Judges: ARNOLD H. POLLOCK
Agency: Department of Health
Latest Update: Jun. 13, 1989
Summary: The issue for consideration was whether Respondent's license as a physician should be disciplined because of the allegations of misconduct outlined in the Administrative Complaint filed herein.Physician whose medical license was revoked in another jurisdiction is subject to discipline in Florida because of that alone.
88-5849STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )
)
Petitioner, )
)
vs. ) CASE NO. 88-5849
) STEPHEN SCHWEINSBERG, M. D., )
)
Respondent. )
)
RECOMMENDED ORDER
A formal hearing was held in this case for the Division of Administrative Hearings before Arnold H. Pollock, Hearing Officer, in Tallahassee, Florida on May 12, 1989.
APPEARANCES
For Petitioner: Larry G. McPherson, Jr., Esquire Senior Attorney
Department of Professional Regulation
Northwood Centre
1940 North Monroe Street, Suite 60
Tallahassee, Florida 32399-0792
For Respondent: Was not present and was not
represented by counsel STATEMENT OF THE ISSUES
The issue for consideration was whether Respondent's license as a physician should be disciplined because of the allegations of misconduct outlined in the Administrative Complaint filed herein.
PRELIMINARY STATEMENT
On October 5, 1987, Bruce D. Lamb, then Chief Medical Attorney for the Department of Professional Regulation, filed an Administrative Complaint in this case alleging Respondent was in violation of Section 458.331(1)(b), Florida Statutes, and sought discipline of his license on that basis. Thereafter, on November 23, 1988, William A. Meadlock, Respondent's Michigan attorney, entered an election of rights in which he disputed the allegations of fact in the Administrative Complaint and requested a formal hearing. On November 30, 1988, the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer, and on December 22, 1988, Veronica D. Donnelly, appointed Hearing Officer, entered a Notice of Hearing setting the matter for April 11, 1989 in Ft. Myers, Florida.
On April 10, 1989, Ms. Donnelly was advised that Respondent had become ill and was unable to attend the scheduled hearing and, on April 14, 1989, she entered an Order Granting Continuance and rescheduled the hearing for May 12, 1989 in Tallahassee, Florida at which time it was held as scheduled. The notice of the new hearing date was mailed to Respondent on April 14, 1989 at the same address which appears on his most recent (May 8, 1989) communication and was not returned undelivered for any reason.
At the hearing, Respondent was not present. Counsel for Petitioner, However, presented a written request for continuance from Respondent dated May 8, 1989, and directed to the Department of Professional Regulation, Board of Medicine, Attention, Veronica Donnelly. In this letter, received at the Department on May 10, 1989, Respondent indicated he had been informed the Medical Licensure Commission of Alabama would grant him a formal rehearing on the case before it which resulted in the loss of his Alabama medical license and in light thereof, requested a continuance until the resolution of the Alabama case.
At the same time, Counsel for Petitioner submitted a formal written Response to the Motion for Continuance in which it was asserted that upon inquiry by the Department, the Secretary to the Medical Licensure Commission of Alabama had indicated that as of May 11, 1989, the Commission had taken no action to grant a rehearing to Respondent and that Respondent has not requested a rehearing in writing. On the basis of that information, the undersigned, to whom the case had been transferred in the interim, denied Respondent's Motion for Continuance but since Respondent was not present at the scheduled hearing time, granted an additional fifteen minutes to Respondent in the event he had had some unforeseen trouble in getting to the hearing. Respondent neither appeared nor contacted the Hearing Officer even though his request for continuance had not been approved by Ms. Donnelly.
Petitioner presented no witnesses but introduced Petitioner's Exhibits 1 through 4, which included the licensing history of the Respondent, an official record of the Alabama disciplinary action, and a copy of the disciplinary guidelines of the Board of Medicine, Chapter 21M-20, F.A.C. No evidence was presented on behalf of Respondent. No transcript was provided and neither party submitted Proposed Findings of Fact.
FINDINGS OF FACT
At all times relevant to this hearing, Respondent, Stephen Schweinsberg, was licensed as a physician in Florida under license number 13425, initially issued on March 1, 1968, and periodically renewed thereafter. The current license expires December 31, 1989.
The Petitioner, Florida Board of Medicine, is the state agency responsible for the regulation of the practice of medicine in this state.
On November 25, 1985, Larry D. Dixon, Executive Director of the Alabama State Board of Medical Examiners filed a Complaint And Petition For Revocation Of License before the Medical Licensure Commission of Alabama, (Case No. 85- 011), alleging that between the period April 14 and April 26, 1985, Respondent was guilty of:
Immoral, unprofessional, or dishonorable conduct as defined [in the Alabama statute] or in the rules and
regulations promulgated by the, Commission;
Practicing medicine or osteopathy in such a manner as to endanger the health of the patients of the practitioner;
Gross malpractice or repeated malpractice or gross negligence in the practice of medicine or osteopathy;
Performance of unnecessary diagnostic tests or medical or surgical services
all in violation of Section 34-24-360, Code of Alabama, 1975.
