STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HIEN BINH NGUYEN, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 87-2969

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on September 28, 1987, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Hien Binh Nguyen, M.D., pro se

7428 Washington, No. 401 Forest Park, Illinois 60130

For Respondent: M. Catherine Lannon, Esquire

Assistant Attorney General Administrative Law Section Department of Legal Affairs Room 1601, The Capitol Tallahassee, Florida 32399-1050

PROCEDURAL STATEMENT

The Petitioner, Hien Binh Nguyen, M.D., filed an application for medical license by endorsement with the Respondent, the Board of Medicine. By Order filed May 5, 1987, the Respondent issued a Notice of Intent to Deny the Application for Licensure by Endorsement of Hien Binh Nguyen, M.D. By letter dated May 15, 1987, the Petitioner requested a formal hearing to contest this proposed agency action and the matter was referred to the Division of Administrative Hearings.

At the final hearing the Petitioner testified on his own behalf. Four exhibits were offered by the Petitioner. They were marked as "Petitioner's" exhibits. Petitioner's exhibit 1 was rejected and a ruling was reserved on Petitioner's exhibits 2, 3 and 4. Petitioner's exhibits 2 and 3 are hereby rejected. Petitioner's exhibit 4 is hereby accepted.

The Respondent offered one exhibit, Respondent's exhibit 1, which was filed subsequent to the completion of the formal hearing. Respondent's exhibit 1 is a transcript of the Petitioner's testimony before the Foreign Medical Graduate Committee of the Respondent. The exhibit was not available at the time of the

formal hearing. Therefore, upon objection to the exhibit by the Petitioner, a ruling on the admissibility of the transcript was withheld and the Respondent was instructed to file the transcript and provide a copy to the Petitioner. The Petitioner was given fifteen days from the date the transcript was provided to the Petitioner by the Respondent to indicate whether he objected to the transcript.

Subsequent to the completion of the formal hearing the Petitioner retained representation of counsel: Carolyn S. Raepple, Esquire. Counsel for the Petitioner filed an Objection to Acceptance of Respondent's Exhibit No. 1 Into Evidence raising two grounds not previously raised by the Petitioner to the admissibility of Respondent's exhibit 1. The Respondent filed a Response to this Objection.

Based upon a review of Respondent's exhibit 1, the exhibit was rejected.

The parties were notified by telephone of the rejection of this exhibit prior to the deadline for filing proposed recommended orders.

Finally, the parties filed an exhibit which was identified as "Joint Exhibit 1" and accepted into evidence.

The parties have filed proposed recommended orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

ISSUE

Whether the Petitioner has met the requirements for licensure as a medical doctor in the State of Florida set forth in Section 458.311(1)(f), Florida Statutes (1986 Supp.), as required by Section 458.313(1), Florida Statutes (1986 Supp.)?

FINDINGS OF FACT

1. The Petitioner applied for licensure by endorsement as a medical doctor in Florida in September of 1986.

   
   

2. Following notification by the Respondent that additional materials were required to complete the Petitioner's application, the Petitioner timely submitted the materials.

   
   

3. In March of 1987, the Petitioner appeared before the Foreign Medical Graduate Committee of the Respondent. On April 5, 1987, the Respondent entered an Order titled Notice of Intent to Deny the Application for Licensure by Endorsement of Hien B. Nguyen. The stated basis for the denial of the Petitioner's application was that the Petitioner had failed to demonstrate that he graduated from a medical school.

   
   

4. The Petitioner began medical school in 1967 at the University of Saigon, Faculty of Medicine, in Saigon, Republic of Vietnam.

   
   

5. The Petitioner Successfully completed the six years required course work in medicine at the University of Saigon, Faculty of Medicine, in 1974.

   
   

6. Following the completion of the course work required to earn a medical degree at the University of Saigon, Faculty of Medicine, the Petitioner was

   drafted into the Republic of Vietnam's military. He attended training for approximately six months immediately following the completion of his medical degree course work.

   
   

7. The Petitioner was required to complete a thesis before being eligible for a medical degree from the University of Saigon, Faculty of Medicine. Upon completion of military training, the Petitioner commenced and completed work on his thesis.

   
   

8. The Petitioner's thesis consisted of a translation of "Central Nervous Disease in Children," of Nelson's Pediatric Textbook, from English into Vietnamese.

   
   

9. The Petitioner presented his thesis on April 14, 1975. Thuc R. Bach,

   M.D. attended the presentation of his wife's thesis on April 14, 1975, and witnessed the Petitioner's thesis presentation.

