STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6927

) 93-6928

ARNALDO LUIS CURBELO, M.D., ) 93-6929

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on September 8, 1994, in Miami, Florida.

APPEARANCES

For Petitioner: Albert Peacock, Esquire

Attorney for Agency for Health Care Administration

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Manuel R. Morales, Esquire

19 West Flagler Street, Suite 711 Miami, Florida 33130

STATEMENT OF THE ISSUES

As to Case 93-6927, whether Respondent, a licensed physician, violated the provisions of Section 458.331(1)(m), (t), (v), and (dd), Florida Statutes, as alleged in the Administrative Complaint and the penalties, if any, that should be imposed.

As to Case 93-6928, whether Respondent violated the provisions of Section 458.319(5), 458.327(1)(a), and 458.331(1)(x), Florida Statutes, as alleged in the Administrative Complaint and the penalties, if any, that should be imposed.

As to Case 93-6929, whether Respondent violated the provisions of Section 458.331(1)(x), Florida Statutes, as alleged in the Administrative Complaint and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

Petitioner filed three separate Administrative Complaints against Respondent, a licensed physician. Respondent timely requested a formal hearing, and all three cases were referred to the Division of Administrative Hearings.

The three cases were consolidated, and these proceedings followed.

The Administrative Complaint in Case 93-6927 alleged certain facts as to Respondent's practice at an abortion clinic in Miami. Succinctly stated, Count One charged Respondent with practicing beyond the scope of his competence in violation of Section 458.331(1)(v), Florida Statutes. Count Two charged Respondent with practicing below the accepted standard of care in violation of Section 458.331(1)(t), Florida Statutes. Count Three charged Respondent with failing to keep proper medical records in violation of Section 458.331(1)(m), Florida Statutes. Count Four charged Respondent with failing to properly supervise a nurse anesthetist in violation of Section 458.331(1)(dd), Florida Statutes.

The Administrative Complaint in Case 93-6928 alleges certain facts pertaining to Respondent's licensure. Count One charged Respondent with violating Sections 458.319(5) and 458.331(1)(x), Florida Statutes, by failing to notify Petitioner of his change of address. Count Two charged Respondent with violating Sections 458.327(1)(a) and 458.331(1)(x), Florida Statutes by practicing medicine with an inactive license.

The Administrative Complaint in Case No. 93-6929 alleges certain facts pertaining to a prior disciplinary action and charges Respondent with failing to timely comply with the terms of the final order entered in the previous action in violation of Section 458.331(1)(x), Florida Statutes.

At the formal hearing, Petitioner presented the testimony Diane Robie, Peter Scrocca, Barbara Kemp, Susan D. Bernhardt, and Richard Van Eldik, M.D.

Ms. Robie and Mr. Scrocca are investigators employed by Petitioner. Ms. Kemp is the Professional Regulation Administrator for the Florida Board of Medicine.

Ms. Bernhardt is a registered nurse who was employed by the Department of Health and Rehabilitative Services to inspect the clinic at which Respondent practiced. Dr. Van Eldik is a physician who was accepted as an expert in the field of general medicine. In addition, Petitioner presented eight exhibits, each of which was accepted into evidence. Respondent presented the testimony of his secretary, Emilagros Gonzalez, and presented fourteen exhibits, each of which were accepted into evidence.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the agency of the State of Florida that regulates the practice of medicine.

   
   

2. Respondent is a licensed physician in the State of Florida and has been issued license number ME 0028412 by the Petitioner.

   CASE NO. 93-6927

   
   

3. On December 12, 1990, Susan D. Bernhardt conducted an inspection for the Florida Department of Health and Rehabilitative Services (DHRS) of an abortion clinic named Miami International Esthetics Center (MIEC). Ms. Bernhardt was hired as a consultant by DHRS to conduct random inspections of MIEC pursuant to a stipulation between DHRS and MIEC. Ms. Bernhardt is a registered nurse and is experienced in surgical procedures.

   
   

4. Ms. Bernhardt observed Respondent perform an abortion on a patient at MIEC on December 12, 1990. Also present in the operating room was a nurse anesthetist, to whom Respondent referred as Mr. Martin. Respondent, Mr. Martin, and Ms. Bernhardt were present in the operating room at all times during the procedure.

   
   

5. Mr. Martin administered anesthesia and the patient lost consciousness. Shortly after losing consciousness, the patient began making sounds which Ms. Bernhardt described as "crowing noises" and to which Dr. Van Eldik referred to as "stridors". These sounds indicate that the patient's air passages are blocked, a condition that requires prompt action from the physician or from the person administering anesthesia since the condition can be life threatening.

   Ms. Bernhardt testified that she went to the patient and used her stethoscope to confirm that the patient was having breathing difficulties. She thereafter tilted the patient's head and restored her breathing. The amount of time that lapsed between the time the patient first experienced difficulties breathing and the time Ms. Bernhardt acted was not established. While it is clear that neither Respondent or Mr. Martin 1/ acted to provide the patient with any relief or to assure that her air passages were open so that she could receive adequate oxygen, it is not clear whether the action of Ms. Bernhardt obviated the necessity for either the physician or the nurse anesthetist to act.

