STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3572

)

FAHMY M. RIZK, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

For Petitioner: David D. Bryant, Esquire, of Tampa

For Respondent: Salvatore A. Carpino, Esquire, of Tampa

In this case, Petitioner, Department of Professional Regulation, charges that, in the year ending approximately February 2, 1986, Respondent, Fahmy M. Rizk, M.D., violated a probation order of the Board of Medical Examiners which provided, in pertinent part, that Respondent "shall examine or treat female patients only with the constant attendance of a licensed physician or nurse." A formal administrative hearing was held in Ft. Myers on December 18, 1986.

Petitioner ordered the preparation of a transcript of the final hearing which was not filed until February 26, 1987. The parties asked for and received 30 days from the filing of the transcript in which to file proposed recommended order.

FINDINGS OF FACT

1. The Respondent, Fahmy M. Rizk, M.D., is a licensed physician in the State of Florida, having been issued license number ME0028230. The Respondent is engaged in the practice of medicine at 117 San Carlos Boulevard, Ft. Myers Beach, Florida 33931.

   
   

2. A formal hearing was held on August 22, 1978, before a hearing officer of the Division of Administrative Hearings, which resulted in a Recommended Order to the Board of Medical Examiners. The Recommended Order, with findings of fact and conclusions of law, was adopted as the Final Order of the Board of Medical Examiners on October 27, 1978, resulting in the suspension of Respondent's license for two (2) years.

   
   

3. Respondent petitioned for reinstatement and modification of the suspension by Petition For Reinstatement And Modification Of Suspension heard on October 25, 1980, in Tampa, Florida. The petition resulted in a Final Order of the Board of Medical Examiners, entered on November 19, 1980, accepting a proposed Stipulation executed by the Respondent, Fahmy M. Rizk, M.D., on November 1, 1980. In the Stipulation, Respondent agreed, among other things:

   
   

   1. I shall be placed on a probationary status throughout the remainder of my

      practice of medicine in the State of Florida. During this period of probation, I shall be subject to the following terms and conditions:

      * * *

      (c) I shall examine or treat female patients only with the constant attendance of a licensed physician or nurse.

      
      

4. Under the Final Order of the Board of Medical Examiners dated November 19, 1980, pursuant to the Stipulation executed by the Respondent on November 1, 1980, Respondent was reinstated to practice medicine in the State of Florida, based upon the requirements in the Stipulation.

   
   

5. On June 6, 1981, the Board of Medical Examiners heard Respondent's request to practice medicine outside of a structured medical environment, and the request was denied June 26, 1981.

   
   

6. On December 6, 1981, Respondent again requested of the Board of Medical Examiners a modification of his probation terms and conditions to once more practice outside of a structured medical environment, and the request was denied by Order dated January 14, 1982.

   
   

7. On June 6, 1982, Respondent petitioned the Board of Medical Examiners for termination of his probation status, and the request was denied by Final Order of the Board of Medical Examiners on June 15, 1982.

   
   

8. Again, on December 3, 1983, Respondent petitioned the Board of Medical Examiners to terminate his probation, and the request was denied by Order of the Board of Medical Examiners on January 13, 1984. However, Respondent's orders of probation were modified to relieve Respondent of the requirement that he make semiannual appearances before the Board and to reduce his monitoring physician's reporting from monthly to quarterly.

   
   

9. In the year ending approximately February 2, 1986, Respondent examined or treated female patients without the attendance of either a licensed physician or a nurse, licensed or unlicensed.

   
   

10. Respondent knew that he was required to have either a licensed physician or nurse in attendance when he examined or treated female patients.

    
    

11. Between January and June, 1983, Respondent hired a nurse who was not licensed in Florida for $3.50 an hour to be in attendance when he examined or treated female patients. He misrepresented to Petitioner's investigator that the nurse was licensed in Florida and that she worked for Respondent through 1985. In April, 1985, Respondent also attempted to avoid the conditions of his probation by attempting to persuade Petitioner's investigator that the conditions of his probation had been modified to permit him to examine and treat female patients as long as another female was present although no such modification had been made.

    
    

12. Much of the incriminating evidence Petitioner presented consisted of statements Respondent made to Petitioner's investigator. These statements were made voluntarily after the investigator informed Respondent that he was not obligated to speak to the investigator.

    CONCLUSIONS OF LAW

    
    

13. Section 458.331, Florida Statutes (1985), provides in pertinent part:

    
    

    1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken.

       * * *

       1. Failing to perform any statutory or legal obligation placed upon a licensed physician.

          * * *

       2. Violating any provision of this chapter, a rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the department.

       * * *

       
       

    2. 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:

       1. Refusal to certify to the department an application for licensure.

       2. Revocation or suspension of a license.

       3. Restriction of practice.

       4. Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.

       5. Issuance of a reprimand.

       6. Placement of the physician on probation for a period of time and subject to such conditions as the board may specify, including, but not limited to, requiring the physician to submit to treatment, to attend

    continuing education courses, to submit to reexamination, or to work under the supervision of another physician.

    
    

14. The evidence was sufficient to prove that Respondent violated Section 458.331(1)(h) and (x), Florida Statutes (1985), by examining or treating female patients without a licensed physician or nurse present, as required by previous orders of the Board of Medical Examiners.

