarities of the various aspects, issues, Respondents, etc. of the seventeen cases by which Petitioner has attempted to demonstrate incipient policy, the only ones specifically found relevant and material are those involving revocation: Torres, Flatt and Griffith.l3
The charges against Dr. Richard S. Flatt were couched in terms of bargaining with not-medically justified prescriptions for the sexual favors of a single female patient. Although Dr. Flatt's license was revoked, the initial revocation was stayed and the license was suspended for three years. A specific time limit was placed on the revocation (which probably is more correctly termed a suspension) with no further conditions for the stay imposed, but nonetheless it is found, for purposes of comparison re incipient policy, to be a revocation case. Dr. Flatt was without his license for 35 months.
Thus, we come to the sole case which appears to be closely comparable, in any real sense, to the circumstances of Petitioner Torres: the case of Newell Jerome Griffith. Dr. Griffith was initially charged in 1981 with excessive and inappropriate prescribing of controlled substances to three patients, and was, at that time, given a disciplinary penalty of a revocation of the privilege to prescribe Schedule II controlled substances, with stay of such revocation, and a suspension of those privileges until after certain continuing medical education courses were completed, at which time the privileges would be reinstated on probation. Subsequently, Dr. Griffith was charged with prescribing Schedule II controlled substances to five patients while his privilege to do so was revoked. The final order in that cause indicates that Dr. Griffith did not attend the hearing on the charges, either in person or through counsel, that Dr. Griffith was found guilty after filing an Election of Rights admitting the facts, and that Dr. Griffith's license to practice medicine was revoked. When Dr. Griffith was asked by the Respondent in a second disciplinary action whether he knew at the time of the subsequent prescriptions that his license to do so was suspended and why under those circumstances he did so, Dr. Griffith replied: "I guessed I hoped it would not be picked up . . ." (P- 7, page 19).
The final revocation was because Dr. Griffith prescribed 488 tablets of Schedule II drugs to five patients while his privileges to prescribe Schedule II drugs had been suspended. Respondent's proposals concede "that particular offense does appear to show an inability or unwillingness to conform to law," and it is so found. It is also found that the quantity and gravity of the drugs involved in Dr. Griffith's ultimate revocation case is less than those which led to Petitioner Torres' license revocation. When both the suspension and revocation cases are considered there is great similarity in
quality and quantity of Griffith's prescriptions with those of Torres. In the revocation situation of Griffith however, there was no showing of prescription to drug abusers or prescription for a non-medically justifiable purpose and it involved fewer patients and pills than prescribed by Petitioner.
Despite the fact that Dr. Griffith has violated the Medical Practices Act on two separate occasions (Petitioner having done so only once), and prescribed similar total quantities of controlled substances, including Dilaudid, and despite the fact that Dr. Griffith the second time around expressly engaged in conduct clearly showing "lack of judgment" and "his unwillingness to conform to the law", the Respondent has permitted Dr. Griffith to be reinstated and he is now practicing medicine. His license revocation was for a total of
24 months (P-6). Dr. Griffith's license was reinstated by the Board of Medical Examiners after repeated Petitions for Reinstatement had been denied and the appellate court had ordered the Board to articulate a basis for the denial and standards for Dr. Griffith to use in determining when the Petition for Reinstatement would be "mature" for presentation to the Board.14
After Petitioner Torres was charged with the specific violations of the Medical Practices Act involving improper prescription of controlled substances, he took and successfully completed a six and one- half hour Continuing Medical Education (CME) course involving the specific activities (prescription of controlled substances) for which his license was revoked. After successfully completing this Drug Law Seminar, Petitioner continued to take and complete continuing medical education courses including attendance at conferences and seminars and the reading of numerous medical periodicals and journals. These included three books or pamphlets concerning drug abuse, heroin, and other aspects of drug dependence.
After the revocation of his license, the Petitioner and his wife jointly agreed that he would do everything he could to stay in touch with the medical profession so as to enhance the possibility of eventual reinstatement of his license. Both the Petitioner and his wife have continuously struggled at menial jobs to support their family of four children.
Petitioner took a job providing audio visual materials at Hollywood Memorial Hospital for other doctors. Dr. Seidel, Director of Medical Education and In-House Chief of Staff for Hollywood Memorial Hospital, found the Petitioner to be an honest and hardworking person who completed all audio visual,
chart review auditing, and quality assurance tasks assigned to him in an exemplary fashion. Petitioner viewed many of the continuing medical education programs and courses as part of this audio visual job.
Petitioner urges that over 100 hours of CME have been completed, but Respondent argues these hours should be discounted because many hours were admittedly part of Petitioner's audio visual tasks. Based on the testimony and exhibits, it is impossible to separate which "hat" Petitioner was wearing for which topics or for how many hours, but it appears most logical that he was present in the room while at least 54 hours of Florida Medical Association-approved CME material was being presented by audio visual techniques.
