STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 86-3518

) WARREN B. MULHOLLAN, D.O., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on April 24, 1987, in Clearwater, Florida. The issue for determination in this proceeding is whether respondent's license as an osteopathic physician is subject to disciplinary action for the reasons set forth in the Administrative Complaint filed on July 30, 1986.

APPEARANCES

For Petitioner: David E. Bryant, Esquire

Alpert, Josey, Grilli & Paris, P.A. Ashley Tower, Suite 2000

100 South Ashley Drive Tampa, Florida 33602

For Respondent: Warren B. Mulhollan, D.O.

2458 Enterprise Road, Apartment 6

Clearwater, Florida 33515 INTRODUCTION

By Administrative Complaint filed on July 30, 1986, respondent is charged with violating Section 459.015(1)(s), Florida Statutes, by being unable to practice osteopathic medicine with reasonable skill and safety to patients by reason of a mental or physical condition. More specifically, it is alleged that respondent suffered several ischemic attacks and a mild stroke which have resulted in a decrease in his attention span and ability to concentrate. In support of its position, the petitioner presented the testimony of Alfred E. Fireman and Peter J. Spoto, both of whom are physicians licensed to practice in Florida and both of whom were accepted as expert witnesses in the area of psychiatry. Petitioner also presented the testimony of Beth Christie and Walter

1. Hughes, both of whom are investigators in the Allied Health Division of the Department of Professional Regulation. Petitioner's Exhibits 1 and 2 were received into evidence.

   
   

   The respondent testified in his own behalf.

   Subsequent to the hearing, counsel for the petitioner filed a proposed recommended order. Many of the proposed findings of fact submitted by the petitioner contain summaries or recitations of the testimony of the five witnesses in this proceeding. While such summaries are an accurate representation of the testimony received at the hearing, and are thus accepted, the undersigned does not deem it necessary to include each proposed factual finding in this Recommended Order on the grounds that they are either repetitious, cumulative or unnecessary for a determination of the issues in this proceeding.

   
   

   FINDINGS OF FACT

   
   

   Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

   
   

   1. At all times relevant to this proceeding, respondent Warren B. Mulhollan has been licensed as an osteopathic physician in Florida. His license number is OS 0000896.

      
      

   2. At some time in the recent past, respondent was placed on probation. One of the terms of his probation was that he acquire continuing education credits. The Order of probation was not offered into evidence.

      
      

   3. In April of 1985, respondent was working in a Chinese acupuncture clinic approximately two days a week performing physical examinations and preparing patient histories. He was not writing prescriptions. At the time of the hearing, he was not practicing osteopathic medicine and does not now desire to do so, though he does wish to maintain his license. The respondent is 77 years of age.

      
      

   4. The respondent did suffer a stroke and has had several transient ischemic attacks over the past few years. For a period of time, he was unable to concentrate and his attention span was limited. He communicated this fact to the Department and requested that he be excused from compliance with the continuing education requirements of the Board. Apparently, the Board never excused the respondent from such requirements.

      
      

   5. Respondent was examined by two psychiatric physicians in the latter months of 1985 and in April of 1986. It was their understanding from discussions with respondent that he did not desire to have the ability to maintain a practice in the traditional setting. Both physicians were of the opinion that if respondent is unable to pursue continuing education and stay current in his field, he should not practice osteopathic medicine.

      
      

   6. According to the respondent, his former lack of concentration was due to eye strain. He states that after getting a new pair of glasses, he has no trouble concentrating. He does not wish to maintain a practice of osteopathic medicine in a traditional setting. However, he does desire to retain his license because he takes pride in his past accomplishments in the community, and he enjoys lunching and associating with other doctors and attending lectures and seminars at the Suncoast Hospital. He is willing to maintain a probationary- type practice, file monthly affidavits with the Board and comply with continuing education requirements.

