STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 93-6795

) JEFFREY S. BENNETT, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case at Miami, Florida, on March 2, 1994, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner: Alex D. Barker, Esquire

Senior Attorney

Department of Business and Professional Regulation

7960 Arlington Expressway, Suite 230

Jacksonville, Florida 32211-7466

For Respondent: David J. Horr, Esquire

One Datran Center

9100 South Dadeland Boulevard, Suite 1110

Miami, Florida 33156 STATEMENT OF THE ISSUES

This is a license discipline proceeding in which the Respondent has been charged by Administrative Complaint with violation of Section 458.331(1)(g), Florida Statutes, by reason of allegations that he failed to provide medical records or reports as required by Section 455.241, Florida Statutes.

PRELIMINARY STATEMENT

At the hearing on March 2, 1994, the Petitioner presented the testimony of one witness and offered nine exhibits, all of which were received in evidence. The Respondent testified on his own behalf and also presented the testimony of one other witness. The Respondent also offered six exhibits, all of which were received in evidence. /1 At the conclusion of the hearing, the parties were allowed twenty days from the filing of the transcript of the hearing within which to file their proposed recommended orders. A transcript of the proceedings was filed with the Hearing Officer on March 14, 1994. The

Petitioner filed a timely proposed recommended order on March 31, 1994. Without objection, the Respondent requested, and was granted, several extensions of time, the last of which expired on May 4, 1994. On May 4, 1994, the Respondent filed his proposed recommended order. Specific rulings on all proposed findings of fact submitted by the parties are contained in the Appendix to this Recommended Order. The parties' proposals have been carefully considered during the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Respondent is, and has been at all times material to this proceeding, a licensed physician in the State of Florida, having been issued license number ME 0013518. The Respondent is, and has been at all times material to this proceeding, a board certified obstetrician/gynecologist.

   
   

2. On or about July 24, 1991, Mrs. Y., a female passenger on the CARIBE I, a cruise ship owned by Commodore Cruise Line, Limited, complained to the ship's doctor that she had been sexually assaulted by one of the ship's employees while the ship was in a foreign port. News of Mrs. Y.'s complaint was promptly communicated to the cruise line's New York legal counsel. In anticipation of almost certain litigation, the New York legal counsel decided that it would be in the best interests of the cruise line to have Mrs. Y. examined by an independent physician at the earliest practicable time.

   
   

3. Because the ship was bound for Miami, Florida, and because the cruise line's New York legal counsel did not know any gynecologists in the Miami area, the New York counsel contacted legal counsel in Miami and asked if the Miami counsel could arrange to have a gynecologist examine Mrs. Y. when the ship arrived at the Port of Miami. To that end, the Miami legal counsel contacted the Respondent and retained him as an independent expert on behalf of the cruise line. The Miami legal counsel for the cruise line specifically asked the Respondent to give an independent evaluation and to examine Mrs. Y. for communicable diseases and for evidence of sexual assault or rape. The cruise line advised the Respondent that the cruise line would pay him for conducting the examination and for his consultation. In due course the cruise line did pay the Respondent for his services related to Mrs. Y., which included such activities as interviewing and examining Mrs. Y., telephone conferences, conferences with attorneys, and preparation of a typed report regarding his examination of Mrs. Y.

   
   

4. At approximately 8:00 a.m. on the morning of July 27, 1991, the Respondent, accompanied by his nurse, Mary Eany, met with Mrs. Y. in the infirmary aboard the CARIBE I at the Port of Miami. The Respondent introduced himself to Mrs. Y., described his status to her as being that of an independent medical expert, and explained to Mrs. Y. that he had been retained by the cruise line to examine her. Mrs. Y. consented to the examination by the Respondent.

   
   

5. The Respondent took a history from Mrs. Y., conducted a physical examination of Mrs. Y., and collected vaginal swabs for the purpose of ascertaining whether she had been sexually assaulted or raped, and for DNA purposes. Gonorrhea and Chlamydia cultures were taken as well. The Respondent also drew blood samples from Mrs. Y. for several tests. During the entire examination the Respondent was assisted by his nurse, Mary Eany.

