STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD F. DAVID, )

)

Petitioner, )

)

vs. ) CASE NO. 91-1018F

) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on March 18, 1991, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Lee Sims Kniskern, Esquire

Post Office Box 144635

Coral Gables, Florida 33144-4635

For Respondent: Mary Radkins, Esquire

Department of Professional Regulation Board of Medicine

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUES

This is a proceeding pursuant to the Florida Equal Access To Justice Act, Section 57.111, Florida Statutes, and Rule 22I-6.035, Florida Administrative Code.

Petitioner seeks to recover his attorney's fees and costs incurred when defending an action brought against him by the Department of Professional Regulation, Board of Medicine.

The issue for determination is whether Respondent, the state agency charged with regulation of the professional conduct of physicians in the State of Florida, was substantially justified with regard to the initiation of disciplinary proceedings against Petitioner, a licensed physician, in DOAH Case No. 90-4205, DPR Case No. 89-05921, and whether, in the absence of such substantial justification, Petitioner is entitled to the award of the amount of attorney's fees and costs sought, or if there exists special circumstances which would make an award unjust.

PRELIMINARY STATEMENT

Following dismissal of the charges against Petitioner in Department of Professional Regulation v. Ronald F. David, M.D., DOAH Case No. 90-4205, DPR Case No. 89-05921, a Petition for Attorney fees and Costs was timely filed on February 14, 1991. On February 29, 1991, the Hearing Officer, sua sponte, set the matter for formal hearing on March 18, 1991 and issued a prehearing order. Respondent filed a Motion to Dismiss, or in the alternative, a Response to Petition for Attorney's Fees and Costs on March 7, 1991.

The prehearing stipulation ordered by the Hearing Officer was duly filed by both parties on March 13, 1991. On March 14, 1991 at 11:00 a.m. a conference call hearing was held on a Motion for Continuance and Motion to Withdraw Stipulation which had been faxed to Respondent and the Hearing Officer on the afternoon of the day before. Respondent opposed both motions and, after discussion, the time of the hearing was reset from 9:00 a.m. to 1:00 p.m. to enable the Petitioner to attend and testify. The Hearing Officer reserved ruling on whether additional exhibits Petitioner wished to add to the exhibit list as set out in the Prehearing Stipulation should be accepted.

At the formal hearing Petitioner submitted an Amended Petition which addressed the omissions cited in Respondent's Motion to Dismiss, namely, a copy of the Board of Medicine's Closing Order and Petitioner's business address.

Respondent did not object to the filing of the Amended Petition for Attorney's fees and Costs which then became the basis for the hearing. The motion to dismiss became moot.

At the formal hearing Petitioner presented one witness, Dr. Ronald F. David, and submitted nine exhibits, all of which were received into evidence without objection. Petitioner also submitted Exhibits 10, 11, and 12, to which Respondent objected on the basis of relevance, hearsay and lack of notice. The Hearing Officer received these exhibits but informed the parties that rulings on their probative value or weight would be included in this final order.

Petitioner's Exhibit #10, an article from a medical journal on inadvertent ligation of the left pulmonary artery; and Petitioner's Exhibit #11, an affidavit by a pediatric surgeon, are hearsay, but corroborate generally the testimony of Dr. David. Petitioner's exhibit #12 is a portion of the transcript of the Probable Cause Panel's deliberations as to whether to dismiss the administrative complaint against Dr. David. None of the three exhibits was before the panel when the initial probable cause was found, but they are relevant to Petitioner's claim that the panel should have had more information prior to its initial decision. For those reasons all three exhibits have been considered.

Respondent presented the testimony of one witness, Mr. Brian Lynch, an administrative assistant for the Department of Professional Regulation.

Respondent also submitted four exhibits, all of which were received in evidence by the Hearing Officer.

The transcript of hearing was filed and the parties submitted proposed final orders. Rulings on Petitioner's proposed findings of fact are found in the attached appendix. Respondent's proposed findings are substantially adopted herein.

FINDINGS OF FACT

1. Respondent is a state agency which initiated a proceeding with the filing of an Administrative Complaint against Ronald F. David, M.D.

