STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ABRAHAM W. CHAMES, )
)
Petitioner, )
)
vs. ) CASE NO. 86-1438
) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )
MEDICAL EXAMINERS, )
)
Respondent. )
)
RECOMMENDED ORDER
Consistent with the Notice of Hearing furnished to the parties on October 23, 1986, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings in Miami, Florida on February 2, 1987. The issue for consideration in this case was whether the Petitioner should be licensed as a medical doctor in the State of Florida.
APPEARANCES
Petitioner: Harold M. Braxton, Esquire
Suite 406, Datran Center
9100 South Dadeland Boulevard Miami, Florida 33156
Respondent: M. Catherine Lannon, Esquire
Department of Legal Affairs Room 1601, The Capitol
Tallahassee, Florida 32399-1050 BACKGROUND INFORMATION
Petitioner applied for licensure as a medical doctor in Florida on August 9, 1984. After processing and investigation, the Board of Medical Examiners, on April 4, 1986, disapproved Petitioner's application on the grounds that there were discrepancies between his testimony at a Board meeting and documentation he submitted regarding his medical education. On April 18, 1986, Petitioner filed a Petition for Formal Proceedings contesting the action of the Board and on April 25, 1986, the Attorney General of Florida, representing the Board in this case, forwarded the file to the Division of Administrative Hearings for appointment of a Hearing Officer.
Petitioner submitted an Amended Petition for Formal Proceeding on May 2, 1986. The file was assigned to the undersigned for hearing and on May 22, 1986, the undersigned set the case for hearing on October 7, 1986. However, on
September 23, 1986, based upon Petitioner's motion, a continuance was granted until November 20th, 1986, but before the case could be held, Petitioner filed a Motion for Leave to Amend his Petition and a second motion for continuance, which was granted by the undersigned on October 23, 1986. By Order of that date, the hearing was set for February 2, 1987.
At the hearing, Petitioner testified in his own behalf and presented the testimony of his wife, Deborah; Dr. Robert Katims, Chairman of the Foreign Medical Graduate Committee of the Board of Medicine; Dr. Lynn P. Carmichael, Chairman of the Department of Family Medicine at the University of Miami Medical School; Deborah J. Miller, an attorney; and Dorothy Faircloth, Executive Director of the Florida Board of Medicine. Petitioner also introduced into evidence Petitioner's Exhibits 1 and 2.
Respondent presented the testimony of David Sussan, a postal inspector, and introduced Respondent's Exhibits A through D. Official Recognition was taken of an Order of the Circuit Court for the Second Judicial Circuit in and for Leon County, Florida in the case of Beckum v. Slepin, Case No: 35-1174, entered in April, 1986.
The transcript was received in this office on March 2, 1987 and the parties' Proposed Recommended Orders were received by March 18, 1987. The proposed Findings of Fact contained therein have been considered and are ruled upon in the Appendix attached hereto.
FINDINGS OF FACT
On August 7, 1984, the Petitioner, Abraham W. Chames, executed an application for examination for licensure as a medical doctor which was filed with the Florida Department of Professional Regulation on behalf of the Board of Medical Examiners, (now Board of Medicine), on August 9, 1984.
Among other information required on the application was a section requesting information regarding the applicant's medical education. That question reads as follows:
Be specific. Account for each year. List all universities or colleges where you attended classes and received training as a medical student.
In response and on each of four lines which required the name of the medical school and location and the dates of attendance, the applicant listed the names of the appropriate universities. These were:
Universidad Del Noreste/Tampico, Mexico, from August, 1978 to June 1979.
Universidad Del Noreste/Tampico, Mexico, from August 1978 to June, 1979 [sic]
CETEC University/Santo Domingo, Dominican Republic, from June, 1980 to June, 1981.
CETEC University/ Santo Domingo, Dominican Republic, from June, 1981 to December 1981.
The question immediately preceding the one just described requires the applicant to list all places of residence since initiation of medical training. In response, the applicant listed, Tampico, Tamps, Mexico, from August, 1978 to June, 1980 and on the second line, Miami Beach, Florida from June, 1980 to June, 1982.
For the question that requires the applicant to account for all time from date of graduation to present, the Petitioner stated: "Started my residency in family medicine at the University of Miami: June 83 until present."
Dr. Chames also indicated on his application that his Doctor of Medicine degree was obtained from CETEC University, Santo Domingo, Dominican Republic from which he graduated on December 12, 1981.