6. Following the examination of Mrs. Y., the Respondent administered prophylactic antibiotics (Vibramycin and Ampicillin) to her, advised her to obtain follow-up care and testing from her private physician, and advised her that he would inform her by telephone of the test results.

   
   

7. At the request of the cruise line, the Respondent took all of the evidence that had been gathered by the ship's doctor (items such as Mrs. Y.'s bed sheets, underwear, trousers, and a towel or wash cloth) and immediately placed it under lock and key in his office. The Respondent subsequently turned those items over to the FBI.

   
   

8. In due course, Mrs. Y. retained a Miami law firm to represent her in a claim against the cruise line. After an initial exchange of letters /2

   between Mrs. Y.'s Miami attorneys and the Respondent, by means of a letter dated September 26, 1991, Mrs. Y.'s Miami attorneys wrote to the Respondent seeking copies of records. In pertinent part, the September 26 letter read:

   
   

   Please submit us a complete photocopy of all office records you may have regarding the above-captioned individual. Please include personal informative records as well.

   
   

9. The Respondent replied to the letter of September 26, 1991, by means of a letter dated November 1, 1991, addressed to Mrs. Y.'s Miami attorneys. The letter read as follows, in pertinent part: /3

   
   

   Please find enclosed photostatic copies of the following: Results of a vaginal culture

   including blood group and type, results of HIV under Florida will not be forwarded to you, and a copy of my notes of July 27, 1991.

   * * *

   The treatment which I have rendered to Mrs.

   Y. is present in the report which I have given to Mr. James Canty.

   
   

10. The Respondent's letter of November 1, 1991, to Mrs. Y.'s Miami attorneys was accompanied by a photocopy of the laboratory reports mentioned in the letter and a photocopy of the Respondent's handwritten notes written during the course of his interview and examination of Mrs. Y. /4

    
    

11. On November 1, 1991, the Respondent also sent a letter to a Mr. James Canty, who was then the Director of Operations of the cruise line. In pertinent part, the letter to Mr. Canty read:

    
    

    Please find enclosed my report which was performed on July 27, 1991 regarding [Mrs. Y.]. I have had no further contact with the

    F.B.I. nor have I heard from [Mrs. Y.]. I find it rather embarrassing to be put in an awkward situation by Mr. Martucci regarding this case.

12. Enclosed with the November 1, 1991, letter to Mr. Canty was a four page typed report regarding the Respondent's examination of Mrs. Y. The typed report contains information that is not contained in the handwritten notes the Respondent prepared during the course of his interview and examination of Mrs.

    Y. on July 27, 1991. The typed report was prepared some time during the latter half of October of 1991.

    
    

13. By letter dated December 12, 1991, Mrs. Y.'s Miami attorneys wrote to the Respondent with the following request:

    
    

    Pursuant to your letter of November 1, 1991, please provide my office with a copy of the report which you gave to Mr. James Canty concerning [Mrs. Y.]. You should know that Florida law requires that you send these to us. Please do so at once so that we can avoid litigation over these records.

    
    

14. On January 21, 1992, Mrs. Y.'s New York attorneys filed a lawsuit on her behalf against Commodore Cruise Lines, Ltd., alleging that she had been sexually assaulted by an employee of the cruise line and seeking an award of damages against the cruise line. The lawsuit was filed in the United States District Court for the Southern District of New York.

    
    

15. By letter dated February 27, 1992, Mrs. Y.'s Miami attorneys again wrote to the Respondent. The February 27 letter read as follows, in pertinent part:

    
    

    Since September 6, 1991 we have been attempting to obtain your complete records of my client, [Mrs. Y.], including the report which you provided to Mr. Canty. You have refused to return our calls or furnish us with your complete records.

    This is to remind you once again that Florida law requires that you furnish us with all medical information, pursuant to Medical Authorization properly executed by our client. This has been provided to you. We demand that you immediately furnish us with a copy of the report which you furnished to Mr. Canty together with copies of your notes dated July 27, 1991, which you also omitted. Your failure to comply with this request at once will leave us no choice but to commence legal action against you.

