STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

vs. ) CASE NO. 89-1863

)

AHMED M. ELMARIAH, M.D., )

)

Respondent. )

)

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on July 6, 1989, in Panama City, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Robert D. Newell, Jr.

Attorney at Law

817 North Gadsden Street Tallahassee, Florida 32303-6313

For Respondent: No appearance by

Ahmed M. Elmariah, M.D. Pro Se

Post Office Box 16473 Panama City, FL 32406-1473

STATEMENT OF THE ISSUES

The issue is whether the medical license of Ahmed M. Elmariah, M.D., should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

On April 17, 1989, the undersigned entered an Initial Order instructing the parties to file a response within ten days. The Department of Professional Regulation (DPR) filed a timely response. Dr. Elmariah filed a late response on May 2, 1989. He also filed a Motion to Stay Proceedings that same day. The basis for the Motion to Stay Proceedings was an alleged medical disability, but no supporting documentation was filed with the motion.

On May 8, 1989, the Motion to Stay Proceedings was denied because there had been no good cause identified for the indefinite stay which had been requested. The Notice of Hearing was issued on May 8, 1989, setting the case for formal hearing on July 6, 1989. On May 19, 1989, Dr. Elmariah filed a Motion for Rehearing on and to Alter or Amend Orders and Notice of Hearing of May 8, 1989.

In this Motion, Dr. Elmariah again requested a stay of these proceedings until December 29, 1989, based upon his asserted medical disability. Attached to the motion were certain notations from various physicians. However, none of the notations related to his current condition and how long it was anticipated that he would be in that condition. Instead, they simply reflected various dates of medical treatment that had in fact occurred prior to the motions.

On June 1, 1989, an Order was entered denying the Motion for Rehearing. In that Order, Dr. Elmariah was advised specifically what types of records would be needed to form an adequate basis for consideration of a request for stay, including statements from his treating physician regarding Dr. Elmariah's current condition and the prognosis. Dr. Elmariah did not file a renewed motion or any of the specified documentation.

On June 20, 1989, Dr. Elmariah filed a document entitled Notice of Absence which indicated his anticipated absence from the state during June, July and August and which directed the undersigned not to schedule or institute any proceedings or activity or file or serve any papers in his absence. This document requested no relief and no Order has been entered in regard to this document.

Dr. Elmariah clearly knew of the scheduling of the formal hearing and knew that no continuance or stay had been entered. In accordance with the Notice of Hearing, the formal hearing was convened on July 6, 1989. Dr. Elmariah did not appear and the hearing proceeded in his absence.

The DPR presented the testimony of patients E.G., L.E., W.W., and G.L.M., and of DPR employees William D. Taylor, Alfred D. Clum, and Paul R. Bratton III. DPR Exhibits 1, 2A, 2B, 2C, 3, 6-9, and 15-18 were admitted in evidence. The names of the patients and the exhibits which contain their names are confidential. The documents which contain their names are sealed in the envelope labeled Exhibit 10.

The transcript was filed on July 10, 1989. The parties were given 15 days to file their proposed findings of fact and conclusions of law as requested by DPR. No proposed findings of fact and conclusions of law have been filed by either party.

FINDINGS OF FACT

1. Ahmed M. Elmariah is a licensed physician in Florida, holding license number ME 0027974 issued February 11, 1976. Dr. Elmariah practices in Panama City, Florida, at 1018 Harrison Avenue.

   
   

2. Patient E.G. saw Dr. Elmariah during April or May, 1988, and thereafter until July 18, 1988. On July 18, 1988, at approximately 1:00 p.m., E.G. called Dr. Elmariah's office and requested that his medical records be sent to another doctor. He was told to come in and sign a release form that afternoon. At about 4:30 p.m. that day, E.G. went to Dr. Elmariah's office and was told by the office person, Lisa, that the medical records would not be sent because Dr. Elmariah had instructed that the records not be released.

   
   

3. E.G. then verbally requested that the records be given to him. The office personnel refused to give him the records. E.G. talked to Dr. Elmariah personally and he would never give a reason for his refusal to release E.G.'s medical records.