As a part of the narrative reports submitted with his application and relating to the period of time spent at CETEC University from June, 1980 through December, 1981, Dr. Chames stated: "During this time, I performed all of my required and elective clinical rotations under the auspices of CETEC University and its New York City based office of C.J. Institute. I lived at 1247 West Avenue, Apt No. 1, Miami Beach, Florida." By so doing, he explained the apparent ambiguity between his place of residence and his medical education during the period, June, 1980 through December, 1981. The rotations taken and the dates thereof were thereafter listed immediately below the above-cited statement. It should be noted that all the rotations were completed at hospitals in the Miami, Florida area. It is not at all unusual for situations like this to happen and it is not improper.
Along with the application submitted by Dr. Chames was a certification that he had successfully passed the examination of the Educational Commission for Foreign Medical Graduates, (ECFMG), which he took on July 21, 1982.
On August 20, 1984, Dr. Chames was notified by the Board that it had been advised by the ECFMG that as of March, 1984, that body was withholding verification of its certificates for individuals with medical credentials issued in the name of CETEC University because of alleged irregularities with regard to these medical credentials. The Board requested that Dr. Chames waive the 90 days that it had for approval or denial of his application for licensure, which he did. ECFMG subsequently verified Dr. Chames' certification and this information was sent directly to the Board.
On September 18, 1984, the Board advised Dr. Chames that he would be required to appear personally before the Foreign medical Graduate Committee, (FMGC), of the Board when notified. Two days later, on September 20, 1984, the Board advised him that his application was considered incomplete because he had failed to submit a copy of his medical school diploma, (notarized and certified as a true and correct copy) and a certified translation thereof. He was further advised that he had failed to submit an accounting for all of the time between December, 1981 and May, 1983, and a FLEX application with Part A completed.
On August 23, 1985, Dr. Chames submitted a notarized affidavit in which he attempts to account for all time from December, 1981 through May, 1983 as requested.
On August 15, 1985, Ms. Dorothy Faircloth, Executive Director of the Board, notified Petitioner that his application was still considered incomplete because of the failure to submit certain documentation including his diploma and
translation thereof, an examination fee, a standard ECFMG certificate, photographs, letters of recommendation, an accounting for all of the time since graduation, and a FLEX application. By letter dated August 23, 1985, Dr.
Chames' counsel, Deborah J. Miller, forwarded a notarized copy of the medical school diploma certified by the U.S. Vice-Consul, a notarized copy of the original translation thereof, a notarized copy of the ECFMG clearance, a notarized copy of the original standard ECFMG certificate, an accounting of Dr. Chames' time since graduation, and a comment that the addition application fee requested had been forwarded previously. The two photographs requested were forwarded by counsel on September 3, 1985. In her September 3, 1985 letter, Ms. Miller indicated she understood the ECFMG would contact the Board directly in the event that written verification had not been received by the time Dr. Chames was to appear before the FMGC.
On September 27, 1955, the Board, by letter, advised Dr. Chames, (the salutation refers to Dr. Eaton) that he was required to appear personally before the FMGC at Sarasota on October 4, 1985. Dr. Chames appeared as required and was examined verbally by committee members, primarily Dr. Robert Katims, Chairman, on his credentials as a graduate of CETEC. His answers apparently raised some further questions and an extract of the minutes of that committee meeting reflects that Dr. Chames, a candidate for licensure by examination and a graduate of CETEC University, received a... unanimous vote to recommend unfavorably for examination based upon a total lack of credibility, deliberately failed to tell the truth in the application process. It cannot be determined in whose handwriting this notation was made.
Dr. Katims, who was Chairman of the FMGC since its founding until just prior to the hearing, examined Dr. Chames from the file maintained by the Committee on foreign medical graduates. The Petitioner's testimony was not of a nature to inspire confidence in his credibility. He was hesitant in his answers and those which he gave were, if not evasive, at least not definitive. While acknowledging he made several mis-statements of fact on his application, Petitioner contended these were made through honest error rather than through design. He was obviously not believed by any committee member. No doubt this antipathy toward the applicant, manifested by the blatant hostility and outrage evidenced by Dr. Katims during his questioning and his threats to carry the matter further, even to the pressing of criminal charges if available, indicates that no matter what Dr. Chames would have said, the likelihood of his being voted upon favorably was remote.