    
    

    Mrs. Y.'s Miami attorneys sent a copy of their letter of February 27, 1992, to the Department of Professional Regulation.

    
    

16. Following the Respondent's receipt of the letter of February 27, he had a telephone conversation with one of Mrs. Y.'s Miami attorneys. During the telephone conversation the Respondent explained that he had consulted legal counsel, that legal counsel had advised him that the subject report constituted "work product," and that Mrs. Y. and her attorneys were not entitled to it except through "legal channels." During the same telephone conversation, one of Mrs. Y.'s Miami attorneys insisted that they were entitled to receive a copy of

    the report and that unless the Respondent furnished it to them, they would report the matter to the Department of Professional Regulation and would otherwise initiate litigation against him.

    
    

17. The Respondent further replied to the letter of February 27, 1992, with a letter addressed to Mrs. Y.'s Miami attorneys under date of March 10, 1992. The Respondent's letter of March 10 read as follows, in pertinent part:

    
    

    I am corresponding to you concerning your letter dated February 27, 1992. As I related to you per our phone conversation of March 3, 1992, under the Florida law I have furnished you with the information you have requested. I have spoken to an attorney, Mr. David Horr, concerning the above and he has advised me that the written report which I have forwarded to Mr. Canty was not part of the patient's medical records.

    I am not interested in getting into any legal action which you may bring. I am sure that this report can be obtained from Commodore Cruise Lines if you desire.

    As I related to you in my letter of November 1, 1991, evidence and information which I had received was turned over to the F.B.I. on July 30, 1991. If you want to involve the Department of Professional Regulation that is your prerogative. However, I have had legal advice concerning this from Mr. Horr.

    
    

18. At various times during the exchange of letters described above, the Respondent sought and received legal advice from the attorneys for the cruise line, including the Miami attorney who had contacted him to retain his services on behalf of the cruise line, and the New York attorney who was general counsel for the cruise line. The cruise line attorneys advised the Respondent that, for several different reasons, the Respondent was not required to provide a copy of the typed report to Mrs. Y.'s attorneys, and that he should not do so absent a valid subpoena or court order. The attorneys from whom the Respondent sought legal advice also told him that the judge presiding over the New York litigation had ruled that Mrs. Y. and her attorneys were not entitled to a copy of the disputed report until after the deposition of Mrs. Y. had been taken. The cruise line attorneys sought (successfully) to prevent Mrs. Y. from seeing a copy of the disputed report prior to her deposition because they believed, or hoped, that at her deposition she would make statements inconsistent with statements attributed to her in the Respondent's typed report. For obvious reasons, Mrs. Y.'s attorneys sought access to the typed report prior to her deposition and made strenuous efforts to that end.

    
    

19. In March of 1992 the Respondent was served with a subpoena which directed him to appear for deposition and to bring with him the typed report. On April 3, 1992, the New York attorneys representing Mrs. Y. and the New York attorneys representing the cruise line participated in a conference held by the presiding judge at which time they argued their respective views on several discovery matters. At the conference the cruise line's attorneys agreed to produce a copy of the Respondent's typed report, but sought to postpone production of the report until after Mrs. Y. was deposed. The New York attorneys for Mrs. Y. agreed to the postponed production and the Respondent was

    excused from compliance with the subpoena that had been served on him. The presiding judge apparently approved that resolution of the matter, but no court order was ever entered with respect to postponement of production of the typed report.

    
    

20. Some time during May of 1992, Mrs. Y.'s Miami attorneys mailed a complaint to the Department of Professional Regulation complaining that the Respondent had failed to provide complete medical records and reports when requested to do so by Mrs. Y.'s Miami attorneys.

    
    

21. By letter dated May 26, 1992, the Department of Professional Regulation wrote to the Respondent advising him that the Department had received a complaint regarding his failure to furnish complete records regarding Mrs. Y., summarizing the requirements of Section 455.241(1), /5 Florida Statutes, and requesting that the Respondent send the requested records to Mrs. Y.'s Miami attorneys and provide the Department with a certificate that he had done so.