Without contrary evidence, one must assume Petitioner was at least as attentive as the Hollywood Memorial Hospital physicians required to attend these presentations by the hospital's quality assurance program. Certainly, hope of reinstatement of his license must have been an effective motivator for Petitioner.
Even if there were some question concerning Petitioner's attention to these audio visual programs, which there is not, there remain 46 hours of CME accomplished by the Petitioner through other means.
Most of the letters and petitions signed by physicians (P-1C) in support of Petitioner being permitted to practice medicine, though admitted into evidence by stipulation, are simply not probative of the basic issue of current safety to practice. Their probative value on this point is diminished on the same weight and credibility grounds as are most of the physicians' live and deposition testimony, or they fail because they are undated, stale, or at least confused about the fact that revocation has already occurred.
By expert testimony, of Drs. Coopersmith, Shabanah, Di Giorgi, Piskur, Rand, and Bautista,l5 all testified that in their opinions, the Petitioner could now safely engage in the practice of medicine. Drs. Coopersmith, and Shabanah base their opinions upon Petitioner's CME hours and qualify the Petitioner's safety to practice in terms of being properly supervised or monitored.
With the exception of Dr. Seidel and Dr. Bautista, most of the physicians who testified or gave affidavits in support of Petitioner Torres testified that he had practiced with reasonable skill and safety all along: this clearly was not so. These physicians' assertions show a lack of awareness of the full nature of Torres' practice before revocation, and,
therefore, a lessened ability to judge whether Torres has changed in a manner sufficient to assure the Board and the public that he will practice with reasonable skill and safety within the confines of the requirements of the applicable Florida Statutes. Testimony by Drs. Coopersmith, Shabanah, Di Giorgi, Piskur and Rand specifically fall in this category of lessened weight and credibility. For the same reasons, the testimony of Mr. Tom Mulroney, a retirement village operator, and Mr. Lawrence Esteban, a paramedic/fireman, is equally lacking in weight and credibility.
All written as well as oral evidence originating with Dr. Seidel has been weighed. Although Dr. Seidel apparently knew the entire prescribing history of Petitioner's medical career and of this case, he expressed the opinion that Petitioner's license should be reinstated and it is found that inherent in that opinion of Dr. Seidel is his belief that Petitioner can now safely practice medicine even though Dr. Seidel did not employ those "magic words." Dr. Seidel has known Petitioner for many years and his opinion in favor of reinstatement is particularly impressive in light of his almost daily observation of Petitioner since his license revocation and in light of Dr. Seidel's past knowledgeable observation and supervision of him as a house physician at Hollywood Memorial Hospital when Torres was first practicing there in 1977. The weight of Dr. Seidel's opinion is further amplified by Dr. Seidel's continuing service on peer review committees for this hospital.
Dr. Bautista's knowledge of Petitioner's entire past prescribing went beyond just talking to Petitioner. Although she had agreed to oversee him if a probationary period were ordered with reinstatement, she also gave her unqualified professional opinion that Torres may now safely practice medicine.
Since revocation, Petitioner has taken and passed both a physical and mental examination. Each examining physician concluded he could now safely engage in the practice of medicine. The description in psychiatrist James S. Weiner's report of the status of Petitioner's legal case before the Board and/or theDivision of Administrative Hearings and the apparent discrepancies between the facts as established by the initial final order of revocation by the Board and Petitioner's explanation to Dr. Weiner of what had occurred from Petitioner's point of view are as attributable to a non-lawyer's misunderstanding of the legal terms "suspension" and
"revocation" and of the finality and legal consequences of the Board's 6/15/83 order as they are attributable to any alleged misrepresentation or lack of candor by Petitioner. Contrary to Respondent's urging in its proposals, Petitioner's credibility is not thereby diminished.
While there were many patients who testified through affidavit or whose testimony was proffered without admission, as to how much they liked Petitioner and how much they wanted him back in practice, patients are not in a position either to judge Petitioner's ability to practice with reasonable skill and safety before revocation where, as here, they had no clear knowledge of his prescribing practices before revocation, and where, as here, they were not knowledgeable concerning his rehabilitation efforts, if any, since revocation. However, it is clear that despite newspaper publicity, Petitioner continues to enjoy a good reputation among many in the community.
Petitioner's Plan of Re-Instatement was part of his Petition for Reinstatement affixed to his Petition for Administrative Hearing. It contains two (2) distinct Plans of Supervision during any probationary period Respondent might elect to set as a condition for Petitioner's re-instatement, including one plan where the practicing physician would supervise the Petitioner on a day-to-day basis and the other plan would include direct supervision within the confines of a publicly-owned and regulated medical facility with the parameters of that supervision to be set by the Respondent. As part of the first Plan of Supervision, an affidavit of a presently practicing physician in good standing with the Respondent, Videonia Bautista, M.D. was provided. She agreed, within her affidavit (and in live testimony recounted, supra) to supervise Petitioner on a day-to-day basis in her own office for as long as the Respondent felt such supervision was reasonably necessary.
