STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Petitioner, )

) CASE NO. 89-4431

vs. )

) KENNETH W. HOOVER, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on November 16, 1989, in Orlando, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Larry G. McPherson, Jr., Esquire

Wellington H. Meffert, II, Esquire 1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

For Respondent: Samantha B. Cummings, Esquire

1004 DeSoto Park Drive

P. O. Box 589

Tallahassee, FL 32302-0589 STATEMENT OF THE ISSUE

The issue in this case is whether disciplinary action should be taken against the license to practice medicine of Kenneth W. Hoover (Respondent) based upon violations of Section 458.331(1), Florida Statutes, as alleged in the Administrative Complaint filed against Respondent in this case, and also whether a prior stipulation between the Respondent and the Department of Professional Regulation (Department), which was approved by the Board of Medicine (Board), should be rescinded.

PRELIMINARY STATEMENT

At the hearing, the Petitioner called E. Michael Gutman, M.D., who was accepted as an expert in psychiatry, and introduced seven exhibits. The Respondent testified on his own behalf, and called Diane Storey, D.O., who was accepted as an expert in environmental medicine, and James M. Parson, M.D., whose deposition was taken on November 16, 1989, and late-filed on January 8, 1990, and who is accepted as an expert in psychiatric medicine. Respondent introduced seven exhibits, including the late-filed deposition of Dr. Parsons, a transcript of a tape recording of the July 20, 1988, meeting of the Probation Committee of the Board of Medicine filed on January 22, 1990, and Answers to

Interrogatories executed on behalf of the Department on October 18, 1989, and filed on January 29, 1990.

The transcript of the final hearing was filed on December 15, 1989, and the parties requested, and were allowed an extension until February 1, 1990, to file proposed recommended orders. A ruling on each timely filed proposed finding of fact included in the parties' proposed recommended orders is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been licensed to practice medicine in the State of Florida, having been issued license number ME-0027455.

   
   

2. During 1987, license disciplinary action was initiated against Respondent because he allegedly rambled and could not answer questions properly at a meeting of the Board which he attended. In March, 1988, the Department and the Respondent entered into a stipulation of probation providing, among numerous other conditions of probation, that Respondent would practice medicine under the indirect supervision of a physician to be approved by the Board for a period of one year. The stipulation also required Respondent to appear before the Board, and to have with him the curriculum vitae of a physician whom he would propose the Board approve as his monitoring physician. Further, the Respondent was required to periodically appear before the Board, submit semi-annual reports summarizing his practice, see a board approved psychiatrist at least every 60 days for evaluation and treatment, and to continue with evaluation and treatment by his allergist, who was to file quarterly reports with the Board.

   
   

3. The Board considered and approved this stipulation at its meeting on June 5, 1988, and it became effective by Final Order filed on June 21, 1988. Respondent came to this meeting of the Board represented by counsel and accompanied by his brother, Robert Hoover, M.D., whom he proposed as his monitoring physician. However, due to the family relationship of this proposed monitor with Respondent, the Board disapproved Dr. Robert Hoover as monitor for Respondent. He was told to present the name of another proposed monitoring physician at the next meeting of the Board's Probation Committee which was to take place on July 20, 1988, but was not specifically told that he could not continue to practice during his probation until a monitor was approved. Respondent did not understand that the terms of the stipulation, according to the Board, required such a suspension of his practice, pending approval of a monitoring physician. The stipulation does not, by its terms, specifically state that Respondent could not practice until a monitoring physician was approved by the Board, but rather provides that, "Respondent's license shall be subject to conditions of practice for a period of one year and until such time as he appears before the board and establishes that the conditions and restrictions of practice are no longer necessary, subject to the following terms of probation", one of which was stated to be that he "shall work under the indirect supervision of a physician to be approved by the Board." Thus, a condition of practice to which Respondent agreed was that Respondent would practice only under the supervision of a monitoring physician approved by the Board. A reasonable construction and interpretation of the stipulation is that Respondent could not practice until a monitor was approved, and therefore, Respondent's lack of understanding on this point is unreasonable and without justification based upon the evidence of record.