    
    

22. Under date of June 4, 1992, the Respondent wrote a long letter to the Department of Professional Regulation explaining the circumstances with which he was faced. Pertinent portions of the Respondent's June 4 letter read as follows:

    
    

    [Mrs. Y.] was never a patient of mine. She was examined in the infirmary on board the cruise ship the Caribe II (sic) docked in the port of Miami. There are no office records or billing records for [Mrs. Y]. [Mrs. Y.] was examined on a foreign flagged cruise ship

    docked in the port of Miami, at the request of Commodore Cruise Lines and all bills were paid by Commodore Cruise Lines.

    Mr. Huggett's [Mrs. Y.'s Miami attorney] office has been trying repetitively to obtain a confidential report which I prepared for Commodore Cruise Lines.

    * * *

    According to the attorneys involved in this litigation, this report is considered a work product. A subpoena was served on me from the United States District Court, Southern District of Florida, for March 24, 1992.

    This was filed by an attorney in New York City, Mr. John P. James of Freidman, Biondi and James who represent [Mrs. Y.'s] suit against Commodore Cruise Lines, Ltd. Please find copy of the subpoena enclosed. The subpoena was negated by the courts of New York and my deposition subsequently was cancelled.

    I have been threatened by Mr. Huggett's office

    . . . [Mrs. Y.'s Miami attorneys] that if I did not comply and give "all information" I would be turned in to the Department of Professional Regulation and legal action would be instituted against me. . . . Mr. Huggett [Mrs. Y.'s Miami attorney] is using the Department of Professional Regulation in a roundabout way to try to obtain information

    which he has been denied through legal channels. This has been very intimidating to me. I have not violated any Florida law. As previously stated and upheld in a court of law, this is

    a work product. Any corrobative evidence which you may need can be obtained from the attorneys who are representing Commodore Cruise Lines.

    If you would like for me to contact these attorneys I would be more than willing to do so.

    * * *

    I am chagrined by the fact that Mr. Huggett's office [Mrs. Y.'s Miami attorneys] is allowed to intimidate and threaten me with the Department of Professional Regulation and litigation.

    * * *

    I welcome a telephone call and or letter in response to my letter of June 4, 1992. As I stated my office has no patient file on [Mrs. Y.]. I have a detailed report prepared for Commodore Cruise Lines which is considered a work product. It is unfortunate that Mr.

    Huggett [Mrs. Y.'s Miami attorney] has taken

    a threatening and subversive approach in trying to coerce me to release a "work product" for which he is not entitled.

    
    

    Along with his letter of June 4, 1994, the Respondent sent the Department of Professional Regulation copies of all of the correspondence back and forth between himself and Mrs. Y.'s Miami attorneys, as well as a copy of the subpoena mentioned in the letter.

    
    

23. The deposition of Mrs. Y. was taken on January 29, 1993, in Miami, Florida, and by letter of March 2, 1993, the cruise line's New York attorney provided a copy of the Respondent's typed report to Mrs. Y.'s New York attorneys.

    
    

24. Finally, on June 3, 1993, Mrs. Y.'s Miami attorneys wrote to the Department of Professional Regulation, as follows:

    
    

    . . . I am writing to advise you that Dr. Bennett [the Respondent] has now provided the records which were the subject matter of our initial letter of complaint. Accordingly, we

    have no further interest in pursuing this matter.

    
    

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57(1), Fla. Stat.

26. In a license discipline proceeding of this nature the Petitioner bears the burden of proving its charges by clear and convincing evidence. See Ferris

    v. Turlington, 510 So.2d 292 (Fla. 1987). The nature of clear and convincing evidence has been described as follows in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983):

    
    

    We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without

    hesitancy, as to the truth of the allegations sought to be established.