Petitioner also testified personally regarding his rehabilitation. Petitioner readily and candidly admitted that what he did in 1981 was wrong. The totality of his testimony and his general demeanor reveal that the acute embarrassment and subsequent financial and familial hardships and sacrifices that he and his family have endured since his downfall have instilled in him a valuable lesson which will constantly serve as a reminder to him of the standards of conduct required of one licensed in the medical profession.
The Petitioner expressed remorse and regret for the actions he took in 1981. He apologized to his family, his peers and his patients. He expressed his frustration and disappointment in not being able to continue to serve his patients because of what he views as his past errors in judgment.
Petitioner admitted to having a flaw in his character, that flaw being too trusting and too naive as to the subjective complaints of his former patients. Such a flaw of character is not inconsistent with the earlier disjunctive admission/finding that Torres "knew or should have known" (emphasis supplied) that he was prescribing to drug abusers. Torres explained that the experience he has endured has brought that flaw vividly to his attention and he has done everything within his power to reasonably ensure that the same problem never happens again.
When the Petitioner was asked if he had learned anything from his experience, he testified:
I have each and every time of the day pondered upon the mistake that I committed and the result that it has done to me and my family and my patients. That because of that, I will never do it again.
Petitioner, a church-goer, and his wife and four children have suffered newspaper publicity, public humiliation, and a drastic reduction in their standard of living throughout this lengthy revocation period.
Petitioner acknowledged and agreed to adhere to the Plan for Re-Instatement contained in the Exhibits to his Petition. He also agreed to abide by any reasonable requirements set by the Respondent to ensure that he would continue to safely engage in the practice of medicine and would not repeat the errors in judgment which led to the revocation of his license.
The potential for Petitioner, if reinstated, to commit the same offense(s) is very dim.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes.
Petitioner has the burden to prove by a preponderance of the evidence, that he is qualified to have his license reinstated. Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).
Section 458.331(3), Florida Statutes, which relates to reinstatement of a medical license, provides, in pertinent part:
The board shall not reinstate the license of a physician . . . until such time as it is satisfied that he has complied with the terms and conditions set forth in the final order and that such person is capable of safely engaging in the practice of medicine.
The Board shall by rule establish guidelines for the disposition of disciplinary cases involving specific types of violations.
Such guidelines may include . . . conditions of probation or re-issuance of a license.
Said provision, by its very terms, serves only to prohibit the reinstatement of a license under certain circumstances: it does not require reinstatement of a license at all. There is no statutory requirement that the Board reinstate a license even the former licensee has complied with the terms of the previous final order or does submit evidence that he or she is capable of safely engaging in the practice of medicine. However, the Board is bound by its own declaratory statement, McDonald v.
Department of Banking and Finance, 346 So. 2d 569 (Fla. 1st DCA 1977).
Griffith v. Board of Medical Examiners, 454 So. 2d 683 (Fla. 1st DCA 1984), recites the essence of the Board of Medical Examiner's declaratory statementl6 and the history of its practice with regard to reinstatement of revoked licenses. English v. Florida Board of Medical Examiners, 461 So. 2d 200 (Fla. 1st DCA 1984) provides the legal basis for the parties' stipulation to consider this Petitioner as an applicant for reinstatement with the same pre-June 5, 1983 group of applicants as Dr. Griffith and Dr. English and concomitantly supports the undersigned's ruling that this proceeding is a de novo proceeding upon the merits of the petition for reinstatement.
Petitioner has complied with all requirements of Rule 21M-20.03 Florida Administrative Code, effective January 3,
1985, for what must be and what may be included in a Petition for Reinstatement but it is concluded that the parties are correct that this rule is not applicable to this situation.
Although the opinion in Griffith recognized that the Board has declared that there are some individuals whose licenses were revoked prior to June, 1983 who "will never be reinstated because of the nature of their offense," in that opinion, the First District Court of Appeal also recognized as "not legally deficient" the Board's criteria for reinstatement of petitions on the merits: (1) Whether the terms and conditions set forth in the revocation order have been satisfied (2) Whether the Petitioner is capable of safely engaging in the practice of medicine;(3) Whether the violation which led to revocation shows such a lack of judgment on Petitioner's part that it is likely he will again violate Chapter 455 and 458 Florida Statutes, or the rules of the Board (4) Whether Petitioner's Judgment has improved since revocation; and (5) The period of time which has passed since the license was revoked. (Griffith, supra. at part 686). Contrary to Respondent's urging in its proposals, it is concluded that Petitioner is correct that the criteria are conjunctive, not disjunctive.
Concerning criterion (1), the revocation order in the instant case had no express conditions which Petitioner was required to satisfy.
Respondent put on no admissible evidence contrary to that of Drs. Seidel and Bautista that Petitioner can now safely practice medicine. Despite the limited credibility and qualified opinions of other physicians, Dr. Seidel's and Dr Bautista's evidence establishing criterion (2) is unrebutted and Dr. Seidel's opinion in favor of reinstatement is of significant probative value for the reasons stated above.
