STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIONISIO LIM CORTES, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 89-2191

)

BOARD OF MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly- designated Hearing Officer, William R. Cave, held a formal hearing in the above- styled case on August 16, 1989, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Paul Watson Lambert, Esquire

Taylor, Brion, Buker & Greene Post Office Box 11189 Tallahassee, Florida 32302-3189

For Respondent: Allen R. Grossman, Esquire

Office of the Attorney General The Capitol, Suite 1602 Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUES

Whether Petitioner has met the requirements for licensure by examination as set forth in Chapter 458, Florida Statutes.

PRELIMINARY STATEMENT

Petitioner, Dionisio Lim Cortes filed an application for licensure by examination pursuant to Section 458.311, Florida Statutes, dated July 22, 1988 which was received by the Board of Medicine on August 1, 1988.

The Board entered an Order dated March 28, 1989 which was filed with the Board's Clerk on March 31, 1989, wherein the Board denied Petitioner's application for licensure by examination on the basis that: (1) Petitioner had exhibited a consistent pattern of less than successful or borderline performance in his medical education and training; (2) Petitioner took 7 years to complete a

5 year medical school curriculum and during those 7 years failed 10 courses; (3) Petitioner's medical practice in Georgia had been extremely limited; (4) Petitioner had failed the Educational Commission For Foreign Medical Graduates (ECFMG) examination 6 times and; (5) Petitioner had previously failed all or portions of the Federation of State Medical Boards (FLEX) examination 5 times.

Upon the Board denying the Petitioner's application for licensure by examination, Petitioner timely filed a Petition For Formal Hearing, and this hearing ensued.

In support of his petition, Petitioner testified in his own behalf.

Petitioner's composite exhibit 1 was received into evidence. Respondent did not present any witnesses. Respondent's exhibit 1 was received into evidence.

A transcript of this proceeding was filed with the Division of Administrative Hearings on September 1, 1989. However, by agreement of the parties and approved by the Hearing Officer the posthearing proposed findings of fact and conclusions of law were to be filed by September 21, 1989, and pursuant to Rule 22I-6.031, Florida Administrative Code, the parties waived the provision of Rule 28-5.402, Florida Administrative Code, requiring that a Recommended Order be submitted within thirty days from the receipt of the transcript.

Petitioner timely filed his proposed findings of fact and conclusions of law. Respondent has failed to file its proposed findings of fact and conclusions of law. A ruling on each proposed finding of fact submitted by Petitioner has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary adduced at the hearing, the following relevant facts are found:

1. Petitioner is 48 years old and resides at 210 Tibet Avenue, No.L-2, Savannah, Georgia 312406.

   
   

2. Petitioner attended City College of Medicine, Cebu City, Philippines during the 1962-63 school year. While at City College, Petitioner failed four out of the five courses he was taking which, along with his father's financial hardship, forced Petitioner to drop out of medical school.

   
   

3. Petitioner enrolled in medical school at Southwestern University, Matias H. Azklnar, Memorial College of Medicine, Inc., Villa Aznar, Cebu City, Philippines (Southwestern) for the school year 1965-66.

   
   

4. During the 1965-66 school year at Southwestern Petitioner passed, among others, those courses which he had failed at City College during the 1962-63 school year.

   
   

5. During the 1966-67 school year Petitioner failed pharmacology 2 and physical diagnosis but passed those courses during the 1967-68 school year, while failing surgical pathology which he passed during the 1968-69 school year.

   
   

6. During the 1968-69 school year Petitioner failed pharmacology 3 in the first and second semester. Although Petitioner testified that he passed pharmacology 3, Petitioner's transcript from Southwestern does not indicate that Petitioner passed pharmacology 3 before graduating from Southwestern University in 1971.

   
   

7. Petitioner graduated from and received his medical degree from Southwestern in 1971. Southwestern is registered by the World Health Organization.