   
   

4. Respondent continued to see and treat patients between June 21, 1988, and July 20, 1988, when the Board's Probation Committee met. At that time, E.

   Michael Gutman, M.D., appeared with Respondent and was approved as a temporary monitoring physician for Respondent. Dr. Gutman had come to this meeting without a complete understanding of the stipulation, or the reason Respondent was before the Committee. He expected that the Committee would also approve another physician to assist him in monitoring Respondent and reviewing his charts. When it became apparent that he was being proposed by Respondent as the sole monitor, he told the Committee he would not be willing to take on this responsibility. After discussion, Dr. Gutman agreed to serve as temporary monitor for two weeks until the full Board met on August 5, 1988, at which time Respondent would have to propose someone else as his permanent monitor.

   
   

5. Dr. Gutman had conducted a psychiatric evaluation of Respondent on June 30, 1988, at Respondent's request, and had found that Respondent evidenced a schizotypal personality, long- term personality disorder, characterized by paranoid suspiciousness, undue social anxiety, inadequate rapport and social isolation, emotional instability and odd speech. According to Dr. Gutman, this diagnosis is not per se a mental illness or disease. Dr. Gutman expressed the opinion that when he met with Respondent for approximately 45 minutes in his office on June 30, 1988, he did not feel that Respondent was unable to practice medicine with reasonable skill and safety. In a letter dated July 5, 1988, Dr. Gutman states, "His (Respondent's) thought content was generally appropriate to the interview questioning, although he did tend to ramble and digress into minute details. . . . No psychotic symptoms such as hallucinations, delusions, ideas of reference or illusions were noted. . . . His insights were superficial to fair and his judgment generally intact. . . . I believe he is quite capable of adequately practicing medicine with the care and caution of a similarly prudent practitioner in the same field . .

   
   

6. After being accepted as temporary monitoring physician, Dr. Gutman met again with Respondent on July 25, 1988, but this meeting was in the evening at Dr. Gutman's home, and lasted approximately three hours. Respondent tried to get Dr. Gutman to meet with him at his office, but Dr. Gutman refused. Respondent brought the medical charts of approximately 18 of his patients for Dr. Gutman to review. This represented the charts on all of Respondent's patients that he had seen since his probation began on June 21, 1988. During the course of this meeting, Respondent became increasingly upset, he stammered and stuttered, appeared anxious and disorganized in his thinking, and complained about the environment in Dr. Gutman's house. The house had been closed up for a period of time, and Dr. Gutman had just moved in shortly prior to this meeting with Respondent. Dr. Gutman reviewed 6 of the patient charts, and concluded that Respondent was preoccupied in his treatment of these patients with allergy related diagnoses and environmental issues.

   
   

7. As a result of the meeting on July 25, 1988, with Respondent, Dr. Gutman wrote to the Board on July 26, 1988, that, "It was apparent that the emotional instability displayed by Dr. Hoover brings into grave question his ability to adequately handle the prudent, safe care of his patients. He shows flaws in judgment and reasoning . . . . It is my conclusion that at the present time as a result of Dr. Hoover's Schizotypal Personality and other emotional conditions, he is not able to provide reasonable care and safety in the practice of medicine at this time." Dr. Gutman has not seen Respondent since July 25, 1988, and offered no opinion regarding his present ability to practice medicine. Dr. Gutman admitted at hearing that he was angry with Respondent because he had not paid him for his time associated with this meeting on July 25, 1988.

   
   

8. The Board considered the status of Respondent's case, as well as Dr. Gutman's letter at its meeting of August 5, 1988, at which Respondent was