    
    

    See also, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), which, at page 958, quotes with approval the

    above

    following at page 958:

    
    

    "Clear and convincing evidence" is an intermediate standard of proof, more than the "preponderance of the evidence" standard used in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases. See State v. Graham, 240 So.2d 486 (Fla. 2d DCA 1970).

    
    

27. At the time of the medical examination of Mrs. Y. on July 27, 1991,

    Section 455.241, Florida Statutes, read as follows, in pertinent part: /6

    
    

    1. Any health care practitioner licensed pursuant to . . . chapter 458 . . . who makes a physical or mental examination of,

       or administers treatment to, any person shall, upon request of such person or his legal representative, furnish, in a timely manner, without delays for legal review, copies of

       all reports and records relating to such examination or treatment, including x rays and insurance information. . . .

       
       

    2. Except as otherwise provided in s. 440.13(2)(c), such records shall not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient or his legal representative or other health care providers involved in the care and treatment of the patient, except upon written authorization of the patient. However, such records may be furnished without written authorization to any person, firm, or corporation which has

       procured or furnished such examination or treatment with the patient's consent . . . , in which case copies of the medical records shall be furnished to both the defendant and the plaintiff. (Emphasis added)

       
       

28. At all times material to this proceeding, Section 458.331(1)(g), Florida Statutes, has authorized disciplinary action against a physician for: "Failing to perform any statutory or legal obligation placed upon a licensed physician." The Administrative Complaint in this case charges the Respondent with a violation of Section 458.331(g), Florida Statutes, "in that he failed to release medical records and reports of medical records to Patient #1 (Mrs. Y.) or her attorney, contrary to Section 455.241, Florida Statutes."

    
    

29. It is clear from the evidence in this case that the Respondent timely furnished some of the requested medical records and reports. It is equally clear that he failed to timely furnish to Mrs. Y.'s Miami attorneys a copy of the typed report the Respondent prepared for the cruise line.

    
    

30. By way of defense, the Respondent first argues that due to the nature of the services he was retained to provide, there was no physician/patient relationship between himself and Mrs. Y. and, therefore, no duty under Section 455.241, Florida Statutes, for him to provide the records and reports addressed by that statute. This argument fails for the following reasons. First, there was a physician/patient relationship between the Respondent and Mrs. Y. because the Respondent did more than merely conduct an examination at the request of a third party. He undertook to treat Mrs. Y. by prescribing and administering legend drugs to her. The Respondent's acts of administering treatment to Mrs.

    Y. gave rise to a physician/patient relationship. Second, the existence of a physician/patient relationship is irrelevant to the issue of the Respondent's duty under Section 455.241, Florida Statutes, to provide reports and records. The duty under that statutory provision is owed to "any person" who is examined or treated by a physician; it is not limited to persons with whom the physician has established a physician/patient relationship.

    
    

31. The Respondent also argues that his failure to furnish the typed report was not a violation of the subject statute because his failure was based on a good faith reliance on the advice of legal counsel. As a general rule, advice of legal counsel is a viable defense only in those circumstances where intent or motive are elements of the violation charged. Such is not the case here. Whether motivated by the best of reasons or the worst, the Respondent's failure to timely furnish the typed report violated the letter of the duty imposed by Section 455.241, Florida Statutes. The question that remains to be addressed is whether that failure also violated the spirit and purpose of Section 455.241, Florida Statutes; in other words, whether the Respondent's conduct in this case is the type of conduct that the Legislature sought to prevent and punish by enactment of Sections 455.241 and 458.331(1)(g), Florida Statutes. For the reasons which follow, the Hearing Officer is inclined to the view that the Respondent's conduct in this case, albeit a "technical" violation of the literal language of the statute, is not the type of conduct that warrants any disciplinary action.

    
    

32. Reduced to its simplest terms, what the evidence in this case shows is that a physician who appears to have been trying to fulfil his professional obligations in a reasonable, competent, and responsible manner, got caught in the middle of the litigation gamesmanship of two teams of energetic and enthusiastic attorneys, each of whom was attempting to gain some strategic

    advantage in Mrs. Y.'s lawsuit against the cruise line. Mrs. Y.'s attorneys were threatening him with disciplinary action if he failed to send them a copy of his typed report and the cruise line's attorneys were telling him, in essence, that his typed report was "work product," that it was their work product because they had paid for it, and that absent a valid subpoena or court order, he should not provide a copy of the report to Mrs. Y.'s attorneys. The Respondent relied on the advice he received from the cruise line's attorneys.

