STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) DOAH CASE NO. 86-4527

) DPR CASE NOS. 0053824

AHMED M. ELMARIAH, M.D., ) 0057164

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on November 13, 1987, at Tallahassee, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. At the hearing, the parties were represented as follows:

For Petitioner: David E. Bryant, Esquire

Bryant, Reeves & Deer

220 East Madison Street, Suite 530 Tampa, Florida 33602

For Respondent: Ahmed M. Elmariah, M.D., pro se

Post Office Box 16473

Panama City, Florida 32406-1473 ISSUES

This is a license discipline case in which the Respondent has been charged by Amended Administrative Complaint with a violation of Section 458.331(1)(1), Florida Statutes (1983), on the basis of allegations that ". . . he is guilty of making deceptive, untrue or fraudulent representations in the practice-of medicine". The Respondent denies all allegations of misconduct.

INTRODUCTION AND BACKGROUND

Prior to the formal hearing in this case, numerous motions and pleadings were filed. All of the prehearing motions have been addressed by previous orders issued by the Hearing Officer. There is, however, one prehearing pleading which was not addressed by prehearing order; namely, a document filed by the Respondent on April 15, 1987, titled "Petition: To The Governor Of The State Of Florida, Counterpetition and Cross-Petition (Counterclaim and Cross- Claim)". By separate order issued today, the pleading described immediately above has been stricken on the grounds that it is an unauthorized and inappropriate pleading.

Another prehearing matter which should be noted is that several motions or pleadings filed by the Respondent assert that the Hearing Officer is biased or

prejudiced against the Respondent or that the Hearing officer has engaged in some misconduct inimical to the Respondent's interests. None of those prehearing motions or pleadings set forth such assertions under oath. None of them specifically requested the disqualification of the Hearing Officer. Such motions and pleadings have been addressed in prior Hearing Officer orders, which orders specifically advised the Respondent of the procedure for seeking disqualification of a Hearing Officer. (See orders of March 24, 1987, August 21, 1987, and November 9, 1987.) No prehearing motion specifically requesting the disqualification of the Hearing Officer was ever filed, nor was any prehearing affidavit setting forth grounds for disqualification ever filed. At the formal hearing on November 13, 1987, the Respondent made an ore tenus request that the Hearing Officer be disqualified. The motion was denied as both untimely and insufficient. (See transcript, pages 36-37 and 40-46.)

At the hearing the Petitioner presented the live testimony of the Respondent and also presented the deposition testimony of four other witnesses. (See Petitioner Exhibits 4, 5, 6, and 7, which consist of the deposition transcripts with deposition exhibits attached.) The Petitioner also offered three other exhibits, which were disposed of as follows: Petitioner's Exhibit 1 was rejected by post-hearing order. Petitioner's Exhibits 2 and 3 were withdrawn at hearing.

The Respondent offered three exhibits (Respondent Exhibits 1, 15, and 16), all of which were received in evidence. The Respondent also described thirteen other proposed exhibits (Respondent Exhibits 2 through 14), which consisted of various documents previously filed as pleadings in this case, but none of those documents were marked or received in evidence, because the Respondent did not come forward with copies of those documents to be marked and offered. (See transcript, pages 145-155.) The Respondent also testified on his own behalf, but did not call any other witnesses.

Following the hearing, a transcript was filed and the parties were allowed until January 19, 1988, within which to file their proposed recommended orders. At the request of the Respondent, the deadline for filing proposed recommended orders was extended until February 16, 1988. On February 18, 1988, the Respondent filed a motion seeking a further extension of the deadline. By order issued February 19, 1988, the motion for further extension was denied, with the following qualification: "That if the Respondent files a late proposed recommended order prior to the issuance of the Hearing Officer's recommended order, such late proposed recommended order will, of course, be considered, but disposition of this case will not be delayed in anticipation of such late-filed proposed recommended order." As of the date of this recommended order, the Respondent has not filed a proposed recommended order. The Petitioner filed a timely proposed recommended order containing proposed findings of fact and conclusions of law. All findings of fact proposed by the Petitioner are addressed in the attached Appendix.

FINDINGS OF FACT

Based on the evidence received at the formal hearing, I make the following findings of fact.

