STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GERARDO HEVILLA, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1457

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above styled matter was held on October 12-13, 1988, in Miami, Florida, before Joyous D. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Rodney W. Bryson

Bryson & Berman, P.A.

8525 Northwest 53rd Terrace, Suite 219

Miami, Florida 33166-4521

For Respondent: Ann Cocheu

Assistant Attorney General Department of Legal Affairs Suite 1603, The Capitol Tallahassee, Florida 32399-1050

BACKGROUND AND PROCEDURAL MATTERS

This case began on February 7, 1988, when the Board of Medicine entered an order which informed Petitioner that his application for licensure as a physician in Florida was being denied based upon the following alleged grounds: a conviction or finding of guilt of a crime related to the practice of medicine in violation of Section 458.331(1)(c), Florida Statutes; the Petitioner's appearance before the Credentials Committee of the Board and the documentation which allegedly revealed difficulties with the applicant's honesty in the application process or revealed that the applicant is so naive that he cannot practice medicine with skill and safety in Florida in violation of Section 458.331(3), Florida Statutes; the applicant's failure to demonstrate good moral character as required by Section 4S8.313(1)(c), Florida Statutes; the applicant's attempt to obtain a license to practice medicine by fraudulent misrepresentation in violation of Section 458.331(1)(a), Florida Statutes; and the applicant's practice in Florida without an active license, in violation of Section 458.327(1)(a), Florida Statutes.

On March 4, 1988, Petitioner filed a Petition for Formal Hearing which contested the denial and which alleged that Petitioner, Gerardo Hevilla, was entitled to licensure by endorsement. The case was forwarded to the Division of Administrative Hearings for formal proceedings on March 29, 1988.

At the hearing Petitioner presented the testimony of the following witnesses: Ernest M. DeGeronimo, Jr., a physician for whom Petitioner is currently employed; Frank Rubio, an attorney who represented Petitioner in connection with a criminal case; Michael Tarkoff, an attorney who represented Nelson Torres; Timothy Alexander, a plastic surgeon who worked with Petitioner at the South Florida Medical and Surgical Center; Milton Monyek, a medical doctor; and Petitioner. Petitioner's exhibits numbered 1-6, 8, 10, 12, 13 and 15-22 were admitted into evidence. Petitioner's exhibit 14 was not admitted into evidence but has been proffered for the record; as such it has not been considered as a basis for a finding of fact. Respondent presented the testimony of the following witnesses: Bruce Lamb, general counsel and director of the Division of Regulation of the Department of Professional Regulation; Zoriada Wong, a former patient at the South Florida Medical and Surgical Center; Debra Foh, a former investigator for the State of Florida, Auditor General's Office; Robert Katims, medical doctor and member of the Board of Medicine's probable cause committee; and Marta Garcia-Lavin, a medical doctor formerly associated with the South Florida Medical and Surgical Center. Respondent's exhibits numbered 1, 2, 4, and 5 were admitted into evidence. The Petitioner offered two rebuttal witnesses, Blanky Urquiza, a former employee at the South Florida Medical and Surgical Center, and Petitioner.

After the hearing, the parties filed proposed recommended orders which have been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix.

ISSUE

The central issue in this case is whether Petitioner is entitled to licensure by endorsement.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact:

1. The Petitioner, Gerardo Hevilla, completed the application for licensure by endorsement and submitted all degrees, test results, certificates, recommendations, and other documents required by law to be considered for licensure by endorsement as a medical doctor in Florida. The degrees, test results, recommendations and other documents submitted by Petitioner are authentic.

   
   

2. Petitioner obtained a doctor of medicine degree from the Universidad Nacional De Rosario in Argentina on July 1, 1980.

   
   

3. Universidad Nacional De Rosario Medical School (School) is a medical school duly listed by the World Heath Organization.

   
   

4. Graduates of the School are eligible to seek medical licensure in Florida by endorsement pursuant to the provisions found in Section 458.313, Florida Statutes, and the rules and regulations promulgated by the Board of Medicine (Board).

5. On November 20, 1985, Petitioner satisfied the requirements of the Educational Council on Foreign Medical Graduates (ECFMG) and was issued ECFMG certificate no. 339-394-9.

