STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KALEEM AHMED, M.D., )

)

Petitioner, )

)

vs. ) Case No. 85-3507

)

STATE OF FLORIDA, BOARD )

OF MEDICAL EXAMINERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice; this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on April 7, 1986, in Miami, Florida.

Petitioner Kaleem Ahmed was represented by Gail L. Grossman, Esquire, Miami, Florida, at the final hearing but has been representing himself subsequent thereto. Respondent State of Florida, Board of Medical Examiners was represented by M. Catherine Lannon, Esquire, Tallahassee, Florida.

Respondent denied Petitioner's application for Licensure by examination, and Petitioner timely requested a formal

hearing. Accordingly, the issue for determination is whether Petitioner's application for licensure by examination should be approved.

Petitioner testified on his own behalf, and Petitioner's Exhibit numbered 1 was admitted in evidence. Respondent presented no witnesses; however, Respondent's Exhibits numbered 1-3 were admitted in evidence.

Both parties requested and were granted leave to file proposed findings of fact in the form of a proposed recommended order. Between the time of the final hearing and the submittal of his proposed recommended order, Petitioner's attorney withdrew as counsel of record. Pursuant to the time frame established by the parties for the submittal of proposed recommended orders; on April 30; 1986, Petitioner filed correspondence on his own behalf dated April 27, 1986; which appears to be his proposed findings of fact although not in the form of a proposed recommended order.

To the extent that that correspondence was intended by Petitioner to be his proposed recommended order; specific rulings on each unnumbered paragraph are as follows: The first paragraph has been adopted in substance the second, fourth; and eighth paragraphs have been rejected as constituting argument and as not being proposed findings of fact, and the third; fifth; sixth; and seventh paragraphs have been rejected as being immaterial to the issues under consideration herein. Respondent's Motion to Strike Ex Parte Communications directed to Petitioner's April 27, 1986 correspondence be and the same is hereby denied.

As to Respondent's Proposed Recommended Order, the first two sentences of Respondent's proposed finding of fact numbered 1 have been adopted in this Recommended Order but the remainder of that paragraph has been rejected as being contrary to the totality of evidence in this cause. Respondent's proposed findings of fact numbered 2-6 have been rejected as not constituting findings of fact but rather as constituting argument of counsel.

FINDINGS OF FACT

1. Petitioner applied for licensure by examination in Florida as a physician. He appeared before the Board of Medical Examiners on May 31, 1985, at which time his application for licensure was to be considered. Based upon statements made by him under oath at that meeting, the Board of Medical Examiners denied his application for licensure as a physician by examination stating in its order entered July 31, 1985, that the sole reason for that denial was that "Documentation submitted in support of your application for licensure indicates that you are currently working as a volunteer at Borinquen Health Care Center in Miami and, as such, indicates that you are practicing medicine without a license." The transcript from that Board meeting was admitted in evidence.

   
   

2. Petitioner's testimony before the Board and at the final hearing in this cause, although somewhat confusing due to Petitioner's incomplete grasp of the English language, was consistent and clear.

   
   

3. Petitioner received his medical education in India and subsequent medical training in England and in Canada. He came to Miami in 1984. In order to become acquainted with the American system of medicine and in order to keep current his medical skills and knowledge, Petitioner obtained employment at the Borinquen Health Care Center.

   
   

4. During the year or two that Petitioner worked there, Petitioner interviewed and examined patients and made tentative

   diagnoses under the direct control and supervision of licensed physicians. Additionally, he made notations on patient's charts and wrote prescriptions as specifically directed by the licensed physician; the licensed physician; however; then signed the charts and the prescription forms.

   
   

5. Petitioner did not examine, treat, diagnose; or operate on any patient on his own. No employee or patient of Borinquen Health Care Center testified to the contrary.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. As set forth above, Petitioner's understanding of the English language is not total and, therefore, his testimony is somewhat confused. Additionally, it appears that when Petitioner appeared before the Board he overstated his duties perhaps in an effort to impress the Board members. On the other hand, when he testified at the final hearing he understated his duties at Borinquen Health Care Center perhaps due to a desire to extricate himself from the allegation that he was practicing medicine without a license. A total review of the record in this cause does reveal that Petitioner did not work independently at the clinic but rather worked with and for the licensed physicians there. Petitioner has; therefore, sustained his burden of proof in this proceeding.

   
   

8. Other than presenting the transcript of Petitioner's testimony before the Board; Respondent's entire thrust in this case consisted of attacking out-of-context excerpts from Petitioner's testimony and pointing out inconsistencies as to immaterial issues. For example, Respondent dwelled on Petitioner's inability to accurately state the date on which he began employment at the clinic. The date on which Petitioner began work is immaterial as to whether his duties there were such as to constitute practicing medicine without a license.

   Likewise, Petitioner's actual duties at the clinic are dispositive of the issue in this case; and it is immaterial whether Petitioner worked as a "volunteer" or whether Petitioner was reimbursed for automobile expenses or paid a salary.

   Respondent failed to present any affirmative evidence to show that Petitioner was practicing without a license and further failed to present any evidence as to what constitutes practicing without a license. Specifically; there is no evidence in this record as to what duties can be performed by unlicensed personnel whether or not supervised by a licensed physician or whether

   Petitioner performed any specific duties without supervision that can or cannot be performed by a physician's assistant.

   
   

9. Respondent's attempt to attack Petitioner's credentials during the course of the final hearing was not permitted for the reason that the sole ground for denial stated in the Board's order of July 31, 1985, is the allegation that Petitioner was practicing medicine without a license. Similarly; Respondent's attempt to add additional grounds for denial at the conclusion of the final hearing and in its proposed recommended order -- perjury and attempting to obtain a license to practice medicine by fraudulent misrepresentations -- is also rejected for the reason that it has been determined that the totality of the evidence reveals that Petitioner is guilty of neither and for the reason that any attempt by Respondent to amend its order of denial at the conclusion of a proceeding is impermissible.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order be entered granting Petitioner's application for licensure as a physician by examination.

DONE and RECOMMENDED this 24th day of June, 1986; at Tallahassee, Florida.

LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1986.

COPIES FURNISHED:

Dorothy Faircloth Executive Director

Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

Kaleem Ahmed

520 N.E. 83rd Street, No. 8 Miami; Florida 33138

M. Catherine Lannon Assistant Attorney General The Capitol, LL04 Tallahassee, Florida 32301

Pred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 85-003507

Orders for Case No: 85-003507