1. The Respondent, Ahmed M. Elmariah, M.D., is a licensed physician in the State of Florida, having been issued license number ME0027974. The Respondent's last known street address is 215 Pine Ridge Drive, Panama City, Florida 32405.

2. During calendar year 1978, the Respondent was a practicing orthopedic physician in Lakeland, Florida. During calendar year 1978 he had staff privileges at Lakeland General Hospital in Lakeland, Florida, and, pursuant to those staff privileges, admitted patients and performed surgery at Lakeland General Hospitals.

   
   

3. By letter dated July 24, 1978, from Luther A. Youngs, III, M.D., President of the Attending Staff at Lakeland General Hospital, the Respondent was notified as follows:

   
   

   This is to inform you that a hearing will be held before the Executive Committee of the Attending Staff of Lakeland General Hospital at 7:00 p.m. on Wednesday, August 2, 1978, in the hospital Board Room, to determine whether disciplinary action should be taken against you on the basis of the following charges:

   [Here followed four paragraphs of charges.] These charges are serious and may result in suspension or revocation of your probational privileges in Orthopedic Surgery.

   
   

4. A regularly scheduled meeting of the entire Medical Attending Staff was held on October 17, 1978. An item on the agenda for that meeting was a proposal that the Respondent's hospital privileges be terminated. Shortly before the commencement of that meeting, the Respondent delivered a letter addressed to Luther A. Youngs, III, M.D., which letter stated. "I hereby resign from membership of the medical attending staff at Lakeland General Hospital as of today Tuesday October 17, 1988". Thereafter the Respondent's resignation was accepted by the Governing Board of Lakeland General Hospital.

   
   

5. Subsequent to the Respondent's resignation from Lakeland General Hospital, on or about June 6, 1979, the Respondent applied to Lake Seminole Hospital in Seminole, Florida, for, staff privileges. As part of the application process at Lake Seminole Hospital, the Respondent was required to fill out an application form. Among the questions on the application form was the following: "Have your privileges at any hospital ever been suspended, diminished, revoked or not renewed?" The question was followed by a "yes" box and a "no" box. The Respondent answered the above-quoted question by placing a typed "x" in the "no" box. When the Respondent submitted his 1979 application to Lake Seminole Hospital, he knew that he had resigned his hospital privileges at Lakeland General Hospital during the pendency of disciplinary proceedings involving allegations that he had improperly or unnecessarily performed various surgeries.

   
   

6. Thereafter, on or about January 25, 1984, the Respondent applied for appointment to the medical staff at Humana Hospital Northside in St. Petersburg, Florida. As part of the application process at Humana Hospital Northside, the Respondent was required to fill out an application form. Among the questions on the form were the following:

   
   

   1. Have your privileges at any hospital ever been suspended, diminished, revoked or not renewed?

   2. Have you ever been denied membership or renewal thereof, or been subject to disciplinary action in any medical organization?

      
      

      The foregoing questions (along with some others) were followed by a "yes" box and a "no" box. The Respondent did not indicate "yes" or "no" in response to either of the questions quoted immediately above on his initial application to Humana Hospital Northside. Instead, he left both of these questions unanswered.

      
      

7. The Respondent was subsequently notified by Humana Hospital Northside that the two questions last quoted above were unanswered on the initial application form and that those questions must be answered in order for the Respondent's application to be processed. Along with that notification, Humana Hospital Northside also provided the Respondent with another blank application form.

   
   

8. The Respondent thereafter furnished to Humana Hospital Northside an application form which was blank, except for a signature at the end and the following typed information: On the first page of the application form were the words "Addendum to Original Application Dated 1/26/84," followed by the name "Ahmed M. Elmariah, M.D." On the third page of the application there was an "x" in each of the "no" boxes corresponding to the following four questions:

   
   

   1. Has your license to practice medicine in any jurisdiction ever been limited, suspended or revoked?

   2. Have your privileges at any hospital ever been suspended, diminished, revoked or not renewed?

   3. Have you ever been denied membership or renewal thereof, or been subject to disciplinary action in any medical organization?

   4. Has your narcotic or dangerous drug certificate ever been suspended or revoked?

   
   

   When the Respondent furnished the above-described addendum to his application, he knew that he had resigned his hospital privileges at Lakeland General Hospital during the pendency of disciplinary proceedings involving allegations that he had improperly or unnecessarily performed various surgeries.