    
    

15. Evidence of Respondent's statements to Petitioner's investigator is admissible.

    
    

16. The investigator informed Respondent that he was not obligated to speak to him. Respondent voluntarily made the statements to the investigator. The opinion in State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973), does not, and should not be extended to, require agency

    investigators to inform licensees under investigation that they have a "fifth amendment right" or that they have a "right to an attorney" in order for the licensee's statements to be admissible in administrative proceedings, even license discipline proceedings. Informing the licensee that he has the right not to say anything to the investigator is enough. Respondent's Motion In Limine, served on December 18, 1986, raising this issue, is denied.

    
    

17. In addition, contrary to Respondent's argument, it was not incumbent upon Petitioner to prove "the corpus delicti" by proof other than Respondent's admissions. The "corpus delicti rule" does not apply in administrative proceedings. Florida Department of Law Enforcement v. Dukes, 484 So.2d 645 (Fla. 4th DCA 1986).

    
    

18. On December 18, 1986, Respondent also served his Motion To Dismiss (Failure To Follow Section 120.60). Respondent argues that the Board's November 19, 1980, Final Order, incorporating the November 1, 1980, Stipulation that Respondent remain on probation for the remainder of his practice of medicine and examine and treat females only when a licensed physician or nurse is in attendance, was entered in violation of Section 120.60, Florida Statutes (1985). But since it was entered on Respondent's Stipulation (which resolved Respondent's Petition For Reinstatement And Modification Of Suspension), Respondent effectively waived any further requirements under Section 120.60. Gonzalez v. Department of Health and Rehabilitative Services, 418 So.2d 1128 (Fla. 1st DCA 1982), is distinguishable and does not invalidate the November 19, 1980, Final Order.

    
    

19. There was no evidence that would form a basis to go behind the terms of the Stipulation itself and decide that the Stipulation should be invalidated for being less than knowing and voluntary. It must therefore be concluded on this record that Respondent knowingly and voluntarily chose to enter into the Stipulation instead of challenging the legality of a denial of his petition for reinstatement at the end of the suspension period he was serving. Cf. Section 458.331(3), Florida Statutes (1985).

RECOMMENDATION

Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Board of Medical Examiners enter a final order holding Respondent, Fahmy M. Rizk, M.D., guilty of violating Section 458.331(1)(h) and (x), Florida Statutes (1985), and suspending his license until payment of a

$1000 fine, payable in not more than 90 days.

DONE AND ORDERED this 6th day of April, 1987 in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3572

These rulings on the parties' proposed findings of fact are made to comply with Section 120.59(2), Florida Statutes (1985).

1. Petitioner's Proposed Findings of Fact.

   
   

   1.-8. Accepted and incorporated. 9.-24. Subordinate to facts found. 25.-27. Accepted and incorporated.

   28.-66. Subordinate to facts found. (It should be noted that "Dr. Murphy," as indicated in the transcript and referred to in proposed finding 29, should be Dr. Mufdi, according to the Hearing Officer's notes.)

   
   

2. Respondent's Proposed Findings of Fact.

1.-4. Accepted and incorporated.

5.-6. Accepted but subordinate to facts found and unnecessary.

1. Last sentence rejected as erroneous conclusion of law; rest accepted and subordinate to facts found.

2. Accepted but subordinate to facts found and unnecessary.

9.-13. Accepted but subordinate to facts found.

1. Rejected that the advice was "in spite of the official policy and procedures" because proof was that the advice was in accordance with the official policy and procedures.

2. Rejected as contrary to the greater weight of the evidence to the extent it implies she was Respondent's only nurse. The evidence was Respondent told Potter that Cordias was part-time and worked when Muskatello was off. Also subordinate as a recitation of testimony.

16.-17. Accepted but subordinate and unnecessary.

1. Rejected as contrary to the greater weight of the evidence. (Other matters were discussed, too.) Also subordinate.

2. Last sentence rejected, as contrary to the greater weight of the evidence, that those were the only matters discussed; rest rejected in part as erroneous conclusions of law as to the existence of a "fifth amendment privilege" and "right to an attorney" and in part as contrary to the finding that Potter did advise Respondent of his right to remain silent but otherwise accepted and subordinate to facts found.

3. If "medical office" means "examination room," accepted but subordinate and unnecessary.

4. First sentence accepted but subordinate to facts found; as to the second sentence, Potter's testimony was that in October, 1985, Respondent said Muskatello had not worked for him in the last

   four months; third sentence rejected as contrary to the finding that Respondent told Potter that Muskatello worked for Respondent through 1985 (although the transcript of the final hearing will reflect that Potter's testimony was not presented in a clear and readily understandable manner); last sentence subordinate to facts found.

5. Subordinate in part to facts found and in part to facts contrary to facts found. Again, the transcript of the final hearing will reflect that Potter's testimony was not presented in a clear and easily understandable manner. It is equally clear that the facts found could have been proved more easily by evidence in addition to Respondent's admissions. But, as found, the evidence as a whole was sufficient to prove both that Mrs. Rizk was not a nurse, licensed or unlicensed, and that Respondent did examine or treat female patients in the year ending approximately February 2, 1986, without a licensed physician or nurse, licensed or unlicensed, being in attendance.

6. Rejected as contrary to facts found.

COPIES FURNISHED:

David D. Bryant, Esquire 1107 D. Jackson Street Suite 104

Tampa, Florida 33602

Salvatore A. Carpino, Esquire FREEMAN & LOPEZ, P.A.

4600 West Cypress Avenue Suite 410

Tampa, Florida 33607

Dorothy Faircloth Executive Director

Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32399-0750

Van Poole Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Joseph A. Sole General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 86-003572

Orders for Case No: 86-003572