STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

MEDICAL EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 87-0401

)

RICHARD A. WHITTINGTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, formal hearing in this cause was held in Miami, Florida, on October 13, 1987, before Ella Jane P. Davis, the duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Peter S. Fleitman, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Robert S. Turk, Esquire

Suite 3400, One Biscayne Tower

2 South Biscayne Boulevard Miami, Florida 33131

ISSUE

By a three Count Administrative Complaint filed August 22, 1987, Petitioner sought to discipline Respondent's medical license. Counts II and III were voluntarily dismissed ore tenus at the commencement of formal hearing and they are therefore dismissed as a matter of law. The remaining Count I alleges violations of Section 458.327(1)(c), Florida Statutes, attempting to obtain or obtaining a license to practice by a knowing misrepresentation and of Section 458.331(1)(a), Florida Statutes, by attempting to obtain, obtaining or renewing a license to practice medicine by bribery, fraudulent misrepresentations or through an error of the Board of Medicine.

BACKGROUND AND PROCEDURE

Petitioner presented the oral testimony of Respondent as an adverse witness and introduced deposition testimony of 5 other witnesses. Petitioner had 5 exhibits (including depositions) admitted in evidence. Respondent testified on his own behalf and presented the oral testimony of 4 other witnesses, John C. McCloskey, Dr. John K. Robinson, Dr. William M. Straight, and Hilda Bengochea and the deposition testimony of 1 other witness. Respondent had 5 exhibits

(including one deposition) admitted in evidence. The Joint Prehearing Stipulation was admitted as Hearing Officer Exhibit A.

The transcript in this cause was duly filed and the parties timely filed their respective proposed findings of fact and conclusions of law, the findings of fact of which have been ruled on in the Appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 458, Florida Statutes.

   
   

2. Respondent is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued license number 0040981. Respondent's last known address is 555 Biltmore Way, Suite 201, Coral Gables, Florida 33134.

   
   

3. On or about May 11, 1982, Respondent submitted an application to the Florida Board of Medical Examiners for licensure to practice medicine in the State of Florida.

   
   

4. Based on the application, Respondent was granted licensure by endorsement and was issued Florida Medical License ME 0040981 from the Board of Medicine in September, 1982.

   
   

5. On the above-mentioned application Respondent represented that he had attended Universidad Nacional Pedro Henriguez Urena (UNPHU) from January 1975 to January 1979 and that he had attended Universidad Centro de Estudios Technicos Medical School (CETEC) between January 1979 and December 1980. Respondent further failed to include his attendance at Instituto Technologico de Santo Domingo Medical School (INTEC) between approximately October 1979 and June 1980 (approximately 8 or 9 months).

   
   

6. Respondent's actual attendance at UNPHU was from January 1975 to June 1979. From June 1979 to October 1979 Respondent was to all intents and purposes on summer vacation. He was in attendance at INTEC from October 1979 to June 1980 and at CETEC from June 1980 to December 1980. All of these medical schools are physically located in the Dominican Republic.

   
   

7. In September, 1979 Respondent had applied for a transfer from UNPHU to INTEC. He was accepted in September, 1979 and began his course of study at INTEC in 0ctober, 1979.

   
   

8. INTEC required that, in order for Respondent to graduate from that institution, he must repeat a number of courses that he had previously taken and passed at UNPHU.

   
   

9. As a consequence, Respondent took approximately six courses (during two academic quarters) at INTEC, which courses he had previously taken and passed at UNPHU.

   
   

10. Under the auspices of INTEC, after completing two quarters, Respondent was required for three months, until June, 1980, to do field medical work to assist those in the Dominican Republic countryside who needed medical assistance as a result of hurricanes Frederick and David. Respondent also did clinical

    rotations at one or two local hospitals in the city of Santo Domingo. He did well at INTEC and was not asked to leave that university.

    
    

11. In June 1980, Respondent applied and was accepted at CETEC. CETEC's school of medicine first began its admission process in December 1979 but CETEC did not start its first classes until January, 1980. Respondent was admitted into the M.D. program in June 1980.

    
    

12. Respondent never lived on any campus in the Dominican Republic but lived independently in town. He does not recall if he switched residences between institutions.

    
    

13. CETEC gave Respondent credit ("convalidated") for the courses he had taken at both UNPHU and INTEC. Petitioner has pointed to no evidence that his convalidation was inappropriate under the circumstances.

    
    

14. Respondent's motivation when he transferred to CETEC was that CETEC allowed him to participate in a rare opportunity--an externship program at the University of Miami School of Medicine at Jackson Memorial Hospital in Miami, Florida. Respondent changed his Santo Domingo residence to one in his hometown of Miami when he moved there. He completed his rotations in the United States under the auspices of CETEC.