As regards criterion (3), "whether the violation which led to revocation shows such a lack of judgment on Petitioner's part that it is likely he will again violate Chapters 455 and 458, Florida Statutes, or the rules of the Board", Petitioner attempted to establish that the Board has handled other similar cases in a disparate manner. It must be first noted that this proceeding is on request for petition for reinstatement and is not a challenge of the underlying discipline. In all but two of the other cases relied upon by Petitioner, the penalties imposed were the penalties imposed for discipline in the first place. They did not involve situations where a license had been revoked and then reinstated so that a comparison could be made, even if
appropriate, to see if there were disparate treatment of this Petitioner. On the other hand, Dr. Newell Jerome Griffith's license was revoked because he prescribed 488 tablets of Schedule II drugs to five patients while his privileges to prescribe Schedule II drugs had been suspended by the Board. That particular offense shows an inability or unwillingness to conform to law, and the magnitude of the drugs involved and the circumstances of those prescriptions is similar to Petitioner's situation. Dr. Griffith's situation differs only in that there was no allegation or showing that those drugs were prescribed to known drug abusers or that they were prescribed for a non- medically-justifiable purpose. However, by the language of the statute involved, the non-medically justifiable purpose may be inferred. For these reasons and upon the foregoing findings of fact, it must be concluded that Petitioner's offense is no more evidence that he is likely to again violate Chapters 455 and 458 Florida Statutes or the rules of the Board than was Dr.
Griffith's offense which did not bar Dr. Griffith's reinstatement after revocation. To apply a different standard to Petitioner would be disparate treatment.
As to criterion (4), a conundrum of sorts exists. Once a license is revoked, a Petitioner has little opportunity to demonstrate to the colleagues who may testify on his behalf that his judgment has changed, because that Petitioner cannot fully demonstrate his changed medical judgment so long as his license remains revoked. The law abhors such a conundrum. See McDonald v. Department of Banking and Finance, supra. In the instant case, Petitioner has demonstrated every effort to improve his judgment by at least 99 hours of continuing medical education, and it appears from Dr. Seidel's and Dr. Bautista's testimony that such improved judgment automatically flows from such continuing medical education. The remorse and intents expressed by Dr. Torres further demonstrate such improved judgment. Criterion (4) has been met by Petitioner.
With regard to Criterion (5), Petitioner's license has already been revoked approximately 29 months, which is in excess of the 24 months Dr. Griffith's license was revoked.
Accordingly, it is concluded that Petitioner has demonstrated his current ability to safely engage in the practice of medicine and his entitlement to reinstatement of his medical license pursuant to the criteria established by the Florida Board of Medical Examiners.
It is recommended that the Florida Board of Medical Examiners enter a final order reinstating Petitioner's license to practice.
DONE and ORDERED this 24th day of October, 1985, in Tallahassee Florida.
ELLA JANE P.DAVIS
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
ENDNOTES
1/ These dates are significant in that the parties stipulated that Petitioner's case falls within the Board policy entitling persons whose licenses were revoked prior to its June 5, 1985 meeting to petition for reinstatement. Respondent specifically represented that the Board has consistently taken the position that it is the date upon which the Board "takes action" on a license (in this case, 4/9/83) and not the date of final order of revocation (in this case, 6/15/83) which governs its application of its policy enunciated in its declaratory statement. (P-8) See also "Conclusions of Law," infra.
2/ The title of this document was the result of advice Petitioner's present counsel received from the Board's Executive Director. It recognizes the bifurcated nature of reinstatement proceedings which the Board of Medical Examiners has established by custom and useage, however the parties stipulated at hearing that the pleading is, regardless of title, the Petition for Reinstatement upon which the Board or the Division of Administrative Hearings would conduct a hearing on the merits for resolution of any disputed issues of material fact pursuant to Section 120.57(1). This document is attached and incorporated in the Petition for Administrative Hearing, which is a pleading of record before the undersigned.
3/ The Petition for Administrative Hearing raises constitutional issues which may not be disposed of in the instant forum.
4/ Respondent's view is based upon the bifurcated nature of its own custom and useage whereby it takes one vote to consider a Petition for Reinstatement (which invariably sets out a "plan")
and if that vote is favorable (which in this case it was not) then, in a separate subsequent Board meeting, the Board will consider the merits of the Petition. Respondent maintains that the Board has thus far ruled only on the issue of whether the gravity of the offense was so great that the Petitioner's license should not ever be reinstated and the Board has not yet ruled on whether the Petitioner is currently able to practice medicine with reasonable skill and safety.
5/ The undersigned, in the course of the hearing did restrict upon grounds of relevancy, the admission of testimony and evidence proffered by Petitioner which attempted to go behind the Order of Revocation dated 6/15/83.
Also, deposition testimony by Dr. Robert B. Katims (HOEx2) and live testimony by Dr. Leonard C. Bass, both members of the Board of Medical Examiners, was admitted subject to Respondent's objection that their answers were inadmissible to the extent questioning invaded thought processes of individual members of a collegial body. Having since considered the argument and the evidence, it is determined that Respondent's objection is well- taken and the only admissible evidence on this issue is that which is in the public records of the collegial body.