The file examined by Dr. Katims and the committee consisted of the application, letters of reference, test scores and other matters relevant to the candidate's suitability for licensure. This file documentation is knows as the Agenda Book.
The Agenda Book maintained on Dr. Chames was reviewed by Dr. Katims prior to Petitioner's appearance. In his evaluation of this file, Dr. Katims looked primarily at Petitioner's application to take the ECFMG exam and his attention was drawn to the sites of medical education listed thereon. The file contained several different applications which, when reviewed, reflected that on two, Dr. Chames listed his medical schools as Del Noreste and Dominica and on a third he listed CETEC and Del Noreste. Dr. Katims also noted a different listing for undergraduate education. He did not look so much at the dates listed, though dates are important.
At that time, his policy as Chairman and that of the committee, was to look closely at CETEC graduates because of that institution's reputation for
fraud in the issuance of diplomas. It was his understanding that several people associated with CETEC, including some applicants, had been jailed in the United States and as a result, CETEC graduates got a lot of scrutiny. In fact, Dr.
Katims threatened to "...pursue this beyond the actions of this Board, if it seems appropriate, along the lines indicated by Board Counsel...." The Board's counsel had just previously noted a change in the Florida law to make it a criminal offense to obtain or attempt to obtain a license by knowing misrepresentation.
Dr. Katims categorically denies that he felt all CETEC students were trained by this "stink of corruption". In fact, he recalls many CETEC graduates have been voted upon favorably after they had been afforded an opportunity to prove their credentials and discuss their applications before the committee. As a result, Dr. Katims felt he did not prejudge the Petitioner.
Dr. Katims has interviewed many applicants during his term in office and this includes many CETEC graduates. Consequently, he looked closely at Dr. Chames' application but it was the discrepancy in the applications and the applicant's failure to clarify it satisfactorily that was the problem here, not the fact that he was a CETEC graduate.
Dr. Chames was called before the FMGC because it was felt necessary to have him amplify his file and give greater information on his actual scholastic residence. This was because several applicants had told Dr. Katims their only visit to the CETEC campus was to get their diploma. This is exactly what Dr. Chames stated in his interview. Though enrolled at both (Dominica) Ross and CETEC at the same time, he says he did not attend any classes at either campus, did not ever visit the (Dominica) Ross campus, and in fact visited the CETEC campus only once, in December, 1981, to get his diploma. In short, it appears that neither school required regular on-site educational activities. In substance, the Board considered that Dr. Chames' attendance at CETEC raised a question that required a more detailed examination. However, Dr. Katims, on behalf of the committee, clearly contends that CETEC graduates were held to no more strict standards of qualifications than other graduates of foreign medical schools.
With regard to this Petitioner, the Board only looked at the educational discrepancies. Nothing else was looked into by the committee before it's report the next day to the full Board. Dr. Katims felt that Petitioner's story was "incredible." He could not accept Petitioner's story that he simultaneously applied to and attended both CETEC and Dominica (Ross) and concluded that Dr. Chames deliberately falsified his application. The discrepancies regarding the schools attended were not consistent with his explanation, and to this date, Dr. Katims feels the same way. He concludes that Petitioner lied in his applications and may have conspired with unknown others to do so but he has no proof of a conspiracy.
The important issue to Dr. Katims was initially the caliber of education available at both (Dominica) Ross and CETEC. It was only when Petitioner testified and his testimony was felt to be "incredible" that the issue became his credibility.
Dr. Chames graduated from Miami-Dade Community College with an AA degree; then from Yeshive University in New York with a BA degree and thereafter from Florida International University with a BS degree. He then entered Universidad Del Noreste medical school in Tampico, Mexico where he actually attended classes for two years. At his hearing before the FMGC, he stated that
during his fourth semester there, he decided to transfer and looked into two medical schools both located in the Caribbean. They were the University of Dominica (Ross) and CETEC. He contends that he applied to both, took some entrance exams for Dominica which he passed and paid some initial fees to that school. He states, however, that it was CETEC that he stayed with and from which he got his degree.
According to Dr. Chames, this was a tumultuous time for foreign medical schools. Many students of these institutions wanted to come back to do their obligatory rotations in the United States. As a result, he enrolled in both schools, though he felt affiliated with Dominica (Ross) and paid it only. CETEC indicated he could pay later. In the fall of 1981, he switched to CETEC because a number of states were determining that students of proprietary foreign medical schools could not do U.S. residencies. CETEC was considered to be a higher quality school and had a greater legitimacy in the Dominican Republic.