   
   

2. As stipulated, Petitioner's Attorney's Fees and Costs are not unreasonable.

   
   

3. Petitioner was the prevailing small business party in the underlying case, Department of Professional Regulation v. Ronald F. David, M.D., DOAH Case No. 90-04205, DPR Case No. 89-05921, when the case against Dr. David was dismissed on January 25, 1991.

   
   

4. As stipulated, there are no known circumstances which would make an award of attorney's fees and costs unjust.

   
   

5. The one remaining issue of fact to be determined is whether sufficient evidence was presented to the Probable Cause Panel of the Board of Medicine to support a finding of probable cause against the Petitioner, and whether the Panel properly considered that evidence.

   
   

6. S. A. was a premature infant who had a patent ductus arteriosus (PDA). Petitioner, a pediatric surgeon with credentials to do general surgery, pediatric surgery, and chest surgery, was consulted by S. A.'s pediatrician. Petitioner, in turn, consulted Dr. Johnston, a thoracic cardiovascular surgeon, concerning surgery to close S. A.'s PDA.

   
   

7. Dr. Johnston performed the surgery with Petitioner as assistant surgeon on May 31, 1986, at the Orlando Regional Medical Center. Petitioner had assisted in numerous such surgical procedures in the past but did not hold himself out as competent to perform them on his own.

   
   

   At surgery the left pulmonary artery was mistakenly ligated instead of the PDA.

   S. A.'s condition deteriorated and tests indicated the probable mistaken ligation. The baby was transferred to Shands Hospital where she died before a second operation could be performed. Autopsy revealed the mistaken ligation and the pathologist implicated the compromised cardiopulmonary system as a cause of death. No anatomical anomalies of the vessels were noted at autopsy.

   
   

8. On the basis of a closed claim report to the Department of Professional Regulation, the circumstances surrounding the death of S. A. were reviewed by a physician employed by the Department's Division of Medical Quality Assurance. Petitioner was informed of this review on January 13, 1989.

   
   

   Review of the medical records resulted in cases being opened against three of the seven physicians who participated in the care of S. A.

   
   

9. Petitioner was notified of the case by certified mail on August 1, 1989.

   
   

10. Petitioner was interviewed on August 10, 1989. Dr. Johnston was interviewed by the same investigator on August 25, 1989.

    
    

    According to the investigator's notes, Petitioner stated that Dr. Johnston did not consult him during the surgery, that the anatomy did not appear to be the same as in prior cases, but that he did not question Dr. Johnston's decision as to which vessel to ligate.

    Dr. Johnston stated that he asked Petitioner to examine the anatomy when he (Johnston) had located what he thought was the ductus, and that Petitioner obliged by examining the operation field, but did not object to the procedure.

    
    

    The medical records of S. A. were obtained by subpoena from the Orlando Regional Medical Center.

    
    

11. On February 5, 1990, both Petitioner's and Dr. Johnston's investigative files were sent to Dr. William Price, a thoracic and vascular surgeon, for his review. The letter requesting his opinion clearly separates the actions of Petitioner and Dr. Johnston to be considered.

    
    

    On February 21, 1990, Dr. Price's analysis stated, "The assistant, Dr. Ronald David, should have been accomplished enough to recognize the proper anatomy, but the ultimated [sic] responsibility was not his." (Respondent's exhibit 2, 3)

    
    

12. The cases, Department of Professional Regulation v. Ronald F. David, M.D., DPR Case No. 89-05921, and Department of Professional Regulation v. Alan Johnston, M.D., DPR Case No. 89-05922, were prepared for the Probable Cause Panel meeting scheduled for May 11, 1990. Materials were sent to the three Panel members and their counsel at least one week in advance of the meeting.

    
    

    Materials sent to the panel included the complete investigative case file, including any exhibits, and a recommendation from the Department.

    
    

13. Present at the meeting of the Panel on May 11, 1990 were: Dr. Robert Katims, Chairman of the Probable Cause Panel, Dr. Marilyn Wells and Mr. Gilbert Rodriguez, members of the Panel; Ms. Catherine Lannon, Assistant Attorney General and counsel to the Panel; Mr. Carlos Ramos and Ms. Stephanie Daniel, attorneys from the Department of Professional Regulation, and Mr. Brian Lynch, Administrative Assistant at the Department, whose duty it was to prepare and distribute materials for the Panel's consideration.

