STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MARCELINO D. MATA, )
)
Petitioner, )
)
vs. )
) CASE NO. 88-0270
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to Notice, this cause was heard by Linda N. Rigot, the assigned Hearing Officer from the Division of Administrative Hearings, on January 5, 1989, in Miami, Florida.
APPEARANCES
For Petitioner: Mark A. Dresnick, Esquire
Dunn, Dresnick, Lodish & Miller One Biscayne Tower, Suite 2400 Two South Biscayne Boulevard Miami, Florida 33131
For Respondent: Ann Cocheu, Esquire
Assistant Attorney General Department of Legal Affairs Suite 1603, The Capitol Tallahassee, Florida 32399-1050
PRELIMINARY STATEMENT
On November 2, 1987, the Respondent, Department of Professional Regulation, Board of Medicine, issued an Order denying the Petitioner's application for licensure as a physician by endorsement. The Petitioner requested a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes, before the Division of Administrative Hearings contesting the Board's denial of his application for licensure.
The Order issued by the Respondent was based upon the following three grounds:
The application and supporting documentation did not provide sufficient information to demonstrate that the Petitioner could practice medicine with reasonable skill and safety, referencing Sections 458.331(3) and 458.301, Florida Statutes;
The applicant had not graduated from an allopathic medical school or allopathic college recognized and approved by an accrediting agency recognized by the United States Office of Education, as required by Section 458.311(1)(b), Florida Statutes; and
The Petitioner had practiced medicine without an active license, referencing Sections 458.327(1)(a) and 458.331(1)(g) Florida Statutes.
The Pre-Hearing Stipulation filed in this cause limited this matter to three issues of fact to be litigated:
Whether the Petitioner is a graduate of an allopathic medical school or allopathic college recognized and approved by an accrediting agency recognized by the United States Office of Education;
Whether the Petitioner practiced medicine without an active license; and if so, whether such conduct would justify the denial of licensure as a physician of the Petitioner;
Any mitigating circumstances to be presented by the Petitioner justifying his licensure.
Petitioner testified on his own behalf and presented the testimony of Father Jose R. Garcia. Additionally, Petitioner's Exhibits numbered 1-37 were admitted in evidence. Respondent presented no witnesses; however, Respondent's Exhibit numbered 1 was admitted in evidence. Additionally, Joint Exhibit numbered 1 was admitted in evidence.
Both parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. A ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.
FINDINGS OF FACT
The Petitioner was born on December 22, 1941, in Ciego De Avila, Cuba. After graduating from high school, the Petitioner obtained a bachelor of arts degree in 1963, and a bachelor of science degree in 1966 from the pre-university Institute of Ciego De Avila. The Petitioner then enrolled in a one-year pre- medical school training program at the University of Havana, successfully completed that program, and then became a student at the University of Camaguay Medical School.
The University of Camaguay was originally a campus of the University of Havana. During the first two years of medical school, the Petitioner attended some lectures in the City of Havana and some lectures in the City of Camaguay.
The Petitioner successfully completed the University of Camaguay Medical School curriculum which included the courses in the basic sciences such as anatomy, embryology, histology, biochemistry, physiology, medical statistics, neuroanatomy, plus philosophy and the history of medicine. The Petitioner completed a medical rotation with training which included internal medicine, pathological anatomy, radiology, clinical laboratory, microbiology, and
parasitology. In the fourth and fifth years, the rotations included pediatrics, surgery, psychiatry, pharmacology, obstetrics/gynecology, ophthalmology, otolaryngology, dermatology, and orthopaedics. The Petitioner's sworn testimony at the hearing pertaining to these matters was confirmed by a certified copy of his transcript from the University of Camaguay.
The Petitioner's testimony concerning his attendance and successful completion of the curriculum at the University of Camaguay was confirmed by two former professors of the University of Camaguay. Dr. Jorge Dieppa was a professor of internal medicine at the University of Camaguay Medical School commencing in 1968. Dr. Dieppa testified that Dr. Mata was his student of internal medicine at the University of Camaguay, and testified that Dr. Mata attended the University from the end of the `60's through the beginning of the
`70's. Likewise, Dr. Amelio Hernandez was a professor of psychiatry at the University of Camaguay. He testified that he began teaching students at the University of Camaguay sometime before 1970. Although Dr. Hernandez is not sure of the exact date when Dr. Mata graduated from the University of Camaguay, he did know Dr. Mata to be a graduate of the University, and knew that Dr. Mata, after his graduation, performed reconstructive surgery on burn patients at the local hospital.