   
   

10. The Petitioner was awarded a Certificate from the University of Saigon, Faculty of Medicine, on April 14, 1975, which indicated that the Petitioner had completed work necessary to be awarded a medical degree. The Certificate was issued temporarily. After approximately five years the Petitioner was required to return the Certificate at which time he could be issued an official diploma.

    
    

11. On approximately April 30, 1975, the government of the Republic of Vietnam fell to the army of North Vietnam.

    
    

12. Following the fall of the Republic of Vietnam, the Petitioner was confined to a concentration camp where the Petitioner acted as camp doctor.

    
    

13. Following the Petitioner's release from confinement in 1976, the Petitioner worked as a physician at Saint Paul Clinic in Saigon until 1979. From 1977 until 1980 the Petitioner also attended and taught at a medical training center in Saigon.

    
    

14. In October, 1980, the Petitioner escaped from Vietnam. He resided in Galang, Indonesia until March, 1981, when he moved to the United States.

    
    

15. The Petitioner has completed the following since his arrival in the United States:

    
    

    1. December, 1981: Sat for the Federation Licensing Examination and was subsequently

       certified by the Federation of State Medical Boards;

    2. January 24, 1983: Certified by the Educational Commission for Foreign Medical Graduates;

    3. July, 1984 - June, 1985: Interned at the Cook County Hospital, Chicago, Illinois;

    4. July, 1985 - June, 1987: Residency program at Cook County Hospital, and

    5. February 19, 1986: Licensed as a physician by the State of Illinois (the license is currently active and unrestricted).

       
       

16. The Petitioner was presented with a certificate from the Faculty- Council-in-Exile of the Faculty of Medicine of the University of Saigon dated April 20, 1981. The certificate affirms that the Petitioner "Successfully

    completed the course of study leading to the degree of Doctor of Medicine..." The certificate is signed by the Dean Emeritus of the University and Dao Huu Anh, M.D., Associate Dean of the University.

    
    

17. Prior to the fall of the government of the Republic of Vietnam, graduates of the University of Saigon, Faculty of Medicine, were presented with a certificate authorizing them to practice as a physician without restriction upon completion of the required courses of study and a thesis. Graduates were not issued an Official Diploma until five years had passed since the issuance of their certificate.

    
    

18. Although the Petitioner completed the required courses of study, presented his thesis and received a certificate authorizing him to practice as a physician, the Petitioner was not able to obtain an Official Diploma five years later because of the fall of the government of the Republic of Vietnam. In light of the fall of the government of the Republic of Vietnam, it is doubtful that the records of the University of Saigon, Faculty of Medicine are available or that the Petitioner could obtain an Official Diploma.

    
    

19. The Petitioner is a graduate of the University of Saigon, Faculty of Medicine, a medical school.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1986 Supp.).

    
    

21. The Petitioner is seeking licensure as a medical doctor in the State of Florida and must therefore meet the requirements of Chapter 458, Florida Statutes. The Respondent has determined that the Petitioner has failed to meet all of those requirements. The Respondent has determined that the Petitioner does not meet the requirements of Section 458.311(1)(b)-(f), Florida Statutes (1986 Supp.), as required by Section 458.313(1), Florida Statutes. In particular, the Respondent has determined that the Petitioner has failed to prove that he graduated from a medical school.

    
    

22. The burden of proving that the Petitioner is a graduate from a medical school is on the Petitioner. Rule 28-6.008, Florida Administrative Code; and Balino v. Department of Health and Rehabilitative Services; 348 So.2d 349 (Fla. 1st DCA 1977).

    
    

23. The Respondent has argued that the Petitioner has failed to prove by clear and convincing evidence that he is a graduate of a medical school. In support of this argument, the Respondent has argued that much of the evidence in this proceeding is hearsay which cannot be relied upon to support findings of fact and that some of the evidence contradicts the facts which the Petitioner has tried to prove with that evidence.

    
    

24. It is true that much of the evidence in this proceeding (primarily included as part of Joint Exhibit 1), constitutes hearsay. If hearsay evidence was the only evidence in support of the Petitioner's claim that he graduated from a medical school, that evidence would not be sufficient to conclude that the Petitioner has graduated from medical school. The Respondent's argument, however, overlooks the testimony of the Petitioner; that testimony is not hearsay and it supports the conclusion that the Petitioner has graduated from a medical school. Pursuant to Rule 28-5.304(3), Florida Administrative Code, the

    hearsay evidence accepted into evidence can therefore be relied upon as evidence which supplements or explains the Petitioner's testimony and other evidence.