    
    

14. Ms. Lannon instructed the Panel members to direct any questions concerning their legal duties and interpretation of laws or rules to her. She cautioned the Panel members that any factual questions concerning the investigation or why a certain recommendation was made were to be directed to the Departmental attorneys.

    
    

    She asked if the members had sufficient time to review all the materials sent to them; each member replied in the affirmative.

    
    

    And she cautioned the members that it must be clearly stated or implied from the record that the members are making independent judgments on the cases and that they are discussing the correct case.

    
    

15. The Panel first considered Dr. Johnston's case. The Department recommended that an Administrative Complaint be filed alleging that Dr. Johnston practiced below the standard of care in that, "[He] inadvertently ligated the left pulmonary artery instead of the patient ductus arteriosus, by relying on the anesthesiologist's observation that the murmur had disappeared and the surgical assistant's failure to object or recognize the proper anatomy." (Respondent's exhibit 1, page 4-5)

    
    

16. The Panel was informed that Petitioner's companion case was on the agenda. The Panel at this time discussed Petitioner at some length, including

    Petitioner's role as the referring physician, that Petitioner assisted at the surgery, that Petitioner was not a chest but a pediatric surgeon, and that Dr. Johnston and Petitioner disagreed as what was said and done by whom at the operation.

    
    

    Dr. Wells acknowledged that the surgeon in charge in the "captain of the ship"; the Chairman, Dr. Katims, in response to a question from Ms. Lannon, denied that the assistant surgeon is exonerated from all responsibility. Thereupon Probable Cause was found in Dr. Johnston's case and the Panel voted to file an Administrative Complaint. (Respondent's exhibit 1, page 7-8)

    
    

17. The Panel later in the meeting considered Petitioner's case. The Department had recommended that Probable Cause be found and a letter of guidance be issued. Mr. Ramos presented the basic facts to the Panel.

    
    

    Both physicians on the Panel immediately disagreed with the Department's recommendation and requested an Administrative Complaint to be filed against Petitioner.

    
    

    The Panel affirmed its two main concerns: that Petitioner referred the patient to Dr. Johnston, and that at surgery Dr. Johnston said he specifically asked the Petitioner to review his ligation. (Petitioner's exhibit 4, page 6-7)

    
    

18. Consideration of the transcripts of both Dr. Johnston's and Petitioner's cases reveals that there was considerable discussion and awareness by the panel of the specifics of S. A.'s case, that they were quite sensitive to the fact that Petitioner was the assistant surgeon and that he denied he was asked to verify the procedure.

    
    

    The vote was unanimous that Probable Cause be found and that an Administrative Complaint be filed against Petitioner.

    
    

19. The Administrative Complaint was duly filed on May 22, 1990, alleging Petitioner fell below the standard of care by failing to object to any part of the procedure performed by Dr. Johnston and by failing to point out the proper anatomy for ligation. (Petitioner's Exhibit 1)

    
    

20. In a subsequent meeting of the Probable Cause Panel, the Department presented it's recommendation that Petitioner's case be closed without prosecution based on a second expert's opinion that " . . . ligation of the wrong vessel was a known but although unfortunate complication of this procedure but not necessarily below the standard of care . . . " (Petitioner's Exhibit 12,

    1. 1). This recommendation was eventually accepted.

       
       

21. The ultimate dismissal of the complaint does not negate the fact that at the time that probable cause was found, the panel had sufficient and competent information upon which it made its decision. It had conflicting statements by the two physicians; it had an expert's opinion; and it had extensive medical reports. It was not required to seek out sufficient evidence to assure success in a formal hearing on the complaint.