8. Petitioner served an internship at Detroit-Macomb Hospital Association from July 1, 1982 until June 30, 1983. Petitioner received an overall evaluation of "good" on his internship and was recommended as qualified and competent.

   
   

9. Petitioner took the Federation Licensing Examination (FLEX) in December 1982, June 1983, December 1983 and December 1984, and failed the examination each time. In June 1985, Petitioner took the FLEX examination again and passed Component 2 but failed Component 1 by one point. In December 1985, Petitioner took Component 1 again and passed.

   
   

10. Petitioner successfully passed the medical examination portion of the Educational Commission For Foreign Medical Graduates (ECFMG) examination on January 21, 1981 and the English examination portion on July 22, 1981 and was issued certificate number 245-840-4 on January 8, 1982. That ECFMG has remained valid since that date. Before passing the ECFMG examination in 1981, Petitioner had failed that examination six times.

    
    

11. Petitioner is licensed to practice medicine in the states of Michigan and Georgia, and has been licensed in those states since March 3, 1986 and June 11, 1986, respectively. However, other than serving an internship, Petitioner has never practiced medicine in the state of Michigan.

    
    

12. Petitioner's licenses to practice medicine in the state of Michigan and Georgia have never had any disciplinary action taken against them.

    
    

13. Petitioner practiced medicine at Central State Hospital (a mental institution) at Milledgville, Georgia as a general physician in family practice, working also in the area of psychiatry, from April 1, 1988 until his resignation on October 24, 1988.

    
    

14. At the time of the hearing, Petitioner had been practicing medicine as an emergency room physician for approximately 8 months at Stattanall Memorial Hospital near Savannah, Georgia, and had been working as the physician in charge at the Immediate Med Clinic near Savannah, Georgia for a couple of months.

    
    

15. Petitioner also practiced medicine for a brief period at Folkston Memorial Hospital in Folkston, Georgia, but terminated this employment due to the long distance from Savannah, Georgia where Petitioner resided.

    
    

16. Although Petitioner was a staff member at Central State Hospital, he did not have staff privileges in that he was not authorized to admit patients to Central State Hospital. Petitioner did not have staff privileges at any other hospital or clinic where he practiced medicine in that he was not authorized to admit patients.

    
    

17. Petitioner is an active member of the American Medical Association (AMA) in good standing.

    
    

18. Petitioner has never been a defendant in a medical malpractice suit.

19. Petitioner has established facts to show that he is qualified and competent to practice medicine with reasonable skill and safety, notwithstanding that it took him 7 years to complete a five-year medical curriculum, that it took him 6 tries before passing the ECFMG examination, that it took him 5 tries before passing the FLEX examination, that he has practiced in Georgia for only approximately 2 years mainly in general practice and, his performance in his medical education and training.

    
    

20. There was no evidence that Petitioner had "exhibited a consistent pattern of less than successful or borderline performance" in his "medical education and training".

    
    

21. Respondent Board did not present any evidence from an expert or "person with special expertise" or anyone else to show a rational relation between Petitioner taking 7 years to complete a 5-year medical school curriculum, Petitioner failing the ECFMG examination 6 times before passing, Petitioner failing the FLEX examination 5 times before passing, Petitioner's practice in Georgia and his medical school education and training performance; and the ability of Petitioner to practice medicine with reasonable skill and safety.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding, pursuant to Section 120.57(1), Florida Statutes.

    
    

23. Section 458.311, Florida Statutes, provides certain requirements that must be met before a person making application for licensure by examination to be a licensed physician in the State of Florida is certified to take the examination. Petitioner has met the necessary requirements set out in Section 458.311, Florida Statutes, to be certified by the Board to take the examination. However, the Board contends that even if Petitioner meets the requirements of Section 458.311, Florida Statutes, he does not have the ability to practice medicine with reasonable skill and safety because Petitioner exhibited a consistent pattern of less than successful or borderline performance in his medical education and training, took seven years to complete a five-year medical school curriculum, failed the ECFMG examination six times, failed all or portions of the FLEX examination five times, and had only a limited medical practice in Georgia. In support of this position, the Board cites Section 458.331(4), Florida Statutes (Supp. 1988), previously Section 458.331(3), Florida Statutes (1987).

