STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NORMAN M. PHILLIPS, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 88-2962

)

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, 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: Robert S. Turk

VALDES-FAULI, COBB, PETREY & BISCHOFF, P.A.

Suite 3400-One Biscayne Tower Two S. Biscayne Boulevard Miami, Florida 33131

For Respondent: Allen R. Grossman

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

BACKGROUND AND PROCEDURAL MATTERS

This case began on April 12, 1988, when the Board of Medicine (Board) entered an order which notified Petitioner of its intent to deny his application for licensure as a physician. Petitioner had sought licensure by endorsement.

The grounds for the intended denial were Petitioner's alleged failure to demonstrate good moral character as required by Section 458.313(1), Florida Statutes, or his alleged inability to practice medicine with reasonable skill and safety due to a mental condition. Specifically, the Board claimed Petitioner may have provided false information in connection with a residency program. The Board also asserted Petitioner failed to demonstrate his ability, to practice medicine with skill and safety because he received a poor recommendation from his postgraduate medical training supervisor and was reported to have failed to attend to required duties.

On May 24, 1988, Petitioner filed a Petition for Formal Proceeding which sought review of the allegations made by the Board. Petitioner disputed the

facts relied on by the Board, and the case was forwarded to the Division of Administrative Hearings for formal proceedings on June 13, 1988.

At the hearing, the parties presented a Stipulation which identified facts which were not disputed, and which limited the remaining issues to be tried.

Petitioner testified in his own behalf and presented the testimony of Dorothea Glass, M.D., chief of rehabilitation services at the V.A. medical center in Miami and Petitioner's current supervisor. Petitioner's exhibits numbered 1 through 16 were admitted into evidence. The Board's exhibits lettered A through M were admitted into evidence.

At the conclusion of the hearing, the parties waived the filing requirements of Rule 28-5.402, Florida Administrative Code, and agreed to submit their proposed recommended orders on or before March 17, 1989. The delay in submitting the proposals resulted from a dispute with the court reporter regarding the accuracy of the transcript submitted in this cause. The original transcript filed on December 2, 1988, was rejected by the parties as wholly inaccurate. Thereafter, the parties submitted a corrected portion which, by their agreement, has been utilized in this cause. Specific rulings on the proposed findings of fact submitted by the parties are included in the attached appendix.

STATEMENT OF THE ISSUES

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

Specific to the grounds for denial are the issues of whether Petitioner is of good moral character and whether he is able to practice with skill and safety.

FINDINGS OF FACT

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

1. The Petitioner, Norman M. Phillips, M.D., is a graduate of St. George's University School of Medicine, Grenada, West Indies, a foreign medical school.

   
   

2. Petitioner holds a certificate from the Educational Commission on Foreign Medical Graduates (ECFMG) and has passed the ECFMG examination.

   
   

3. Petitioner obtained a passing score on the licensing examination of the Federation of State Medical Boards of the United States, Inc. (FLEX).

   
   

4. Petitioner is licensed to practice medicine in New Jersey.

   
   

5. Petitioner is over 21 years of age.

   
   

6. Petitioner has completed at least one year of an approved residency.

   
   

7. The Petitioner has not committed any act or offense in any jurisdiction which would constitute the basis for disciplining a physician, pursuant to Section 458.331(1) or (2), Florida Statutes.

8. Petitioner applied for licensure by endorsement as a physician in Florida. On March 26, 1988, Petitioner appeared before the Credentials Committee of the Board regarding his application for licensure.

   
   

9. The Credentials Committee recommended to the Board that Petitioner's application be denied. The basis for this recommendation was Petitioner's alleged inability to practice medicine with reasonable skill and safety due to a mental condition and his prior performance during his medical training. The recommendation also claimed Petitioner was not of good moral character.

   
   

10. The Board adopted the recommendation of the Credentials Committee and issued an Order stating its intent to deny the Petitioner's application. Thereafter, Petitioner timely filed for an administrative review of the denial.

    
    

11. After graduation from medical school, Petitioner was accepted into a residency program at St. Peter's Medical Center, New Brunswick, New Jersey.

    This program was in internal medicine and was to cover three years of postgraduate work. After the first year, Petitioner was evaluated and offered a contract for the second year of the program.

    
    

12. Dr. Andrew L. Hahn was the program director of the internal medicine residency program. Dr. Hahn is an expert in the matter of residency training of medical students. Dr. Hahn evaluated Petitioner's performance as satisfactory.

    
    

13. During the second year of the residency, Petitioner received an unfavorable evaluation which placed him on notice of a need to improve in order to receive a contract for the third year of the program. Petitioner ably made necessary corrections, improved his work performance, and, consequently, received a contract for the third year.

    
    

14. After Petitioner had received notice of his contract for the third year, he was required to perform a rotation in radiology. This rotation was selected as it was the only available course given in the time period. While Petitioner would have preferred another topic, he accepted the assignment and agreed to the rotation. The rotation consisted of approximately three weeks of classroom lectures given at a location away from Petitioner's hospital assignments. After attending a few early sessions, Petitioner determined that he had already studied the subject matter of the course in medical school and that further attendance would not benefit him. Petitioner erroneously concluded attendance was not required. Instead of attending the rotation course lectures, Petitioner remained home studying other materials, performed his hospital duties, and made applications relating to future work. Petitioner's patients did not suffer as a result of the missed classroom sessions. Petitioner attended the clinic he was assigned to during the rotation period.

