STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RALPH WALDO WALKER, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0915

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

)

Respondent. )

)

RECOMMENDED ORDER

Final Hearing in the above-styled action was held in Tallahassee, Florida on November 17, 1986, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: Ralph Gerald Walker, Esquire

1545 Dogwood Lane

Acworth, Georgia 30101

For Respondent: M. Catherine Lannon

Assistant Attorney General Room LL04 - The Capital

Tallahassee, Florida 32399-1050 BACKGROUND AND PROCEDURAL MATTERS

On February 6, 1986, the Board of Medical Examiners issued its order denying Petitioner's application for licensure as a physician. This proceeding commenced with Dr. Walker's Petition and Amended Petition, dated March 4, 1986 and March 6, 1986, respectively.

By Order dated September 19, 1986, Dr. Walker was permitted to amend his petition to add allegations regarding a change in the Medical Practice Act and regarding his having taken and passed the licensure (FLEX) exam in the State of Iowa.

At the final hearing the parties stipulated to the inclusion of three joint exhibits in the record: the Board's entire application file for Ralph Waldo Walker II, a deposition of Dorothy Faircloth and a deposition of Dr. John H. Gay. Dr. Walker testified in his own behalf and called Dorothy Faircloth as a witness. The Board presented no other witnesses nor exhibits.

Both parties have submitted proposed recommended orders, and Dr. Walker has submitted a written final argument. These post hearing submittals have been carefully considered in the preparation of this order; specific rulings on the proposed findings of fact in accordance with subsection 120.59(2) F.S., are found in the attached appendix.

ISSUE

At the commencement of the final hearing the parties stipulated that the specific issue for determination is whether Dr. Walker's medical clerkships constituted allopathic medical education.

Counsel for respondent argued that this proceeding affects only Dr.

Walker's eligibility to take the licensure exam. For the reasons set forth below, that characterization is rejected.

FINDINGS OF FACT

1. Ralph Waldo Walker II graduated from the American University of the Caribbean in Plymouth, Montserrat, British West Indies. He obtained his medical school diploma in May 1982. As part of the curriculum in medical school he partiipated in clinical clerkship training at Mercy Medical Center in Des Moines, Iowa. All of his clerkships, except psychiatry, were at that hospital and were completed during 1981 and 1982. (Exhibit 1)

   
   

2. In Iowa, hospitals are not licensed as osteopathic or allopathic, but rather are simply licensed as hospitals. In Des Moines there is only one hospital that is identified as osteopathic: Des Moines General. Unless a hospital is specifically identified as osteopathic, it is considered allopathic. It is possible, however, for both allopathic medical doctors and osteopaths to practice at either hospital. (transcript, p. 17, 18; Deposition of Dr. Gay, p. 5-7)

   
   

3. During the time that Dr. Walker served his clerkship, Mercy Hospital had medical students from the medical school in Guadalajara, Mexico, the American University of the Caribbean, and the University of Osteopathic Medicine and Health Sciences in Des Moines. Less than half of the students rotating on a regularly scheduled basis were from the osteopathic school. Less than half of the students at Mercy during 1981 and 1982 were under the direct supervision of an osteopathic physician. (deposition of Dr. Gay, pp. 8, 10)

   
   

4. In his clerkship experience at Mercy Medical Center, Dr. Walker was never supervised by an osteopathic physician. (transcript, p. 17)

   
   

5. Mercy Medical Center is listed in the 1980-81 Directory of Residency Training Programs as a hospital approved by the American Medical Association for allopathic residency training in the speciality area of pathology. (deposition of Dorothy Faircloth, pp. 10-11)

   
   

6. Dr. Waldo first applied for licensure in Florida in 1983. He paid the

   $350 application fee, and on February 10, 1984, he appeared before the Board of Medical Examiners' Foreign Medical Graduate Committee where he was guestioned at length regarding his background and education. Upon the affirmative recommendation of that committee, the full board voted to allow him to take the examination. (Exhibit 1, including transcript of the February 10, 1984, appearance)

7. He took the June 1984 exam and failed; he repeated the process and failed the December 1984 exam. He applied for the June 1985 exam and was sent an admission card, but he decided instead to stay out and study. He applied again in August l985, and was sent an admission card for the December 1985 exam. (Exhibit 1)

   
   

8. He was a1so reguired to appear again before the Board on November 23, 1985. The basis for the appearance, as stated by Executive Director Dorothy Faircloth, was a letter from a patient in Georgia. The letter was discussed and explained, and the Board questioned Dr. Waldo regarding his clerkships at Mercy Medical Center. The outcome of this appearance was denial of Dr. Waldo's application for licensure. The grounds for denial stated in the Board's order filed on February 6, 1986 are:

   
   

   The applicant's supervised clinical training was not obtained in either a hospital affiliated with a medical school accredited by the Liaison Committee on Medical Education or in a residency program accredited by the Accreditation Council

   for Graduate Medical Education in the specialty area in which the clinical training is being obtained, as required by Florida Administrative Code Rule

   21M-22.18. Furthermore, the applicant's core clerkships were performed in an osteopathic institution, rather than an allopathic institution and do not constitute medical education as that term is used in Chapter 458, Florida Statutes.

   (Exhibit 1, including transcript of November 23, 1985, appearance before the Board)

   
   

9. Dr. Walker. took the Federation licensing Examination (FLEX) in the State of Iowa and passed with scores of 78 and 81. A score of 75 on each component is considered a passing score in Florida. Dr. Walker became licenced to practice medicine in Iowa on August 22 1986. (Exhibit l, transcript, pp. 14, 26)

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this proceeding pursuant to section l20.57(1) F.S.