It was a viable school in disciplines other than medicine and was not categorized as an "offshore" medical school.
Dr. Chames was expelled from Dominica (Ross) on July 12, 1982, because he failed to pay for the fourth year of medical school. He had, by this time, transferred his credits to CETEC and had graduated from there in December, 1981. Neither school had a requirement for on-campus participation. Students paid their money and turned in the paperwork, and the rotations--the learning periods spent in active hospitals--which constitute the greatest part of the last two years of medical school, were done in the United States.
In reality, Dr. Chames arranged his clerkships and rotations by himself. When asked by the various hospitals to which he applied where he was in school, he would say either Del Noreste, Dominica (Ross), or CETEC depending on the time in question. He claims he considered himself to be a student at both Dominica (Ross) and CETEC at the same time. He gave his clerkship evaluations, however, only to Dominica (Ross) until the end of the fourth year of training, when he also gave one to CETEC.
He first started paying fees to CETEC and provided a clerkship evaluation there in the fall of 1981, even though he says he considered himself a student there from the beginning. He intended to graduate in December, 1981. This date was established in the fall of 1981 when he started sending CETEC the evaluations of clerkships he had completed almost two years previously which had already been sent to Dominica (Ross).
Dominica (Ross) required the taking of a basic second examination upon starting and a final examination prior to graduation unless one took and passed the ECFMG examination. Petitioner admittedly failed the final at Dominica (Ross). CETEC required no examinations. He took and passed the ECFMG exam long after he graduated from CETEC.
Petitioner applied to CJ Institute, CETEC's U.S. affiliate, in November, 1981. He contends that he had applied to CETEC previous to that time, but paid no money to CETEC until approximately two weeks prior to graduation, and he got credit from CETEC for rotations/clerkships performed while enrolled at Dominica (Ross).
In reality, what appears to be the fact, and it is so found, is that Dr. Chames was enrolled for by far the greatest majority of the last two years of his medical training at Dominica (Ross). Having failed the final examination and being concerned over the ECFMG examination, he looked around and found
another medical school that would grant him a diploma based on work done at his former institution, Dominica (Ross). This he found in CETEC which had no requirements and was willing to give him full credit for all work performed at or under the auspices of Dominica (Ross). It would graduate him, awarding him a medical degree upon payment of the required fees, even though no work was done either in the classroom or in rotations while enrolled at that university.
When the applicant subsequently filled out the forms for admission to licensure in Florida, he unfortunately listed only CETEC and not Dominica (Ross) as his medical school, even though the application form instructed him to list all schools and omit nothing. He admits that since he did his rotations, and since CETEC granted him credit for them even though he did them while enrolled at another school, he didn't feel it necessary to list Dominica (Ross) as one of his schools.
Notwithstanding the apparent lapse as defined above, Respondent's reputation for honesty is generally good. His wife for almost nine years, who has known him since he was fifteen, considers him a most honorable man who makes no distinction between his personal and business ethics which are high in both categories. Though she is an attorney and notarized at least one of the applications he filled out, she did not discuss them with him. She has no reason to believe that they were not accurate and knows no reason that Petitioner would falsify them as she knows he dearly wants to be a doctor. When he filled out his applications, he did them based on his recollection and not on files or documents. She knows he has a terrible memory for dates and numbers and this may have contributed to his mistake. Mrs. Chames' testimony is not credited highly as to her failure to discuss the applications with her husband, however.
Dr. Lynn Carmichael, Chairman of the Department of Family Medicine at the University of Miami Medical School, supervised the Petitioner in the Family Practice service at Jackson Memorial Hospital when Petitioner was a resident there. Petitioner's employment file contains all materials received regarding him including evaluations, letters, applications, etc., and a review of this file reveals that all evaluations rendered on Petitioner over the three years of his residency were above average.
At the time Petitioner applied for the residency program in October, 1982, he listed his medical school as CETEC University. While he was in the residency program, Petitioner consistently performed in an outstanding manner in all six criteria considered and his reputation for truth and veracity, a highly important factor in evaluation, is good.