    
    

25. The Respondent's argument concerning alleged contradictions in the evidence is also rejected. First the Respondent has argued that a certificate issued by the Faculty-Council-in-Exile of the Faculty of Medicine of the University of Saigon (see finding of fact 16) is contradicted by a letter indicating that the certificate was not issued based upon a review of the records of the medical school. Although it is true that the medical school records are not available to the Faculty-Council-in-Exile and, therefore, the certificate could not have been issued based upon those records, the Respondent ignores the fact that other evidence could have formed the basis of the Faculty- Council-in-Exile conclusion. The medical records of the University of Saigon, Faculty of Medicine, were not available in this proceeding either but other evidence supports a finding of fact that the Petitioner graduated from medical school just as other evidence could support the Faculty-Council-in-Exile's conclusion.

    
    

26. Secondly, the Respondent has argued that affidavits offered by the Petitioner indicate that the Petitioner graduated from medical school in 1974 which is contradicted by the Petitioner's testimony that he presented his thesis in April of 1975. The affidavits the Respondent refers to are not inconsistent in substance with the Petitioner's testimony. Affidavits submitted by the Petitioner do include statements that the Petitioner "graduated" from medical school in 1974. The affidavits also indicate, however, that the affiants are aware that the Petitioner did not present his thesis until April 14, 1975. Therefore, it is clear that the affiants have merely incorrectly called the Petitioner's completion of his course work at the University of Saigon in 1974 as "graduation." This incorrect characterization of the completion, of the Petitioner's course work is not an inconsistency in substance.

    
    

27. Finally, the Respondent points to the fact that the provisional certificate issued to the Petitioner on April 15, 1975, was not exchanged by the Petitioner for an official diploma even though the Petitioner was still in Vietnam five years after receiving the provisional certificate. This argument ignores the realities of the political climate which existed in Vietnam after the fall of the government of the Republic of Vietnam. It also ignores the fact that the Petitioner was placed in a concentration camp by the government which the Respondent expects the Petitioner to ask to issue a diploma and the fact that the Petitioner was forced to flee Vietnam in 1980.

    
    

28. Although some questions were raised by the evidence in this proceeding, the weight of the evidence supports the Petitioner's contention that he completed medical school. The Petitioner's testimony was convincing and for the most part consistent. The only inconsistency in the Petitioner's testimony concerned whether he completed his course work in June of 1974 or December of 1974. The Petitioner's explanation of this inconsistency was convincing and accepted by the undersigned. In addition to the Petitioner's testimony, the Petitioner presented other evidence which corroborated his testimony. Of particular significance was the affidavits of Thu Duc Nguyen, M.D. and Trung Hoang La, M.D. and a letter from Thuc T. Bach, M.D. Dr. Thu, a licensed Florida medical doctor, and Dr. Thuc both indicated that they attended the University of Saigon, Faculty of Medicine from 1967 to 1974. Dr. Thuc confirmed that the Petitioner presented his thesis on April 14, 1975. Dr. Thuc's confirmation is believable because Dr. Thuc's wife also presented her thesis on the same day. Dr. Trung also confirmed the fact that the Petitioner presented his thesis on April 14, 1975, indicating that he "had the honor to be in the audience that

    day." Dr. Trung also confirmed that the Petitioner practiced medicine after their graduation from medical school indicating that he worked with the Petitioner. The statements of these three doctors indicate that they have personal knowledge of the relevant facts and are not merely parroting information supplied to them by the Petitioner.

    
    

29. Rule 21M-22.010, Florida Administrative Code, requires that applicants for licensure submit their medical school or medical college diploma in support of their application. In the event that a diploma has been lost or destroyed, an applicant is required to submit "a statement under the signature and seal of the Dean of the medical school or medical college from which he graduated, which statement shall demonstrate that the applicant has satisfactorily completed the prescribed course of study, the actual degree conferred and the date thereof." The applicant must further explain the circumstances under which his or her diploma was lost or destroyed.