   present. Respondent proposed that Ronald Shaw, M.D., a family practitioner, be approved by the Board as his monitoring physician under the terms of the stipulation. After discussion, Dr. Shaw was disapproved by the Board because his field of practice differed significantly from Respondent's, allergies and psychiatry. This action was taken despite the fact that a member of the Board, and the apparent chairman of the Probation Committee, Dr. J. Darrel Shea, had told Respondent during the meeting of the Probation Committee on July 20, 1988, that a family practitioner would be acceptable as a monitoring physician. Dr. Shea was not present, and did not participate in the consideration of Respondent's case during the Board meeting on August 5, 1988. After extensive discussion of Dr. Gutman's letter of July 26, and concerns expressed by the Board regarding Dr. Gutman's findings and conclusions, the Board voted to send this matter to a probable cause panel, and to seek a summary suspension of Respondent's license. Whereupon, Respondent voluntarily agreed to discontinue his practice until this matter could be resolved, and in fact, he has not practiced medicine since August 5, 1988. He was directed to undergo a psychiatric evaluation, which was completed on October 3, 1988, by Martin Rosenthal, M.D., who was accepted as an expert in psychiatry.

   
   

9. Based upon his two hour evaluation of Respondent on October 3, 1988, Dr. Rosenthal concluded that he showed "some" evidence of paranoid thinking, but that he was not schizophrenic. He diagnosed Respondent's condition as delusional paranoid disorder, persecutory type, that conforms to the DSM III-R criteria with non-bizarre delusions involving situations that occur in real life, the absence of hallucinations, and no grossly bizarre behavior. Dr. Rosenthal stated that this condition could affect Respondent's judgment, and that occasionally he is subject to a distortion of reality in his thinking, and illogical reasoning. For this reason, Dr. Rosenthal expressed the opinion that Respondent should not continue to practice on his own, but should do so only under supervision and with psychiatric therapy. The opinions expressed by Dr. Rosenthal are based solely upon his evaluation of Respondent resulting from their one meeting in October, 1988, and were influenced by several factual assumptions which were shown to be false.

   
   

10. Beginning in September, 1987, and continuing to the present, Respondent has been regularly evaluated and treated by Douglas Sandberg, M.D., an expert in environmental medicine practicing in the field of complex allergies, food and chemical sensitivity. Many patients come to Dr. Sandberg with symptoms which have previously been diagnosed as resulting from mental illness, but which, after evaluation and treatment, are shown to result from environmental sensitivities rather than any mental illness. Dr. Sandberg expressed the opinion that Respondent suffers from allergies and a sensitivity to molds and some chemicals which affect his central nervous system, respiratory system, eyes, and gastrointestinal system. His symptoms develop in closed air buildings and in air conditioned settings, and can manifest themselves as a loss of coherence in speech, slowing of his mental process, irritability, difficulty concentrating and in coping with stress. With testing and treatment, Dr. Sandberg has noted a marked improvement in Respondent's condition, and in his ability to anticipate and handle his symptoms. Respondent has an excellent understanding of his condition, its causes and methods of avoiding or lessening its effects. He has clearly improved in the last year, according to Dr. Sandberg, and this improvement should continue with further treatment. Dr. Sandberg has reviewed some of Respondent's patient charts, and has found them to be very complete and logical.

    
    

11. On November 6, 9 and 13, 1989, Respondent was evaluated by James Parsons, M.D., who was accepted as an expert in psychiatric medicine. Based

    upon this recent, six hours of evaluation, and his review of the same six patient charts reviewed by Dr. Gutman on July 25, Dr. Parsons expressed the opinion that Respondent is not suffering from a mental illness, has no signs of emotional instability, delusions, or any kind of psychiatric disorder. He found Respondent's patient charts to be complete, and without evidence of any failure to diagnose and treat those patients. Dr. Parsons rejects Dr. Rosenthal's diagnosis for Respondent of paranoid personality disorder, as well as Dr.

    Gutman's diagnosis of schizotypal personality disorder. The only criteria of this diagnosis which Dr. Parsons found Respondent met at times was digressive, tangential speech. Symptoms observed by Dr. Parsons when Respondent met with him in his office with the air conditioning on, as compared with Respondent's conduct and appearance when they met in Respondent's office, support his conclusion that Respondent's symptoms result from the effects of allergies. It is Dr. Parson's opinion that Respondent can continue to practice medicine with reasonable skill and safety to patients, and he found no basis for requiring Respondent to be monitored by a supervising physician. Although Respondent was not candid and truthful with Dr. Parsons concerning the fact that he does smoke cigarettes, this is not significant since Dr. Parson's opinions were based upon his six hours of meetings with Respondent, and upon Respondent's history of treatment by Dr. Sandberg.