Dr. Mata graduated from the University of Camaguay on December 22, 1972. At the time he completed his curriculum, he was issued an official government identification card certifying that he had successfully completed his curriculum as a medical doctor. A renewed official card was issued each year thereafter. A copy of his official identification card was admitted in evidence. Although Dr. Mata completed his curriculum in 1972, for administrative reasons, an official University diploma was not issued until 1976. The delay in the issuance of the diploma was not personal to Dr. Mata. Rather, this was true as to numerous other graduates of the medical school. A copy of Dr. Mata's official diploma issuing him the degree of Doctor of Medicine from the University of Camaguay, along with a certified translation of the diploma, is part of this record.
The University of Camaguay Faculty of Medicine is also known as the "Superior Institute of Medical Sciences (Carlos J. Finlay)." (Instituto Superior de Ciencias Medicas "Carlos J. Finlay.") This is confirmed in an official letter containing the seal of the Consul General of Cuba dated February 9, 1984.
The Instituto Superior de Ciencias Medicas "Carlos J. Finlay" at the University of Camaguay is a medical school recognized by the World Health Organization of the United Nations as a medical school which began instruction in 1968. The Petitioner moved into evidence a portion of the Sixth Edition of the World Directory of Medical Schools published by the World Health Organization in 1988. This medical school directory confirms that the medical school began instruction in Camaguay in 1968. This is consistent with the testimony of Petitioner and is also consistent with the testimony of the two former professors of the University of Camaguay who testified on behalf of the Petitioner. There is no indication in the World Health Organization directory or any place else in this record that more than one medical school existed in the City of Camaguay.
Apparently, the Respondent Board of Medical Examiners (now known as the Board of Medicine) previously believed that the University of Camaguay was not in existence during the years that Dr. Mata stated he was a student (1968-1972). This was due to an error contained in the Fifth Edition of the World Directory
of Medical Schools published by the world Health Organization in 1979. The Petitioner moved into evidence this Fifth Edition to demonstrate how this error occurred. For some unknown reason, the Fifth Edition of the World Directory of Medical Schools published by the world Health Organization indicated that the University of Camaguay was not opened until 1976. Obviously, this mistake was recognized by the World Health Organization because the Sixth Edition of its publication shows that the University was actually opened in 1968. These publications explain the reason that the Board incorrectly concluded that the University of Camaguay was non-existent prior to 1976, and also confirm the Petitioner's evidence that he did graduate from a medical school recognized by the World Health Organization.
The Petitioner has fulfilled the medical education requirements for the issuance of a license as a physician by endorsement.
Subsequent to his graduation, Dr. Mata continued his medical studies and became a specialist in reconstructive surgery. He obtained a diploma as a Specialist of the First Degree in Corrective Surgery. He published a thesis based on his work with patients at the burn unit of the General Hospital. As a result of Dr. Mata's interest and expertise specializing in reconstructive surgery to burn patients, he presented numerous papers, served as an instructor at the University of Camaguay, and participated in numerous "journeys" where he met with other surgeons for the purpose of presenting cases and scientific works.
Dr. Mata presented evidence to establish that he was a highly respected plastic and reconstructive surgeon in Cuba prior to his defection in 1981. He had occasion to present numerous scientific works pertaining to his specialized interest in the treatment of burn patients. These works included: "Care of Burned Patients in the Province of Camaguay: Historical Survey"; "Morbi-Mortality in burns: A study of a Semester"; "Clotting Alterations in Burned Children"; "Distribution of Burned Patients in Our Province"; "Importance of Emotional Support in Highly Burned Children"; Importance of Emotional Support in Adult Burn Patients"; "Treatment of Burn Patients During Civil Catastrophes: Our Experience"; and "Hydration with Electrolytical Solutions to Burn Patients During the First 24 Hours."
Solely due to his standing in the medical community, Dr. Mata was permitted by the Cuban authorities to travel to several communist block countries, including the U.S.S.R., Czechoslovakia, Germany, Hungary, and Rumania, with the permission of the Cuban Ministry of Public Health to visit burn clinics and cosmetic surgery units.
Dr. Mata assisted the Catholic church in Cuba by providing charitable medical services to members of the church. Dr. Mata developed a personal relationship with the Bishop of Camaguay while providing medical services to parishioners. This close relationship with the church was frowned upon by Cuban authorities and was one of the reasons Dr. Mata defected from Cuba.
In 1981, Dr. Mata defected from Cuba by leaving an airplane in Gander, Canada, seeking political asylum. At that time, he was returning to Cuba after working in the plastic surgery service in Moscow and the reconstructive surgery service in Germany.
After staying in Canada for 1 1/2 years, Dr. Mata moved to Florida in 1983 and applied to be a licensed physician.
The Respondent has stipulated that the Petitioner holds an active and valid certificate issued by the Educational Commission on Foreign Medical Graduates (ECFMG). The ECFMG certificate was issued on August 16, 1984. Dr. Mata successfully passed the FLEX examination.
The Petitioner first applied for a Florida medical license on October 26, 1983. However, this license application was denied by the Board of Medicine for two reasons: The Board took the position that the University of Camaguay did not exist in 1972, when the Petitioner stated he had graduated. Also, the Board denied the license based on the Petitioner's failure to have an ECFMG certificate.