    
    

24. Section 458.331(4), Florida Statutes, provides as follows:

    
    

    (4) The board shall not reinstate the license of a physician, or cause a license to be issued to a person it deems or has deemed unqualified, until such time as it is satisfied that he has complied with all the terms and conditions set forth in the final order and that such person is capable of safely engaging in the practice of medicine. (Emphasis supplied)

    This section of the statutes applies to original licensures, as well as to reinstatement of licensures. Marvel v. Department of Professional Regulation,

    498 So.2d 481 (1st DCA Fla. 1986). However, the Board in this case has not alleged in its order of denial a violation under Section 458.331(1), Florida Statutes, which would allow the Board to refuse to certify to the Department of Professional Regulation Petitioner's application for licensure by examination under Section 458.331(2)(a), Florida Statutes, and further refuse to issue a license until such time as the Board is satisfied that the applicant has complied with all terms and conditions of the final order denying him licensure. Additionally, there is no final order in this case, only an interlocutory order of denial, the subject of this proceeding.

    
    

25. However, assuming arguendo that Section 458.331(4), Florida Statutes (Supp. 1988), is applicable in this case, Petitioner has established facts to show that he has the ability to practice medicine with reasonable skill and safety. Respondent has failed to rebut those facts or to show a rational relation between the basis for denial and Petitioner's ability to practice medicine with reasonable skill and safety.

    
    

26. As the party asserting an affirmative issue before an administrative tribunal, the burden of proof is on Petitioner to establish facts to show that he has the ability to practice medicine with reasonable skill and safety and that he meets the requirements for licensure set forth in Chapter 458, Florida Statutes, Florida Department of Transportation v. J.W.C. Company, Inc., 996 So.2d 778 (1st DCA Fla. 1981). Petitioner has sustained that burden.

RECOMMENDED ORDER

Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore,

RECOMMENDED that Respondent enter a Final Order granting Petitioner's application for licensure by examination.

Respectfully submitted and entered this 24th day of October, 1989, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 24th day of October, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2191

The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on the proposed Findings of Fact submitted by Petitioner in this case.

1. Adopted in Finding of Fact 11.

2. Adopted in Finding of Fact 7.

3. Adopted in Finding of Fact 8.

4. Adopted in Finding of Fact 10.

5. Adopted in' Finding of Fact 9.

6. Adopted in Finding of Fact 12.

7. Unnecessary as to the conclusions reached in this Recommended Order.

8. Same as 7.

9. Adopted in Finding of Fact 17.

10. The first phrase concerning staff privileges is rejected as not supported by substantial competent evidence in the record, but see Finding of Fact 16. The second phrase is unnecessary as to the conclusions reached in this Recommended Order.

11. Adopted in Finding of Fact 8.

COPIES FURNISHED:

Paul Watson Lambert, Esquire TAYLOR, BRION, BUKER & GREENE

Post Office Box 11189 Tallahassee, Florida 32302-3189

Allen R. Grossman, Esquire Office of the Attorney General The Capitol, Suite 1602 Tallahassee, Florida 32399-1050

Kenneth E. Easley, Esquire Department of Professional

Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Dorothy Faircloth, Executive Director Florida Board of Medicine

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0735

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AGENCY FINAL ORDER

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DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICINE

DIONISIO LIM CORTES, M.D.,

Petitioner,

vs. CASE NO. 89-2191

BOARD OF MEDICINE,

Respondent.

/

FINAL ORDER

This cause came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b), Florida Statutes, on December 11, 1989, in Miami, Florida, for the purpose of considering the attached Recommended Order issued by the hearing officer, along with the attached exceptions filed by the Respondent. Petitioner was represented by Paul W. Lambert, Esquire. Respondent, the Board of Medicine, was represented by Allen R. Grossman, Assistant Attorney General.