Dr. Carmichael became aware of the denial of Petitioner's application for licensure after the fact and is aware now of the reasons therefor. Based on his knowledge of the Petitioner, he does not feel that Dr. Chames is a perjurer, or a liar, or would deliberately falsify an application. He was very surprised at the result of the committee hearing because the facts discussed there did not fit in with his evaluation of Petitioner. In fact, his peers at the University Hospital thought so highly of Dr. Chames, that if he had been licensed, the hospital was going to ask him to stay on for a fellowship, for which a license is required. Dr. Carmichael does not consider the listing of the medical school on the application for as a particularly important factor in evaluating foreign medical graduates for the simple reason that these graduates are required to show ECFMG certification which, in fact, the Petitioner was able to do.
Ms. Deborah Miller, an attorney specializing in administrative and governmental law, represented Petitioner in his efforts to apply for licensure in Florida. He was concerned that foreign medical graduates were being unduly scrutinized and discriminated against in the licensing process. In this case, the Board of Medicine had asked Petitioner to waive the 90 days they had to rule one way or another on his application and she looked into this for him. In doing so, she procured the Petitioner's application file and went over it item by item with a representative of the Board. It was after this that Dr. Chames was notified of his requirement to appear before the FMGC, as were most foreign medical graduates and all CETEC graduates.
Ms. Miller wrote to the Board just before the meeting to see if there was anything else in Petitioner's file than that of what she had been notified and was told that there was not. However, an AMA profile on Petitioner was in the file which listed both CETEC and Dominica (Ross) medical schools and this document may not have come to her. In the past, it has been Ms. Miller's experience that the Board does not always give a "full" file upon request, at times holding matters back. Based on what she knew, Ms. Miller had no reason to believe Dr. Chames had concealed anything regarding his application. Had Petitioner told her that he had applied to both CETEC and Dominica (Ross), she would have advised him to amend his application to correctly reflect the situation which could have been done at that time.
On cross examination, Ms. Miller indicated that Petitioner told her that he applied to CETEC and Dominica (Ross) because he had heard of CETEC and was impressed by its good reputation. When he was accepted at CETEC, he dropped all further dealings with Dominica (Ross). He felt the board was concerned more with the courses and rotations not with which school was listed on the application form. This third story regarding Dr. Chames' reasons for switching from Dominica (Ross) to CETEC, clearly establishes that his application forms were consciously filled out; that he knew what he was doing; that his omission was more-than mere oversight; and that he was not particularly concerned with the accuracy of his application and the requirements for forthrightness contained on the face of it.
On all of the reports of rotations and clerkships submitted to Dominica (Ross) during the time he was enrolled there and performing them, Dr. Chames was always highly rated and no adverse comments about his ability, his sensitivity, his patient relationships or his integrity was ever raised. There is no doubt that Dr. Chames possesses the clinical and technical skills necessary to be an excellent physician. He also apparently possesses the sensitivity to patients which separates a healer from a technician.
In substance, then, it is found that Dr. Chames was enrolled for the last two years of his medical education at Dominica (Ross) and completed the course work/rotation/clerkships satisfactorily. Unfortunately for him, Dominica (Ross) required the passing of an examination prior to the award of the medical diploma, which Dr. Chames failed once and chose not to taken again. He found another school, CETEC, that would award him his medical degree upon payment of the required fees on the basis of the work done while a student at Dominica and without any work being done under the auspices or supervision of CETEC at all.
Thereafter, when he applied for licensure in Florida, notwithstanding the fact that the application form clearly required a listing of all medical schools attended, Dr. Chames neglected to list his enrollment at Dominica (Ross), choosing instead, to list only his graduation from CETEC. It is this failure to list Dominica, coupled with the apparently false listing of the true
term of the CETEC enrollment which constitutes the discrepancy of such grave concern to the Board and, the ultimate basis for its denial of Petitioner's application.
Notwithstanding the apparent hostility of the Chairman of the FMGC and his predisposition to vote unfavorably on this Petitioner's application, it would appear that the unfavorable vote was justified and appropriate.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.
In an Order dated April 4, 1986, the Board denied Petitioner's application for examination for licensure as a physician on the grounds that there were discrepancies between his testimony at the FMGC meeting and documentation regarding his medical education. The Board referred Petitioner to Sections 458.331(1)(a) and (2), Florida Statutes, and Section 32, Chapter 85- 175, Laws of Florida. In response, Petitioner erroneously alleged he met all criteria for licensure by endorsement when in reality he meant by examination. This error was subsequently corrected in Petitioner's Amended Petition and the evaluation was based on his eligibility for licensure by examination under Section 458.311.