On August 29, 1984, a formal administrative hearing occurred before then DOAH Hearing Officer, R.T. Carpenter, DOAH Case No. 84-2648. After hearing the evidence presented by both sides, Hearing Officer Carpenter rendered a Recommended Order on October 3, 1984, finding that the Petitioner established that he met the requirements for licensure as a physician by endorsement, pursuant to Section 458.331, Florida Statutes (1983). The Hearing Officer specifically determined that the Petitioner did, in fact, hold a medical degree from an institution recognized by the World Health Organization and that the Petitioner was certified by the ECFMG.
The Petitioner has admitted that he engaged in the practice of medicine prior to the Board of Medicine granting him a license. This caused the Petitioner on February 3, 1985, to withdraw his first application for licensure.
The Petitioner explained the circumstances which caused him unlawfully to practice medicine when he testified in this cause on January 5, 1989. The Petitioner did not knowingly break the law at the time he practiced medicine without a license. While the Petitioner was awaiting the approval of his license application, he was self-employed as a gardener and a handyman. One day while Petitioner was employed painting a house, an anesthesiologist he knew suggested that Petitioner apply for a job at a clinic in Southwest Miami. Dr. Mata went to the clinic and was interviewed by an obstetrician/gynecologist, Dr. Nabil Ghali. Dr. Mata explained to Dr. Ghali his educational background and explained that he had passed the FLEX and ECFMG and was waiting for his license from the Florida Board of Medicine.
Dr. Ghali, as had the anesthesiologist, told Dr. Mata that he could practice at the clinic in a clinic environment without a license, since Dr. Ghali would be supervising his practice.
Dr. Mata did not know that this was illegal and was under the mistaken impression that he could work in this clinic environment prior to the issuance of his license because the clinic was being supervised by Dr. Ghali.
It is clear from Dr. Mata's testimony that he later recognized that his employment at the clinic was against the law. Dr. Mata's demeanor at the formal hearing indicated that he was truly remorseful pertaining to his conduct, and he realized that it was improper for him to accept employment at Dr. Ghali's clinic.
While Dr. Mata was working at the clinic during July, 1984, a patient had a cardiac arrest during the induction of anesthesia. Dr. Mata applied CPR and then called fire rescue. The patient was transported to Palmetto Hospital in Miami. The patient recovered fully without any sequela. There is no evidence that Dr. Mata caused this complication to the patient.
A subsequent police investigation revealed that Dr. Mata was not licensed, and he was arrested for the unlawful practice of medicine, relating to that one patient. Dr. Mata admitted that he had seen other patients while Dr. Ghali was present, but no charges were brought pertaining to these patients.
Dr. Mata cooperated with the police, plead no contest to the charges, and was sentenced to three years probation with the requirement that he provide
200 hours of community service and relinquish his right to be licensed as a doctor during the term of his probation.
The Petitioner provided 200 hours of community service as a volunteer at the Emergency Department of Jackson Memorial Hospital in Miami, working as a janitor, as a translator, and performing any task given him. The Petitioner presented a letter from Jackson Memorial Hospital commending his service and recommending him highly. The Petitioner successfully completed his probation and was terminated from probation early because of his favorable attitude and his good performance. A letter from the Petitioner's probation officer states that although Petitioner did break the law, "he has paid his debt in full for that mistake."
The Petitioner's criminal record pertaining to this matter was sealed and expunged by the presiding judge, pursuant to Section 943.058, Florida Statutes. The judge found that the Petitioner had never previously been adjudicated guilty of a criminal offense or a comparable ordinance violation and was not adjudicated guilty of charges stemming from his arrest.
From July 1, 1985 until June 30, 1986, the Petitioner served as a resident in pediatrics at the Newark Beth-Israel Medical Center/St. Michael's Medical Center in Newark, New Jersey.
Frank Esposito, M.D., testified in this matter by deposition. Dr. Esposito was the Acting Director of the Department of Pediatrics at the St. Michael's Center. He was responsible for coordinating the educational activity of the pediatric residency program attended by Dr. Mata. Dr. Esposito testified pertaining to Dr. Mata's skill and safety as a physician without contradiction as follows:
Question: Did you form an impression as to Dr. Mata's abilities to practice
medicine from the standpoint of his skill and safety as a physician?
Answer: Yes, I did. I would give him my unqualified recommendation for
such.
Question: Why would you give him your unqualified recommendation?
Answer: I think during my experience with him, he demonstrated or he certainly had good medical background.
He has good clinical judgment. His ability to deal with children and families is outstanding.
He is a caring, dedicated
physician and I was very pleased with his performance.
Dr. Esposito had an opportunity to evaluate Dr. Mata's personal character during the course of the residency. He described Dr. Mata as an ethical person and his character to be "of the highest order."
