STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Petitioner, )

vs. ) CASE NO. 89-4430

)

AARON E. LONG, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on November 6, 1989 at Tallahassee, Florida.

APPEARANCES

For Petitioner: Wellington H. Meffert, II, Esquire

Department of Professional Requlation

Northwood Center, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: William M. Furlow, Esquire

215 South Monroe Street, Suite 400 Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

Whether Respondent has been convicted or found guilty of a crime directly related to the practice of medicine or to the ability to practice medicine.

PRELIMINARY STATEMENT

By amended Administrative Complaint dated November 3, 1989 the Department of Professional Regulation, Petitioner, seeks to take disciplinary action against the license of Aaron D. Long, Respondent, as a medical doctor. As grounds therefore it is alleged that Respondent has been convicted or found guilty of a crime in Illinois related directly to the practice of medicine or to the ability to practice medicine. This amended Administrative Complaint was substituted for the original Administrative Complaint filed July 18, 1989 and differs from the original Administrative Complaint only by deleting the charge that Respondent's license had been disciplined by the state of Illinois licensing authorities.

At the hearing Petitioner offered three exhibits into evidence. These consisted of the Florida Board of Medicine license record of Aaron Eugene Long (Exhibit 1), certified court record of trial in U.S. District Court, Northern

District of Illinois, Eastern Division in United States v. Aaron Long, Case No.

87 CR 276-3 (Exhibit 2), and a copy of Plea Agreement (Exhibit 3). Exhibits 1 and 2 were admitted but Respondent's objection to Exhibit 3 was sustained as no witness was available to authenticate that document. Thereafter, Petitioner and Respondent rested. Proposed findings submitted by the parties to the extent included herein are accepted; otherwise they are rejected as unnecessary to the conclusions reached. Essentially there are no disputed facts.

FINDINGS OF FACT

1. At all times relevant here to Aaron D. Long was licensed as a medical doctor by the Florida Board of Medicine (Exhibit 1).

   
   

2. On August 26, 1988 in the U.S. District Court, Northern District of Illinois, Eastern Division, Aaron Long pleaded guilty of the offenses of knowingly, willfully, and unlawfully using the mails for the purpose of executing a scheme to defraud and of conspiracy to commit the above offenses; in violation of Title 18, U.S. Code, Sections 1341 and 371, as charged in three counts of the indictment (Exhibit 2).

   
   

3. Long was sentenced to imprisonment for four years on counts 1 and 2 with the sentences to run concurrently. The sentence on count 3 was suspended and Long was placed on probation for five years with provisions for performing 1500 hours of community services and for paying restitution to seven insurance companies in the total amount of $11,650. The term of imprisonment was modified on April 25, 1989 to provide that Respondent serve the final year of the four year imprisonment in a work release program.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

5. Respondent is here charged with violating Section 458.331(1)(c), Florida Statutes (1987) which provides the following act shall constitute grounds for which disciplinary action may be taken:

   
   

   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 as a conviction for purposes of this chapter.

   Respondent pleaded guilty to charges involving conspiracy and using the mail to defraud in carrying out the conspiracy.

   
   

6. No copy of the indictment was included with the court record (Exhibit

   2) so the allegations contained in the indictment are unknown to the record in this proceeding.

   
   

7. The plea agreement, to which Respondent's objection was sustained, contained a summary of evidence which would show, if admitted, that Respondent was engaged in a scheme to defraud insurance companies by faking automobile accidents and injuries and submitting inflated medical bills. Unfortunately this evidence is not available for consideration in deciding whether Petitioner

   has proved, by clear and convincing evidence, (Turlington v. Ferris, 510 So.2d

   292 (Fla. 1987)) that Respondent has been convicted of a crime directly related to the practice of medicine or the ability to practice medicine.

   
   

8. Petitioner cites several cases in its proposed conclusions of law to support the propositictn that convictions for fraud and conspiracy necessarily affect the ability of a physician to practice medicine. However, in those cases cited involving medicare or insurance fraud and using the mails to carry out those fraudulent purposes, evidence was submitted that medical fraud was involved. No such evidence was here presented. Had Exhibit 3 been authenticated it could perhaps have been admitted to explain the guilty pleas shown in Exhibit 2.

9. Section 458.031 Florida Statute provides in part: the primary legislative purpose in enacting

   this chapter is to ensure that every physician practicing in this state meet minimum requirements for safe practice. It is a legislative intent that physicians who fall below minimum competency or who otherwise present a danger to the public shall be prohibited from practicing in this state.

   
   

10. Former Section 458.1201 Florida Statutes (long since repealed) provided for revocation of the license of a physician who had been convicted of a felony. Since the repeal of that provision the statute authorizing disciplinary action against a physician's license as a result of a conviction has required the conviction be related to the practice of medicine or to the ability to practice medicine.

    
    

11. Various convictions of crimes involving insurance fraud, medicare fraud or medicaid fraud have been found to be related to the practice of medicine as has been a conviction involving the sale of drugs. See, Rush v. DPR, 448 So.2d 26 (Fla. 1st DCA 1984).