Upon review of the Recommended Order,, the exceptions filed by the Respondent, the argument of the parties, and after a review of the complete record in this case, the Board makes the following rulings on exceptions, and the following findings and conclusions.

Rulings on Exceptions

Respondent's exception is granted. The Hearing Officer's commentary is irrelevant and unnecessary to the Board's conclusions in this case.

Accordingly, the language on page 8 of the Recommended Order, as specified by Respondent in Respondent's exceptions, is deleted.

Findings of Fact

1. The findings of fact set forth in the Recommended Order are approved and adopted and said findings of fact are incorporated herein.

   
   

2. Competent substantial evidence exists to support the findings of fact.

Conclusions of Law

1. The Board has jurisdiction in this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.

2. The Board sua sponte determined that the Conclusions of Law should be modified to clarify the operation of Section 458.311(2), Florida Statutes, in licensing proceedings. Accordingly, the first full paragraph, as amended by the Board's action on Respondent's exceptions, will now state:

Petitioner has established facts' to show that he has the ability to practice medicine with reasonable skill and safety. Respondent has failed to rebut those facts or to show a rational relation between the basis for denial

and Petitioner's ability to practice medicine with reasonable skill and safety. It should

be noted that Section 458.311(2), Florida Statutes, provides that every applicant who is otherwise qualified may take the licensing examination five times after October 1, 1986, notwithstanding the number of times the exami- nation has been previously failed. If an appli- cant fails the examination taken after October 1, 1986, five times, he shall no longer be

eligible for licensure. In the instant case, the examination was taken prior to October 1, 1986, six times. The statute is not applicable because the examinations were taken prior to the date specified in Section 458.311(2), Florida Statutes. Had the examination been taken six times and failed after October 1, 1986, then Petitioner would not have been eligible for licensure. The Legislature, by enacting this statutory provision, has clearly stated its intent that any person taking the licensing exami- nation five times after October 1, 1986, and failing that examination five times, shall not be eligible for licensure. In short, the Conclusions of Law in this case, are limited by the facts found by the Hearing Officer in this case.

1. The Conclusions of Law set forth in the Recommended Order are approved and, adopted, as amended by the Board's action on the Respondent's exceptions and the Board's sua sponte action on the Conclusions of Law contained at page 8 of the Recommended Order, at the first full paragraph. Said Conclusions of Law as amended are incorporated herein.

   
   

2. There is competent substantial evidence to support the conclusions of law as amended.

Upon a complete review of the record in this case, the Board determines that the recommendation of the hearing officer be ACCEPTED.

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED that the Board shall grant Petitioner's application for licensure by examination and that a license to practice medicine shall be issued to Petitioner.

DONE AND ORDERED THIS 12th day of December, 1989.

Board of Medicine

Ashkar, M.D., Chairman

NOTICE OF RIGHT TO JUDICIAL REVIEW

Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this Final Order by filing one copy of a Notice of Appeal with the Clerk of the agency and by filing the filing fee and copy of a Notice of Appeal with the District Court of Appeal within thirty (30) days of the date this Order is filed, as provided in Chapter 120, Florida Statutes, and the Florida Rules of Appellate Procedure.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to Paul Watson Lambert, Esquire, 1355 Mahan Drive, Tallahassee, Florida 32308, Dionisio Lim Cortes, M.D., 907 Riverbend Road, Milledgeville, Georgia 31061, to Allen R. Grossman, Esquire, Department of Legal Affairs, Suite 1603, The Capitol, Tallahassee, Florida 32399-1050, and to William R. Cave, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550, by U.S. Mail this 12th day of December, 1989.

Dorothy Faircloth Executive Director Board of Medicine

Docket for Case No: 89-002191

Orders for Case No: 89-002191