    
    

30. The Petitioner is unable to provide a "medical school or medical college diploma," because of circumstances beyond his control. Those circumstances have prevented the Petitioner from ever receiving an Official Diploma. Under the circumstances proved to exist in this case, the Petitioner has sufficiently proved that he is in compliance with the requirement that he graduate from a medical school. He should, therefore, be licensed as a medical doctor in the State of Florida. Additionally, although the Petitioner has never been issued an official diploma, the Petitioner's diploma has, in effect, been lost or destroyed. If the Petitioner's diploma is treated as having been lost or destroyed, the Petitioner has presented evidence sufficient to satisfy the requirements of Rule 21M-22.010, Florida Administrative Code, for proving that an applicant is a graduate of a medical school: the Petitioner has presented a certificate signed by the Dean Emeritus and an Associate Dean of the University of Saigon, Faculty of Medicine and has adequately explained why he is unable to produce an official diploma. He should, therefore, be treated as having complied with the requirements of Rule 21M-22.010, Florida Administrative Code.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued GRANTING the Petitioner's

application for licensure by endorsement as a medical doctor in the State of

Florida.

DONE AND ORDERED this 25th day of January, 1988, in Tallahassee, Florida.

LARRY J. SARTIN

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 28th day of January, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2969

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 1.

2 2.

3 3.

4 4 and 5.

5 6.

6 7-10.

7 11-12.

1. 13. The Petitioner worked at the training center from 1977 through 1980.

2. 15. The Petitioner went from Vietnam to Indonesia in October of 1980. He did not travel to the United States until March of 1981.

10-12 Cummulative, summary of the evidence and unnecessary. Dr. Nghia Van Tran's letter was not accepted into evidence.

13 16. The last sentence is cummulative, a summary of evidence and unnecessary. The footnote is irrelevant. The burden of proof in this proceeding was on the

Petitioner. The Respondent is not required to verify the signature of Dr. Dao.

14 10 and 17.

15 17-18.

16-18 Cummulative, summary of the evidence and unnecessary.

The Respondent's Proposed Findings of Fact 1 1 and 3.

2-5 The Respondent's remaining proposed

findings of fact are essentially summaries of the Respondent's inter- pretation of the evidence and argument concerning the evidence. The Respondent's interpretation of the evidence is rejected. The following is a brief discussion of why the

Respondent's arguments have been rejected.

1. The first two sentences are true and support the finding of fact that the Petitioner began medical school in 1967, completed his course work in

   1974 and presented his thesis in April of 1975. See findings of fact 4-5 and 9.

   The third and fourth sentences are true but the Respondent has overlooked the fact that the Petitioner presented other evidence which supports his position. Therefore, even if the fifth sentence were correct, there is other evidence which supports

   findings of fact 4-5 and 9.

   The sixth sentence is irrelevant. Although the Board may have raised a question, the correct answer to that question is a matter of proof. The seventh sentence is true but irrelevant. The eighth sentence

   is not supported by the weight of the evidence. There was no testimony sufficient to support any finding of fact concerning Dr. Dao's signature on any document.

   Although the ninth sentence is correct, the weight of the evidence does not support the alleged fact set out in the tenth sentence.

   The eleventh sentence was taken into account in the weight given to Dr. Dao's statement.

   Although the twelfth sentence is correct the thirteenth and fourteenth sentences are not

   supported by the weight of the evidence.

2. While it is true that the Petitioner's testimony with regard to when he completed his course work at the University of Saigon

   was not totally consistent, the weight of the evidence supports a conclusion that the Petitioner finished his course work in June of 1974. The Petitioner's explanation concerning the inconsistency in his testimony was credible.

3. The first and second sentences are true.

   The third sentence is true but overlooks the fact that it corroborates non-hearsay evidence. The fourth sentence is law.

   The fifth sentence is true.

   The sixth and seventh sentences are true.

   The eight sentence is not supported by the weight of the evidence.

   The ninth and tenth sentences are true but they do not support the ultimate conclusion the Respondent suggests. It is possible that the Certificate in question could have

   been based upon other credible evidence.

4. The first sentence is true.

The second sentence is not supported by the weight of the evidence. The Petitioner testified that he completed his course work in 1974.

The third sentence is true.

The fourth and fifth sentences are

not supported by the weight of the evidence.

COPIES FURNISHED:

Carolyn S. Raepple, Esquire Cheryl G. Stuart, Esquire Hopping, Boyd, Green & Sams

420 First Florida Bank Building Post Office Box 6526 Tallahassee, Florida 32314

M. Catherine Lannon, Esquire Assistant Attorney General Administrative Law Section Department of Legal Affairs Room 1601, The Capitol Tallahassee, Florida 32399-1050

Ms. Dorothy Faircloth Executive Director 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

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-002969

Orders for Case No: 87-002969