STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MOHAMMED H. BAWANY, M.D., )

)

Petitioner, )

)

v. ) CASE NO. 87-2680

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

In lieu of a formal administrative hearing, the parties jointly agreed to submit this cause to the undersigned on the basis of documentary evidence and written arguments as to the facts and law. The issue for determination in this proceeding is whether the petitioner is entitled to licensure by endorsement as a physician in the State of Florida.

APPEARANCES

For Petitioner: Gary D. Fields, Esquire

230 Royal Palm Way, Suite 400 Palm Beach, Florida 33480

For Respondent: M. Catherine Lannon, Esquire

Assistant Attorney General Administrative Law Section Suite 1601, The Capitol Tallahassee, Florida 32399-1050

INTRODUCTION

In March of 1986, the petitioner Mohammed Hussain Bawany applied for licensure by endorsement to practice medicine in Florida. By Order filed on February 24, 1987, the Board of Medicine noticed its intent to deny petitioner's application. As grounds for the intended denial, the Board cited the petitioner's performance on and timing of taking the Federation of State Medical Boards (FLEX) examinations and the fact that his medical training evaluations "reveal that he is not able to practice medicine with reasonable skill and safety." The petitioner requested a review of this intent to deny, and the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer. The cause was originally scheduled for a final evidentiary hearing, but counsel for the parties entered into a stipulation agreeing to provide all argument, testimony and evidence by written documents.

Submitted as evidence in this prodeeding were the deposition testimony of Mohammed H. Bawany, M.D., the petitioner herein; David W. Schultz, M.D., the former director of the residency program at Lutheran Medical Center; and Henry

1. Robinson, M.D., the medical director of Georgia State Prison; as well as documents from the petitioner's application file.

   
   

   During the taking of the petitioner's deposition, counsel for the respondent objected to several questions and moved to strike the answers given. These instances occur on pages 9, 10, 11, 19 and 20 of petitioner's deposition. It is concluded that the objections were well taken, are sustained and the motions to strike are granted.

   
   

   Counsel for the parties also submitted proposed findings of fact and proposed conclusions of law, as well as written argument. To the extent that the parties' proposed findings of fact are not included in this Recommended Order, they are rejected for the reasons set forth in the appendix hereto.

   
   

   FINDINGS OF FACT

   
   

   Based upon the deposition testimony and documentary evidence from the petitioner's application file, the following relevant facts are found:

   
   

   1. Petitioner is a 1979 graduate of the University of Karachi and Dow Medical College in Pakistan. At the time of his application for Florida licensure by endorsement, he was licensed to practice medicine in Iowa. He is currently licensed to practice medicine in the states of Iowa, Georgia and Maryland. When the Florida Board of Medicine noticed its intent to deny petitioner's application, he had obtained a passing score on the federal licensing examination (FLEX).

      
      

   2. Contained within petitioner's application file are numerous letters from physicians who had, at one time or another, worked with the petitioner at various health care facilities. With one exception, all such letters recommended him for licensure in Florida and are quite positive regarding petitioner's competency as a physician. The one exception came from Dr. David

      W. Schultz, who was the director of petitioner's first year residency program at Lutheran Medical Center in Ohio.

      
      

   3. Petitioner participated in and completed a first year internal medicine residency program at Lutheran Medical Center from July 1, 1983 through June 30, 1984. Dr. David W. Schultz had held the position of director of the residency program for over twenty years. During petitioner's year of residency, Dr. Schultz taught the first year residents only one class. Other than his teacher/student relationship with petitioner during that one class in October and/or November of 1983, Dr. Schultz had no opportunity to directly and personally observe petitioner's ability to practice medicine. The entire faculty was involved in the teaching and observation of the residents. The "firm" or group to which petitioner was assigned as a first year resident did not manage or treat any of the patients admitted by Dr. Schultz. Other than his class observations, Dr. Schultz's opinions regarding petitioner's competency are based solely upon verbal reports and comments from other physicians and residents during the year.

      
      

   4. On January 13, 1984, Dr. Schultz wrote a letter "To Whom It May Concern," stating that petitioner is a "hard working and sincere physician" who "seems to get along with fellow residents and the Attending Staff." He recommended petitioner "for acceptance into your program." On or about February 10, 1984, Dr. Schultz completed and returned a form sent to him by the Florida Board of Medicine. The form advised Dr. Schultz that petitioner had applied for medical licensure in Florida and requested Dr. Schultz to rate petitioner in

      fifteen areas as either "poor," "fair," "good," "superior," or "don't know," and to provide an overall evaluation by checking one of the following:

      
      

      " 1. Recommend as outstanding applicant.

      2. Recommended as qualified and competent.

      3. Recommended with some reservation.

      4. Cannot recommend."

      
      

      If either numbers 3 or 4 were checked, a written explanation was requested. Dr. Schultz rated petitioner "good" in all fifteen categories and checked item number 2 above -- "recommended as qualified and competent." On June 20, 1984, Dr. Schultz wrote a similar "To Whom It May Concern Letter" recommending petitioner "for acceptance into your program." On June 25, 1984, Dr. Schultz wrote a letter to the Florida Department of professional Regulation recommending petitioner "for a license in the State of Florida." Both of the June, 1984, letters again state that petitioner is "a hard working and sincere physician" and that "he seems to get along with fellow residents and the Attending Staff."