    From the Respondent's point of view such reliance would have appeared to have been reasonable inasmuch as the advice was coming from the very lawyers who had retained his services to produce the report the lawyers were fighting over. Who better than they should know when, whether, and under what circumstances he was required or allowed to furnish a copy of the report? Unfortunately for the Respondent, in their enthusiasm to advance the interests of their cruise line client, the cruise line's attorneys apparently overlooked the Respondent's obligations under Section 455.241, Florida Statutes, and gave him advice that was inconsistent with the requirements of that statute.

    
    

33. This is a case that should never have happened, and is one that would never have happened if the primary actors other than the Respondent had been less enthusiastic in their attention to other agendas and more considerate of the legitimate interests of others in their efforts to resolve differences of opinion. For example, instead of threatening the Respondent with disciplinary action and filing a complaint with the Department of Professional Regulation, Mrs. Y.'s attorneys could have taken the more reasonable (and less confrontational) step of advising the Respondent of the provisions of Section 455.241, Florida Statutes, and suggesting to him that if he had any doubts about its application he should confer with the Department of Professional Regulation. Instead of explaining the "work product" concept to the Respondent, the cruise line attorneys could have troubled to read Section 455.241, Florida Statutes, before they advised the Respondent not to produce the disputed report, in which case, if prudent, they would have either advised him that he was required to furnish the report or that it was at least arguable that he was required to produce the report and that he should either confer with the Department of Professional Regulation or seek independent legal counsel. Finally, the Department of Professional Regulation could probably have avoided this proceeding if they had written back to the Respondent, as he invited them to do in his June 4, 1992, letter, and told him that, under the circumstances described in his letter, the Department was of the view that the Respondent was required by statute to furnish the disputed report.

    
    

34. In brief summary, throughout this entire matter the Respondent appears to have been acting in a reasonable and responsible manner in an effort to fulfil his professional responsibilities to all concerned. In the course of those efforts he failed to comply with the literal requirements of Section 455.241, Florida Statutes, while trying to do what he believed was required of him. That is not the kind of physician conduct that warrants disciplinary action.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the Board of Medicine issue a Final Order in this case dismissing the charges against the Respondent. /7

DONE AND ENTERED this 17th day of May, 1994, at Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 17thday of May, 1994.

ENDNOTES

1/ The parties disagree as to whether the Respondent's Exhibit C [the transcript of the deposition of Michael Martocci with three deposition exhibits attached] was received in evidence. The court reporter's notes indicate that Respondent's Exhibit C was only marked for identification. The text of the Hearing Officer's comments at the time the exhibit was offered show that the exhibit was received. [See page 58 of the transcript, lines 9-15, at which the Hearing Officer overrules the only objection to the Respondent's Exhibit C and discusses the manner in which counsel should refer to the exhibits to the deposition.]

2/ The initial exchange of letters is comprised of Petitioner's Exhibits 2 and 3, both of which are irrelevant to the issues in this case. Mrs. Y's attorneys asked for information about the wrong date and the Respondent gave them a curt, but truthful, answer.

3/ The Respondent's letter of November 1, 1991, also included numerous items of additional information potentially useful to Mrs. Y's attorney, but irrelevant to the issues in this case. (See Petitioner's Exhibit 5.)

4/ There is conflicting evidence on the question of whether a photocopy of the Respondent's handwritten notes was enclosed with the November 1, 1991 letter to Mrs. Y's attorney's. The greater weight of the evidence supports finding that the notes were enclosed with the letter.

5/ For reasons not explained in the record of this proceeding, the Department's letter makes no reference to subsection (2) of Section 455.241, Florida Statutes, which is especially applicable to the circumstances presented by this proceeding.