    
    

    CONCLUSIONS OF LAW

    
    

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

23. Section 57.111(4)(c), Florida Statutes (1989), mandates an award of attorney's fees and costs to a prevailing small business party in an adjudicatory proceeding pursuant to Chapter 120 which was initiated by a state agency. There are two exceptions to this mandate:

    
    

    1. If the actions of the state agency were substantially justified; or

       
       

    2. If special circumstances exist which would make the award unjust.

       
       

24. In applying the Florida Equal Access to Justice Act (the Act), guidance can be found in the federal cases under the Equal Access to Justice Act, 5 U.S. Code, Section 504, on which the Act is patterned. Gentele v. Department of Professional Regulation, Board of Optometry, 513 So.2d 672 (Fla. 1 DCA 1987). The act is subject to the same construction as the federal act so long as "such construction is harmonious with the spirit and policy of the Florida legislation on the subject." Pasco County School Board v. Florida Public Employee Relations Commission, 353 So.2d 108, 116, (Fla. 1st DCA 1977); Gentele, supra at 673.

    
    

25. The Petitioner bears the initial burden of proving that it is a small business party, that it prevailed, and that the underlying adjudicatory proceeding pursuant to Chapter 120 was initiated by a state agency. These matters were stipulated, and the burden shifted to the Department of Professional Regulation to demonstrate that its actions were substantially justified or that special circumstances exist which would make the award unjust. DPR, Department of Real Estate v. Toledo Realty, Inc., 549 So.2d, 715 (Fla. App. 1st DCA 1989).

    * * *

    
    

26. As an instructive aid in determining whether an action was substantially justified, Subsection 57.111(3)(c) provides that

    
    

    "(a) proceeding is 'substantially justified' if it had a reasonable basis in fact and law at the time it was initiated by a state agency." (emphasis added) In clear terms, then, the legislature has directed the trier of fact to determine what date or advice the agency relied upon when it initiated a proceeding against a licensee; and whether this determination constituted a reasonable basis in fact and law for initiating an action. Under the existing statutory scheme in Section 455.225, Florida Statutes (Supp. 1986), and as codified in Rule 21M-18.006, Florida Administrative Code (1987), a probable cause panel, made up of three members of the Board, has the statutory duty of examining complaints brought to its attention and determining whether they warrant a finding of probable cause against a licensee. Therefore, it is this phase of a Board proceeding, and not the final hearing on the merits, that Subsection 57.111(3)(c) mandates be reviewed

    in order to adjudicate a claim for attorney's fees and costs.

    * * *

    
    

    Romaguera v. Department of Professional Regulation, Board of Medicine, 10 FALR 929, 933 (DOAH January 4, 1988)

    
    

27. An agency does not have to prove there was a "substantial probability of prevailing" to prove that the proceeding was substantially justified. Ashburn v. United States of America, 740 F.2d 850 (U.S. 11th Cir. 1984)

    
    

28. What must exist is that there be a meaningful inquiry conducted by the Probable Cause Panel and a showing that the panel had some evidence before it which (if credited at final hearing) would reasonably indicate that the alleged violations had occurred. There must be no "rubber stamping" of Departmental recommendations. Kibler v. Department of Professional Regulation, 418 So.2d 1081 (Fla. 4th DCA 1989), Department of Professional Regulation, Division of Real Estate v. Toledo Realty, supra. and Gentele v. Department of Professional Regulation, Board of Optometry, 9 FALR 310 (DOAH, June 20, 1986).

    
    

29. The panel which considered Petitioner's case did not rubber stamp; in fact, it elected not to follow the Department's recommendation and instead ordered the Department to file an Administrative Complaint.

    
    

30. The properly constituted Panel of May 11, 1990, which found probable cause, had before it, and averred they had reviewed, the complete investigative report, including medical records, the physician's statements and the expert's opinion. Petitioner's case cannot be limited to the proceedings directly related to his case number since the greater discussion took place when Dr. Johnston's case was presented. (Respondent's Exhibit #1)

    
    

31. There was vigorous discussion. The two physicians on the panel never differed and there was a unanimous vote to find probable cause and file the administrative complaint, realizing that probable cause is a lesser standard than must be carried later at the hearing. They were aware of the materials, facts and issues before them and discussed the case twice. As physicians (except for the lay member) reviewing medical records and weighing the evaluation by another physician, their decision had a reasonable basis in law and fact.