    
    

15. When Petitioner's superiors were informed of the failure to attend the classroom sessions, they approached Petitioner for a satisfactory explanation which he was unable to provide. Since they (including Dr. Hahn) considered the failure to attend a serious breach of his professional responsibility, Petitioner was given the choice of either resigning his third year placement or being terminated. Petitioner agreed to resign his third year and was given a certificate for the two years he completed. At the time of his resignation Petitioner offered to repeat the classroom work but that option was rejected by Dr. Hahn.

    
    

16. After resigning, Petitioner told his superiors that he had worked in a pharmacy (he is a licensed pharmacist) during the time he was supposed to have

    been in the radiology classes. He indicated he had done this because he needed money. Petitioner had not worked in a pharmacy, however, and had fabricated the story in a lame effort to excuse his nonattendance.

    
    

17. Subsequently, Petitioner was interviewed by Dr. Bernard Sandler for a residency program in physical medicine and rehabilitation at the Robert Wood Johnson, Jr. Rehabilitation Institute of the John F. Kennedy Medical Center in Edison, New Jersey. Petitioner was accepted into the program and fell under the supervision of Dr. Thomas Edmund Strax. Petitioner successfully completed this program in December, 1987. Petitioner did not disclose the underlying facts of his resignation from the internal medicine program to either Dr. Sandler or Dr. Strax, however, neither physician questioned him at length about it either. Petitioner did not misrepresent any pertinent history; he simply did not volunteer embarrassing information.

    
    

18. During his residency in rehabilitation, Petitioner was observed by Drs. Sandler, Harold Arlen, and Fazal Panezai. All of these physicians found Petitioner to be able to practice medicine with skill and safety. Petitioner did not exhibit any problem related to malfeasance or incompetence. Petitioner got along with staff and worked well with others.

    
    

19. As a resident in the rehabilitation program, Petitioner was evaluated by Dr. Strax who determined that Petitioner would require improvement in order to meet the high standards Dr. Strax maintained for his course of study. Petitioner was able to make the necessary improvements and satisfactorily met Dr. Strax's objectives.

    
    

20. Dr. Strax is an expert in the matter of residency training of medical students. Dr. Strax had an opportunity to review Petitioner's work on numerous occasions. Dr. Strax recommended Petitioner for licensure and - found him to be qualified and competent.

    
    

21. Petitioner is presently employed as a physician at the Veterans Administration Medical Center in Miami, Florida. Petitioner is not required to be licensed in his present employment since such position is exempt from licensure. Petitioner's present supervisor is Dr. Dorothea Glass, Chief of Rehabilitation Services. Dr. Glass interviewed Petitioner and reviewed references Petitioner had given to her. Dr. Glass knows Dr. Strax who recommended Petitioner for the position which he currently holds. While Dr. Strax advised Dr. Glass to "keep an eye on him," Dr. Glass has done as she would with all young doctors. Dr. Glass has worked with Petitioner on a daily basis since February, 1988, and believes he is competent, hardworking and honest.

    
    

22. Petitioner is able to practice medicine with skill and safety.

    
    

23. Petitioner is of good moral character.

    
    

24. Petitioner did not misrepresent material information when he appeared before the credentials committee.

    
    

    CONCLUSIONS OF LAW

    
    

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

26. Section 458.313, Florida Statutes, provides, in pertinent part:

    
    

    1. The department shall issue a license by endorsement to any applicant who, upon applying to the department and remitting a fee not to exceed $400 set by the board, demonstrates to the board that he has met the qualifications for licensure in

       458.311(1)(b)-(f) and:

       1. Has obtained a passing score, as established by rule of the board, on the licensure examination of the Federation of State Medical Boards of the united States, Inc. (FLEX) or on the examination of the National Board of Medical Examiners, provided that said examination required shall have been taken within the 10 years immediately preceding the filing of his application for licensure under this section;

          
          

27. Section 458.311(1), Florida Statutes, sets forth the requirements for licensure and provides, in part:

    
    

    1. Is at least 21 years of age.

    2. Is of good moral character.

    3. Has not committed any act or offense in any jurisdiction which would constitute the basis for disciplining a physician pursuant to s. 458.331.

       * * *

       (f) Meets one of the following medical education and postgraduate training requirements:

       * * *

       2.a. Is a graduate of a foreign medical school registered with the World Health Organization and certified pursuant to s.

       458.314 as having met the standards required to accredit medical schools in the United States or reasonably comparable standards;

       * * *

       c. Has completed an approved residency of at least 1 year.

       
       

28. The issue in this case is whether Petitioner has shown he meets the criteria set forth above. Clearly, Petitioner has established that he meets the requirements of Section 458.313, Florida Statutes, since he has completed his medical education and successfully passed all relevant examinations. The only requirements questioned by the Board and, therefore, material to this case, deal with Petitioner's moral character and ability to practice medicine.