A hearing was held before the Medical Licensure Commission of Alabama on July 23, 1986 at which hearing Respondent was not present but was represented by counsel, and again on September 22, 1986 when the hearing was resumed and Respondent was present and represented by counsel. After taking testimony and consideration of the evidence presented to it, the Commission concluded that Respondent was guilty of:
Subjecting a patient to a therapy that would not positively alter the natural course of her illness, improve her longevity, or the quality of her life;
Improperly diagnosed life threatening conditions in a patient and did not follow the patient properly by clinical and laboratory means;
Subjected his patient to a treatment with no scientific support as to efficacy and with known serious potential complications without making any effort to educate himself in the method of treatment of potential complications or side effects;
Used unproven, untested and dangerous treatments without expectation of benefit and demonstrated careless and reckless indifference to the patient's condition and care;
His continuation of the treatment and care of a patient was outside the realm of reasonably accepted standards of the medical profession and he demonstrated unprofessional conduct in the treatment of his patient.
Thereafter, the Commission, by Order dated December 17, 1986, directed that Respondent's license to practice medicine in Alabama be revoked.
There is no evidence to corroborate the representation in Respondent's May 8, 1989 letter to the Department regarding rehearing. Petitioner's Counsel's Response to Respondent's Motion For Continuance tends to refute it, however.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.
Petitioner seeks to discipline Respondent's license as a physician in Florida because, under the provisions of Section 458.331(1)(b), Florida Statutes, he is guilty of having a license to practice medicine revoked by the licensing authority of another state. The burden of proof to establish the elements of the offense upon which Petitioner relies is upon the Petitioner who must show, by clear and convincing evidence, that its allegations are correct, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987)
Under the provisions of Section 458.331(1)(b),:
(1) The following acts shall constitute grounds for which the disciplinary action specified in subsection (2) may be taken:
(b) Having a license to practice medicine revoked, suspended or otherwise acted-against ... by the licensing authority of any state, territory, or country....
The evidence of record, uncontroverted, establishes that Respondent's license to practice medicine in the State of Alabama was revoked on December 17, 1986 by the Medical Licensure Commission of Alabama. This action constitutes grounds for discipline under Section 458.331(2), which provides that when the Board finds a licensee guilty of any of the grounds set forth in subsection (1), it may impose one or more of the following penalties:
Revocation or suspension of a license.
Restriction of practice.
Imposition of an administrative fine not to exceed $5,000.00 for each count or separate offense.
Issuance of a reprimand.
Placement of the physician on probation.
Under the provisions of Chapter 21M-20, F.A.C, Disciplinary Guidelines for the Board of Medicine, at paragraph (2)(b), dealing with action taken against a license by another jurisdiction, the recommended range of penalty is:
From imposition of discipline comparable to the discipline which would have been imposed if the substantive violation had occurred in Florida, to suspension or denial of the license until the license is unencumbered in the jurisdiction in which disciplinary action was originally taken, and an administrative fine ranging from $250.00 to $5,000.00.
The Order of the Medical Licensure Commission of Alabama clearly established that Respondent was guilty of malpractice in that state, and under the Florida guidelines, (2)(t), dealing with malpractice, the recommended range of penalty is:
From two (2) years probation to revocation or denial and an administrative fine from $250.00 to
$5,000.00.
Counsel for Petitioner suggests the position of the Board of Medicine is that Respondent's license to practice as a physician in Florida should be revoked. This proposed penalty is within the approved guidelines established by the rule and appears appropriate in this case.
RECOMMENDATION
Based on the foregoing findings of Fact and Conclusions of Law, it is, therefore:
RECOMMENDED that Respondent, Stephen Schweinsberg's license as a physician in Florida be revoked.
RECOMMENDED this 13th day of June, 1989 at Tallahassee, Florida.
ARNOLD H. POLLOCK, 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 13th day of June, 1989.
COPIES FURNISHED:
Larry G. McPherson, Jr., Esquire Senior Attorney
Department of Professional Regulation
Northwood Centre, Suite 60 1940 North Monroe Street
Tallahassee, Florida 32399-0792
Stephen Schweinsberg, M. D.
183 D. Nine Mile Rd.
East Detroit, Michigan 48021
Dorothy Faircloth Executive Director Board of Medicine
130 North Monroe Street Tallahassee, Florida 32399-0750
Kenneth A. Easely, Esquire General Counsel
Department of Professional Regulation
Northwood Centre
1940 North Monroe Street Tallahassee, Florida 32399-0792
Docket for Case No: 88-005849
Orders for Case No: 88-005849
| Issue Date |
Document |
Summary |
|
Jun. 13, 1989 |
Recommended Order
|
Physician whose medical license was revoked in another jurisdiction is subject to discipline in Florida because of that alone.
|
