STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3920

) ARCHBOLD M. JONES, JR., M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled action was held on May 14, 1987 in Tampa, Florida, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: Bruce D. Lamb, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Michael I. Schwartz, Esquire

Suite 100, Capitol Office Center

119 North Monroe Street Tallahassee, Florida 32301

BACKGROUND AND PROCEDURAL MATTERS

On July 31, 1986, the Department of Professional Regulation (DPR) filed its Administrative Complaint alleging that Archbold M. Jones, M.D. (Dr. Jones) violated certain terms of probation provided in a Final Order of the Florida Board of Medical Examiners, and thereby violated subsections 458.331(1)(h) and

(x) F.S.

After a timely request for formal hearing and the referral by DPR to the Division of Administrative Hearings, the Complaint was amended by stipulation of the parties and by Order entered on May 7, 1987.

At the final hearing DPR presented the testimony of five witnesses, including Dr. Jones, and submitted eight exhibits, all of which were received in evidence. Dr. Jones testified in his own behalf and presented the testimony of his wife, Betty H. Jones. His seventeen exhibits were received in evidence.

The parties also submitted one joint exhibit, a stipulation to facts.

A transcript was filed and both parties submitted thorough, well-researched Proposed Recommended Orders. These have been carefully considered and specific rulings on the proposed findings of fact are found in the attached Appendix.

ISSUE

The primary issue for determination is whether Dr. Jones violated provisions of Chapter 458, F.S. by violating terms of his probation, more specifically, those terms requiring attendance at Grand Rounds and monitoring by a local, Board certified pediatrician. If those violations occurred, an appropriate disciplinary action must be determined.

FINDINGS OF FACT

1. Respondent, Dr. Jones, is now, and has been at all relevant periods, a licensed physician in the State of Florida, having been issued license number ME0017104. His practice is located in Seminole, Florida.

   
   

2. On April 21, 1986, a Final Order was entered by the Board of Medical Examiners, resolving by an amended stipulation, a twenty-count Administrative Complaint that had been filed against Dr. Jones on December 1, 1983.

   
   

   Pertinent provisions of the Final order included:

   
   

   1. Placement on probation for a period of five years commencing with the effective date of the order;

      
      

   2. Attendance at Grand Rounds weekly during probation at both All Children's Hospital in St. Petersburg, Florida and the University of South Florida in Tampa, Florida; and,

      
      

   3. Monitoring by a local Board-certified pediatrician, John H. Cordes, Jr., M.D., who was to make visits to Dr. Jones' office every two weeks and to randomly select 15 percent of Dr. Jones' medical charts to verify appropriateness of care and thoroughness of record-keeping.

      
      

3. Dr. Jones was out of the country, in Antigua, when the order arrived, and it was in his office when he returned on May 4, 1986.

   
   

4. Approximately two weeks later, around May 19th, Dr. Jones tried to call Dr. Cordes, the designated monitoring physician, and was told he was out of town. When he reached Dr. Cordes in early June, Dr. Cordes told him that under no circumstances would he serve as his monitoring physician and that he had written a letter to DPR advising them of such.

   
   

5. After making some unspecified and unsuccessful efforts to locate a substitute, Dr. Jones contacted Lewis A. Barness, M.D., Chairman of the Department of Pediatrics at the University of South Florida. In a letter to Dr. Jones dated July 11, 1986, Dr. Barness agreed to review "about ten or fifteen percent of your charts on a biweekly basis." (Petitioner's exhibit #4)

   
   

6. Dr. Jones was out of the country again the last two weeks of July, and the monitoring by Dr. Barness began on August 15, 1986. Dr. Barness was approved by the Board of Medical Examiners as a substitute on August 2, 1986.

   
   

7. Dr. Jones continues to be monitored by Dr. Barness at Dr. Barness' office at the University. Dr. Jones brings his appointment book (although Dr. Barness never reviews it) and his charts, and Dr. Barness pulls, at random, fifteen to twenty percent of the charts and reviews them.

