STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAYMOND FRANCIS CARON, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2483

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled action was held on September 16, 1987, in Orlando, Florida, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: Charles L. Curtis, Esquire

Allsworth, Doumar, Cazel & Curtis 1177 Southeast Third Avenue

Fort Lauderdale, Florida 33316

and

Basil E. Dalack, Esquire

350 South Country Road Palm Beach, Florida 33480

For Respondent: M. Catherine Lannon, Esquire

Assistant Attorney General Department of Legal Affairs 1601 The Capitol

Tallahassee, Florida 32399-1050 Background and Procedural Matters

In early December 1986, Raymond Francis Caron filed his application for licensure by endorsement as a physician in the State of Florida. After the usual investigation and appearance before the Foreign Medical Graduate Committee of the Florida Board of Medicine, Dr. Caron was notified by an Order dated April 5, 1987, that the Board intended to deny his application. As grounds, the order stated: "There were material discrepancies in your application, supporting documentation, and testimony. See Sections 458.331(1)(a) and (2), Florida Statutes."

Dr. Caron responded with a timely Petition for Formal Administrative Hearing and this proceeding commenced.

At the final hearing, Dr. Caron testified in his own behalf and presented the testimony of three additional witnesses. The Board presented no witnesses.

The parties provided a Joint Stipulation of Facts, which was received into evidence as part of the record in this case. In addition, the parties submitted Joint Exhibit #1, the entire application file. Petitioner's Exhibit #1, a draft of the application, was marked for identification, but was not introduced into evidence.

After the hearing, both parties filed Proposed Recommended Orders. These have been carefully considered and are substantially adopted. Specific rulings on the proposed findings of fact are found in the attached appendix.

ISSUE

The sole issue, as reflected in the Joint Stipulation, is whether the Petitioner fraudulently misrepresented his places of residence (where lived) since the initiation of medical training or his medical education as called for on his application for licensure.

FINDINGS OF FACT

1. Raymond Francis Caron was licensed as a physician in the State of Minnesota in November 1986. He currently lives in Orlando, Florida, and is employed as a pediatric resident at Orlando Regional Medical Center. He is seeking licensure by endorsement to practice medicine in the State of Florida.

   
   

2. On his application submitted to the Board of Medical Examiners, Dr. Caron responded in the following manner regarding his places of residence:

   
   

   LIST ALL PLACES OF RESIDENCE (WHERE LIVED) SINCE INITIATION OF MEDICAL TRAINING:

   
   

   FROM:	1	,	1982	TO	3	,	1983
   FROM:	3	,	1983	TO	6	,	1984
   55434 FROM:	6	,	1984	TO	6	,	1986

   Siervas de Maria #10 Plaza Naco Santa Domingo Dominican Rep.

   (city, state or county)

   
   

   1800 Senate #109 Columbia, S.C.

   (city, state or county)

   
   

   349-96th Lane NE, Minneapolis MN Minneapolis MN

   (city, state or county)

   
   

   4604 Middlebrook, Unit J

   Orlando, Fla FROM: 6 , 1986 TO PRESENT 19

   (city, state or county)

   
   

   Carretera La Romeno #79, San Pedro Dom Rep From 3-78 to Jan 1982

   
   

3. The following response was provided on the application with regard to his medical education:

   MEDICAL EDUCATION: BE SPECIFIC. ACCOUNT FOR EACH YEAR. LIST ALL UNIVERSITIES/COLLEGES WHERE ATTENDED CLASSES/RECEIVED TRAINING AS A MEDICAL STUDENT.

   
   

   May,	1978	TO	May,	1981
   May,	1981	TO	May,	1982
   May,	1982	TO	May,	1983

   UNIVERSIDAD CENTRAL DEL ESTE FROM:

   (name of medical school/location)

   SAN PEDRO DEMACORIS DOMINICAN REPUBLIC

   
   

   CENTRO DE ESTUDIOS TECHNOLOGICOS FROM:

   (name of medical school/location) SANTA DOMINGO DOMINICAN REPUBLIC

   
   

   UNIV. TECHNOLOGICA DE SANTIAGO FROM:

   (name of medical school/location) SANTA DOMINGO DOMINICAN REPUBLIC

   
   

   FROM: , 19 TO , 19

   (name of medical school/location)

   
   

4. At his appearance before the Board's Foreign Graduate Committee in March 1987, Dr. Caron disclosed that he left the Dominican Republic in December 1979, and lived in Columbia, South Carolina until January 1981. During this time he tried to get into a medical school in the United States, but after the attempt proved unsuccessful he returned to the Dominican Republic.