Similarly, the Director of Residency Education at Newark Beth Israel, Barry J. Evans, M.D., sent a letter contained within the file of the Board of Medicine recommending Dr. Mata for licensure "with no reservations," stating that Dr. Mata's "moral and ethical conduct is without blemish, his clinical acumen is superior." Although Dr. Frederic Justiniani, Director of Medical Education at Mt. Sinai Hospital in Miami Beach, could not provide any recommendation for or against Dr. Mata in his letter to the Board, this is understandable since Dr. Justiniani's only exposure to the Petitioner was during a three week period. A strong recommendation in support of licensure was also received from the Chief Resident of the New Jersey program, Clara Machado, M.D., who closely observed Dr. Mata's medical skills for an entire year.
In the two years that have elapsed since his New Jersey residency, Dr. Mata has taken numerous continuing medical education courses, has remained active in physician organizations, and has attempted to remain current in his medical knowledge even though he is not in a position to practice medicine in the State of Florida unless the Respondent approves his license application.
The Petitioner has completed the Mini-Residency program at Mt. Sinai Hospital in Miami Beach. Likewise, the Petitioner has remained an active member of the American Medical Association since 1984, is certified by the Inter-American College of Physicians and Surgeons, and has been accepted into the International Academy of Cosmetic Surgery.
The Petitioner has established based on recommendations and documents in this record that he can practice medicine with reasonable skill and safety.
During cross-examination at the final hearing, the attorney for the Respondent attempted to impeach the credibility of the Petitioner. The Petitioner is very credible. Although the written record discloses some inconsistencies between the oral testimony and the documentary evidence, these inconsistencies are the result of confusion on the part of the Petitioner and not as the result of any intent to present false testimony.
For example, the Petitioner introduced into evidence numerous certificates acknowledging his presentation of various scientific papers. The Petitioner's testimony that he prepared and presented each of these scientific works was credible, and Respondent offered no evidence that he did not. Each of the certificates of recognition indicated they were presented to the Petitioner on various dates, and these dates were consistent with all evidence in the record. Various certificates issued on different dates contain the official seals of different organizations and the signatures of different individuals. A review of these documents, the demeanor of the Petitioner while testifying, and the substance of the Petitioner's testimony belie any suggestion that the Petitioner concocted a scheme to counterfeit these documents as part of a plan to obtain his medical license. Furthermore, none of these documents are the type of diplomas or certificates needed for licensure. Any thought that the Petitioner would go to such lengths to create various certificates of appreciation that are not even a prerequisite for licensure is totally illogical.
While the Respondent's cross-examination of the Petitioner indicated that the originals of some documents were in Cuba subsequent to the date that the translations were certified in Miami during 1983, the Petitioner was uncertain and/or mistaken about the dates on which the documents were brought out of Cuba. Several diplomas and related documents were brought from Cuba to the United States and to Canada on various dates. For example, the Petitioner testified that a Canadian friend brought the Petitioner's University of Camaguay diploma to Canada in 1981 or 1982, and that his Bachelor of Science and Bachelor of Arts diplomas were brought to the United States by his parents either 3, 4, or 5 years before the January, 1989 hearing. Further, Petitioner stated that Exhibits 12 through 15 were removed from Cuba last year. It is found that the Petitioner confused these dates when asked questions about various "exhibit numbers" during his testimony, and that the documents translated in Miami in 1983 were brought to the United States by the Petitioner's parents in 1983.
Petitioner became licensed in Montana. The date that his license was issued does not appear in this record. Therefore, no evidence exists as to whether the license was issued before or after the Petitioner's application for Florida licensure on January 21, 1987.
Observation of Dr. Mata during the course of the final hearing indicates that he testified truthfully. He is a sensitive and concerned individual, qualified to be a Florida physician. It is clear that he is truly remorseful pertaining to the events which resulted in his arrest while working at the clinic in Miami prior to the issuance of his Florida medical license.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter hereof and the parties thereto. Section 120.57(1), Florida Statutes.
Licensure by endorsement to practice medicine in the State of Florida is governed by Section 458.313, Florida Statutes. Under that statute, an applicant who meets all of the qualifications for licensure by endorsement must be issued a license.
Petitioner has established that he has met the educational requirements for licensure by endorsement, pursuant to Section 458.313, Florida Statutes. The Petitioner graduated from the University of Camaguay Medical school in 1972. Petitioner has established that the University of Camaguay Medical School is recognized by the World Health Organization. Therefore, the Petitioner has established that he has met the sole educational requirement for licensure which was disputed by the Respondent.