8. Grand Rounds, lectures on pediatric medical topics, are held at 8:00

   A.M. on Fridays at the University of South Florida Medical Center, and at 12:30

   P.M. on Fridays at All Children's Hospital.

   
   

9. Between his receipt of the Final Order and June 15, 1986, (the date specified in the amended complaint) Dr. Jones never attended Grand Rounds at the University of South Florida. He attended once, June 6th, during this period at All Children's Hospital.

   
   

10. The basis for non-attendance is specified for each Friday session during the relevant period as follows:

    
    

11. May 9, 1986 (the first Friday after Dr. Jones returned and saw the Final Order)--Dr. Jones' van was broken. His wife, a part-time employee at an interior design shop, was called in for work that day, so he did not have transportation. Further, he met with the mother of one of his patients at noon on this date.

    
    

12. May 16 and 23, 1986--Dr. Jones' recently-widowed mother was visiting, and since she was also quite ill, he spent time with her. Further, Grand Rounds were cancelled at the University of South Florida on May 16th.

    
    

13. May 30, 1986--Dr. Jones' van was again broken and his wife was called to work leaving him without transportation.

    
    

14. June 6, 1986--Dr. Jones awoke with gastroenteritis, so he did not attend the morning session at the University of South Florida; he did attend the session at All Children's Hospital.

    
    

15. June 13, 1986--Grand Rounds were cancelled at the University of South Florida on this date. Dr. Jones decided to take his children to Disney World as they lived out of state and were leaving the next day.

    
    

16. June 15, 1986 was the close of the relevant period regarding attendance at Grand Rounds, according to the Administrative Complaint, as amended. From the testimony and evidence, I am unable to determine conclusively whether Dr. Jones has attended regularly since that date.

    
    

17. Except for weekends and the trips out of country, Dr. Jones continued to practice medicine as a pediatrician between April 21, 1986 and July 1986, the date of the Administrative Complaint. He stipulated that he understood the terms and conditions of the Board's Order regarding probation. His testimony at the hearing revealed that he was thoroughly familiar with the details of the order.

    
    

18. Nevertheless, he violated the terms of probation. Although he knew that the Board had approved the Stipulation in January 1986, and that the stipulation specified Dr. Cordes as the monitoring physician, he waited until the last minute (two weeks after he received the order) to contact Dr. Cordes about commencing the monitoring. While Dr. Cordes' refusal to participate is not attributable to Dr. Jones, the delay in obtaining a substitute could clearly have been eliminated with better planning by Dr. Jones.

    
    

19. Technically, the monitoring conducted by Dr. Barness does not comply with the terms of the probation order, as Dr. Jones brings the charts to him for review. Dr. Barness has impressive credentials and is understandably unable to

    visit Dr. Jones' office every two weeks. However, Dr. Jones admitted that he never asked the Board to modify the terms of his probation in that regard.

    
    

20. Dr. Jones' lack of judgment regarding the terms of probation is also reflected in his uncontroverted excuses for non-attendance at Grand Rounds.

    With the obvious exception of the cancellation of the lectures, the excuses fail to mitigate the violations.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this proceeding. Subsections 120.57(1) F.S. and 455.225(4) F.S.

    
    

22. The Board of Medical Examiners (now designated the Board of Medicine) is empowered to revoke, suspend, or otherwise discipline the license of any physician who commits any of the violations described in subsection 458.331(1) F.S., including the following pertinent provisions:

    
    

    * * *

    (h) Failing to perform any statutory or legal obligation placed upon a licensed physician.

    * * *

    (x) 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.

    
    

23. The Final Order previously entered by the Board of Medical Examiners is a lawful order of the Board previously entered in a disciplinary hearing. Subsection 120.57(3) F.S. Dr. Jones had a legal obligation to comply with that order.

    
    

24. The facts were virtually uncontroverted in this proceeding. From the time that he received the order until June 15, 1986 (approximately six weeks), Dr. Jones attended only one Grand Round lecture. From the time that he received the order until August 15, 1986 (approximately 3-1/2 months), Dr. Jones practiced medicine unsupervised. His current supervision is a technical violation of the terms of probation, as his monitoring physician does not visit his office.