    
    

12. In Greenwold v. DPR, 501 So.2d 740 (Fla. 3rd DCA 1987) the court held that a conviction for a solicitation to murder an ex-wife evidenced warped judgement and disregard for human life thereby evidencing that a physician constituted a present danger to the public, and thereby subjecting his license to revocation.

    
    

13. Those factors are not here present. In place thereof we have a conviction which merely states a violation of U.S. Code sections by conspiring and using the mails to defraud. This bare allegation does not equate or relate to the practice of medicine or the ability to practice medicine.

    
    

14. From the foregoing it is concluded that petitioner has failed to prove, by clear and convincing evidence, that Respondent's conviction in the

U.S. District Court for the Northern District of Illinois, Eastern Division, in Case No. 87CR276-3, is a conviction of a crime directly related to the practice of medicine or to Respondent's ability to practice medicine, as alleged.

RECOMMENDATION

It is recommended that a final order be entered dismissing the charges contained in Administrative Complaint, dated November 3, 1989.

DONE and ENTERED this 5th day of December, 1989, in Tallahassee, Florida.

K. N. AYERS 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 5th day of December, 1989.

COPIES FURNISHED:

Wellington H. Meffert II, Esquire Department of Professional

Regulation

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792

William M. Furlow, Esquire

215 South Monroe Street, Suite 400 Tallahassee, Florida 32301

Dorothy Faircloth, Executive Director Florida Board of Medicine

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0750

Kenneth D. Easley, Esquire General Counsel

Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

=================================================================

AGENCY FINAL ORDER

=================================================================

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICINE

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO. 89-4430

AARON E. LONG, M.D.,

Respondent.

/

FINAL ORDER

This cause came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)l0, Florida Statutes, on April 8, 1990, in Tallahassee, Florida, for the purpose of considering the Hearing Officer's Recommended Order, (a copy of which is attached hereto as Exhibits A) in the above-styled cause. Petitioner, Department of Professional Regulation, was represented by Wellington H. Meffert II, Attorney at Law. Respondent was represented by William M. Furlow, Attorney at Law.

Upon review of the Recommended Order, the argument of the parties, and after a review of the complete record In this case, the Board makes the following findings and conclusions.

FINDINGS OF FACT

1. Findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein,

   
   

2. There is competent substantial evidence to support the findings of fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to Section l20.57(I), Florida Statutes, and Chapter 458, Florida Statutes.

   
   

2. The Board rejects the conclusions of law set forth in the last two paragraphs of the Conclusions of Law in the Recommended Order to the effect that a conviction of unlawfully using the mails for the purpose of executing a scheme to defraud and of conspiracy to do so is not a conviction related to the practice of medicine or the ability to practice medicine.

   
   

3. Convictions for fraud and conspiracy necessarily affect the ability to practice medicine, as a physician's professional judgment, ethical standards and the trust placed in physicians by patients are all implicated in these convictions. (See Department of Professional Regulation v. Hooshmand, II FALR

   3544, Integrity and trustworthiness of health care providers in insurance matters is a necessity for our system of delivery of health care services to function properly. Department of Professional Regulation v. Askowitz. II FALR 1590. The prevention of breaches of trust is vital to maintain the integrity of the medical profession, and thereby insure the care given to patients is justifiable and proper. This is true also where the breach of trust involves the proper maintenance of medical records, Department of Professional Regulation

   v. Jiminez, 10 FALR 3579, or the physician's abusing that trust by using the physician/patient relationship to obtain sexual favors, Department of Professional Regulation v. Lombillo, 9 FALR 6623.

   
   

4. Accordingly, the Respondent is found guilty of violating Section 458.331(1)(c), Florida Statutes.

   
   

5. There is competent substantial evidence to support the conclusions of

law.

PENALTY

Upon a complete review of the record in this case, the Board determines

that the disposition recommended by the Hearing Officer is REJECTED in light of the Board's change in the conclusions of law. THEREFORE,

IT IS HEREBY ORDERED AND ADJUDGED that

1. Respondent's license to practice medicine in the State of Florida is SUSPENDED for a period of one year.

   
   

2. Respondent shall pay an administrative fine in the amount of $400 to the Executive Director at the time of or prior to the petition for reinstatement.

   
   

3. Upon reinstatement of the suspended license, Respondent's license to practice medicine in the State of Florida shall be placed on PROBATION for a period of 5 years, subject to the terms and conditions to be set at that time.

This order takes effect upon filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 7th day of April, 1990.

BOARD OF MEDICINE

CHAIRMAN

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF PROFESSIONAL REGULATION AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT

WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN THIRTY (30) DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been-provided by certified mail to Aaron E. Long, M.D., 16202 Fantasia Drive, Tampa, Florida 33624-1130 and William M. Furlow, Attorney at Law Katz, Kutter, et al., P.O. Box 1877, Tallahassee, Florida 32302-1877, by U.S. Mail to K.N. Ayers, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; and by interoffice delivery to Wellington H. Meffert, II, Attorney at Law, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 at or before 5:00 P.M., this 7th day of April, 1990

Docket for Case No: 89-004430

Orders for Case No: 89-004430