   
   

9. On or about January 26, 1984, the Respondent made a second application for medical staff privileges at Lake Seminole Hospital. Again the Respondent was required to file an application form. The application form included the following questions under Section 16:

   
   

   F. Have your privileges or Staff Membership at any hospital ever been denied, suspended, diminished, revoked, not renewed, or otherwise acted against?

   H. Have you ever been denied membership or renewal thereof, or been subject to disciplinary action, in any medical organization or by any licensing agency of any state or country?

   The foregoing questions (along with some others) were followed by a "yes" box and a "no" box. The Respondent did not indicate "yes" or "no" in response to either of the questions quoted immediately above on his initial 1984 application form submitted to Lake Seminole Hospital. Instead, he left both of those questions unanswered.

   
   

10. The Respondent was subsequently notified by Lake Seminole Hospital that the two questions last quoted above were unanswered on the initial 1984 application form and that those questions had to be answered in order for the Respondent's application to be processed. Along with that notification, Lake Seminole Hospital returned Respondent's initial 1984 application form so that he could complete it.

    
    

11. Shortly thereafter the Respondent returned the initial 1984 application form to Lake Seminole Hospital, where it was received on February 15, 1984. When the Respondent returned the application form on February 15, 1984, there was a typed "x" in each of the two "no" boxes corresponding to the two questions last quoted above. When the Respondent returned his 1984 application to Lake Seminole Hospital on February 15, 1984, he knew that he had resigned his hospital privileges at Lakeland General Hospital during the pendency of disciplinary proceedings involving allegations that he had improperly or unnecessarily performed various surgeries.

    
    

    CONCLUSIONS OF LAW

    
    

12. Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law.

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57, Fla. Stat.

    
    

14. In a case of this nature, the Petitioner has the burden of proving its case by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

15. Section 458.305, Florida Statutes (1983), includes the following definition:

    
    

    458.305 Definitions--As used in this chapter:

    ...

    "Practice of medicine" means the diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical or mental condition.

    
    

16. Section 458.331(1)(1), Florida Statutes (1983), provides that the following act is one for which disciplinary action may be taken:

    
    

    (1) Making deceptive, untrue, or fraud- ulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine when such

    scheme or trick fails to conform to the generally prevailing standards of treatment in the medical community. (emphasis added)

    
    

17. License discipline proceedings are penal in nature. Because of their penal nature, the statutes that authorize the imposition of disciplinary penalties must be strictly construed. Lester v. Dept. of Professional and Occupational Regulation, State Board of Medical Examiners, 348 So.2d 923 (Fla. 1st DCA 1977); Solloway v. Department of Professional Regulation, 421 So.2d 573 (Fla. 3rd DCA 1982). When so construed, it is clear that the underscored portion of Section 458.331(1)(1), Florida Statutes (1983), is limited in its application to certain types of representations made ". . . in the practice of medicine". Therefore, representations made other than in the practice of medicine are not within the scope of the above-quoted statutory provision and cannot be the basis for the imposition of discipli- nary action against a physician.

    
    

18. The rules of statutory construction also provide that, absent specific evidence of some other legislative intent, the words of a statute should be given their plain and ordinary meaning. Harper v. State, 217 So.2d 591 (Fla. 4th DCA 1969); Brooks v. Anastasia Mosquito Control District, 148 So.2d 64 (Fla. DCA 1963); Gasson v. Gay, 49 So.2d 525 (Fla. 1950); Gaulden v. Kirk, 47 So.2d

    567 (Fla. 1950). A related rule of statutory construction is set forth in Florida State Racing Commission v. McLaughlin, 102 So.2d 574 (Fla. 1958), in which the court observed that the Legislature is presumed

    
    

    . . . to have a working knowledge of the English language and when a statute has been drafted in such manner as to clearly convey a specific meaning the only proper function of the Court is to effectuate this legislative intent.

    
    

19. As used in the subject statutory provision the word "in" is a preposition. In the context in which it appears, it is used to indicate "inclusion within" of that which precedes into that which follows. Stated otherwise, as used in the subject statute, the word "in" is a preposition which has the effect of limiting the scope of the action which precedes it ("making .