    
    

15. The evaluations from the University of Miami School of Medicine indicated that Respondent did extremely well during these rotations.

    
    

16. Respondent graduated from CETEC and was granted a diploma in December, 1980.

    
    

17. Subsequently, Respondent applied for, and was accepted and worked in a residency training program in Pensacola, Florida, for three years.

    
    

18. The evaluations from his residency indicate that Respondent's performance was well above average and he was appointed as chief resident in his last year of this residency.

    
    

19. The application for Florida licensure containing the inaccuracies stated in Finding of Fact 5, supra, was filed during Respondent's year of internship, when he was on call every other night. The application form requested him to list his medical education and to "be specific" and "account for each year". He did not have his records with him in his physical location in Pensacola at the time he discovered that the Florida Board only accepted applications once a year and he had little time in which to meet the time limit for his only possible application for 1982. The inaccuracies of Respondent amount to a wrong date for departure from UNPHU; a wrong date (18 months early) for beginning at CETEC, which date predates CETEC's first medical school class, and complete omission of his INTEC experience. In addition to the speed and stress of the application period and the absence of accurate backup records, Respondent explains the application's inaccuracies by pointing to his contemporaneous belief that he was being accurate and his incorrect perception at that time, based on prior experience, that the question was only seeking the name of the medical school from which he graduated and his date of graduation. He also never considered his INTEC attendance as part of his medical education since it was short term and largely repetitive of previous course work he had successfully completed. Apparently recognizing that the question was ambiguous or at least could be better worded, the Board has since revised its application form to specifically require listing of all schools, clerkships, etc. by date.

20. Dr. John Robinson, M.D., Associate Dean for Student Affairs at the University of Miami Medical School for twenty-one years testified on Respondent's behalf. As part of his duties at the medical school, Dr. Robinson acts as the Registrar who keeps students records and certifies their education. It is common within Dr. Robinson's education, training, and experience that students and physicians alike frequently but unintentionally mistake the dates and places they attend medical school. Based on his personal good opinion of Respondent's past medical background and practice and Respondent's reputation for truth and veracity, it was Dr. Robinson's opinion that the application inaccuracies represented human error of Respondent and common error within Respondent' s experience.

    
    

21. Respondent presented testimony of other prominent physicians and lay witnesses in the community who attested to his good character, reputation for truth and veracity, excellent patient care, and community service through his medical practice.

    
    

22. Generally, Petitioner did not affirmatively demonstrate any improper motive or establish that Respondent had any intent to conceal or misrepresent his medical education on his application. Nor did Petitioner establish that Respondent had anything to gain by the inaccurate information on his application. The dates given by Respondent were correct to the extent that they indicate the date he began his medical education, the date he ended his medical education, and the medical school (CETEC) from which he graduated and which gave him credit for his work at the two previous schools (UNPHU and INTEC). Dorothy Faircloth, Medical Board Executive Director, confirmed that in 1982 the Board's process was to verify the education of an applicant only from the school which issued his medical degree. Specifically, it was not affirmatively demonstrated that Respondent would not have been licensed had he disclosed his attendance at INTEC and noted the correct dates of his interim medical education. At the time of Respondent's application, the Board had no rule or policy relating to the number of schools an applicant had attended and nothing in the transcripts and official documents of any of the three universities attended by Respondent reflect unfavorably on Respondent. The Board has licensed a number of medical physicians who graduated from CETEC but who previously attended one or more medical schools prior to attending CETEC. Respondent was a bona fide student in attendance at CETEC and graduated in good standing. Except for alleging misrepresentation and fraud in the application, Petitioner has not attacked the thoroughness, efficiency, or efficacy of Respondent's actual education, nor his ability to practice medicine safely.

    
    

23. Respondent is presently in private practice with two other medical physicians in Coral Gables, Florida. He has staff privileges at six area hospitals, he has never been charged or accused of malpractice, and he has not, until this case, been investigated by the Board of Medicine or had any action taken against his license. He is also currently licensed in Georgia.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause pursuant to Subsection 120.57(1), Florida Statutes.

25. Section 458.327(1)(c) makes it a felony of the third degree for:

    
    

    Attempting to obtain or obtaining a license to practice medicine by knowing misrepresentation.

    
    

    This provision cannot be addressed in this forum.

    
    

26. Petitioner, Department of Professional Regulation, is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, Chapter 458, Florida Statutes.

    
    

27. Section 458.331(1)(a), Florida Statutes permits disciplinary action against a licensee for:

    
    

    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.

    
    

28. Petitioner bears the burden to prove the allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987), Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981).