The Petitioner has established that he can practice medicine with skill and safety. Sections 458.331(3) and 458.301, Florida Statutes (1987). In addition to evidence of an illustrious career as a plastic and reconstructive surgeon in Cuba, the Petitioner has presented glowing and unqualified recommendations from several physicians responsible for supervising the Petitioner during his one year residency at Newark Beth Israel Medical Center/St. Michael's Medical Center in Newark, New Jersey: Dr. Esposito, the Acting Director of the Department of Pediatrics at St. Michael's; Dr. Barry J. Evans, the Director of Residency Education at Newark Beth Israel; and Dr. Clara Machado, the Petitioner's supervising and Chief Resident during this New Jersey residency. Furthermore, the Petitioner has established that he actively attends
numerous continuing medical education courses, and is an active member in good standing of physician professional associations.
Although the pre-trial stipulation signed on behalf of the Respondent does not indicate that the Petitioner's skill and safety as a physician was an issue of fact to be litigated, the burden of proof amply met by the Petitioner showed the Petitioners skill and `safety as a physician.
Conviction of a crime relating to the practice of medicine is not an automatic basis for denial of licensure. Florida law Provides that an applicant must be given the 0pportunity to explain the reasons and circumstances resulting in the criminal conviction, and that these explanations may be considered in mitigation of punishment. Avala v. Department of Professional Regulation, 478 So.2d 1116 (Fla. 1st DCA 1985); The Florida Bar v. Lancaster, 448 So.2d 1019 (Fla. 1984).
In this particular case, Dr. Mata admitted that he plead no contest to the charge of Practicing medicine without a license. The circumstances explained by Dr. Mata established that he did not knowingly violate the law. He explained the mitigating circumstances which resulted in his violation of law and established that he was truly remorseful of the violation. The Petitioner also Presented evidence in mitigation of the charges and to show his rehabilitation.
In Bachynsky v. State, Department of Professional Regulation, 471 So.2d 1305 (Fla. 1st DCA 1985) the First District Court of Appeals reversed the Board of Medicine's decision to deny medical licensure to an applicant previously convicted of a federal misdemeanor relating to the possession of stolen automobile parts transported in interstate commerce. The appellate court upheld the Hearing Officer's finding that the conviction of a criminal offense in the past does not necessarily mean that an applicant for a medical license is not presently of "good moral character." 471 So.2d at 1309.
At the hearing, Dr. Mata candidly admitted that he now recognizes that he did violate the law and appeared sincerely remorseful pertaining to his past conduct. Dr. Mata explained that at the time of his arrest, he incorrectly believed that practice in a supervised clinical setting did not require a license. Dr. Mata was punished for his crime by serving a supervised criminal probation of almost two years and providing 200 hours of community service which he chose to perform at Jackson Memorial Hospital in Miami. He has presented evidence that he did his community service in an exemplary manner, and presented a recommendation for licensure from his probation officer. He has been punished and has established rehabilitation.
Official recognition of the Final Order in Department of Professional Regulation v. Leonardo Allende, M.D., (DPR Case No. 0045814), was granted during the final hearing in this cause. In the Allende case, a licensed physician was convicted of giving a $3,500 bribe to the Executive Director of the Georgia Board of Medical Examiners for the purpose of altering tests scores relating to the physician's wife. Dr. Allende was sentenced by the Georgia courts to three years probation and ordered to pay a $1,000 fine. An administrative complaint was then filed by Florida's Department of Professional Regulation against Dr. Allende, The Florida Board of Medical Examiners entered a Final Order on September 5, 1986, agreeing to a stipulation in which Dr. Allende's license was suspended for a period of four months, he was ordered to provide medical services at a prison or charitable institution for a period of 45 days, his license was placed on probation for a period of three years, and he was ordered
to pay an administrative fine in the amount of $5,000. Although Dr. Allende had been convicted of bribing the Executive Director of the Georgia State Board of Medical Examiners, an intentional criminal act, his Florida license was not revoked,
The denial of licensure to Dr. Mata for practicing medicine without a license is a penalty far in excess of the misdeeds unintentionally committed by Dr. Mata. Dr. Mata was required to withdraw his application for licensure on February 3, 1985, and for the last four years he has served a de facto suspension from the practice of medicine in the State of Florida. Dr. Mata has been significantly punished and has shown both his appreciation of his crime and his rehabilitation.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting Petitioner's
application for licensure as a Florida physician.
DONE and ENTERED this 30th day of March, 1989, in Tallahassee, Leon County, Florida.
LINDA M. RIGOT
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904)488-9675
Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1989.
APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 88-0270
Petitioner's proposed findings of fact numbered l- 39 have been adopted either verbatim or in substance in this Recommended Order.
Respondent's proposed findings of fact numbered L.-
4, 6, and 9 have been adopted either verbatim or in substance in this Recommended Order.
Respondent's proposed finding of fact numbered 5 has been rejected as being irrelevant to any issues under consideration in this cause.
Respondent's proposed finding of fact numbered 7 has been rejected as being contrary to the weight of the evidence in this cause.
Respondent's proposed findings of fact numbered 8 and 10-17 have been rejected as not being supported by the totality of the evidence in this cause.