6/ Respondent's rules and policies (or absence thereof) for reinstatement above and beyond its June 5, 1983 watershed date for consideration of petitions and its bifurcated procedure constitute mixed issues of law and fact which are discussed and applied infra.
7/ See above n. 5.
8/ Respondent's objections to P-5 and P-16 [excerpts from the depositions of Mrs. Dorothy Faircloth and Robert B. Katims, M.D. were withdrawn by stipulation of the parties when the entire depositions were entered into evidence as Hearing Officer's Exhibits 1 and 2, respectively, subject to other objections, See above In. 5 and 6.
9/ Although the parties stipulated to admission of Respondent's Exhibit A, the undersigned's subsequent review thereof reveals it contains a DPR investigator's report and other records leading up to the initial revocation order and accordingly those portions of R-A have been disregarded by the undersigned, pursuant to the above-stated ruling. See also above n. 5.
10/ Petitioner's argument that Section 458.331(1)(q) Florida Statutes does not contain the specific language concerning not
prescribing for a medically justified purpose is noted, but the administrative complaint (P-4) did contain such language and guilt as established by the Final Order of revocation (P-3) embraces that administrative complaint. Moreover, the statute violation specifically presumes the inappropriate or excessive prescribing was not in the best interest of the patient and was not in the course of the physician's practice, without regard to his intent.
1l/ The subject of Griffith v. Board of Medical Examiners, infra.
12/ Although P-6 and P-show past agency practice of the Respondent Board not to revoke licenses for the same or similar violations as committed by the Petitioner Torres it is also inappropriate to go behind those initial orders. See above, nn.5 and 9.
13/ Specifically, in recognition of various findings of fact proposed by the parties, it is found that Dr. Major's case did not involve prescription of controlled substances and was resolved by acceptance by the Board of voluntary relinquishment of license without prejudice to eventual petition for reinstatement, which petition for reinstatement was granted.
Dr. Major's case is not a revocation case.
14/ Griffith v. Board of Medical Examiners, infra.
15/ Dr. Bass' opinion given with full knowledge of the entire prescribing history of Petitioner Torres and of this case, to the effect that Petitioner may now safely practice with supervision is rejected as not in evidence for the reasons set out in n.5, above, as is Dr. Katims contrary opinion. Their public votes are irrelevant to this de novo proceeding.
16/ Although Section 120.565 Florida Statutes provides that a declaratory statement shall set out the agency's opinion as to the applicability of a specified statutory provision or any rule or order of the agency "as it applies to the petitioner in his particular set of circumstances," it appears that the Griffith opinion contemplates the application of the same 5 criteria to all reinstatement applicants falling within Griffith's time frame.
APPENDIX
The first 3 pages of the parties' respective proposals do not constitute proposed findings of fact but are free-form recitations of the status of the case and as such require no ruling. They are, however, covered by the following R.O. sections:
NOTICE, PROCEDURA1 BACKGROUND, RULINGS AT TRIAL TO ESTABLISH THE ISSUES; and INTRODUCTION.
Where rulings on proposed findings of fact are already contained with the R.O., those paragraphs are listed in this Appendix. For purposes of this Appendix, whenever a paragraph or sub-paragraph of the R.O. is indicated, that reference encompasses any internal footnotes. However, whenever R.O. footnotes have been used to clarify evidentiary, procedural, or credibility matters or where they cross-reference mixed questions of law and fact, those footnotes may, on occasion, be individually indicated below.
PETITIONER'S PROPOSA1S
Due to Petitioner's inartful numbering system, his proposed findings of fact have been referenced by a numbering system devised by the Hearing Officer.
FIRST ISSUE
l-l (p.4) is substantially adopted the portions not adopted are rejected as subordinate, cumulative, argumentative, or conclusions of law.
l-2 (p.4) adopted
(p.4) rejected as contrary to the competent, substantial credible evidence in the record in its entirety.
(pp4-5) rejected in part as contrary to the competent, substantial, credible evidence in the record in its entirety see
R.O. footnotes 5 and 15: rejected in part as a conclusion of law not requiring a ruling.
(p.5) rejected as not supported by the competent, substantial, credible evidence in the record in its entirety: see R.O. footnote 5.
(p.5) rejected as not supported by the competent, substantial, credible evidence in the record in its entirety: see R.O. footnotes 5 and 15.
1-7. (p.5)'s sentence #1 is adopted and the remainder is rejected as not supported by the competent, substantial, credible evidence in the record in its entirety see R.O. footnotes 5 and 15.
1-8 (pp.5-6) rejected as not supported by the competent, substantial, credible evidence in the record in its entirety see
R.O. footnotes 5 and 15.
st (p.6) To the extent this paragraph contains minimal proposed findings of feet it is rejected as not supported by the competent, substantial, credible evidence in the record in its entirety to the extent it is composed of argument and conclusions of law it is not a finding of feet and as such requires no ruling.