      
      

   5. In October of 1984, the Board of Medicine received a second completed form from Dr. Schultz regarding the petitioner. This form called for the identical information as the form completed by Dr. Schultz in February of 1984. However, this time Dr. Schultz rated petitioner as "fair" in thirteen categories, "poor" in one category (relationship with colleagues) and "good" in only one category (knowledge of English). As an overall evaluation, Dr. Schultz checked Item Number 3, "recommended with some reservation," but no written explanation was provided.

      
      

   6. At his deposition taken on September 17, 1987, Dr. Schultz attempted to explain the discrepancies between his evaluations of petitioner submitted in January, February and June of 1984 and his October, 1984, evaluation. When asked what happened between the two forms submitted in February and October of 1984, Dr. Schultz testified that it was only petitioner's failure to improve. Elaborating somewhat, Dr. Schultz stated:

      
      

      "I think, I admit to you it seems difficult to justify.

      
      

      I think if you have had the experience I've had over a period of many, many years in training residents and starting residents in what is a three-year program that you are always hopeful `that people who don't perform well at the first-year level may be able to find themselves, improve their basic knowledge level, and apply it better in the two years they have left in training, and that is the only justification I can give you for those letters.

      
      

   7. During his deposition, Dr. Schultz opined that petitioner was the "poorest" of the eight first year residents in the areas of basic medical

      knowledge, ability to apply knowledge to the effective management of patients and willingness to work hard. It was his opinion that, during the time of his first year residency, petitioner was not competent to independently practice medicine with skill and safety.

      
      

   8. The petitioner's application file also contains two letters written in January and February of 1984, from Dr. William T. Wilder, who was then an associate clinical director of the Medical Geropsychiatric Unit at Lutheran Medical Center. These letters represent that Dr. Wilder has worked closely with the petitioner during his residency program and that Dr. Wilder regards petitioner as having "excellent moral character" and "excellent qualifications to practice as a physician." He describes petitioner as a "very dedicated and thorough resident," "diligent in follow up on patient problems," and able to work well with patients.

      
      

   9. In 1983, Lutheran Medical Center was required to reduce the number of second year resident positions from eight to six. In the opinion of Dr. Schultz, even if Lutheran had had eight available second year residency positions, petitioner would not have been offered one of them because "his performance didn't warrant that." Petitioner was informed in October of 1983, that he would not be offered a second year residency position at Lutheran. Apparently, the month of October is a uniform appointment time throughout the country for residents in hospitals with approved medical programs.

      
      

   10. During the end of his second full month of residency at Lutheran Medical Center, petitioner underwent emergency eye surgery for a detached retina. It was petitioner's understanding that he was not offered a second year residency at Lutheran Medical because of his eye problems and because of the cutback in the number of second year residency positions. Although other residents were placed on probation due to unsatisfactory performance, petitioner was never placed on probation during his residency at Lutheran.

       
       

   11. On July 3, 1984, after the completion of his residency, petitioner filed a civil rights action against Lutheran Medical Center alleging that he had been discriminated against due to his eye problems. Dr. Schultz's deposition was taken in connection with that action in the summer of 1984.

       
       

   12. Since November of 1986, petitioner has been employed as a staff physician at the Georgia State Prison in Ridgeville, Georgia. In that capacity, petitioner sees approximately twenty to thirty male inmate patients per day and performs some minor surgery. His immediate supervisor is the medical director of the Georgia State Prison, Dr. Henry A. Robinson, who is board certified in obstetrics/gynecology and has been practicing medicine for 31 years. Dr. Robinson observes petitioner on a daily basis, and recommends him for licensure in Florida with no reservation. It is Dr. Robinson's opinion that petitioner is "very firm in his medical skills," has good medical knowledge which he applies very well, is willing to work, is cooperative and gets along well with his peers and his patients. Dr. Robinson has had fewer complaints from inmate patients regarding petitioner than any other health care worker. When asked to give an overall rating of petitioner as a physician, Dr. Robinson replied "I think he's well trained. He's motivated and does a fine job in the day-to-day practice."

       
       

       CONCLUSIONS OF LAW

       
       

   13. An applicant for a professional license has the burden to establish that he meets each of the statutory and regulatory criteria or requirements for that license. In this proceeding, there are two criteria in dispute. The first

       is the FLEX examination and the second is petitioner's ability to safely engage in the practice of medicine.

       
       

   14. The evidence establishes that petitioner received a passing score on the FLEX examination within ten years preceding the filing of his application for licensure. Prior statutes contained limitations upon the number of times an applicant could take the FLEX exam, as well as requirements regarding the spacing between examination attempts. See Section 458.311(3), Florida Statutes (1985). However, these statutory requirements were changed in 1986. Thus, at the time respondent noticed its intent to deny licensure, petitioner had fully met the statutory requirements regarding successful completion of the FLEX examination. See Section 458.313(1)(a), Florida Statutes (1986 Supplement).