COPIES FURNISHED:
Mark A. Dresnick, Esquire Dunn, Dresnick, Lodish & Miller One Biscayne Tower, Suite 2400 Two South Biscayne Boulevard Miami, Florida 33131
Ann Cocheu, Esquire Assistant Attorney General Department of Legal Affairs Suite 1603, The Capitol
Tallahassee, Florida 32399-1050
Dorothy Faircloth, Executive Director Florida Board of Medicine
130 North Monroe Street Tallahassee, Florida 32399-0750
Kenneth D. Easley, Esquire General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MARCELINO D. MATA, )
)
Petitioner, )
)
vs. ) CASE NO. 88-0270
)
) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )
)
Respondent. )
) MARCELINO D. MATA )
)
Petitioner, )
)
vs. ) CASE NO. 90-0353
)
) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )
)
Respondent. )
)
SUPPLEMENTAL RECOMMENDED ORDER
Pursuant to Notice, these consolidated causes were heard by Linda M. Rigot, the assigned Hearing Officer from the Division of Administrative Hearings, on December 21, 1990, in Miami, Florida.
APPEARANCES
For Petitioner: Dr. Marcelino D. Mata, pro se
2899 Collins Avenue, #1402 Miami Beach, Florida 33140
For Respondent: Ann Cocheu
Assistant Attorney General Department of Legal Affairs The Capitol
Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE
The issue is whether Petitioner's application for licensure as a physician, by endorsement, should be granted.
PRELIMINARY STATEMENT
On March 30, 1989, a Recommended Order was issued in DOAH Case No. 88-0270 recommending that Petitioner's application for licensure as a physician by endorsement should be granted. That Recommended Order came before the Board of Medicine on October 6, 1989, for entry of a final order. The Recommended Order had determined, inter alia, that Petitioner had rehabilitated himself from an earlier confessed unlicensed practice of medicine and was, therefore, entitled to licensure by endorsement. Since information had been received by the Board after entry of that Recommended Order indicating that Petitioner may have again engaged in the unlicensed practice of medicine, the Board determined that a remand was appropriate. By Order entered October 31, 1989, the Board remanded DOAH Case No. 88-0270 to the Division of Administrative Hearings "...to consider as new evidence the allegations contained in Investigative Report No. ME 8900749 and for reconsideration of whether, in light of the new evidence, Respondent [sic] has sufficiently rehabilitated himself to practice medicine."
On that same date, the Board also entered an Order of Intent to Deny and Notice of Right to a Formal Hearing determining that Petitioner's application for licensure should be denied for knowingly practicing medicine without a license on April 1, 1989, while Petitioner's application for licensure by endorsement was pending. Petitioner timely requested a formal hearing regarding that Order of Intent to Deny, and that cause was subsequently transferred to the Division of Administrative Hearings for the conduct of a formal proceeding.
That matter was assigned DOAH Case No. 90-0353.
On November 30, 1989, an Order Declining Remand was entered in DOAH Case No. 88-0270. The Board of Medicine then filed a Petition for Review of Nonfinal Order of the Division of Administrative Hearings and Petition for Writ of Mandamus in the District Court of Appeal, First District. By Order entered January 17, 1990, the District Court of Appeal denied the Board's Petition for Writ of Mandamus. By opinion filed May 1, 1990, the District Court of Appeal granted the Board's Petition for Review of Nonfinal Order holding, inter alia,
that the remand of DOAH Case No. 88-0270 from the Board of Medicine to the Division of Administrative Hearings should have been accepted "...to consider the new evidence developed subsequent to the January 1989 formal hearing and issue additional findings of fact determining the truth of the matters asserted and recommending whether, in light of that evidence, Mata is fit to practice medicine."
By Order of Consolidation entered May 18, 1990, DOAH Case Numbers 88-0270 and 90-0353 were consolidated and scheduled for final hearing on December 21, 1990, pursuant to the agreement of the parties.
At the final hearing, Petitioner testified on his own behalf. Respondent presented the testimony of Carlos Deverona, Nelson J. Barboza, and Georgina Jorge. Additionally, Joint Exhibit numbered 1, Petitioner's Exhibits numbered 1-3, and Respondent's Exhibits numbered 1-3 were admitted in evidence.
The Respondent submitted post-hearing proposed findings of fact. A ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.
FINDINGS OF FACT
Pursuant to information received by her, Georgina Jorge, an investigator for the Department of Professional Regulation, telephoned the Medical Surgical Center on March 31, 1989, to make an appointment to see Dr. Marcelino Mata for plastic surgery. She was given an appointment for the following day, Saturday, April 1, 1989. Since she and Dr. Mata had had previous dealings with each other, she used a false name.
Jorge contacted the Hialeah Police Department, requesting assistance with her undercover operation. Detective Trujillo agreed to go with her to her appointment, posing as her husband.