    
    

32. Petitioner contends the Probable Cause Panel should have obtained a pediatric surgeon to review his case. There is, however, no requirement by statute or case law that any expert be obtained to review cases for the Panel. With physicians in the majority the panel is presumed capable of determining probable cause in a medical matter. They were not required to obtain proof that a standard of care was violated in the same manner that proof is presented in a formal hearing on a complaint of violation of Section 458.331(2)(t), F.S.

    
    

33. As the Department is required by Section 455.225, Florida Statutes, to cause to be investigated any legally sufficient complaint, to expeditiously investigate the complaint, to file a formal complaint if so directed by the Probable Cause Panel and to prosecute such a complaint, or to refer the matter to the full Board, Respondent's actions in this case were based on a responsible decision and were substantially justified.

ORDER

Based on the foregoing, it is hereby, ordered that Petitioner's request for attorney's fees and costs is DENIED.

DONE AND ORDERED this 31st day of May, 1991, in Tallahassee, Leon County, Florida.

MARY CLARK

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 31st day of May, 1991.

APPENDIX TO FINAL ORDER, CASE NO. 91-1018F

The following constitute specific rulings on the findings of fact proposed by the Petitioner:

1. Adopted in summary in paragraph 6.

2. Rejected as unnecessary.

3. Adopted in paragraph 7.

4. Adopted in substance in paragraphs 6 and 7.

5. Adopted in substance in paragraph 10.

6. Rejected as unnecessary or contrary to the weight of evidence.

7. Rejected as argument, rather than proposed findings. 8.-11. Rejected as contrary to the weight of evidence.

1. Rejected as unnecessary.

2. Rejected as contrary to the weight of evidence.

3. Rejected as unnecessary.

4. Rejected as contrary to the weight of evidence.

5. The first sentence is rejected as contrary to the weight of evidence. The remainder is adopted, in substance in paragraph 11.

6. Rejected as contrary to the law, and argument, rather than a proposed finding.

7. Rejected as irrelevant. These statements apply to the formal hearing on the administrative complaint, not to the determination of probable cause.

19.-20. Rejected as unnecessary and contrary to the weight of evidence.

21.-22. Adopted in paragraph 10.

23.-34. Rejected as argument, unnecessary, or contrary to the weight of evidence.

COPIES FURNISHED:

Lee Sims Kniskern, Esquire

P.O. Box 144635

Coral Gables, FL 33144-4635

Mary Radkins, Esquire

Dept. of Professional Regulation Board of Medicine

1940 N. Monroe Street Tallahassee, FL 32399-0792

George Stuart, Secretary

Dept. of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792

Jack McRay, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60

Tallahassee, FL 32399-0792

Dorothy Faircloth Executive Director

Dept. of Professional Regulation Board of Medicine

1940 N. Monroe Street Tallahassee, FL 32399-0792

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 RULE OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS 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 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

================================================================= DISTRICT COURT OPINION

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

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

RONALD F. DAVID, M.D., NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

Appellant, DISPOSITION THEREOF IF FILED.

vs. CASE NO. 91-1885

DOAH CASE NO. 91-1018F

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICINE

Appellee.

/ Opinion filed June 15, 1992.

Appeal from an Order of the Division of Administrative Hearings. Lee Sims Kniskern, Coral Gables, for Appellant.

Lisa S. Nelson, Department of Professional Regulation, Tallahassee, for Appellee.

PER CURIAM.

AFFIRMED.

ERVIN, SMITH and ALLEN, JJ., CONCUR.

MANDATE

From

DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT

To the Honorable Mary Clark, Hearing Officer

WHEREAS, in that certain cause filed in this Court styled: Division of Administrative Hearings

RONALD F. DAVID

v. Case No. 91-1885

DEPARTMENT OF PROFESSIONAL

REGULATION, BOARD OF MEDICINE Your Case No. 91-1018F

The attached opinion was rendered on June 15, 1992.

YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.

WITNESS the Honorable James E. Joanos

Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 16th day of July, 1992.

Clerk, District Court of Appeal of Florida, First District

Docket for Case No: 91-001018F

Orders for Case No: 91-001018F