   
   

5. He also lived in Columbia, South Carolina from approximately June 1982 until December 1982, while he fulfilled some elective credit requirements for his degree from the University Technologica de Santiago. (UTESA)

   
   

6. Those electives were taken under the sponsorship and tutelage of two physicians associated with the University of South Carolina, Department of Medicine in Columbia, S.C. Given the choice of fulfilling elective requirements in the Dominican Republic or in Columbia, South Carolina, Dr. Caron preferred the training in the United States. He was not enrolled at the University of South Carolina, but rather at UTESA. These electives are reflected on his UTESA transcript as clerkships, for which he received passing grades and twenty-eight

   (28) credit hours.

   
   

7. The disclosures to the Committee regarding time spent in the United States in 1980 and 1982, as well as the elective credits taken under the aegis of the University of South Carolina created an obvious conflict with the information provided on the application.

   
   

8. The application provides, as stated in paragraph 2, above, that Dr. Caron resided in the Dominican Republic from March 1978 to March 1983, with no breaks.

   
   

9. The application, as stated in paragraph 3, above, does not reflect any training at the University of South Carolina Medical School.

   
   

10. At the end of the application form is an affidavit from the applicant including, in part, this statement:

    
    

    I have carefully read the questions in the foregoing application and have answered them completely, without reservations of any kind, and I declare under penalty of

    perjury that my answers and all statements made by me herein are true and correct.

    Should I furnish any false information is [sic] this application, I hereby agree that such act shall constitute cause for denial, suspension or revocation of my license to practice medicine/surgery in the State of Florida.

    
    

11. Dr. Caron filled out the application at various times while he was between duties at the Orlando Regional Medical Center. It took several weeks, as he took the papers to the hospital when he was on call and worked on them at all times of the day or night. He was in a hurry as he felt it preferable to have a license going into his third year of residency at the Orlando Regional Medical School.

    
    

12. He consulted with his wife regarding the places of residence and she counselled him based on her recent experience with a mortgage application. In that situation she had put detailed information regarding a pregnancy leave from school. The lending institution questioned this because her transcript apparently indicated that she was still enrolled. The mortgage company told her she was being too specific.

    
    

13. Dr. Caron also talked to his brother-in-law, a pediatric neurologist licensed as a Florida physician. The brother-in-law, himself a foreign medical graduate, suggested that the Board was probably interested in the different places he had resided and the details would be elicited when he appeared before the Foreign Medical Graduate Committee.

    
    

14. Dr. Caron's discussion with the members of the Committee in March 1987, lends credibility to that explanation. He appeared before the Committee with his box of documents, prepared and expecting to show them to the Committee; he became frustrated and chagrined when they concentrated on the discrepancies between the information on his application and the verbal information he was providing them. He ultimately agreed that the accuracy of the application was relevant.

    
    

15. Besides being in a hurry and relying on the advice of his wife and brother-in-law, Dr. Caron sincerely believed that he provided the Board with he information they sought. While the dates were clearly off, he provided the four places he has lived since starting Medical School: the Dominican Republic; Columbia, South Carolina; Minneapolis, Minnesota; and Orlando, Florida.

    
    

16. He did not put the University of South Carolina as a place of medical training because he was never enrolled there.

    
    

17. Nothing in the record of this proceeding suggests that Dr. Caron was deliberately misleading or attempting to defraud the Board. He gained nothing by omitting certain information from his application; nothing whatsoever suggests that he was involved in misdeeds or had any motive for disguising his true whereabouts in 1980 and 1982.

    
    

18. He has explained the discrepancies and conceded his error in judgment. Two competent physician witnesses who are familiar with his work testified as to his ability to practice medicine with reasonable skill and safety, including the ability to maintain proper medical records.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this proceeding pursuant to Section 120.57(1)F.S.

    
    

20. The Board cited Sections 458.331(1)(a) and (2) Florida Statutes as its basis for denial of Petitioner's application for licensure by endorsement.

    Those provide that a license may be denied for

    
    

    * * *

    (1)

    1. 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.

       * * *

       
       

21. "Fraudulent misrepresentation" requires a showing of a willful or intentional effort to deceive or mislead. Gentile v. DPR, Board of Medical Examiners, 448 So.2nd 1087 (Fla. 1st DCA 1984); Gentry v. DPR, Board of Medical Examiners, 293 So.2nd 95 (Fla. 1st DCA 1974), cited in Mario Alberto Almeida Suarez v. DPR, Board of Medicine, DOAH Case #86-3996, Recommended Order dated 5/26/87, adopted in substance by the Board. (Final Order was not provided, although Counsel for the Board stipulated that the recommendation was adopted.)

