STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5109

)

LUKE CHOU-TIT KUNG, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case, on January 8, 1991, at Tampa, Florida.

APPEARANCES

For Petitioner: Bruce D. Lamb, Esquire

730 South Sterling Street Suite 201

Tampa, FL 33609

For Respondent: Paul B. Johnson, Esquire

Post Office Box 3416 Tampa, FL 33614-3416

STATEMENT OF THE ISSUES

Whether Respondent's license to practice medicine has been disciplined in another state and, if so, what is the appropriate penalty for the Petitioner to impose?

PRELIMINARY STATEMENT

By Administrative Complaint dated July 3 1990, and amended at the hearing, the Department of Professional Regulation, Petitioner, seeks to revoke, suspend or otherwise discipline the license of Luke Chou-Tit Kung as a medical doctor in Florida. As grounds therefor, it is alleged that on or about December 7, 1988, the Georgia Composite Board of Medical Examiners entered into a Consent Order with Respondent in which Respondent's license to practice medicine in Georgia was suspended for one year (all but 15 days of the suspension stayed), placed on probation for three years and restricted Said disciplinary action was based upon Respondent's alleged questionable prescribing of controlled substances. At the hearing Petitioner offered four exhibits into evidence, three were admitted when offered, while ruling on the objection to the admission of Exhibit 3 was reserved. Exhibit 3 is now admitted into evidence. Petitioner testified in his own behalf. Objections to questions in cross-examination relating to the Consent Order in Exhibit 3 were overruled, and Respondent was advised that he had no

Fifth Amendment privilege to refuse to answer questions unless the answers could be used against him in a criminal proceeding. Specifically, it was ruled that Respondent had no Fifth Amendment privilege to refuse to answer questions on the ground that the answers given could lead to disciplinary measures against his license.

Since there is no real dispute as to the facts here involved, proposed findings submitted by the parties are accepted, except those evidentiary findings of fact numbered 3, 4, and 5 submitted by Respondent which are rejected. Respondent's Proposed Alternate Findings of Fact are accepted.

FINDINGS OF FACT

1. At all times relevant hereto, Luke Chou-Tit Kung, Respondent, was licensed with the Florida Board of Medicine to practice medicine in Florida, having been issued License No. ME 0050393 on April 6, 1987 (Exhibit 1).

   
   

2. This license was renewed December 13, 1989 to expire December 31, 1991 (Exhibit 2).

   
   

3. Prior to his licensure in Florida, Respondent graduated from medical school at Wuhan Medical College in Hankow, China, in 1960. He did an internship at Wuhan Medical College 1960-61 and was in residence at this hospital 1961-62. Dr. Kung worked for American Cyanamid in Hong Kong from 1962-67. In 1967, he went to England and continued postgraduate study of medicine at Old Church Hospital, Romford, Essex, England, and St. Peters Hospital at Chertsey, Surrey, England 1968-69. In January 1970, he came to the United States and did an 18 month rotating internship at Perth Amboy General Hospital, Perth Amboy, New Jersey, until June 1971. From July 1971 through June 1973 he did his residency in internal medicine at Episcopal Hospital, Philadelphia, Pennsylvania. From July 1973 until June 1974, he was Chief Resident of Internal Medicine at Easton Hospital in Easton, Pennsylvania. In 1974, he opened his office in Easton, and in 1975 was appointed part-time member of the Allied Staff and Clinical Instructor of Internal Medicine at Hahnemann University Hospital where he remained until 1985 when he was recruited to Dawson, Georgia. He practiced in Dawson from 1985 to 1987 at which time he opened an office in Homerville, Georgia. In April 1989, Dr. Kung closed his office in HomerVille, Georgia, and moved to Tampa. He has practiced in the Tampa area since that time (Exhibit 4).

   
   

4. In 1988, the Composite State Board of Medical Examiners in Georgia filed charges against Respondent alleging unprofessional conduct in the prescribing of controlled substances and failure to maintain proper records of those prescriptions.

   
   

5. Following the filing of those charges, Respondent entered into a Consent Order (Exhibit 3) with the Georgia Composite State Board of Medicine Examiners in which he consented to the Board suspending his license for one year, with all but 15 days stayed, and those 15 days served by working on a charitable pro bono basis, one day per week for 15 weeks. Respondent's license was put on probation for three years under various terms and conditions specifically restricting his prescribing controlled substances. Respondent's testimony that he has complied with the terms of the Consent Order since his arrival in Florida was not rebutted.

   
   

6. Respondent's testimony that he moved to Florida to facilitate the education of his two daughters was also unrebutted.

7. In addition to his office in Tampa, Respondent is on the staff at Children's Hospital in Carrollwood, and he works 20 hours per week at East Pasco Health Center, a private not-for- profit health facility in Lacoochee, Florida, a medically underserved low income area where over 90 percent of the patients are Medicaid or indigent.