   
   

6. Petitioner obtained a passing score on the Federated Licensing Examination (FLEX) within 10 years immediately preceding his application for licensure by endorsement in Florida.

   
   

7. Petitioner successfully completed one year of post- graduate training at Lincoln Medical and Mental Health Center as a resident in general surgery.

   
   

8. Petitioner has satisfied all preliminary requirements of the Board to be considered for licensure by endorsement.

   
   

9. Petitioner came to Florida in April, 1981. At that time he did not speak English and, therefore, was not able to pass the English portion of the ECFMG examination. In order to learn English, he enrolled at Miami High School.

   
   

10. While enrolled at the high school, Petitioner volunteered his services to a clinic located approximately two blocks from the school. Petitioner worked at this clinic, LeGran Familia Clinic (Clinic), from 1982 until 1984, while he attempted to learn English. Since many of the doctors and patients at the Clinic spoke Spanish, Petitioner did not have difficulty. The Clinic had 20-22 licensed physicians on staff during the time Petitioner worked there.

    
    

11. During the time Petitioner worked at the Clinic, he was primarily under the supervision of Dr. Mirabal. According to Dr. Mirabal, Petitioner was a brilliant, though ambiguous, physician. Petitioner did not represent himself to patients as a physician but was responsible for taking vital statistics, patient histories, and transcribing Dr. Mirabal's dictation. A licensed physician was present at the clinic at all times during which Petitioner performed these services.

    
    

12. Subsequently, the Clinic came under investigation for Medicaid fraud. Petitioner was named as one of several defendants in the criminal prosecution. This charge was later dismissed by the prosecuting State Attorney and is not claimed as a basis for the denial of Petitioner's application for licensure.

    
    

13. A second charge, the unauthorized practice of medicine, was alleged against Petitioner in State of Florida v. Gerardo Hevilla, Dade County Circuit Court, Criminal Division, case no. 84-8608. Initially, Petitioner pled not guilty to this charge.

    
    

14. On May 3, 1985, Petitioner changed his plea to nolo contendere based upon a representation by the State Attorney to the trial judge that the Department of Professional Regulation had been contacted and had agreed that such plea would not be used against Petitioner in his future licensing efforts. This representation was made on the record and is a part of the plea colloquy.

    
    

15. Prior to this presentation, Petitioner had refused, and intended to continue to refuse, to change his plea because of his concern that such a plea would adversely affect his ability to become licensed. The estimated cost to defend the criminal case exceeded $25,000. Petitioner accepted the negotiated plea as a financial concession only after the assurances were given that it would not affect his ability to become licensed.

16. In January or February, 1984, Petitioner became employed at the South Florida Medical and Surgical Center (Center). He remained associated with the Center until June, 1986.

    
    

17. While at the Center, Petitioner worked as a surgical assistant and helped the licensed surgeons as they directed. Petitioner did not treat patients independently of the licensed doctors and did not hold himself out as a licensed physician. He told one patient, Zoraida Wong, that he was a student.

    
    

18. Petitioner assisted Dr. DeGeronimo and Dr. Alexander at the Center. These doctors found Petitioner to be competent, skilled, and a good worker. In fact, Dr. DeGeronimo was so pleased with Petitioner's work that he employed him at his private office until June, 1986.

    
    

19. The work performed by Petitioner at the Center and with Dr. DeGeronimo consisted of setting up the operating area, ordering supplies, assisting in surgery by wiping blood, holding retractors, or cutting stitches, and bandaging wounds. All work was done under a licensed physician's supervision.

    
    

20. From June, 1986 until July, 1987, Petitioner performed a one year residency at the Lincoln Medical Hospital. During this period, Petitioner was supervised by Drs. Stahl, the program director, and Kazigo, an associate professor. According to these physicians, Petitioner is qualified for licensure, possesses the requisite knowledge and skill, and successfully completely the residency program.

    
    

21. Following the completion of his residency, Petitioner returned to Miami and is employed again as an assistant to Dr. DeGeronimo in his plastic surgery practice.

    
    

22. Petitioner did not perform facial plastic surgery on the patient, Zoraida Wong.

    
    

23. Petitioner did not withhold facts regarding his criminal plea from the Board.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

25. Section 458.311(1)(c) , Florida Statutes, requires that any person desiring to be licensed as a physician be of good moral character.