4. E.G. finally filed a replevin action and filed a complaint with DPR.

   
   

5. DPR Investigator William Taylor attempted to serve a subpoena for E.G.'s records. After several attempts by DPR to serve the subpoena were futile, the Sheriff's Office served the subpoena on November 16, 1988. The subpoena directed that the medical records of E.G. be made available for inspection and copying by a DPR Investigator at Dr. Elmariah's office on November 22, 1989.

   
   

6. Mr. Taylor called Dr. Elmariah on November 22, 1988, to make sure that the doctor was going to honor the subpoena. Dr. Elmariah's wife said the records had been taken to Tallahassee on November 21, 1989, and would not be available to Mr. Taylor. Mr. Taylor was also told that Dr. Elmariah would not be in his office to speak to Mr. Taylor.

   
   

7. Mr. Taylor checked with DPR in Tallahassee and determined that the records had not been delivered. He then called Dr. Elmariah's office again and was told that Dr. Elmariah was in, but would not speak to him. Mr. Taylor was told that Dr. Elmariah said that the documents would not be available and the subpoena would not be honored.

   
   

8. Dr. Elmariah never furnished the requested medical records of E.G. and the subpoena was never honored.

   
   

9. Dr. Elmariah has been the subject of disciplinary action by the Board of Medicine in the past. On October 14, 1988, the Board of Medicine issued its Final Order in DOAH Case No. 86-4527 (DPR Case Nos. 0053824 and 0057164). The Final Order was filed on October 24, 1988, with the Department Clerk.

   
   

10. The Final Order suspended Dr. Elmariah's license to practice medicine in the State of Florida for at least one year and conditioned reinstatement on Dr. Elmariah's appearance in front of the Board of Medicine to demonstrate his ability to safely engage in the practice of medicine.

    
    

11. These two previous cases involved Dr. Elmariah's attempts to get hospital privileges by a pattern of fraudulent misrepresentations to hospitals.

    
    

12. Dr. Elmariah was served a copy of the Final Order by certified mail on November 4, 1988.

    
    

13. On November 5, 1988, DPR Investigator Alfred Clum went to Dr. Elmariah's office to serve a subpoena and to pick up Dr. Elmariah's license pursuant to the suspension order. Mr. Clum was first told that Dr. Elmariah was in the office. After Mr. Clum identified himself and the purpose for his visit, he was told that Dr. Elmariah was not in and that he would not see anyone without an appointment. The office person, Lisa Sims, refused to accept the subpoena and the suspension documents.

    
    

14. On November 8, 1988, DPR Investigator Paul Bratton went to Dr. Elmariah's office to deliver a letter from Mr. Taylor regarding the suspension. He arrived at 9:52 a.m. and found a note on the door saying the office was closed. The door was open, so Mr. Bratton entered the office. He served the suspension documents on the woman at the desk. She tried to get him to take the documents back and he refused. She refused to give her name. When he left, the woman followed him to the door and threw the documents out the door and down the steps.

15. On November 16, 1988, Mr. Clum returned to Dr. Elmariah's office to pick up his license. He was told that Dr. Elmariah was not there. He tried to leave the documents with the receptionist, but she refused to accept them. He left the documents, including the Final Order, on the woman's desk.

    
    

16. Dr. Elmariah filed an Emergency Motion to Stay Final Order with the Board of Medicine. The Board of Medicine considered the Emergency Motion to Stay Final Order on December 3, 1988. Dr. Elmariah was advised by letter dated November 30, 1988, that the meeting would occur for consideration of the motion. Further, the November 30, 1988, letter advised Dr. Elmariah that "unless and until you have an order from the Court or from the District Court of Appeal granting you a stay, your license to practice medicine is suspended. Continuing to practice medicine on a suspended license could result not only in additional disciplinary proceedings against your license, but to criminal penalties as well."

    
    

17. After consideration at its December 3, 1988, meeting, the Board of Medicine denied the Motion to Stay Final Order. The order denying the stay was entered on December 20, 1988.

    
    

18. Dr. Elmariah then filed several more motions-- Verified Motion for Rehearing and Reconsideration of Order on Motion to Stay the Final Order; Verified Motion and Affidavit for Disqualification of Attorney Daniel and All Participating Attorneys for Petitioner; and Verified Petition and Motion for Rehearing and Reconsideration and to Rescind, Relieve from and/or Modify Final Order. These motions were considered by the Board at its February 4, 1989, meeting and all were denied by written order dated March 25, 1989.