   
   

8. Respondent accepts Medicaid patients in his private practice, and his name is on the Medicaid provider list with the Department of Health and Rehabilitative Services.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. Respondent objected to the admission of Exhibit 3 into evidence on the ground the document had not been properly authenticated. Exhibit 3 carried the signature of the Executive Director of the Board who described himself as the custodian of the record, and this document was a true and correct copy of the Board records described. The Board seal was attached. Additionally the signature and seal of a Notary Public was attached attesting that the statement of the Executive Director was sworn to and subscribed before the Notary Public.

    
    

11. Section 90.902, Florida Statutes (1989), provides in pertinent part:

    
    

    Extrinsic evidence of authenticity as a condition precedent to admissibility is not required for:

    1. A document bearing:

       1. A seal purporting to be that of the United States, or any state, district, commonwealth, territory,

          or insular possession thereof. . .; or a court, political subdivision, department, officer, or agency of any of them; and

       2. A signature of the custodian of the document attesting to the authen- ticity of the seal.

          
          

12. Exhibit 3 contains the seal of the Composite State Board of Medical Examiners of Georgia and the signature of the custodian of the records and Executive Director of the Board attesting to the authenticity of the seal. This satisfies the requirements of Section 90.902, Florida Statutes, above quoted. Additionally, there is attestation by a Notary Public that the signer of the attestation swore to its accuracy.

    
    

13. Furthermore, Respondent testified that he signed Exhibit 3 and that it was a true copy of the Consent Agreement between him and the Georgia Board.

    
    

14. To Respondent's objection to giving this testimony, it is sufficient to say that Respondent does not have a Fifth Amendment privilege to refuse to answer questions that are not incriminating or likely to lead to incriminating evidence.

15. In a license disciplinary proceeding, Petitioner has the burden to prove the allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

16. Respondent is here charged with violation of Section 458.331(1)(b), Florida Statutes, by reason of having his license to practice medicine disciplined by the licensing authority in Georgia. Exhibit 3 establishes such violation, and Respondent submitted no evidence to rebut the authenticity of Exhibit 3. Accordingly, Petitioner has sustained its burden of proof.

    
    

17. The only remaining issue is the penalty to be meted out.

    
    

18. Rule 21M-17.015, Florida Administrative Code, established disciplinary guidelines for violations of various provisions of Chapter 458, Florida Statutes, by physicians licensed in Florida. Subsection (b) thereof provides that for vioations of Section 458.331(1)(b), Florida Statutes, the recommended 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 $50 to $1000.

    
    

19. Since his arrival in Florida, Respondent has devoted a substantial portion of his medical practice to providing medical services to the indigent, and he has agreed to continue to provide medical services to these underserved individuals by having his name placed on the Department of Health and Rehabilitative Services' Medicaid provider list. Futher, Respondent has complied with all of the terms of his probation established by the Georgia Board.

    
    

20. From the foregoing, it is concluded that Luke Chou-Tit Kung is guilty of violating Section 458.331(1)(b), Florida Statutes, as alleged.

RECOMMENDATION

That a Final Order be entered finding Luke Chou-Tit Kung guilty of violating Section 458.331(1)(b), Florida Statutes, and that his license to practice medicine in Florida be placed on probation to run concurrently with the probation established by the Georgia Board and subject to the same terms and conditions. In view of his pro bono work in Florida and complying with the terms of his probation, it is further recommended that he be assessed a minimum administrative fine of $50.

ENTERED this 19th day of February, 1991, 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 19th day of February, 1991.

COPIES FURNISHED:

Bruce D. Lamb, Esquire

Department of Professional Regulation 730 South Sterling Street

Suite 201

Tampa, FL 33609

Paul B. Johnson, Esquire Post Office Box 3416 Tampa, FL 334601-3416

Dorothy Faircloth Executive Director Board of Medicine

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

Jack McRay General Counsel

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

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

AGENCY FINAL ORDER

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

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICINE

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

DPR CASE NUMBER: 89-003384

-vs.- DOAH CASE NUMBER: 90-5109

LICENSE NUMBER: ME 0050393

LUKE CHOU-TIT KUNG, 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 13, 1991, in Ft. Lauderdale, Florida, for the purpose of considering the Hearing Officer's Recommended Order and Petitioner's Motion to Increase Penalty (copies of which are attached hereto as Exhibits A and B, respectively) in the above- styled cause. Petitioner, Department of Professional Regulation, was represented by Bruce D. Lamb, Attorney at Law. Respondent was present and represented by Paul B. Johnson, Attorney at Law.