On April 1, 1989, Jorge and her "husband" Detective Trujillo arrived at the Medical Surgical Center at the scheduled time. Jorge had changed the color of her hair and was wearing colored contact lenses to avoid recognition by Dr. Mata. She was also wired for sound surveillance. She and Trujillo entered the clinic while two other law enforcement officers waited in a van outside, monitoring the conversation engaged in by Jorge while she was in the clinic.
Jorge approached the receptionist's desk and announced that she was there for her scheduled appointment with Dr. Mata. She was given a patient information form to complete. While she was waiting, she saw Dr. Mata and Dr. Rene Delamar, a licensed physician who owns the Medical Surgical Center, in the interior office area.
After waiting approximately ten minutes, Jorge and Trujillo were taken to an inner office where Dr. Mata was waiting for them. The office was furnished with a desk, behind which Dr. Mata was sitting, two chairs on the other side of the desk for use by patients, and an examining table.
Dr. Mata asked Jorge who had referred her to him. Jorge made up a story involving her maid and a friend of her maid, who had allegedly had plastic surgery performed on them by Dr. Mata, and Dr. Mata was pleased by the glowing reports of their appearance given by Jorge.
Jorge told Dr. Mata that she wanted him to perform plastic surgery on her eyes. They discussed at length how he would perform that surgery and how the anesthesia would be administered. Dr. Mata and Jorge stood up from where they were sitting, and Jorge sat on the examining table while Dr. Mata looked at her face and explained the different stages of the procedure he would use on her. Dr. Mata showed Jorge where he would operate, stitch the muscles, and tighten the face. By the time they finished their discussion, Dr. Mata had quoted to her a fee not only for performing plastic surgery on her eyes but also for a complete face lift and a "peeling" around her mouth. He quoted her a fee for everything of $4,500 cash in advance.
He advised her that he would do the work in stages since he considered plastic surgery to be an art and would not, therefore, perform the entire procedure at one time. He also advised her that the blood work and other tests to be performed prior to the plastic surgery would be done by Dr. Delamar but that he, Dr. Mata, would be performing the plastic surgery.
Jorge and Trujillo left the office where Dr. Mata had seen them, made an appointment with the receptionist to return a week later, and exited the clinic. They then re-entered the clinic, followed by the two law enforcement officers who had been waiting outside. When they returned to the office where they had seen Dr. Mata, he was standing there with a female patient on the examining table. Dr. Mata was arrested.
From September 29, 1988, through April 1, 1989, Dr. Mata had been an instructor at the Martin Technical College in Miami, Florida, teaching medical assistant students. In conjunction with those duties he had instituted some type of clinical program for the medical assistant students whereby they spent time in various hospitals and at the Medical Surgical Center so that his students could receive some experience in how the skills they were learning related in an actual medical environment. His students would sometimes come to the Medical Surgical Center on Saturdays.
It is Dr. Mata's position that he was at the Medical Surgical Center on Saturday, April 1, 1989, waiting for his students to arrive, that Jorge had come to the clinic and asked to see him on the recommendation of a friend, and that he had had a conversation with her regarding plastic surgery in much the same manner that physicians are regularly approached at cocktail parties by people who wish to discuss their medical problems. He also points out that the Medical Surgical Center's appointment book does not reflect an appointment for Jorge on that day, that he performed no physical examination, that he did not establish any medical records for her, and that he charged her no fee for the alleged consultation. While it may well be that Dr. Mata was waiting for his students to arrive on April 1, 1989, it is also found that he was engaging in the practice of medicine on that date.
The Recommended Order entered on March 30, 1989, in DOAH Case No. 88- 0270 resolved allegations regarding the unlicensed practice of medicine by Dr. Mata in July of 1984, at which time he was practicing medicine in a clinic while waiting for the Board of Medicine to determine whether to grant or deny his application for licensure by endorsement. During the final hearing which resulted in entry of that Recommended Order, evidence was received regarding why he had believed that he could practice medicine at a clinic under the supervision of a licensed physician while his application for licensure was pending before the Board of Medicine, regarding his arrest for that activity, regarding the disposition of those criminal charges, regarding the conditions of probation which had been imposed on him and with which he had admirably
complied, and regarding extensive medical training and study in which he had engaged between the July, 1984, arrest and the January, 1989, evidentiary hearing which resulted in the March 30, 1989, Recommended Order. Based upon that evidence, it was found in that Recommended Order that Dr. Mata had not knowingly violated the law, that he was truly remorseful, that he had already suffered a substantial penalty, and that he had rehabilitated himself. Based upon all of the evidence received and considered, it was recommended that Dr. Mata's application for licensure by endorsement be granted.