Dr. Chames disputes the Board's denial basis of discrepancies between testimony and documentation regarding his medical education, denies there were fraudulent or intentional misrepresentations, and asserts that any such discrepancies, do not constitute fraud or misrepresentation. He disputes also that Subsection 458.331(1)(a) and (2) and Chapter 85-175 are applicable to his application for licensure.
An applicant for licensure has the burden of establishing that he is entitled to the license. In Section 458.301, Florida Statutes, the legislature recognized that the practice of medicine is potentially dangerous to the public if conducted by unsafe and incompetent practitioners. Its clear intent was that physicians who fall below minimum competency or who otherwise present a danger to the public should be prohibited from practicing in this state.
The criteria for licensure of physicians by examination are found in Section 458.331, Florida Statutes, which provides that prior to examination, the Board shall certify that any person desiring to be licensed as a physician shall have fulfilled the requirements set forth in the subparagraphs of this section. One of the basic criteria is, as it pertains to graduates of foreign medical schools, an evaluation by the ECFMG or the Board, and passage of the ECFMG examination or the FLEX examination. Dr. Chames satisfactorily completed and passed the ECFMG examination and was so certified to the Board during the evaluation process.
Notwithstanding Petitioner's technical qualifications for examination, Subsection 458.331(2) states:
When the Board finds any person guilty of any of the grounds set forth in Subsection (1), it may enter an order imposing one or more of the following penalties:
(a) Refusal to certify to the department
an application for licensure.
* * *
The Committee concluded at its Sarasota meeting, at which Petitioner testified, that the Petitioner was guilty of a violation of Subsection 458.331(1)(a), which reads:
The following acts shall constitute grounds for which the disciplinary actions specified in Subsection (2) may be taken:
Attempting to obtain, obtaining, or renewing a license to practice medicine by bribery, by fraudulent misrepresentations, or through an error of the department or the Board,...
The Board therefore refused to certify his application. Chapter 85-175, Laws of Florida, is codified in the above-cited section 458.331(1)(a).
The discrepancies relied upon by the Board to deny Dr. Chames the opportunity to sit for the examination in Florida arose out of his testimony at the FMGC meeting in Sarasota in October, 1985. At that meeting, Dr. Chames was asked to clarify the source and location of his medical education, the inconsistency of which appeared in certain application forms he had filed. The factual background to this apparent inconsistency has been explored in great depth in the Findings of Fact portion of this Recommended Order and it was found that Dr. Chames did not attend classes at CETEC; took no courses under the auspices of CETEC but instead was an enrolled student at Dominica (Ross); obtained his degree from CETEC based on the course work taken while a student at Dominica (Ross); and switched schools primarily because he had failed the required examination at Dominica (Ross) and would not be required to take that examination or an equivalent at CETEC.
On the application for the licensure examination in Florida submitted by Dr. Chames, he listed Del Noreste and CETEC as the source of his medical training. No mention whatever was made of Dominica (Ross) on that application when, as a matter of fact, he had taken no courses at CETEC and, it has been found, enrolled there only in November, 1981, approximately one month prior to his graduation. What Dr. Chames apparently forgot, is that on at least one of the applications to take the ECFMG examination he listed Dominica (Ross) along with Del Noreste as his source of medical education and it was this discrepancy which the FMGC was attempting to reconcile at the time it called him before it in Sarasota. His attempts at explanation there and his constant referral to his inability to remember were less than persuasive.
In regard to that meeting, Dr. Chames has contended in his Proposed Recommended Order that he was deprived of both substantive and procedural due process.
As to the latter, Petitioner contends that the Board failed to comply with the provisions of Section 120.60(2), Florida Statutes, which require an agency to, within 30 days after the receipt of an application for a license, notify the applicant of any apparent errors or omissions, and request any additional information the agency is permitted by law to require. Dr. Chames contends that the September 18, 1984 and September 27, 1985 letters to him which outline those documents then required to be submitted fall "considerably short"
of providing him of the reasonable notice of the discrepancies in his documentation and that the FMGC was going to specifically inquire about those discrepancies.