    
    

26. In this case, Petitioner has established that he is of good moral character. The unrefuted testimony of Drs. DeGeronimo, Alexander, Stahl, and Kazigo, physicians with whom Petitioner has worked, all found him to be competent and moral. Further, there is no evidence which would suggest that Petitioner cannot practice medicine with skill and safety in Florida. The weight of the credible evidence proved Petitioner has the necessary knowledge and skills to become licensed. There is no credible evidence to support a conclusion that Petitioner is not honest or is so naive that he should not be licensed.

27. Section 458.331(1)(a), Florida Statutes, provides:

    
    

    1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

       1. Attempting to obtain, obtaining, or renewing a license to practice medicine by bribery, by fraudulent misrepresentation, or through an error of the department or board.

          
          

28. In this case there is no evidence that Petitioner attempted to obtain a license by fraudulent misrepresentations. To the contrary, Petitioner has cooperated to provide copies of all documents relating to the criminal case, has fully explained the basis for his changed plea, and has attempted to satisfy all inquiries made by the Credentials Committee. Consequently, Petitioner has not violated Section 458.331(1)(a), Florida Statutes.

    
    

29. Section 458.327(1)(a), Florida Statutes, provides:

    
    

    1. Each of the following acts constitutes a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084:

       1. The practice of medicine or an attempt to practice medicine without an active license.

          
          

30. Petitioner has not practiced medicine or attempted to practice medicine without an active license. The weight of the credible evidence supports the conclusion that Petitioner has performed all services under the supervision and direction of a licensed physician. Based upon the evidence presented in this case, Petitioner is not guilty of violating Section 458.327(1)(a), Florida Statutes.

    
    

31. Section 458.33l(1)(c), Florida Statutes, provides:

    
    

    (I) The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

    (c) Being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of medicine or to the ability to practice medicine. Any plea of nolo contendere shall be considered a conviction for purposes of this chapter.

    
    

32. In the case Avala v. Department of Professional Regulation, 478 So.2d 1116 (Fla. 1st DCA 1985) the court found that in construing Section 458.331(1)(c), Florida Statutes, the Board may consider a nolo contendere plea as evidence of a conviction; however the Board must allow an applicant the opportunity to rebut the presumption and assert his innocence of the underlying criminal charges by explaining the reasons and circumstances surrounding his plea. Thus, while the plea is considered evidence of guilt, it is not conclusive and due process requires that an applicant such as this Petitioner be given an opportunity to explain. See also: Kinney v. Department of State, Division of Licensing, 501 So.2d 129 (Fla. 5th DCA 1987).

33. In this case, Petitioner has fully and adequately explained the reasons behind his nolo plea. First, he was assured on the record before the criminal judge that the plea would not be used against him in his future licensing efforts. No fewer than two attorneys represented to him that the Department of Professional Regulation had been contacted to verify that the plea would not be used. Whether the contact was made, whether such representations were given, or whether the Board could be bound by such representations are all irrelevant to the issue of why he pled nolo. The simple fact is the representation was made, Petitioner believed it, and was thereby induced to change his plea. Secondly, by agreeing to change his plea Petitioner saved many thousands of dollars, or believed he would, based upon the representations made to him by his attorney. At that given point in time, and with the assurances given to him, Petitioner elected to minimize his financial losses. Petitioner's reasoning is both credible and reasonable under the circumstances.

    
    

34. There is no evidence that Petitioner engaged in the unlicensed practice of medicine. The testimony of the physician under whose supervision he worked at the Clinic verified that he was at all times working with a licensed physician. Dr. Mirabal did not claim Petitioner worked independently of the licensed doctors. With regard to his work at the Center, again, Petitioner was always supervised by a licensed physician. Both Drs. DeGeronimo and Alexander testified that Petitioner worked in a supervised setting. Petitioner has met the burden of proving he is entitled to licensure.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That The Board of Medicine enter a final order approving Petitioner's application for licensure by endorsement.

DONE and RECOMMENDED this 30th day of December, 1988, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1987.

APPENDIX TO RECOMMENDED ORDER

RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT:

1. The first sentence in Paragraph 1 is accepted. With regard to the sentence, that portion which alleges Petitioner took courses at the University of Miami is accepted the rest is rejected as beyond the scope of evidence presented or irrelevant to these proceedings.