    
    

11. The first ground for the Board's denial was the requirements of Rule 21-M-22.l8 FAC regarding accreditation of clinical training. That basis has been obviated by amendments to the Medical Practice Act in Chapter 86-245, Laws of Florida:

    
    

    Section 22. Rules adopted by the Florida Board of Medical Examiners prior to the effective date of this act and relating to clinical clerkships for graduates of foreign medical schools do not apply to any such graduate who:

    1. Had completed his clerkship prior to the effective date of the rule; or

    2. Had begun his clinical clerkship

       but had not completed the clinical clerkship prior to the effective date of the rule, so long as the clinical clerkship took no longer than 3 years to complete.

       
       

12. The second ground for the Board's reversal of its earlier decision on Dr. Waldo's education is invalid. The Board's scrutiny of the nature of Dr. walker's clinical training at Mercy Medical center is based on subsection 458.311(1)(b) F.S. (1985), which reguires graduation frcm an approved allopathic medical school or allopathic college. (Respondent's proposed recommended order, conclusion of law, paragraph 2) However, subsection 458.311(2) F.S. provides:

    
    

    Notwithstanding the provisions of paragraph (1)(b), graduates of foreign medical schools, except approved schools in Canada, who are otherwise qualified whose medical credentials have been evaluated by the Educational Commission for Foreign Medical Graduates or the board, and who have passed the Educational Commission for Foreign Medical Graduates examination or the Federation Licensing Examination may be accepted for the examinations in this

    state . . . . (emphasis added)

    
    

13. While there are extensive reguirements for graduates of foreign medical schools, none distinguish between an allopathic and osteopathic clinica1 training. In Barker v. Board of Medical Examiners, Department of Professional Regulation, 428 So.2d 720 (Fla. 1st DCA 1983), cited by Respondent, the applicant was not a foreign medical school graduate.

    
    

14. Even so, Dr. Waldo proved that his clinical training was allopathic. The Board has no rules for determining whether clinical training is a11opathic or osteopathic. Dr. Waldo's testimony that all of his supervising physicians were medical doctors was unrebutted. Even though some students from the osteopathic school were also in clinical training at Mercy Medical Center, the uncontroverted testimony was that those students received their osteopathic training elsewhere. The American Medical Association, for the period in question, approved the hospital for a specialized allopathic residency. Nothing in the record suggests that Mercy Medical Center was an osteopathic hospital.

    
    

15. It is unnecessary to consider that Dr. Waldo's application be converted from "licensure by examination" to "licensure by endorsement". Rule 21M-21.0l(3)(c), FAC provides that "An applicant for licensure by examinaticn shall be limited to three attempts at each part of the FLEX examination in Florida or any other state or territory of the United States, the District of Columbia, or Province of Canada.

    
    

16. On his third attempt, Dr. Waldo passed the FLEX examination, albeit in another state. Given the peculiar circumstances of his situation, most notably the reversal by the Board of its earlier approval of his clinical training, it is absurd and unfair to require that he re-take exam in Florida. 1/

RECOMMENDATION

Based on the foregoing, it is recommended that a final order be entered approving Ralph Waldo Walker's application for licensure to practice medicine in the state of Florida.

DONE and RECOMMENDED this 31st day of December, 1986 in Tallahassee, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1986.

ENDNOTE

1/ The Board's rule regarding accreditation of the clerkships 21M-22.18 FAC, was effective November 28, 1984, after the original approval of Dr. Waldo. The Board, however, did not explain the non-rule policy basis for its concerns that Dr. Wa1do's clerkships were not allopathic training.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 86-0915

The following constitute my specific rulings on the parties proposed findings of fact:

Petitioner' s Proposed Findings of Fact

1. Adopted in substance in Conclusion of Law #4, paragraph #14.

2. Adopted in substance in Conclusion of Law #4, paragraph #14.

3. Adopted in Finding of Fact #5, paragraph #9.

4. Rejected as unnecessary.

5. Rejected as unnecessary.

6. Adopted in Conclusion of Law #5, paragraph #15 and in the Recommendation section of the order.

7. Adopted in Conclusion of Law #5, paragraph #15 and in the Recommendation section of the order.

Respondent' s Proposed Findings of Fact

1. Adopted in substance in paragraph #6.

2. Adopted in paragraph #1.

3. Rejected as irrelevant and unnecessary.

4. Adopted in part in paragraph #2 and #3; the conclusion that the testimony was "impeached" is rejected as being contrary to the evidence.

5. Adopted in substance in paragraph #5.

COPIES FURNISHED:

Ralph Gerald Walker, Esquire 1545 Dogwood Lane

Acworth, Georgia 30101

Ralph Waldo Walker, M.D. Cherokee Mental Health Institute 1200 West Cedar Street

Cherokee, Iowa 51012

M. Catherine Lannon, Esquire Office of the Attorney General The Capitol

Tallahassee, Florida 32301

Fred Roche Secretary

Department of Professional Regulation

130 N. Monroe Street Tallahassee, Florida 32301

Dorothy Faircloth Executive Director Department of Professional

Regulation

130 N. Monroe Street Tallahassee, Florida 32301

Docket for Case No: 86-000915

Orders for Case No: 86-000915