    
    

12. Diane Storey, D.O., was accepted as an expert in environmental medicine. She has been a patient of Respondent and more recently has been in practice with him. She has never observed him to have any difficulty communicating with patients, nor exhibiting illogical thought or judgment. She has taken over the treatment of some of Respondent's patients since his practice has been discontinued, and has found the charts prepared by Respondent on these patients to be complete.

    
    

13. The nature of Respondent's practice has been somewhat unconventional and controversial within the medical community. He does not practice psychiatry in the traditional sense. Rather, the vast majority of his patients were being treated by him for environmental sensitivities and allergies while he was actively in practice, and had come to him after having been treated by psychiatrists for a variety of chronic conditions. Due to his own environmental sensitivity, Respondent had taken extraordinary measures to insure that the medical offices where he and Dr. Storey treated patients were free from molds, certain chemicals and other allergic substances. There were special cleaning and air conditioning procedures in place, as well as rules about what perfumes, hair sprays and colognes persons entering these offices could wear. Due to his condition, and his understanding of its causes and symptoms, Respondent had limited his practice to this office setting, and did not see any patients in the hospital or in any other environment. He has given up all hospital privileges because he does not feel he can practice outside of the environmentally protected atmosphere of his medical office.

    
    

14. Based upon the evidence presented, the fact that Drs. Gutman and Rosenthal have not had an opportunity to evaluate Respondent since July and October, 1988, respectively, while Drs. Sandberg and Parsons have recently evaluated Respondent's current medical condition and abilities, and also based upon the demeanor and testimony of the Respondent at hearing which was calm, logical, coherent, and credibile, it is found that Respondent does not suffer from a mental illness, and that in the controlled environment of his medical office, his allergies do not affect his judgment or his ability to practice medicine with reasonable skill and safety to patients.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.57(1), Florida Statutes. Since this is a case in which the Department is seeking to discipline the Respondent's license, and could thereby adversely affect his ability to continue to practice medicine, the Department has the burden of establishing the basis for license disciplinary action by clear and convincing evidence. Ferris

    v. Turlington, 510 So.2d 292 (Fla. 1987). In order to meet this clear and convincing standard, "The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of conviction, without hesitancy, as to the truth of the allegations sought to be established." Evans Packing Co.

    v. Department of Agriculture and Consumer Services, 14 FLW 2326, 2327, n.5 (Fla. 1st DCA 1989), citing Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

16. As it relates to the evidence adduced at hearing, the Department has charged Respondent with violating Sections 458.331(1)(s) and (x), Florida Statutes, which provide in pertinent part, as follows:

    
    

    Section 458.331 Grounds for disciplinary action; action by the board and department.--

    * * *

    1. The following acts shall constitute grounds for which the disciplinary actions specified

       in subsection (2) may be taken:

       (s) Being unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition. . . . A licensee or certificateholder affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that he can resume the competent practice of medicine with reasonable skill and safety to patients.

       * * *

       (x) Violating any provision of this chapter,

       a rule of the board or department, or a lawful order of the board or department previously entered

       in a disciplinary hearing. .

       
       

17. Petitioner has failed to prove, by clear and convincing evidence, that Respondent is unable to practice medicine with reasonable skill and safety to patients, particularly in view of Respondent's self-imposed limitations, which have included relinquishing all hospital privileges, and practicing only in the environmentally protected atmosphere of his own medical office. Section 458.331(1) (s) specifically requires that a licensee be given an opportunity to demonstrate, at reasonable intervals, that he can resume the competent practice of medicine. The only evidence offered by the Petitioner was based upon limited evaluations performed in mid to late 1988, while Respondent presented the testimony of Drs. Parsons and Sandberg, both of whom have recently evaluated Respondent, and found that he can resume the competent practice of medicine in the protected environment of his medical office. Respondent has a clear and thorough understanding of his allergies and environmental sensitivity, and continues to improve with treatment of his condition.