The testimony of Dr. Katims and Ms. Faircloth clearly indicates that the purpose for calling the Petitioner before the FMGC was not to inquire into discrepancies between his applications but more to go into the issue of his graduation from CETEC which, at the time, was subject to scrutiny by the Board. All CETEC graduates were brought before the Board for examination. Dr. Chames was not singled out until he appeared before the Board and failed to present a clear and comprehensive picture of his experience and background. This was admitted by Petitioner's counsel in subparagraph 3 of his proposed Order, entitled Substantive Due Process. At that point Petitioner states, "Petitioner was summoned before the FMGC because of its policy of interviewing all CETEC graduates and not because of any alleged irregularities perpetrated by him." Petitioner further states that it was immediately prior to the onset of questioning that Dr. Katims was informed of the discrepancies in Petitioner's record. Consequently, the issue raised by Petitioner of the 30 day requirement for notification of irregularities is without merit.
With regard to the issue of substantive due process, which relates to the hearing before the FMGC, Petitioner contends that he was not furnished with all documentation in the hands of the Board prior to the meeting and was unable to defend himself properly against the overbearing, intense and unfounded accusations coming from Dr. Katims at that time.
Ms. Miller indicated that in her experience, the Board was not always forthcoming in providing prospective applicants with all information about them in its possession. Though she was unable to give any specific examples of this, Ms. Faircloth, Executive Director of the Board and the individual responsible for the preparation for the meeting, indicated that most of the material information that was in the file at the time of Ms. Miller's request was made available to her or Dr. Chames. The AMA profile was not.
There can be little doubt that the FMGC meeting attended by Dr. Chames was an unpleasant experience for him. Hostility on the part of at least one member was evident. A review of the transcript of that meeting, however, indicates that Dr. Chames' testimony did little to clarify the apparent discrepancies identified by the AMA profile and to rehabilitate his credibility. His answers were evasive, unsure, and confused as well as confusing. This cannot be attributed to the failure to identify the AMA profile prior to the meeting. No trick questions were involved and the issue was simple. What medical schools did he attend and why did he fail to list all on his application form? He knew where he went to school. Knowing that was an issue would have not allowed him to be any more legitimately prepared to answer the committee's questions than he was. On the basis of his presentation at that meeting, in light of his obvious failure to previously comply appropriately with the requirements of the Board as indicated on its application form, the decision to vote unfavorably on his application for examination appears to have been appropriate. It cannot be said that Dr. Chames was in any way deprived of substantive due process.
The evidence presented by Dr. Chames in an effort to rehabilitate his position and demonstrate the inappropriateness of the Board's decision to deny him the opportunity to sit for examination was insufficient. On the one hand, the evidence clearly shows that Dr. Chames, by his demonstrated performance subsequent to the time of the meeting of the FMGC and while a resident in the
family practice service at the University of Miami Medical School, performed as a highly skilled physician whose patient relationships were admirable. He is not only a skilled technician but also a sensitive physician and there is little doubt that technically and emotionally, he would be a good doctor. However, in a field as sensitive as the medical profession, even a talented practitioner must not be in the practice of medicine regardless of his technical qualifications, and clinical and diagnostic skills, if he cannot be relied upon to tell the truth when required. Regardless of how qualified a physician might be, such an individual may well at any time be subject to unknown stresses or pressures which would cause him to be less than forthcoming to the detriment of his patients. It is just this eventuality that the review process of the Board was designed to prevent.
Based on the foregoing Findings of Fact and Conclusions of Law it is, therefore,
RECOMMENDED that Petitioner's current application for examination as a physician in Florida be denied.
RECOMMENDED this 14th day of April, 1987, in Tallahassee, Florida.
ARNOLD H. POLLOCK
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 14th day of April, 1987.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1438
The following constitutes my specific rulings pursuant to Section 120.57(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
By Petitioner
Petitioner failed to number his proposed Findings of Fact. To facilitate identifying them for ruling, I have numbered them consecutively as they appear in the Proposed Recommended Order.
Accepted.
Accepted.
Accepted.
Accepted except for the reason for changing schools which is contrary to the better evidence.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted as to date of filing and schools listed. Rejected as to his reason for failing to list Dominica, Petitioner's different stories as to the point make it impossible to determine why he failed to list Dominica.
Accepted.
Accepted.
Accepted.
Accepted except for words "sting of corruption" which should be "stink of corruption."
Accepted.
Accepted.
Accepted.
Accepted.
Sentence 1 rejected as comment and not a Finding of Fact. Sentence 2 accepted. Sentence 3 & 4 rejected as speculation. Sentence 5 accepted. Sentence 6 rejected as argument. Sentence 7 accepted. Sentence
8 rejected as argument or contrary to the weight of the evidence.