Upon review of the Recommended Order, the Motion to Increase Penalty, 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 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.

   
   

3. 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 penalty recommended by the Hearing Officer be increased as to the fine and clarified as to the length and terms and conditions of probation. The increase in the fine is based on the reasons set forth in the Motion To Increase Penalty. Respondent agreed that the fine recommended by the Hearing Officer was based on the incorrect disciplinary guidelines rule and that the minimum fine authorized by the correct rule was $250. As to the probation, the Board notes that Respondent's Georgia probation contains a tolling provision such that application of that provision to the Florida probation would have the effect that the time of probation will not run while Respondent is practicing outside of Georgia. In order to avoid the possibility that Respondent would be on probation forever if he never returns to the practice of medicine in Georgia, the Board imposed a term of probation in Florida of three years, effective upon the filing of this Final Order. Said probation shall include a provision that in the event Respondent leaves the active practice of medicine in the State of Florida for a period of thirty days or more, the time period of this probation shall be tolled. The Florida probation shall be subject to the terms and conditions of the probation imposed by Georgia, as evidenced by the Consent Order entered by the Georgia Composite State Board of Medical Examiners (attached hereto as Exhibit C); however, once this Final Order is filed, any modification to probationary terms and conditions (insofar as this affects the Florida probation) must be acted upon by this Board.

WHEREFORE,

IT IS HEREBY ORDERED AND ADJUDGED that

1. Respondent shall pay an administrative fine in the amount of $250 to the Executive Director within 30 days of the date this Final Order is filed.

   
   

2. Respondent's license to practice medicine in the State of Florida is placed on PROBATION for a period of 3 years, subject to the terms and conditions set forth in the Georgia Consent Order attached hereto as Exhibit C. In addition, in the event Respondent leaves the active practice of medicine in Florida for a period of 30 days or more, or otherwise does not engage in the active practice of medicine in Florida, the time period of this probation shall be tolled.

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

DONE AND ORDERED this 26 day of April , 1991.

BOARD OF MEDICINE

ZACHARIAH P. ZACHARIAH, 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 Luke Chou- Tit Kung, M.D., 8910 North Dale Mabry, Suite 21, Tampa, Florida 33614 and Paul B. Johnson, Attorney at Law, Johnson & Johnson, Post Office Box 3416, Tampa, Florida 33601, by U.S. Mail to

1. N. Ayers, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; and by interoffice delivery to Larry G. McPherson, Jr., Acting Chief Medical Attorney, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 at or before 5:00 P.M., this 1 day of May , 1991.

   
   

   STATE OF FLORIDA BOARD OF MEDICINE

   
   

   DEPARTMENT OF PROFESSIONAL REGULATION,

   
   

   Petitioner,

   CASE NO.: 90-5109

   vs. DPR CASE NO.: 89-003384

   
   

   LUKE CHOU-TIT KUNG, M.D.,

   
   

   Respondent.

   /

   MOTION TO INCREASE PENALTY

   
   

   COMES NOW, the Petitioner by and through its undersigned attorney and files this Notion to Increase Penalty, and as grounds therefor states:

   
   

   1. On February 19, 1991 the Honorable Hearing Officer entered his Recommended Order in the above referenced case.

      
      

   2. In the Recommended Order the Hearing Officer cited to Rule 21N-17.015, Florida Administrative Code as having established disciplinary guidelines for violations of Chapter 458, Florida Statutes by physicians licensed in Florida. This rule, is actually the disciplinary guidelines for actions taken against the licenses of physicians assistants. The disciplinary guideline rule applicable to physicians is Rule 21N-20.001, Florida Administrative Code.

      
      

   3. In reliance on the incorrect rule the Hearing Officer recommended that a fine in the amount of $50.00 be imposed against the Respondent.

      
      

   4. Paragraph 21N-20.001(2)(b), Florida Administrative Code sets forth the range of penalties for the violation found by the Hearing Officer, and specifies an administrative fine ranging from $250 to $5,000.

WHEREFORE, Petitioner respectfully requests that the Board of Medicine correct the citation to Florida Administrative Code and impose a penalty consistent with the range of penalty specified by the disciplinary guidelines rule applicable to physicians.

BRUCE D. LAMB

Chief Trial Attorney Department of Professional Regulation, Suite 201

730 S. Sterling Street Tampa, FL 33609

(813) 871-7280

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was sent by United States mail to Paul B. Johnson, Esq., JOHNSON & JOHNSON, Post Office Box 3416, Tampa, FL 33601 this 12 day of March , 1991.

BRUCE D. LAMB

Chief Trial Attorney

Docket for Case No: 90-005109

Orders for Case No: 90-005109