1-lst-2 (p.6) constitutes argument or a "non-finding" and is not a proposed finding of feet which requires a ruling
nd (p.6) To the extent this paragraph contains minimal proposed findings of fact, it is rejected as not supported by the competent, substantial, credible evidence in the record in its entirety to the extent it is composed of argument and conclusions of law it is not a finding of feet requiring a ruling.
rd (p.7) To the extent this paragraph contains proposed findings of feet it is rejected as immaterial and not dispositive of itself of any issue at bar for the reasons covered in paragraphs 5a-b, 6a-e of the R.O: to the extent it is composed of argument and conclusions of law it is not a finding of feet requiring a ruling.
th (p.7)'s sentence #1 is a conclusion of law and as such requires no ruling.
Sentence #2 is rejected as contrary to the competent, substantial, credible, relevant and material evidence in the record in its entirety see R.O. paragraph 6a.
Sentence #3 is rejected in part and accepted in part as covered by paragraphs 2b and 9e of the R.O.
The remainder of the sub-paragraph is rejected as being not a proposed finding of fact but a characterization of testimony without any transcript reference and as argument thereon, neither of which requires a ruling.
th (p.7) is rejected as not supported by the competent, substantial, credible, relevant, and material evidence in the record in its entirety as covered by R.O. paragraphs 5a-b and 6a-e and as containing mere argument which requires no ruling.
th (pp 7-8) is rejected as mere argument which as such requires no ruling. To the extent there may be any proposals of fact contained therein they are irrelevant and immaterial and not dispositive of any issue at bar as covered by R.O. paragraph 6a.i
th (p.8) is rejected as irrelevant, immaterial, and not dispositive of any issue at bar as covered by R.O. paragraph 6a.
th (p.8) is rejected as irrelevant, immaterial, and not dispositive of any issue at bar as covered by R.O. paragraph 6a.
th (p.8) is rejected as cumulative in clarification, it received the same ruling as 1-2 above.
1-lOth (p.8)'s sentence #1 is rejected as irrelevant. Sentence #2 is adopted in substance as part of paragraph 5a of the R.O. To the extent it was rejected, the proposal was not supported by the competent, substantial credible evidence in the record in its entirety or was cumulative.
1-llth-1 (pp.8-9) is rejected as contrary to the competent, substantial, credible evidence in the record in its entirety as covered by paragraphs 2a-c and 9c and by footnotes 5 and 9 of the R.O.
1-llth-2 (p.9) is rejected as contrary to the competent, substantial, credible, relevant, and material evidence in the record in its entirety as covered by paragraphs 5a-b and 6a-e of the R.O., and as cumulative.
1-llth-3(p.9) is rejected as contrary to the competent, substantial, credible, relevant, and material evidence in the record as covered by paragraphs 5a-b and 6-a-e, including but not limited to footnote 13, of the R.O.
1-llth 4 (p.9) has been adopted in part, modified in part, and rejected in part for reasons covered by paragraphs 5a-b and 6a-e of the R.O.
1-llth-5 (pp. 9-10) has been adopted in part, modified in part, and rejected in part for reasons covered by paragraphs 5a-b and 6a-e of the R.O.
1-llth-6(p. 10) is rejected as not supported by the competent, substantial, credible evidence in the record in its entirety see
R.O. footnote 5.
1-11-7(p.10) is rejected in part as contrary to the competent, substantial, credible evidence in the record in its entirety (see R.O. footnote 5) and in part as being irrelevant or immaterial as covered by paragraphs 5a-b and 6a-e of the R.O, particularly referencing paragraph 5b and footnote 13 of the R.O.
1-llth-8 (p.10) is rejected as irrelevant or immaterial and as not dispositive of any issue at bar as covered by R.O. paragraph 6a and footnote 13.
1-llth-9 (p.10) is accepted but is not dispositive of any issue at bar.
1-llth-10(p.10-11) To the extent it contains minimal proposed findings of fact it has been accepted: to the extent has been rejected, it contains only a recitation of testimony without transcript reference and as such does not require a ruling.
1-llth-ll(p. ll) constitutes an argument of law and as such does not require a ruling.
SECOND ISSUE
A. Paragraph 2.A (p.ll) up to the last sentence is substantially adopted. To the extent it is not adopted, it is rejected as not supported by the competent, substantial, credible evidence in the record in its entirety for the reasons set out in R.O. paragraphs 7a-c. The last sentence is a record reference requiring no ruling.
2A-2 (pp.11-12) is substantially adopted.
2A-3 (p.12) is rejected in part as contrary to the competent, substantial, credible evidence in the record in its entirety, in part as cumulative, and in part as irrelevant.
2A-4 (p.12) is rejected in part as contrary to the competent, substantial, credible evidence in the record in its entirety, and in part is adopted in substance.
2A-5 (p.12) is only a recitation of testimony without transcript reference and as such requires no ruling thereon.
2A-6 (p.12 ) is adopted. 2A-7 (p 13) is adopted.