    
    

29. The parties have stipulated that in order to establish a fraudulent misrepresentation, Petitioner must prove the following elements:

    
    

    1. There was a material misrepresentation of a material fact.

    2. Individual charged with making the mis- representation must be shown to have

       had knowledge of the falsity of the statement at the time it was made or the evidence must show the equivalent of such knowledge which is that the statement was made without knowledge to its truth or falsity, or was made under circumstances in which he ought to have known its falsity.

    3. Respondent must intend to induce another to act on it.

    4. Reliance on the truth of the statement.

    5. Injury must result to the party acting in justifiable reliance on the misrepresentation.

    6. A fact is material if, but for the alleged nondisclosure or misrepresenta- tion, the Board of Medicine would not have licensed Respondent.

       
       

       See, also, Atlantic National Bank of Florida v. Vent, 480 So.2d 1328 (Fla. 2d DCA 1985); Morris v. Department of Professional Regulation, 474 So.2d 841, 843 (Fla. 5th DCA 1985).

30. There was no evidence that the information Respondent failed to include or that the error as to dates was material. There is no evidence that if Respondent had correctly completed his application, he would not have been licensed.

    
    

31. A state of mind may be inferred from one's actions and intent may be established by the facts and circumstances of a case. See, Edwards v. State,

    302 So.2d 479 (Fla. 3d DCA 1974), Sheppard v. Cherry, 159 So. 661 (Fla. 1935). Owing to the nature of fraud, many of its elements, of which intent and knowledge are prime examples, are not susceptible to direct proof, but can only be established by circumstantial evidence, Florida East Coast Railroad Co. v. Thompson, 111 So. 525 (Fla. 1927). However, it is not clear from the facts and circumstances of this case that this Respondent had any intent to mislead, made any conscious attempt to conceal, or that Respondent's errors were, in fact, fraudulent. That his application did not speak the whole truth and that some dates were inaccurate was established, but it was never established that the misstatements were made intentionally, knowingly, or with willful disregard for the truth.

    
    

32. Respondent is credible in his assertion that he did not know his failure to provide the information was a misrepresentation at the time he made it, nor did he ignore the truth when he listed his education.

    
    

33. Furthermore, the Board as a normal course of action only verified education and date of graduation at the school of graduation. Therefore, since there was nothing unfavorable from the other two schools to be hidden and since the Board had no rule or policy prohibiting graduates who had attended several medical schools, it has not been shown that Respondent induced the Board to act or caused the Board to "err" in reliance on his representations and no "error" of the Board has been proved. See Section 458.331(1)(a), Florida Statutes. In Respondent's case, he did disclose his school and date of graduation, CETEC. The Board then did not rely on the incorrect dates or failure to include INTEC on the application.

RECOMMENDATION

Upon consideration of the foregoing, it is,

RECOMMENDED that the Board of Medicine enter a Final Order dismissing Count I against Respondent.

DONE and RECOMMENDED this 28th day of January, 1988, at Tallahassee, Florida.

ELLA JANE P. DAVIS, 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 Divisionf Administrative Hearings this 28th day of January, 1988.

APPENDIX TO RECOMMENDED ORDER DOAH Case No. 87-0401

The parties' proposed findings of fact (PFOF) are ruled on pursuant to Section 120.59(2), Florida Statutes, as follows:

Petitioner's PFOF

9. Rejected as not supported by the record, taken in context. SeeTR 35-36.

10-11. Accepted but unnecessary.

1. Accepted but out of context and not dispositive of any issue at bar.

2. Accepted but unnecessary and not dispositive of any issue at bar.

3. Unnecessary.

4. Unnecessary and not dispositive of any issue at bar.

5. Rejected as stated because it is misleading as to the competent substantial record evidence as a whole and it is not an ultimate FOF. See FOF 19 and 22.

6. Covered in FOF 4.

Respondent's PFOF

1. Covered in Substance in FOF 2. 2-3. Covered in FOF 23.

4. Covered in FOF 3-4. 5-6. Covered in FOF 6.

1. Covered in FOF 6-7.

2. Covered in FOF 6-8.

3. Covered in FOF 9.

4. Subordinate, and also not clear from the record. The Respondent could just as easily mean that several different professors and not a single professor taught him at INTEC.

11-12. Covered in FOF 10.

1. Covered in FOF 11.

2. Covered in FOF 13.

3. Covered in FOF 14.

4. Covered in FOF 15.

5. Covered in FOF 16.

COPIES FURNISHED:

Dorothy Faircloth, Executive Director Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Peter S. Fleitman, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Robert S. Turk, Esquire

Suite 3400, One Biscayne Tower

2 South Biscayne Boulevard Miami, Florida 33131

William O'Neil, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-000401

Orders for Case No: 87-000401