    
    

22. In Suarez, supra, the applicant, assisted by his wife, also provided incomplete and erroneous information. The basis for intended denial by the Board was the same as in this case. The Hearing Officer found no evidence of fraud or deceit nor any advantage to be gained as a result of the errors or omissions.

    
    

23. In contrast, in two cases cited by Respondent, Gresham v. Board of Medical Examiners, DOAH case no. 85-0726 and Chames v. Department of Professional Regulation, Board of Medical Examiners, case no. 86-1438, the Hearing Officers found evidence of fraud or lack of an adequate explanation of the discrepancies in the file.

    
    

24. Here, Dr. Caron is guilty, at most, of a gross error of judgment. He should have consulted with the Board staff regarding his questions, rather than his family members. He should have taken more time to fill out the forms which, at the culmination of considerable effort and expense in obtaining a medical education, are essential to the achievement of the goal of that education: the right to practice his chosen profession. He was not guilty of fraud; he provided a credible explanation of his whereabouts and of his failure to provide the information requested, and there are remaining no loose ends in his account (as there were in Gresham, supra). It would be patently unjust to continue to deny licensure.

RECOMMENDATION

For the foregoing reasons, it is hereby, RECOMMENDED:

That a Final Order be issued granting licensure by endorsement to Raymond Francis Caron.

DONE and RECOMMENDED this 12th day of October, 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 12th day of October, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2483

The following constitute my rulings on the findings of fact proposed by Petitioner:

1-5. Addressed in "Background" of this order. 6-7. Addressed in the statement of issue.

1. Adopted in paragraph 3, Conclusions of Law.

2. Adopted in Findings of Fact, paragraph 2.

3. Adopted in Findings of Fact, paragraph 4.

4. Adopted in Findings of Fact, paragraph 2.

5. Adopted in Findings of Fact, paragraph 4.

6. Rejected as unnecessary.

7. Adopted in Findings of Fact, paragraph 2.

8. Adopted in substance in Findings of Fact, paragraphs 4 and 6.

16-17. Adopted in Findings of Fact, paragraph 8.

18. Adopted in substance in Findings of Fact, paragraph 9. 19-20. Adopted in Findings of Fact, paragraph 10.

1. Rejected as unnecessary.

2. Adopted in Findings of Fact, paragraph 3.

3. Adopted in Findings of Fact, paragraphs 5 and 6.

4. Adopted in Findings of Fact, paragraph 5.

5. Adopted in Findings of Fact, paragraph 5, except that Dr. Caron's testimony was that the electives were under the aegis of the University of South Carolina. (Transcript of meeting of FMGC, p. 25.)

6. Adopted in Findings of Fact, paragraphs 9 and 10.

7. Adopted in Findings of Fact, paragraph 10.

8. Adopted in substance in Findings of Fact, paragraph 10.

9. Adopted in Findings of Fact, paragraph 1 30-31. Rejected as unnecessary.

   
   

   The following constitute my rulings on the Findings of Fact proposed by the Respondent.

   
   

   1. Addressed in "Background" and Findings of Fact, paragraph 1.

   2. Adopted in Findings of Fact, paragraph 2.

   3. Adopted in Findings of Fact, paragraph 7.

   4. Adopted in Findings of Fact, paragraphs 4 and 5.

   5. Adopted in Findings of Fact, paragraph 3.

   6. Rejected as cumulative.

   7. Adopted in substance in Findings of Fact, paragraph 6.

   8. Rejected as unnecessary.

   9. Rejected as cumulative.

   10. Addressed in the "Background".

   11. Adopted in substance in Findings of Fact, paragraph 8.

12-13. Rejected as unnecessary.

1. Adopted in Findings of Fact, paragraph 8.

2. Rejected as unnecessary.

COPIES FURNISHED:

Charles L. Curtis, Esquire Allsworth, Doumar, Cazel & Curtis 1177 S. E. Third Avenue

Fort Lauderdale, Florida 33316

Basil E. Dalack, Esquire

350 South Country Road Palm Beach, Florida 33480

M. Catherine Lannon, Esquire Assistant Attorney General Department of Legal Affairs 1601 The Capitol

Tallahassee, Florida 32399-1050

Dorothy Faircloth, Executive Director Board of Medicine

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Tom Gallagher, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

William O'Neil, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-002483

Orders for Case No: 87-002483