    
    

19. Dr. Elmariah filed a Motion for Stay with the District Court of Appeal, First District, on April 6, 1989. The Court denied the motion for stay by written order dated May 31, 1989.

    
    

20. Patient L.E. was a patient of Dr. Elmariah's during 1988 and 1989.

    L.E. saw Dr. Elmariah during January, February, and March, 1989, while Dr. Elmariah's license was suspended. Dr. Elmariah never told L.E. that his license was suspended and he continued to see L.E. as a patient at his office.

    
    

21. Patient W.W. was a patient of Dr. Elmariah's and last saw the doctor in February or March, 1989. The visits to Dr. Elmariah, at his office, were regularly scheduled visits at two week intervals. Dr. Elmariah never told this patient that his license was suspended.

    
    

22. Patient G.L.M. was also a patient of Dr. Elmariah at his office in Panama City. He saw Dr. Elmariah on December 15 and 22, 1988, and January 19, 1989. Dr. Elmariah never told him that his license was suspended.

    
    

23. On December 13, 1988, Dr. Elmariah was arrested for contempt and brought before the Honorable Thomas R. Ellinor, County Court Judge, in the replevin action filed by E.G. to get his medical records. The transcript of that contempt hearing clearly shows that Dr. Elmariah knew that his license had been suspended and knew that no stay had been issued. The contempt arose from Dr. Elmariah's failure and refusal to appear for duly noticed hearings and to respond to subpoenas. The judge made Dr. Elmariah's duty to appear at hearings very clear and Dr. Elmariah acknowledged that he understood his obligation in that regard and would appear in the future.

24. Dr. Elmariah has engaged in a flagrant course of conduct to evade and avoid the lawful orders, subpoenas and notices in gross disregard for the laws of the State of Florida and in gross disregard for the obligations imposed upon him for the privilege of practicing medicine in this state. He has actively resisted enforcement of the Final Order suspending his privilege and license to practice medicine. He has openly and contemptuously refused to cease practice pursuant to the suspension order and he has refused to surrender his medical license.

    
    

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida statutes.

    
    

26. The Administrative Complaint charges Dr. Elmariah with three counts of violating Section 458.331(1)(g) by failing to perform a statutory or legal obligation place upon a licensed physician. Dr. Elmariah is also charged with violating section 455.241(1) for failing to make a patient's medical records available to the patient upon the request of the patient, and with two counts of violation Section 458.331(1)(x) by failing to comply with a lawfully issued subpoena and with a lawful order of the Board previously entered in a disciplinary hearing.

    
    

27. The DPR has carried its burden of proving by clear and convincing evidence that Dr. Elmariah has violated each of these sections as charged. Of particular concern is the egregious and contemptuous disregard shown by Dr. Elmariah for the orders and proceedings of the Board of Medicine. The County Court was able to secure the appearance and attention of Dr. Elmariah only through the use of its contempt powers to have him arrested and brought before the court. Such powers are not enjoyed by the administrative agencies as part of their police powers and are not available to the Division of Administrative Hearings. Hence Dr. Elmariah has been able to avoid appearing in this case and has been able to continue to practice medicine under his suspended license. Dr. Elmariah's refusal to accept the obligations which go with the privilege and license to practice medicine makes it clear that he should no longer be given that privilege in Florida. In light of the aggravating circumstances of this case, it can only be concluded that Dr. Elmariah has violated all sections as charged and that his license to practice medicine should be revoked.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of

Medicine, enter a Final Order finding Ahmed M. Elmariah, M.D., guilty of all violations charged in the Administrative Complaint, and revoking the medical license of Ahmed M. Elmariah, M.D.

DONE and ENTERED this 22nd of August, 1989, in Tallahassee, Florida.

DIANE K. KIESLING

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 22nd day of August, 1989.

COPIES FURNISHED:

Ahmed M. Elmariah, M.D. Post Office Box 16473 Panama City, FL 32406-1473

Robert D. Newell, Jr. Attorney at Law

817 North Gadsden Street Tallahassee, FL 32303-6313

Kenneth D. Easley General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Dorothy Faircloth Executive Director Board of Medicine Northwood Centre

1940 North Monroe Street Tallahassee, FL 32399-0792

Docket for Case No: 89-001863

Orders for Case No: 89-001863