    
    

29. According to Drs. Glass, Strax, Arlen, Panezai, and Sandler, Petitioner is capable of practicing medicine with skill and safety. Petitioner has, therefore, established that he is competent for licensure. The Board's accusations of a mental condition which would debilitate Petitioner have not been established. To the contrary, Petitioner has shown he is capable of

    practicing medicine and does not have a mental condition which would preclude him from successfully performing his responsibilities.

    
    

30. Contrary to the Board's assertions, Petitioner has established he has good moral character. Lack of "good moral character" would be acts or conduct which would cause a reasonable man to doubt about an individual's honesty, fairness, and respect for the rights of others and for the laws of the state. Florida Board of Bar Examiners v. G.W.L., 364 So.2d 454 (Fla. 1987). In this case, Petitioner has shown that he can distinguish between right and wrong. See Zemour, Inc. v. Division of Beverage, 347 So.2d 1102 (Fla. 1st DCA 1977). Further, he showed sincere remorse regarding the past errors. While he did not volunteer detailed facts regarding the residency rotation incident to Drs. Sandler and Strax, he clearly did not hide the facts nor distort them. Nor has Petitioner misrepresented or concealed material facts at any time during the application process.

    
    

31. Petitioner may not be the top academic candidate for licensure, yet he is capable of practicing medicine with skill and safety. Only Dr. Hahn had reservations regarding Petitioner's ability and those were based solely on the rotation incident. Petitioner has successfully completed a residency since that time, has become employed and is performing satisfactorily, and has established a good reputation for competency and character with his most recent supervisors. Having complied with all criteria for licensure by endorsement, Petitioner is entitled to become licensed.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Board of Medicine enter a final order approving the application for licensure by endorsement for the Petitioner, Norman M. Phillips, M.D.

DONE and RECOMMENDED this 30th day of May, 1989, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 1989.

APPENDIX

RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT:

1. Paragraphs 1 through 9 are accepted.

2. To the extent addressed in findings of fact paragraphs 11-16, paragraphs 10 through 32 are accepted.

3. Paragraphs 33 through 36, are accepted but are irrelevant to the issues of this case.

4. Paragraph 37 is accepted.

5. Paragraph 38 is rejected as speculation or argument.

6. Paragraph 39 is accepted.

7. Paragraphs 40 through 51 are accepted.

8. Paragraph is rejected as irrelevant.

9. Paragraphs 53 through 63 are accepted.

10. To the extent addressed in findings of fact paragraph 21, paragraphs

    64 through 68 are accepted.

11. Paragraphs 69 through 71 are accepted.

12. Paragraphs 72 through 73 are rejected as immaterial, recitation, or argument.

13. Paragraphs 74 through 76 are rejected as recitation of testimony or argument. See findings of fact paragraph 20.

14. Paragraph 77 is rejected as argument.

RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT:

1. Paragraphs 1 through 10 are accepted.

2. Paragraph 11 is rejected as irrelevant to the extent that it refers to Petitioner's performance as "marginal." Petitioner was rated satisfactory and was permitted to continue. There were areas in which he required improvement, which he was able to correct.

3. Paragraph 12 is accepted with the clarification that the radiology rotation was selected because it was the only one available to Petitioner at the given time. That portion of paragraph 12 which relates a fourth week work in the emergency room is rejected as contrary to the weight of credible evidence.

4. With regard to paragraph 13, that portion which states Petitioner did not attend the classroom radiology rotation is accepted, the remainder is rejected as either unsupported by the record, contrary to the weight of the evidence, or irrelevant.

5. To the extent addressed in findings of fact paragraphs 11-16, paragraphs 14 through 16 are accepted otherwise rejected as irrelevant or contrary to the weight of the credible evidence. It should be noted that any reference to emergency work deficiencies have not been credited nor are they supported by this record.

6. Paragraph 17 is rejected as argument.

7. Paragraph 18 is rejected as contrary to the weight of the credible evidence or argument.

8. Paragraph 19 is rejected as argument, irrelevant, or immaterial to the issues of this case.

9. Paragraph 20 is rejected as argument.

10. Paragraph 21 is rejected as unsupported by the weight of credible evidence or argument.

11. Paragraph 22 is accepted to the extent addressed In findings of fact paragraph 17; otherwise rejected as irrelevant or contrary to the weight of credible evidence.

12. To the extent addressed in findings of fact paragraph 19, paragraph 23 is accepted.

13. Paragraph 24 is accepted.

14. Paragraph 25 is rejected as recitation of testimony, argument, or irrelevant.

15. Paragraph 26 is accepted.

16. Paragraph 27 is rejected as unsupported by the weight of the credible evidence, irrelevant, or argument.

COPIES FURNISHED:

Robert S. Turk

VALDES-FAULI, COBB, PETREY & BISCHOFF, P.A.

Suite 3400-One Biscayne Tower Two S. Biscayne Boulevard Miami, Florida 33131

Allen R. Grossman Assistant Attorney General

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

Docket for Case No: 88-002962

Orders for Case No: 88-002962