18. The Petitioner has sustained its burden of proof with regard to the alleged violation of Section 458.331(1) (x). It was shown that under a reasonable interpretation of the terms of the stipulated suspension, Respondent should not have practiced medicine while under probation until a monitoring physician was approved by the Board. He practiced from June 21, 1988, until July 20, 1988, without a monitoring physician.

    
    

19. Respondent's only defense to this charge is that he did not know that he had to wait for a monitor to be approved before he could resume practice. While the stipulation is not an example of perfect clarity on this point, it was shown that when the Board considered the stipulation at its June 5, 1988, meeting, Respondent was accompanied by his brother, Dr. Robert Hoover, who he proposed as his monitor, and from this it can be inferred that Respondent knew that it was essential to expeditiously get the Board's approval of a monitor. When the Board disapproved his brother as monitor, Respondent immediately began inquiring about the kind of physician that the Board would approve, evidencing concern that this be resolved quickly. In fact, the Board allowed Respondent to appear at the next meeting of the Probation Committe on July 20, rather than having to wait for the next meeting of the Board on August 5, to present the name of another physician for approval as monitor.

    
    

20. Respondent jointly executed and agreed to the terms of the stipulation with the Petitioner, which was approved by the Board. As such, he had a responsibility to be sure that he fully understood its terms and conditions, as well as his obligations and responsibilities under its terms. The Board's construction of the stipulation is not unreasonable. By executing the stipulation, Respondent was agreeing to practice only under the supervision of a monitoring physican approved by the Board, and yet he practiced for one month without supervision after the Board disapproved his first proposed monitor.

    
    

21. There is no evidence to support Respondent's assertion that the Board acted in bad faith in failing to approve the proposed monitors which he presented to them, and that on this basis the prior stipulation should be rescinded. The Board's actions were reasonable and credibly explained. In addition, no legal authority has been shown by which a Hearing Officer of the Division of Administrative Hearings can, under any factual circumstances, rescind a stipulation executed by the parties and previously approved by the Board.

    
    

22. It should be noted that Respondent has not practiced medicine since August 1988, due to his voluntary, self-imposed suspension until this matter is resolved. This is a significant demonstration of the Respondent's commitment to cooperate with the Board, as well as his concern for insuring the safety of his patients. In recommending the appropriate penalty for the violation of Section 458.331(1)(x), this action by the Respondent must be considered, along with the disciplinary guidelines established by the Board in Rule 21M-20.001(2), Florida Administrative Code.

RECOMMENDATION

Based upon the foregoing, it is recommended that the Board of Medicine enter a Final Order reprimanding Respondent for his violation of Section 458.331(1)(x), Florida Statutes, and placing him on probation for a period of two years from the entry of the Final Order in this case, conditioned upon his complying with such reasonable terms and conditions as the Board may impose, including the successful completion of his current one year term of probation,

and limiting his practice to his own office, with such verification of the environmental conditions of that office as the Board may deem appropriate.

DONE AND ENTERED this 13th day of February, 1990 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings

this 13th day of February, 1990.

APPENDIX

Rulings on the Petitioner's Proposed Findings of Fact:

1. Adopted in Finding of Fact 1. 2-3. Adopted in Finding of Fact 3.

4. Adopted in Finding of Fact 5. 5-6. Adopted in Finding of Fact 4.

1. Adopted and Rejected in part in Finding of Fact 3.

2. Rejected in Finding of Fact 3. 9-10. Adopted in Finding of Fact 3.

11. Adopted in Finding of Fact 6.

12-14. Adopted in Findings of Fact 6, 7.

1. Rejected in Findings of Fact 7, 14.

2. Adopted in Finding of Fact 8.

3. Adopted in Finding of Fact 9.

4. Rejected in Finding of Fact 14.

19-22. Rejected in Findings of Fact 10-14.

1. Adopted in Finding of Fact 13.

2. Rejected in Finding of Fact 14.

Rulings on the Respondents Proposed Finding: of Fact:

1. This is simply Respondent's statement of Petitioner's position, and not a proposed finding of fact.

43-49. Adopted in Finding of Fact 12.