2A-8 (p.13) is modified in part to conform to the competent. substantial credible evidence in its entirety.
2A-9 (p.13 ) is adopted. 2A-lO(p.13) is adopted.
2A-ll(p.13) is adopted in substance as covered by paragraph 9e of the R.O.
2B. ABILITY . . . (p.13) is rejected as cumulative.
2B-l(p.13-14) mostly contains mere recitations of testimony which require no ruling. To the extent it contains any proposals it is rejected as not supported by the competent, substantial, credible evidence in the record in its entirety.
2B-2 (p.14)'s first sentence has been accepted as modified. The remainder is rejected as cumulative in part, and in part as contrary to the competent, substantial, credible evidence in the record in its entirety.
2B-3(p.14) is adopted in part to the extent it is not adopted it is rejected as cumulative.
2B-4(p.14) is rejected as contrary to the competent, substantial credible evidence in the record in its entirety.
THIRD ISSUE (pp.14-5) is adopted in substance. 3-1 (F.15) is rejected as cumulative.
(p.15) is rejected as cumulative. The subject matter is covered by paragraph 4b of the R.O.
(pp 15-16) is rejected as irrelevant.
(p.16) is rejected as irrelevant and cumulative
(p.16) is adopted in part. The remainder is rejected as cumulative.
(p.16) is a conclusion of law and as such requires no ruling.
3-7(p.16)'s first sentence is rejected as cumulative. The second sentence is rejected as contrary to the competent, substantial, credible evidence in the record in its entirety.
RESPONDENT'S PROPOSALS
1. Adopted.
2-1. Substantially adopted.
2-2. Adopted.
Accepted in part and rejected in part as contrary to the competent, substantial, credible evidence in the record in its entirety and in part as cumulative for reasons covered by R.O. paragraphs 7a-c.
Adopted or modified to the extent possible in R.O. paragraphs 7d-7g: where not adopted or modified it has been rejected for the reasons set out in those R.O. paragraphs.
Sentence 1 is rejected as contrary to the competent, substantial, credible evidence in the record in its entirety.
Sentence 2 is not a proposed finding of fact but merely a recitation of testimony and as such does not require a ruling. To the extent in contains any proposed findings of fact, it is accepted as modified in the R.O. to conform to the competent, substantial, credible evidence in its entirety.
Sentence 3 is rejected as contrary to the competent, substantial, credible evidence in the record in its entirety.
Sentences 4-9 constitute a single argument on credibility, reciting certain proposed findings of fact, which as a single issue is rejected as contrary to the competent, substantial, credible evidence in the record in its entirety as covered by paragraph 7i of the R.O.
Sentences 1 and 2 are adopted in substance. The remainder of proposal 6 is rejected for the reasons set out in R.O. footnote 5.
Adopted in substance.
Adopted in substance.
Adopted in substance.
Adopted in substance.
Accepted but modified as covered by RO paragraph 6a and footnote 13 to conform to the evidence and to eliminate irrelevant, immaterial, cumulative and subordinate material.
Accepted but modified in part as covered by R.O. paragraphs 6a-b to conform to the evidence and to eliminate irrelevant, immaterial, cumulative, or subordinate material.
Adopted in substance.
Constitutes legal argument and as such requires no ruling.
COPIES FURNSISHED:
Charles L. Curtis, Esquire Allsworth, Doumar, Cazel & Curtis 1177 Southeast Third Avenue
Ft. Lauderdale, Florida 33316
M. Catherine Lannon, Esquire Assistant Attorney General Department of Legal Affairs Room LL-04 - The Capitol Tallahassee, Florida 32301
Dorothy Faircloth, Executive Director Board of Medical Examiners
130 North Monroe Street Tallahassee, Florida 32301
Fred Roche, Secretary
130 North Monroe Street Tallahassee, Florida 32301
Salvatore A. Carpino, General Counsel
130 North Monroe Street Tallahassee, Florida 32301
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AGENCY FINAL ORDER
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STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULAT1ON
BOARD OF MEDICAL EXAMINERS
JOSE A. TORRES, M.D.,
Petitioner,
vs. 85-0533
DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS,
Respondent.
/
FINAL ORDER OF THE BOARD OF MEDICAL EXAMINERS
Petitioner, Jose A. Torres, M.D., petitioned for reinstatement of his medical license, which was denied on December 1, 1984. Petitioner then petitioned for a formal hearing pursuant to Section 120.57(1), Florida Statutes. The formal hearing was held on May 14, 1985, and the Hearing Officer rendered a Recommended Order on October 24, 1985 in which the Hearing Officer recommended that the Board reinstate Petitioner's license. Petitioner filed exceptions which are rejected as they were not directed to specific findings, but rather dealt with general issues with which Petitioner disagreed with the Hearing Officer.
Respondent filed exceptions which are accepted, as they are directed at findings by the Hearing Officer which are not supported by the record.
FINDINGS OF FACT
The Findings of Fact contained in the Hearing Officer's Recommended Order, attached hereto and incorporated herein by reference as Exhibit A, are accepted and incorporated in this Order as if fully set forth herein.