2. Paragraph 2 is accepted as to all parts.

3. With regard to paragraph 3A. with the exception of the reference to full-time study of English it is accepted. The record does not conclude whether or not Petitioner was in school full-time, he did enroll at Miami High School to learn English so to that extext it is accepted, otherwise rejected as not supported by the record.

4. Paragraphs 3B-D are accepted.

5. Paragraph 4 is accepted.

6. Paragraph 5A. is accepted.

7. The first sentence and last sentence of the first paragraph of paragraph 5B are accepted; the remainder of the first paragraph is rejected as irrelevant, immaterial, not supported by the record or speculation.

8. The second, third and fourth paragraphs of Paragraph 5B are accepted.

9. The first paragraph of SC is accepted. The second paragraph of SC is rejected as irrelevant; the Board has not claimed the allegations relating to the alleged Medicaid fraud were a basis for denial of Petitioner's license.

10. The first three sentences of the first paragraph of Paragraph 6 are accepted. The remainder of the first paragraph is rejected as a recitation of testimony, irrelevant, or unsupported by the record.

11. The second paragraph of Paragraph 6 is rejected as a recitation of testimony, irrelevant, or argument.

12. The third paragraph of Paragraph 6 is rejected as a recitation of testimony, irrelevant, or argument.

13. The fourth paragraph of Paragraph 6 is rejected as a recitation of testimony, irrelevant, or argument. With regard to these paragraphs, see finding of fact which concludes Petitioner did not operate on the patient Wong. Petitioner's testimony, Dr. DeGeronimo's, and Urquiza's testimony were deemed credible. Dr. Garcia-Lavin and Wong were not.

14. The fifth paragraph of Paragraph 6 is rejected as argument, but as to facts therein see explanation in p. 13 above.

RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT:

1. Paragraphs 1-11c are accepted.

2. The first sentence of paragraph 12 is accepted. The remainder of paragraph 12 is rejected as contrary to the weight of credible evidence. Petitioner was not eligible to take the residency until he had mastered English to a sufficient level to pass required examinations. Petitioner's explanation for the period was acceptable.

3. Paragraph 13 is accepted.

4. Paragraph 14 is rejected as contrary to the credible evidence, argument or irrelevant. Petitioner is found to be credible.

5. Paragraph 15 is rejected as contrary to the evidence, argument or irrelevant.

6. Paragraph 16 is rejected as irrelevant, unsupported by the credible evidence or argument.

7. Paragraph 17 is rejected as irrelevant or argument. That the Department did not actually pledge to hold Petitioner harmless by reason of the

   plea is not a disputed issue Petitioner had a reasonable basis for believing that to be the case; however, and was induced to change his plea on that basis.

8. Paragraph 18 is accepted but is irrelevant; see p. 7 above.

9. The first three sentences of paragraph 19 are accepted. The record does not disclose how many licensed physicians may performed surgery at the Center; therefore the fourth sentence is rejected. The record does support a finding that Drs. Alexander, DeGeronimo, and Garcia-Lavin worked there and that the facility only used one surgical room.

10. Paragraph 20 is rejected as irrelevant to the issues of this case.

11. Paragraph 21 is rejected as irrelevant, immaterial or unnecessary to the resolution of the issues of this case.

12. Paragraph 22 is rejected as irrelevant, immaterial, contrary to the evidence or unnecessary to the resolution of the issues of this case.

13. The first two sentences of paragraph 23 are accepted, the remainder is rejected as contrary to the credible evidence, irrelevant, or immaterial to the resolution of the issues of this case.

14. Paragraphs 24-26 are rejected as contrary to the weight of the evidence, irrelevant or immaterial to the resolution of the issues of this case. It is possible that Petitioner remained associated with the Center and also worked for Dr. DeGeronimo. The testimony of the three (Petitioner, Alexander, and DeGeronimo) does not conflict.

COPIES FURNISHED:

Rodney W. Bryson Bryson & Berman, P.A. Suite 219

8525 N.W. 53rd Terrace Miami, Florida 33166

Ann Cocheu

Assistant Attorney General Department of Legal Affairs Suite 1603, 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

Bruce D. Lamb General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-001457

Orders for Case No: 88-001457