    
    

25. His failure to comply with the order of the Board constitutes a violation of Subsections 458.331(1)(h) and (x)

    
    

26. In this case, as argued by counsel for Dr. Jones, it is appropriate to treat the violations of probation the same as any other alleged statutory violation. See DPR v. William McDonald, M.D., 8 FAIR 4464 (DOAH # 85-2514, Final Order entered 7/29/86)

    
    

27. In certain cases of violations of probation, the Respondent has been previously found guilty of substantive violations and has been placed on probation in lieu of other penalties. This is not the instant case. Here, the prior proceeding was resolved by agreement of the parties and without an

    admission or finding of guilt. The penalty, therefore should relate only to the violations actually found (the violations of probation) and not the violations alleged in the previous proceeding.

    
    

28. Dr. Jones' case consisted of explanations as to why the lack of supervision was not his fault and why the non-attendance at Grand Rounds was unavoidable. He also presented detailed testimony regarding compliance with other terms of probation, notably regarding continuing medical education through attendance at various conferences and short courses.

    
    

29. Dr. Jones' explanations fell short of mitigating the violations of probation and evinced a consistent lack of judgment in failing to strictly live up to his end of the stipulation or to obtain a modification of the agreement.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Medicine enter a final order:

1. Finding that Respondent, Archbold M. Jones, M.D. violated subsections 458.331(1)(h) and (x) F.S..

   
   

2. Suspending Dr. Jones' license for three months (conforming to the approximate period that he practiced without supervision).

   
   

3. Requiring Dr. Jones to appear before the Board with Dr. Barness to outline the details of the monitoring process and insure that proper review can be made at Dr. Barness' office, rather than Dr. Jones' office.

   
   

4. Providing for Dr. Jones' immediate notification to the Board in the event Dr. Barness is unable to continue with monitoring consistent with the Board's direction.

   
   

5. Outlining specific guidelines for excused non-attendance at Grand Rounds and providing for notification by Dr. Jones to the Board each time he fails to attend, and the reason for such failure.

   
   

6. Providing that future violations will result in nullification of the stipulation and immediate proceeding on the original multi-count complaint.

   
   

7. Providing that all other terms and conditions of the April 21, 1986 Order remain in full force and effect.

DONE and RECOMMENDED this 6th day of July, 1987 in Tallahassee, Florida.

MARY CLARK

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 July, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3920

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

Petitioner's Proposed Findings of Fact

1. Adopted in paragraph #1.

Respondent's Proposed Findings of Fact

1. Adopted in paragraph #1.

2-3. Adopted in substance in paragraph #2.

1. The closing date is addressed in paragraph #7, however the June 15, 1986, date relates only to attendance at Grand Rounds and not to the period during which monitoring did not occur. (See motions to amend complaint.)

2. Adopted in paragraph #3.

3. Adopted in paragraph #6.

7-15. Adopted in substance in paragraph #7. However, the characterization of a "medical emergency" in paragraph #9 is unsupported by the record, as are the characterizations, "justification" for not attending Grand Rounds and "legitimately prevented" from attendance. Respondent was not unable to attend Ground Rounds, except when the rounds were cancelled. He chose rather not to attend for various reasons which to him were more important than his attendance.

1. Adopted in paragraph #4.

2. Adopted in paragraph #5, except however the "diligence" of the search was not established by competent credible evidence.

3. Adopted in substance in paragraph #5. 19-27. Rejected as irrelevant and unnecessary.

1. Rejected as unsupported by competent, substantial evidence.

2. Rejected as immaterial.

3. Rejected as contrary to the weight of the evidence.

4. Adopted in paragraph 9.

5. Rejected as cumulative and unnecessary. The "diligence" is unsupported by competent credible evidence.

6. Rejected as immaterial.

COPIES FURNISHED:

Dorothy Faircloth, Executive Director Board of Medical Examiners Department of Professional

Regulation

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, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Bruce D. Lamb, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Michael I. Schwartz, Esquire Suite 100, Capitol Office Center

119 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 86-003920

Orders for Case No: 86-003920