CONCLUSIONS OF LAW
The Conclusions of Law contained in the Hearing Officer's Recommended Order are hereby accepted and incorporated herein, except as modified by the exceptions filed by Respondent.
Specifically, paragraph 5 (c) of the conclusions of law is hereby modified to delete the sentence,: "However, by the language of
Dr. Torres' medical license shall be reinstated and placed on probation for five (5) years. Prior to reinstatement, Dr. Torres must submit to the Board for acceptance, a detailed "Practice Plan" outlining the scope and nature of proposed practice, the scope, nature and frequency of monitoring by a physician or physicians approved by the Board or the Chairman thereof, proposed practice setting, contingency plans for patient referrals, and other such information that will ensure compliance with this probation.
During the course of probation, Dr. Torres shall appear at the first meeting after being placed on probation (he may appear when the detailed "practice plan" is submitted), at the last Board meeting prior to termination of probation, and at any other Board meeting as directed by the Board or Chairman thereof.
During the course of probation, Dr. Torres shall submit to the Board semi-annual reports, in affidavit form (sworn to) summarizing his practice activities. The report shall contain the following at a minimum:
Current practice address;
Current practice setting;
Prescribing activities;
Hospital admitting privileges;
Relationship with supervising physician;
Direct response to the specific violations which resulted in the license being acted upon; and
Specific statement addressing compliance with all other terms and conditions of this Final Order.
These reports will be due on or before November 15 and May
15 of each year.
During the term of probation, Dr. Torres' monitoring physician shall submit reports to the Board concerning Dr. Torres' practice and compliance with the terms of this Final Order. These reports are due on or before November 15 and May
15 of each year. It is the responsibility of Dr. Torres to have these reports submitted. Failure of these reports to be submitted the statute involved, the non-medically justifiable purpose may be inferred. For these reasons and upon the foregoing findings of fact, it must be concluded that Petitioner's offense is no more evidence that he is likely to again violate Chapters 455 and 458 Florida Statutes or the rules of the Board than was Dr. Griffith's offense which did not bar Dr. Griffith's reinstatement after revocation. To apply a different standard to Petitioner would be disparate treatment".
Paragraph 6 of the Hearing Officer's conclusions of law is revised to read as follows:
Accordingly it is concluded that Petitioner has failed to prove by a preponderance of the evidence that he is entitled as a matter of right to have his license reinstated.
Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla 1st DCA 1977). He has failed to show that the Board of Medical Examiners has applied a different standard to him than has been applied to other revoked practitioners who were similarly situated. In light of the clear finding that Section 458.331(3) does not require reinstatement of a license and recognition by the First District Court of Appeal in Griffith v. Board of Medical Examiners, 454 So.2d 683 (Fla 1st DCA 1984) that there are some individuals whose licenses will not be reinstated because of
the nature of the offense for which the license was revoked, the Board has clear authority to deny the petition for reinstatement filed by Jose A. Torres, M. D., in this cause.
The Board further concludes that based upon the findings of fact, it appears that Dr. Torres has rehabilitated himself and is not likely to again violate the Medical Practice Act, Chapter 458, Florida Statutes, if his license is reinstated.
DISPOSITION
The Board of Medical Examiners, after having reviewed the entire record of administrative proceedings in this cause, and having heard argument of counsel, and being otherwise advised in the premises hereby
ORDERS that the medical license of Jose A. Torres, M.D., be reinstated upon the following terms: when due, without advance authorization from the Chairman of the Board shall be deemed a violation of this Order.
During the term of this probation Dr. Torres may not prescribe, administer, or otherwise dispense any Schedule II controlled substances. Additionally, Respondent may not possess DEA Schedule II controlled substance privileges.
If, during the term of this probation, Dr. Torres' approved monitoring physician becomes incapacitated, or otherwise carrot or will not perform as monitoring physician, Dr. Torres must cease practice immediately until another monitoring physician is approved by the Board. An iterum approval pending the next Board meeting may be made by the Board Chairman.
If, during the term of this probation, there is a finding of probable cause as set forth in Section 455.225, Florida Statutes that Dr. Torres has violated the provisions of this Final Order or the provisions of Chapter 458, Florida Statutes, his license to practice medicine in this state shall be summarily suspended pending, at Dr. Torres' election, an immediate formal hearing pursuant to Section 120.57(1), Florida Statutes.
DONE AND ORDERED THIS * DAY OF *,1986.
*Note: Document filed with DOAH undated.
BOARD OF MEDICAL EXAMINERS
cc: Counsel of Record Jose A. Torres, M.D.
By
J. Darrel1 Shea, M. D. Chairman
| Issue Date | Proceedings |
|---|---|
| Oct. 24, 1985 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 31, 1986 | Agency Final Order | |
| Oct. 24, 1985 | Recommended Order | Petitioner completed ninety-nine continuing medical education hours, had license revoked for twenty-nine months and showed ability to safely engage in practice of medicine. Reinstate license. |