1. Adopted in Finding of Fact 3.

2. Rejected as not based on competent substantial evidence. 52-54. Adopted in Finding of Fact 3.

1. Rejected in Finding of Fact 3.

2. Adopted in Finding of Fact 4. 57-58. Adopted in Finding of Fact 5. 59-63 Adopted in Finding of Fact 4.

64. Adopted, substantially, in Finding of Fact 8. 65-67. Adopted in Finding of Fact 4.

68-77. Adopted, substantially, in Findings of Fact 5-7. 78-81. Adopted, substantially, in Finding of Fact 8.

82-83. Rejected as argumentative and not based on competent substantial evidence.

84. Adopted in Finding of Fact 8.

85-86. Rejected as argumentative and not based on competent substantial evidence.

87-88. Adopted, substantially, in Finding of Fact 8. 89-98. Adopted, substantially, in Finding of Fact 9.

99. Adopted in Finding of Fact 14.

Copies furnished:

Larry G. McPherson, Jr., Esquire Wellington H. Meffert, II, Esquire 1940 North Monroe Street

Suite 60

Tallahassee, FL 32399-0792

Samantha B. Cummings, Esquire

1. O. Box 589

   Tallahassee, FL 32302-0589

   
   

   Kenneth E. Easley, Esquire General Counsel

   1940 North Monroe Street Suite 60

   Tallahassee, FL 32399-0792

   
   

   Dorothy Faircloth Executive Director Board of Medicine Northwood Centre

   1940 North Monroe Street Tallahassee, FL 32399-0792

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

   AGENCY FINAL ORDER

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

   
   

   DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICINE

   
   

   
   

   DEPARTMENT OF PROFESSIONAL REGULATION,

   
   

   Petitioner,

   DPR CASE NUMBER: 0103750

   -vs- DOAH CASE NUMBER: 89-4431

   LICENSE NUMBER: ME 0027455

   KENNETH W. HOOVER, M.D.,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   This cause came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)10, Florida Statutes, on April 7, 1990, in Tallahassee, Florida, for the purpose of considering the Hearing Officer's Recommended Order, Petitioner's Exceptions to the Recommended Order and Motion to Increase Penalty, and Respondent's Exceptions to Findings of Fact and Request for Reconsideration (copies of which are attached hereto as Exhibits A, B, and C, respectively) in the above-styled cause. Petitioner, Department of Professional Regulation, was represented by Larry D. McPherson, Jr., Attorney at Law. Respondent was present and represented by Samantha B. Cummings, 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.

   
   

   RULINGS ON EXCEPTIONS

   
   

   1. Petitioner's Exceptions to Recommended Order and Motion to Increase Penalty

      
      

      1. The Board ACCEPTS Petitioner's Exception to the Hearing Officer's Finding of Fact Number 8 set forth at pages 7 and 8 of the Recommended Order (that Respondent voluntarily agreed to discontinue practice) for the reasons stated in the written exception.

         
         

      2. The Board ACCEPTS Petitioner's Exception to the Hearing Officer's Conclusion of Law set forth at page 13 of the Recommended Order that Petitioner failed to prove, by clear and convincing evidence, that Respondent is unable to practice medicine with reasonable skill and safety to patients. This Exception is accepted based on the written reasons set forth in Petitioner's pleading, with the correction of the statutory citation in Paragraph 7 to reflect citation of Section 120.57(1)(b)10, Florida Statutes, and based on Boedy v. Department of Professional Regulation, 463 So.2d 214 (Fla. 1985).

      3. The Board REJECTS Petitioner's Motion to Increase Penalty.

         
         

   2. Respondent's Exceptions to Findings of Fact and Request for Reconsideration

      
      

      1. The Board REJECTS Respondent's Exception to the Findings of Fact on the basis that the Hearing Officer's findings of fact are based on competent substantial evidence in the record.

         
         

      2. The Board REJECTS Respondent's request for the Board to reconsider the Penalty Recommendation of the Hearing officer and to reduce the penalty.