    . . representations") to actions of the specified type which are "included within" the phrase following the word "in;" i.e., the phrase "the practice of medicine." (See, generally, The Random House Dictionary (1980), at p. 453.). Accordingly, in order for a representation to afford a basis for disciplinary action under Section 458.331(1)(1), Florida Statutes (1983), it must be a representation which occurs within the practice of medicine.

    
    

20. In order to determine what is encompassed by the term "practice of medicine," consideration must be given to the well-settled rule of statutory construction that where the Legislature has defined a word or phrase used in a statute, that definition is normally controlling in determining the construction to be given to the statute. Richard Bertram & Co. v. Green, 132 So.2d 24 (Fla. 3d DCA 1961); Vocelle v. Knight Brothers Paper Company, 118 So.2d 664 (Fla. 1st DCA 1960); Ervin v. Capital Weekly Post, 97 So.2d 464 (Fla. 1957). Accordingly, the term "practice of medicine" as used in Section 458.331(1)(1), Florida

    Statutes (1983), must be given the meaning found in the definitions at Section 458.305, Florida Statutes (1983), which is " . . . the diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical or mental condition."

    
    

21. An application for hospital privileges is not a diagnosis, treatment, operation, or prescription. A specific representation in an application for hospital privileges that the applicant's hospital privileges have never been denied, suspended, diminished, revoked, not renewed, or otherwise acted against is not a diagnosis, treatment, operation, or prescription. Stated otherwise, the representations the Respondent is charged with making were not made in the context of the diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other condition. It might well be said that those representations were made "in preparation for" or "in anticipation of" or "regarding" the "practice of medicine," but it cannot be said that those repre- sentations were made "in" the "practice of medicine," because those representations were not made within the "practice of medicine" as the quoted term is defined by the Legislature. Because those representations were not made in the practice of medicine, they cannot be the basis for a violation of Section 458.331(1)(1), Florida Statutes (1983).

RECOMMENDATION

Based on all of the foregoing, it is recommended that the Board of Medicine enter a final order in this case dismissing all charges against the Respondent.

DONE AND ENTERED this 16th day of May, 1988, at Tallahassee, Florida.

MICHAEL M. PARRISH, 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 16th day of May, 1988.

APPENDIX TO RECOMMENDED ORDER CASE NO. 86-4527

The following are my specific rulings on all of the proposed findings of fact submitted by the parties.

Findings Proposed by Petitioner Paragraphs 1 and 2: Accepted.

Paragraph 3: Rejected as irrelevant or as subordinate, unnecessary details.

Paragraph 4: Rejected as irrelevant and as not established by clear and convincing evidence. (It should be noted that the Amended Administrative Complaint does not allege any negligent acts by the Respondent.)

Paragraph 5: Accepted in substance, with some additional findings.

Paragraph 6: Accepted in substance with certain unnecessary or irrelevant details omitted.

Paragraph 7: Rejected as irrelevant and as not fully supported by clear and convincing evidence.

Paragraphs 8 and 9: Accepted.

Paragraph 10: This paragraph is accepted with the exception of the portions described immediately hereafter. In the penultimate sentence, everything after the second comma is rejected as unnecessarily repetitious. The last sentence is rejected as not being fully in accord with the greater weight of the evidence.

Paragraph 11: Accepted.

Paragraph 12: First sentence rejected as subordinate and unnecessary details. Most of last three lines rejected as repetitious. The remainder of this paragraph is accepted.

Paragraph 13: First five lines accepted. The remainder of this paragraph is rejected as in part irrelevant, in part not supported by persuasive competent substantial evidence, and in part not fully in accord with the greater weight of the evidence.

Findings Proposed by Respondent (None)

COPIES FURNISHED:

David E. Bryant, Esquire Bryant, Reeves & Deer

220 East Madison Street Suite 530

Tampa, Florida 33602

Ahmed M. Elmariah, M.D. Post Office Box 16473

Panama City, Florida 32406-1473

Dorothy Faircloth, Executive Director Board of Medicine

130 North Monroe Street Tallahassee, Florida 32399-0750

William O'Neil, General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 86-004527

Orders for Case No: 86-004527