       
       

   15. Petitioner was also required to demonstrate that he had completed an approved residency of at least one year. Sections 458.313(1) and 458.311(1)(f)1.c, Florida Statutes. The evidence establishes that respondent's one year of residency at Lutheran Medical Center was completed at the time of his application for licensure in Florida. It is urged by the respondent in this proceeding that implicit in the residency criterion is the requirement that the residency be successfully and satisfactorily completed. In support of this position, respondent cites Section 458.331(3), Florida Statutes, which prohibits the Board from issuing a license to a person it deems unqualified until the Board is satisfied that such person is capable of safely engaging in the practice of medicine.

       
       

   16. With one exception, the documents received into evidence in this proceeding fully support a determination that petitioner is a competent physician who is capable of practicing medicine with reasonable skill and safety. Every letter of reference and recommendation from medical doctors who have worked with petitioner attests to petitioner's competency both in medical knowledge and practical application of that knowledge. Consistent with the testimony of his present supervisor, Dr. Robinson, the reference letters in petitioner's application file also relate petitioner's ability to interact well with his peers, supervisors and patients.

       
       

   17. The one and only possible basis for a determination that petitioner is unable to practice medicine with reasonable skill and safety is the opinion testimony of Dr. Schultz, along with the evaluation form completed by him in October of 1984. Both are highly suspect. The October form, completed and returned some three and a half months after petitioner had finished his residency under the directorship of Dr. Schultz, is completely inconsistent with Dr. Schultz's prior evaluations and letters of recommendation submitted while petitioner was in the residency program. It is difficult to understand how Dr. Schultz could find petitioner to be a "hard working and sincere physician" and "able to get along well with fellow students and the Attending Staff" during the seventh and twelfth months of his residency, and then, some three months after he left the program, find him to be "poor" in his relationship with colleagues. It is also difficult to comprehend how the petitioner's ability in the areas of basic medical knowledge and diagnostic and clinical skills could have changed from "good" in February of 1984 to "fair" in October of 1984. On June 25, 1984, five days before the completion of petitioner's residency, Dr. Schultz recommended him for licensure in Florida. Three and a half months later, Dr. Schultz recommended him "with some reservation" without providing a reason for the reservation.

       
       

   18. Dr. Schultz's deposition testimony does little to clear up his prior inconsistent evaluations. He admitted that he only personally observed

       petitioner during the class which he taught. While testifying in September of 1987 that petitioner did not perform well in that class and was the "poorest" of the eight first year residents, Dr. Schultz evaluated petitioner as "good" in the areas of basic medical knowledge and diagnostic and clinical ability in February of 1984, some two months after the completion of the course taught by Dr. Schultz. The explanation that Dr. Schultz submitted the positive evaluations and letters of reference and recommendation with the hopes that petitioner would improve does not clarify the after-the-fact October evaluation. Did Dr. Schultz somehow abandon that hope during the last five days of petitioner's residency program? If so, no such testimony or explanation appears in this record.

       
       

   19. In summary, it is concluded that the evidence submitted in this proceeding is sufficient to satisfy petitioner's burden of establishing that he meets the qualifications for a license to practice medicine in Florida. The only blemish in the record comes from Dr. Schultz. His evaluation in October of 1984 and his opinions as stated in September of 1987 are unjustifiably inconsistent with prior evaluations and opinions submitted during the time petitioner was a resident. For the most part, his opinion as to petitioner's ability to practice with skill and safety is not based upon his personal observations and knowledge of petitioner's performance during the residency program. In contrast to Dr. Schultz's opinion are the positive opinions of petitioner's present supervisor and many others with whom petitioner has practiced over the past few years. Petitioner has demonstrated that he meets the requirements for the safe practice of medicine in Florida, and there is no competent evidence which would support a determination that petitioner is unqualified to safely engage in such practice.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner's application for licensure by endorsement be GRANTED.

Respectfully submitted and entered this 25th day of February, 1988, in Tallahassee, Florida.

DIANE D. TREMOR

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 25th day of February, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2680

The proposed findings of fact submitted by counsel have been carefully considered and are accepted and/or incorporated in the Recommended Order, except as noted below.

Respondent

5, last sentence: Rejected; if respondent is referring to "approved" medical training, this is irrelevant and immaterial. The evidence does establish that petitioner has been practicing medicine since the time of his residency.

9. The first two sentences and the last four sentences are accepted. The last sentence is accepted as a reason stated by the Board, but not as a sufficient reason for denial. The remaining portions are rejected as contrary to the conclusions drawn by the undersigned upon a reading of the entire deposition.

COPIES FURNISHED:

Gary D. Fields, Esquire

230 Royal Palm Way Suite 400

Palm Beach, Florida 33480

M. Catherine Lannon, Esquire Assistant Attorney General Administrative Law Section Suite 1601 - The Capitol Tallahassee, Florida 32399-1050

Dorothy Faircloth Executive Director Department of Professional Regulation

Board of Medicine

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-002680

Orders for Case No: 87-002680