Rejected as contrary to the weight of the evidence.
Rejected as irrelevant except for the last sentence which is argument, not Finding of Fact.
Sentences 1-3 rejected as argument. Sentence 4 et seq. accepted.
By Respondent
Accepted.
Accepted.
Accepted.
Accepted.
First sentence accepted, Second sentence rejected as irrelevant.
Accepted.
Accepted.
Accepted.
Sentences 1 & 2 accepted.
Sentences 1 & 2 rejected as recitations of the evidence. Sentence 3 rejected as contrary to the better evidence. Sentence 4 et seq. are recitations of the evidence and not Finding of Fact.
Rejected as a recitation of the evidence.
Accepted.
No numbered paragraph.
Accepted.
COPIES FURNISHED:
Dorothy Faircloth, Executive Director Florida Board of Medicine
130 North Monroe Street Tallahassee, Florida 32301
Van Poole, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Harold M. Braxtone Esquire Suite 406, Datran Center 9100 South Dadeland Blvd. Miami, Florida 33156
Catherine Lannon, Esquire Department of Legal Affairs Room 1601, The Capitol Tallahassee, Florida 32399-1050
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICINE
ABRAHAM W. CHAMES,
Petitioner,
vs. CASE NO. 86-1438
DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS,
Respondent.
/
FINAL ORDER
The Board of Medicine of the Department of Professional Regulation, after having reviewed the Recommended Order entered in this case by Arnold H. Pollack, Division of Administrative Hearings, on April 14, 1987 (Exhibit A), the Exceptions to the Recommended Order filed by the Respondent (Exhibit B), and after hearing oral argument of the parties and being otherwise fully advised in the premises enters the following Order:
Petitioner was represented by Harold M. Braxton, Esquire, Respondent was represented by M. Catherine Lannon, Assistant Attorney General.
The Board has jurisdiction over this matter pursuant to Section 120.57(1), Florida Statutes and Chapter 458, Florida Statutes.
RULINGS ON EXCEPTIONS FILED BY RESPONDENT
Respondent took Exception to paragraph sixteen (16) of the Findings of Fact of the Recommended Order to the extent that said Finding implied that the Chairman of the Foreign Medical Graduate Committee, Dr. Katims, was referring to the agenda book. The Board finds that this Finding of Fact was not based upon competent substantial evidence in the record, and finds that in addition to reviewing the agenda book Dr. Katims was provided with a copy of the investigative file. The Board of Medicine therefore adopts the Exception to the Recommended Order of the Respondent, for the reasons stated therein, including the reference to pages 35-38 of the transcript.
Respondent took Exception to the statement contained in paragraph forty-two (42) of the Findings of Fact of the Recommended Order wherein it is found by the Hearing Officer that the Chairman of the Foreign Medical Graduate Committee had a predisposition to vote unfavorably on the Petitioner's
application, and argues that this Finding was not based on competent substantial evidence. The Board adopts the Exception of the Respondent and finds upon a review of the complete record and for the reasons set forth in the Respondent's Exception that this Finding was not based upon competent substantial evidence, and strikes the words "and his predisposition to vote favorably on this Petitioner's application" from paragraph forty-two (42) of the Findings of Fact.
The Respondent took Exception to the Hearing Officer's evidentiary ruling found at pages 55-60 of the transcript as a conclusion of law which in erroneous. The Board adopts the Exception filed by Respondent on the basis of the legal argument submitted therein. The Board concludes that it is improper to require a Board Member acting in a quasi-judicial capacity to testify.
The remaining Findings of Fact are adopted by the Board of Medicine, is being based on competent substantial evidence, and
the remaining Conclusions of Law of the Hearing Officer as set forth in the Recommended Order are adopted by the Board.
The Board adopts the Recommendation of the Hearing Officer that the Petitioner's application for examination 85 a physician in Florida be denied. WHEREFORE, the Board hereby orders the Petitioner's Application for Licensure as a physician be denied.
DONE AND ORDERED 22nd day of August, 1987 by the Board of Medicine.
Chairman, Florida Board of Medicine
FILED
| Issue Date | Proceedings |
|---|---|
| Apr. 14, 1987 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 22, 1987 | Agency Final Order | |
| Apr. 14, 1987 | Recommended Order | Discrepancies in application for medical license exam relating to schooling sufficient to deny application even where applicant testified before board regarding his schooling. |