6/ Section 455.241, Florida Statutes has since been amended in several regards, none of which are material to the disposition of this proceeding. Under wither the 1991 version of the statute or the current version of the statute, the disposition of the issues in this case would be the same.

7/ In the event the Board of Medicine should decide to find the respondent guilty of a violation in this case, it is suggested that any penalty imposed should be a very minimal penalty. A letter of guidance should suffice; a letter of reprimand would be more than is necessary or appropriate under the circumstances.

APPENDIX

The following are the specific rulings on all proposed findings of fact submitted by all parties.

Proposed findings submitted by Petitioner:

Paragraph 1: Rejected as constituting a conclusion of law rather than a proposed finding of fact; a correct conclusion, but conclusion nevertheless.

Paragraphs 2 through 18: Accepted in substance with some modifications and additions in the interest of clarity and accuracy.

Paragraph 19: Rejected as contrary to the greater weight of the evidence; what the Respondent saw was the document identified as Exhibit A to the deposition transcript of the deposition of Michael Martocci.

Paragraphs 20 and 21: Rejected as irrelevant or as subordinate and unnecessary details.

Paragraph 22: Accepted in substance, with some additional facts in the interest of clarity and accuracy.

Proposed findings submitted by Respondent:

Paragraph 1: Rejected as constituting a conclusion of law rather than a proposed finding of fact; a correct conclusion, but conclusion nevertheless.

Paragraphs 2 through 22: Accepted in substance.

Paragraph 23: Rejected as contrary to the greater weight of the evidence; Petitioner's Exhibit 9 contains quite a bit of information that is not found in Respondent's Exhibit A.

Paragraphs 24 through 34: Accepted in substance.

COPIES FURNISHED:

Alex D. Barker, Esquire Senior Attorney

Department of Business and Professional Regulation

7960 Arlington Expressway

Suite 230

Jacksonville, Florida 32211-7466

David J. Horr, Esquire One Datran Center Suite 1110

9100 South Dadeland Boulevard Miami, Florida 33156

Jack McRay, General Counsel General Counsel

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Dr. Marm Harris Executive Director Board of Medicine

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 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. The parties disagree as to whether the Respondent's Exhibit C [the transcript of the deposition of Michael Martocci with three deposition exhibits attached] was received in evidence. The court reporter's notes indicate that Respondent's Exhibit C was only marked for identification. The text of the Hearing Officer's comments at the time the exhibit was offered show that the exhibit was received. [See page 58 of the transcript, lines 9-15, at which the Hearing Officer overrules the only objection to Respondent's Exhibit C and discusses the manner in which counsel should refer to the exhibits to the deposition.] The initial exchange of letters is comprised of Petitioner's Exhibits 2 and 3, both of which are irrelevant to the issues in this case. Mrs. Y.'s attorneys asked for information about the wrong date and the Respondent gave them a curt, but truthful, answer. The Respondent's letter of November 1, 1991, also included numerous items of additional information potentially useful to Mrs. Y.'s attorneys, but irrelevant to the issues in this case. (See Petitioner's Exhibit 5.) There is conflicting evidence on the question of whether a photocopy of the Respondent's handwritten notes was enclosed with the November 1, 1991, letter to Mrs. Y.'s attorneys. The greater weight of the evidence supports a finding that the notes were enclosed with the letter. For reasons not explained in the record of this proceeding, the Department's letter makes no reference to subsection (2) of Section 455.241, Florida Statutes, which is especially applicable to the circumstances presented by this proceeding. Section 455.241, Florida Statutes has since been amended in several regards, none of which are material to the disposition of this proceeding. Under either the 1991 version of the statute or the current version of the statute, the disposition of the issues in this case would be the same. In the event the Board of Medicine should decide to find the Respondent guilty of a violation in this case, it is suggested that any penalty imposed should be a very minimal penalty. A letter of guidance should suffice; a letter of reprimand would be more than is necessary or appropriate under the circumstances.

Docket for Case No: 93-006795

Orders for Case No: 93-006795