      CONCLUSIONS OF LAW

      
      

   7. The respondent is charged with a violation of Section 459.015(1)(s), Florida Statutes, which reads, in relevant part:

      
      

      "Being unable to practice osteopathic medicine with reasonable skill and safety to patients by reason of illness

      ... or as a result of any mental or physical condition ... An osteopathic physician affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that he can resume the competent practice of osteopathic medicine with reasonable skill and safety to patients.

      ..."

      
      

   8. As the licensing agency which seeks to impose disciplinary action against the respondent, the petitioner carries the burden of proof to establish that Dr. Mulhollan is unable to practice with reasonable safety and skill to his patients. The evidence adduced by the petitioner, and confirmed by the respondent's own testimony, demonstrates that for at least a period of time, respondent's physical condition or illness prevented him from completing continuing education courses due to his inability to concentrate and shortness of attention span. Obviously, a physician who cannot concentrate or stay current in his field should not be treating patients. Dr. Mulhollan appears to recognize that fact. He was not treating patients in the traditional manner at the time of the Administrative Complaint, nor does he now desire to do so. In effect, he has voluntarily limited his practice of osteopathy and does not intend to reestablish such a practice. He is willing to remain on a probationary status in order to retain his license. Given the very limited extent to which Dr. Mulhollan desires to engage in practice, as well as his own acknowledgment of his physical limitations, it is concluded that the retention of his license on a probationary status with constant supervision would present no danger to any patients he may see.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent be placed on probation for a period of five (5) years, and that the conditions of probation include the requirements that he attend continuing education courses, that any type of practice in which he engages be performed in a supervised, clinical-type setting with other physicians in the immediate area and that he submit to the Board of Osteopathic Medical Examiners verified, monthly reports setting forth any hours of osteopathic practice engaged in by him, as well as the names of patients and treatment rendered.

DONE and ORDERED this 17th day of August, 1987, in Tallahassee, Florida.

DIANE D. TREMOR

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 17th day of August, 1987.

COPIES FURNISHED:

David E. Bryant, Esquire Alpert, Josey, Grilli &

Paris, P.A.

Ashley Tower, Suite 2000

100 South Ashley Drive Tampa, Florida 33602

Warren B. Mulhollan, D.O. 2458 Enterprise Road, Apt. 6

Clearwater, Florida 33515

Rod Presnell, Executive Director Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

=================================================================

AGENCY FINAL ORDER

================================================================= BEFORE THE BOARD OF OSTEOPATHIC MEDICAL EXAMINERS

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. DPR CASE No.: 0062499

DOAH CASE No.: 86-3518

WARREN B. MULHOLLAN, D.O.,

Respondent.

/

FINAL ORDER

Respondent, Warren B. Mulhollan, D.O., is a licensed osteopathic physician in the State of Florida, having been issued license No. OS 0000896. Petitioner filed an Administrative Complaint seeking suspension, revocation, or disciplinary action against the licensee.

Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. The Recommended Order has been forwarded to the Board pursuant to Section 120.571, F.S.; it is attached to and made a part of this Order.

The Board of Osteopathic Medical Examiners met one September 19, 1987, in Tampa, Florida to take final agency action. The Petitioner was represented by David E. Bryant, Esquire; the Respondent was neither present nor represented. The Board has reviewed the entire record in the case.

The Board adopts the findings of fact, conclusions of law, and of the recommended order. With regard to the recommended penalty, the Board increases the penalty as follows:

1. That during the period of probation Respondent shall, in addition to the terms contained in the recommended order, appear before the Board at the first meeting follow the filing of this final order, and thereafter shall appear semi- annually until the termination of probation;

   
   

2. That during the probationary period, I shall practice under the direct supervision of a physician approved by the Board. Respondent's supervisor shall provide monthly reports to the Board regarding Respondent's progress;

   
   

3. That Respondent pay an administrative fine to the Board in the amount of

$1,000.00 within 30 days from the filing of this final order.

With regard to the continuing education, Respondent shall be required to complete such continuing education as necessary for license renewal.

Wherefore it is hereby ORDERED that Respondent be on probation for a period of five (5) years during which time he shall meet all conditions listed above; that Respondent complete all continuing education necessary for renewal of his license; and that Respondent pay an administrative fine in the amount of

$5,000.00 to the Board within 30 days of the filing of this order. This order takes effect upon filing.