FINDINGS OF FACT

1. The Findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein, except as amended by the acceptance of Petitioner's exceptions to the findings of fact in Paragraph 8. Accordingly, the second to last sentence of Paragraph 8 is rejected and in lieu thereof the Board finds that Respondent discontinued his practice at that time based on his inability to abide by the previous Order of the Board.

   
   

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

CONCLUSIONS OF LAW

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

   
   

2. The conclusions of law set forth in the Recommended Order are approved and adopted and incorporated herein, except as modified by the acceptance of Petitioner's exception to the Conclusion of Law set forth at the bottom of Page

   13 of the Recommended Order. In lieu thereof, the Board finds that Petitioner has proven, by clear and convincing evidence, that Respondent is unable to practice medicine with reasonable skill and safety to patients by reason of Respondent's physical condition, a violation of Section 458.331(1)(s), Florida Statutes. Specifically, Respondent has environmental sensitivities which affect his judgment and ability to practice medicine with skill and safety to patients outside a specially controlled environment. See. Findings of Fact 10, 13, and 14.

   
   

3. There is competent substantial evidence to support the conclusions of law of the Board.

PENALTY

Upon a complete review of the record in this case, the Board determines that the penalty recommended by the Hearing Officer be ACCEPTED AND ADOPTED. WHEREFORE,

IT IS HEREBY ORDERED AND ADJUDGED that

1. Respondent is hereby found guilty of violations of Section 458.331(1)(s) and 458.331(1)(x), Florida Statutes.

   
   

2. Respondents license to practice medicine is REPRIMANDED.

3. Respondent's license to practice medicine in the State of Florida is placed on PROBATION for a period of 2 years, subject to the following terms and conditions:

   
   

   1. Respondent must successfully complete his current one year term of probation as imposed by Final Order filed on June 21, 1988, in Case No. 0079214.

      
      

   2. Respondent's practice of medicine is limited to his own office, with such verification of the environmental conditions of that office as the Board may deem appropriate.

      
      

   3. Respondent shall comply with all state and federal statutes, rules and regulations pertaining to the practice of medicine, including Chapters 455, 458, and 893, Florida Statutes, and Rules 21M, Florida Administrative Code.

      
      

   4. Respondent shall appear before the Probation Committee at the first meeting after said probation commences, at the last meeting of the Probation Committee preceding termination of probation, and at such other times requested by the Committee.

      
      

   5. In the event Respondent leaves the State of Florida for a period of thirty (30) days or more, or otherwise does not engage in the active practice of medicine in Florida, then certain provisions of Respondent's probation (and only those provisions of said probation) shall be tolled as enumerated below and shall remain in a tolled status until Respondent returns to active practice in the State of Florida. Respondent must keep current residence and business addresses on file with the Board. Respondent shall notify the Board within ten

      (10) days of any changes of said addresses. Furthermore, Respondent shall notify the Board within ten (10) days in the event that Respondent leaves the active practice of medicine in Florida.

      
      

   6. In the event that Respondent leaves the active practice of medicine in this state for a period of thirty days or more, the following provisions of his probation shall be tolled:

      
      

      1. The time period of probation shall be tolled.

         
         

      2. The provisions regarding supervision whether direct or indirect by another physician, included in paragraphs h through j below (where applicable).

         
         

      3. The provisions regarding preparation of investigative reports detailing compliance with this Order shall be tolled. See paragraph 1 below.

      
      

   7. In the event that Respondent leaves the active practice of medicine for a period of one year or more, the Probationers' Committee may require Respondent to appear before the Probationers' Committee and demonstrate his ability to practice medicine with skill and safety to patients prior to resuming the practice of medicine in this State.