It is found that Dr. Mata has once again engaged in the unlicensed practice of medicine. It is clear that, therefore, Dr. Mata is not truly remorseful that he engaged in the practice of medicine without a license in July of 1984 and that he, therefore, has not rehabilitated himself.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1990); Board of Medicine v. Mata, 561 So.2d 364 (Fla. lst DCA 1990).
Petitioner has the burden of proving his entitlement to licensure. It is clear that Petitioner has known since July of 1984 that his practice of medicine in Florida without a Florida license, even in a clinical setting under the supervision of a licensed physician, is a violation of the Medical Practice Act, Chapter 458, Florida Statutes. Accordingly, it is also clear that when Petitioner saw patient Jorge on April 1, 1989, he was knowingly practicing medicine without a license. Jorge called for and received an appointment specifically with Petitioner to discuss plastic surgery on her. When she arrived at the clinic, she was given a patient history form to complete. She and her "husband" then proceeded to a room in the clinic where they met with Dr. Mata who questioned her, ascertained what she wanted, advised additional surgery over that which she had requested, touched her face, examined her face, established a treatment schedule for her, and quoted her a fee for his services.
Section 458.305(3), Florida Statutes, provides as follows: 'Practice of medicine' means the diagnosis,
treatment, operation, or prescription for any
human disease, pain, injury, deformity, or other physical or mental condition.
Dr. Mata's discussion with Jorge as to what he would do to improve her appearance and how he would do that involved the diagnosis and prescription for a physical condition. No evidence was offered that Dr. Mata, at any time, advised Jorge that he was not licensed in the State of Florida and could not, therefore, perform plastic surgery on her.
Section 458.327(1)(a), Florida Statutes, makes the practice of medicine without an active license a felony of the third degree. Section 458.331(1)(x), Florida Statutes, provides that a violation of Chapter 458 constitutes grounds for which disciplinary action can be taken. Section 458.313(1), Florida Statutes, requires that an applicant for licensure by endorsement must meet the qualifications for licensure by examination contained in Section 458.311(1)(b)-(f), Florida Statutes. Section 458.311(1)(d) provides that any person desiring to be licensed as a physician by examination must not
have committed any acts or offenses in any jurisdiction which would constitute a basis for disciplining a physician in Florida pursuant to Section 458.331.
Accordingly, Dr. Mata has failed to prove that he meets the requirements for licensure in that he has committed an act, the unlicensed practice of medicine, in violation of Chapter 458 for which disciplinary action can be taken or licensure can be denied, has been arrested and punished for doing so, and then, while his application for licensure remained pending, committed that act again. Petitioner is not rehabilitated.
In its Proposed Supplemental Recommended Order, Respondent raises for the first time additional bases for the denial of Petitioner's application for licensure. Those grounds are not the subject of the remand from the District Court of Appeal in DOAH Case No. 88-0270 and are not the subject of the Order of Intent to Deny and Notice of Right to a Formal Hearing in DOAH Case No. 90-0353. Since Petitioner was not on notice that he needed to defend himself against those allegations or that he needed to present evidence regarding them until after the conclusion of the evidentiary hearing in this cause, those bases raised for the first time in Respondent's Proposed Supplemental Recommended Order are not involved in this proceeding and merit no discussion.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application
for licensure by endorsement.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of March, 1991.
LINDA M. RIGOT
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1991.
APPENDIX TO SUPPLEMENTAL RECOMMENDED ORDER DOAH CASE NOS. 88-0270 and 90-0353
Respondent's proposed findings of fact numbered 1-5, and 6 except for the last sentence have been adopted in substance in this Supplemental Recommended Order.
Respondent's proposed finding of fact numbered 7 and the last sentence of 6 have been rejected as not being supported by any competent evidence.
Respondent's proposed finding of fact numbered 8 has been rejected as being irrelevant to the issues involved in this proceeding.
Respondent's proposed finding of fact numbered 9 has been rejected as not constituting a finding of fact but rather as constituting a discussion of the evidence.
COPIES FURNISHED:
Dr. Marcelino D. Mata
2899 Collins Avenue, #1402 Miami Beach, Florida 33140
Ann Cocheu
Assistant Attorney General Department of Legal Affairs The Capitol
Tallahassee, Florida 32399-1050
Jack McRay General Counsel
Department of Professional Regulation Northwood Centre, Suite 60
1940 North Monroe Street Tallahassee, Florida 32399-0792
Dorothy Faircloth, Executive Director Department of Professional Regulation Board of Medicine
Northwood Centre
1940 North Monroe Street Tallahassee, Florida 32399-0792
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:
All parties have the right to submit written exceptions to this Supplemental Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadlines for filing exceptions to this Recommended Order. Any ex-ceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Jun. 25, 1992 | (Petitioner) Motion to Continue filed. |
| Mar. 06, 1991 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 15, 1991 | Agency Final Order | |
| Mar. 06, 1991 | Recommended Order | Application for licensure denied where physician did not prove rehabilita- tion from earlier conduct of practicing medicine without a license. |