This Order may be appealed by filing notices of appeal and a filing fee, as set out in Section 120.68(2), F.S. and Florida Rule of Appellate Procedure 9.110(b)(c) within 30 days of the date of filing.

DONE AND ORDERED this 30th day of October, 1987.

BOARD OF OSTEOPATHIC MEDICAL EXAMINERS

LUIS F. BARROSO, CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was furnished by hand to Leslie Brookmeyer, Esquire, Department of Professional Regulation, 130 North Monroe Street, Tallahassee, Florida 32301, by Certified Mail to Warren B. Mulhollan, D.O., 2428 6th Enterprise Road, Clearwater, Florida 33515, and by

1. Mail to Diane D. Tremor, Hearing Officer, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida 32301 this 30th day of October, 1987.

   
   

   
   

   
   

   =================================================================

   AMENDED AGENCY FINAL ORDER

   ================================================================= BEFORE THE BOARD OF OSTEOPATHIC MEDICAL EXAMINERS

   DEPARTMENT OF PROFESSIONAL REGULATION,

   
   

   Petitioner,

   
   

   vs. DPR CASE No.: 0062499

   DOAH CASE No.: 86-3518

   WARREN B. MULHOLLAN, D.O.,

   
   

   Respondent.

   /

   
   

   AMENDED FINAL ORDER

   
   

   Respondent, Warren B. Mulhollan, D.O., is a licensed osteopathic physician in the State of Florida, having been issued license No. 0S 0000896. Petitioner filed an Administrative Complaint seeking suspension, revocation, or disciplinary action against the licensee.

   
   

   Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. The Recommended Order has been forwarded to the

   Board pursuant to Section 120.571, F.S.; it is attached to and made a part of this Order.

   
   

   The Board of Osteopathic Medical Examiners met on September 19, 1987, in Tampa, Florida to take final agency action. The Petitioner was represented by David E. Bryant, Esquire; the Respondent was neither present nor represented. The Board has reviewed the entire record in the case.

   
   

   The Board adopts the findings of fact, conclusions of law, and of the recommended order. With regard to the recommended penalty, the Board increases the penalty as follows:

   
   

   1. That during the period of probation Respondent shall, in addition to the terms contained in the recommended order, appear before the Board at the first meeting follow the filing of this final order, and thereafter shall appear semi- annually until the termination of probation;

      
      

   2. That during the probationary period, I shall practice under the direct supervision of a physician approved by the Board. Respondent's supervisor shall provide monthly reports to the Board regarding Respondent's progress;

      
      

   3. That Respondent pay an administrative fine to the Board in the amount of

$1,000.00 within 30 days from the filing of this final order.

With regard to the continuing education, Respondent shall be required to complete such continuing education as necessary for license renewal.

Wherefore it is hereby ORDERED that Respondent be on probation for a period of five (5) years during which time he shall meet all conditions listed above; that Respondent complete all continuing education necessary for renewal of his license; and that Respondent pay an administrative fine in the amount of

$1,000.00 to the Board within 30 days of the filing of this order. This order takes effect upon filing.

This Order may be appealed by filing notices of appeal and a filing fee, as set out in Section 120.68(2), F.S. and Florida Rule of Appellate Procedure 9.110(b)(c) within 30 days of the date of filing.

DONE AND ORDERED this 8th day of December, 1987.

BOARD OF OSTEOPATHIC MEDICAL EXAMINERS

LUIS F. BARROSO, CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was furnished by hand to Leslie Brookmeyer, Esquire, Department of professional Regulation, 130 North Monroe Street, Tallahassee, Florida 32301, by Certified Mail to Warren B.

Mulhollan, D.O., 2428 6th Enterprise Road, Clearwater, Florida 33515, and by

U.S. Mail to Diane D. Tremor, Hearing Officer, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida 32301 this 8th day of December, 1987.

Docket for Case No: 86-003518

Orders for Case No: 86-003518