      
      

   8. Respondent shall not practice except under the indirect supervision of a physician fully licensed under Chapter 458 who has been approved by the Board or its Probationer's Committee. Respondent shall have the monitoring physician with him at his first probation appearance before the Probationer's Committee. Prior to approval of the monitoring physician by the Committee, the Respondent shall provide to the monitoring physician a copy of the Administrative Complaint and Final Order filed in this case. Failure of the Respondent or the monitoring physician to appear at the scheduled Probation

Committee meeting shall constitute a violation of the Board's Final Order. Prior to the approval of the monitoring physician by the Committee, Respondent shall submit to the Committee a current curriculum vitae and a description of the current practice from the proposed monitoring physician. Said materials shall be received by the Board office no later than fourteen days before Respondent's first scheduled Probation appearance. The attached definition of a monitoring physician is incorporated herein. The responsibilities of the monitoring physician shall include:

1. Submit quarterly reports, in affidavit form, which shall include:

   1. Brief statement of why physician is on probation.

   2. Description of probationer's practice.

   3. Brief statement of probationer's compliance with terms of probation.

   4. Brief description of probationer's relationship with monitoring physician.

   5. Detail any problems which may have arisen with probationer.

   
   

   Respondent shall be responsible for ensuring that the monitoring physician submits the required reports.

   
   

2. Be available for consultation with Respondent whenever necessary, at a frequency of at least once per week.

   
   

3. Review 50 percent of Respondent's patient records selected on a random basis at least once every week.

   
   

4. Report to the Board any violations by the probationer of Chapter 455 and 458, Florida Statutes, and the rules promulgated pursuant thereto.

   
   

   1. The Board shall delegate to the Chairman of the Probationer's Committee the authority to temporarily approve a monitoring/supervising physician. However, such approval shall remain in effect only until the next meeting of the Probationer's Committee.

j. in view of the need for ongoing and continuous monitoring or supervision, Respondent shall also submit the curriculum vitae and name of an alternate supervising/monitoring physician who shall be approved by the Board or its Probationer's Committee. Such physician shall be licensed pursuant to Chapter 458, Florida Statutes, and shall have the same duties and responsibilities as specified for Respondent's monitoring/supervising physician, during those periods of time when Respondent's monitoring/supervising physician is temporarily unable to provide supervision. Respondent shall not practice unless he is under the supervision of either the approved supervising/monitoring physician or the approved alternate. k. Respondent shall submit quarterly reports in affidavit form, the contents of which shall be specified by the Board. The reports shall include:

1. Brief statement of why physician is on probation.

2. Practice location

3. Describe current practice (type and composition)

4. Brief statement of compliance with probation terms.

5. Describe relationship with monitoring/supervising physician.

6. Advise Board of any problems.

1. During this period of probation, semi-annual investigative reports will be compiled by the Department of Professional Regulation concerning Respondent's compliance with the terms and conditions of probation and the rules and statutes regulating the practice of medicine.

1. Respondent shall pay all costs necessary to comply with the terms of the Order issued based on this proceeding. Such costs include, but are not limited to, the cost of preparation of investigative reports detailing compliance with the terms of this proceeding, the cost of analysis of any blood or urine specimens submitted pursuant to the Order entered as a result of this proceeding, and administrative costs directly associated with Respondent's probation. See Section 458.331(2), Florida Statutes.

   
   

2. Respondent shall see a Board-approved psychiatrist approved by the Board at least every sixty (60) days for evaluations and treatment. Respondent shall submit the names and curriculum vitae of at least two psychiatrists for review and possible approval by the Board no later than three (3) weeks prior to his first scheduled probation appearance.

   
   

3. Respondent shall continue with evaluation and treatment by his allergist who shall provide quarterly reports to the Board concerning his diagnosis and prognosis of Respondent's physical condition, and any treatment undertaken.

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

DONE AND ORDERED this 28 day of April , 1990.

BOARD OF MEDICINE

MARGARET C.S. SKINNER, M.D. 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 Kenneth W. Hoover, M.D., 2950 Alama, Suite 200, Winter Park, Florida 32292 and Samantha B. Cummings, Attorney at Law, Cummings, Lawrence & Lezina, P.A., 1004 DeSoto Park Drive, Post Office Box 589, Tallahassee, Florida 32302-0589, by U.S. Mail to Donald D. Conn, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32 399- 1550; and by interoffice delivery to Larry G. McPherson, Jr., Attorney at Law, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 at or before 5:00 P.M., this 1 day of May , 1990

(SIGNED) Dorothy J. Faircloth

Docket for Case No: 89-004431

Orders for Case No: 89-004431