   Consequently, it is found that Petitioner failed to establish by clear and convincing evidence that Respondent failed to properly supervise Mr. Martin by failing to order him to assist the patient when Ms. Bernhardt acted promptly to relieve the patient.

   
   

6. Emergency equipment was maintained on a crash cart that was in the operating room during the procedure Ms. Bernhardt observed. As the operating surgeon, Respondent was responsible for making sure that appropriate emergency equipment was readily available. Appropriate emergency equipment would include emergency drugs on the crash cart. Throughout the procedure there were no emergency drugs present on the crash cart. Respondent failed to adequately supervise Mr. Martin to ensure that appropriate emergency equipment was readily available.

   
   

7. As part of her inspection of MIEC, Ms. Bernhardt reviewed medical records at the clinic pertaining to patients of the Respondent. Some of the records that were reviewed by her are contained in Petitioner's Exhibit 5. Respondent's records reviewed by Ms. Bernhardt were of overall poor quality. Documentation concerning physical examination was scanty and often failed to include the size of the patient's uterine and a description of the presumptive signs of pregnancy. Anesthesia records were not filled out. Documentation concerning the recovery room period was virtually nonexistent. No vital signs or progress notes were charted. There was no follow-up documentation evidencing a pelvic examination and no notation of patient complaints or symptoms. The records reviewed by Ms. Bernhardt during her inspection did not justify or adequately document the course of treatment for the respective patients.

8. A subpoena was served on Respondent by one of Petitioner's investigators that required him to turn over all medical records pertaining to certain named patients. A similar subpoena was served on Mr. Angel Caso, the owner of MIEC. In response to the subpoena that was served on his client, Respondent's attorney informed the investigator that Respondent did not have any medical records other than those that would have been maintained at the MIEC.

   In response to the subpoena that was served on him, Mr. Caso turned over medical records pertaining to 45 patients. These records reflect that the Respondent was their attending physician.

   
   

9. Mr. Caso could not be subpoenaed by Petitioner to compel his attendance at the formal hearing because he could not be located. The medical records that were turned over to Petitioner pursuant to subpoena were admitted into evidence as Petitioner's Exhibit 5 as records received by Petitioner during the course of an official investigation. There was no evidence that any other medical records pertaining to these patients exist. The medical records that constitute Petitioner's Exhibit 5 do not justify or adequately document the course of treatment of the respective patients.

   
   

   CASE NO. 93-6928

   
   

10. Section 458.319(5), Florida Statutes, provides, as follows:

    
    

    (5) The licensee must have on file with the department the address of his primary place of practice within the state prior to engaging in that practice. Prior to changing the address of his primary place of practice, whether or

    not within this state, the licensee shall notify the department of the address of his new primary place of practice.

    
    

11. The Petitioner maintains the addresses of physicians by computer. There is no statute or rule that requires a physician to notify the Department in writing as to a change of address, but the Department's policy is to require that address changes be in writing and that the request for a change of address come from the physician. There was no written notification from Respondent to the Petitioner that his business address had changed prior to September 1992.

    
    

12. At the time of the formal hearing, Respondent's business address was

    102 East 49th Street, Hialeah. His former business address was 4821 West 4th Avenue, Hialeah, Florida.

    
    

13. At the times pertinent to this proceeding, Respondent's home address was 14710 Day Pine Avenue, Miami, Florida. As of December 17, 1990, Petitioner had been informed of that address.

    
    

14. Petitioner's investigator, Diane Robie, interviewed Respondent at his business address on East 49th Street on August 22, 1991. Respondent had been at this address for approximately eight months as of August 22, 1991. This new business address was reflected by Ms. Robie's report, which was filed with Petitioner on October 8, 1991, but that report did not trigger a change of the business address Petitioner maintained for Respondent in its computers.

15. Respondent's license to practice medicine was scheduled to expire on December 31, 1991. In mid October 1991, the Department of Professional Regulation (Department) mailed a renewal notice to Respondent's former business address on West 4th Avenue.

    
    

16. As required by Section 458.319(4), Florida Statutes, the Department routinely mails to the physician a renewal form that the physician must use to renew his license. This mailing takes place 60 days before the physician's license is scheduled to expire. This renewal form is generated by computer and is sent to the mailing address that is on record with the Department and maintained by computer.

    
    

17. It was the Department's policy to try to notify a physician at his home address if a renewal notice is returned from a stale office address. There was no evidence that the renewal notice and the renewal form that was mailed to Respondent at his former address in October 1991 was returned to the Department as being an incorrect address. The evidence failed to establish what happened to the renewal notice that was mailed to Respondent in mid-October 1991. There was no further attempt by the Department following the mid-October 1991 mailing to notify the Respondent at his home address or business address that his license was about to expire.

    
    

18. Respondent's license expired on December 31, 1991, and his licensure automatically reverted to inactive status pursuant to Section 458.319(3), Florida Statutes.

    
    

19. Respondent made no effort to contact the Department until June 1992 at which time his secretary/office manager contacted the Department by telephone and advised that Respondent had not received the renewal documentation. On August 10, 1992, the Petitioner wrote to Respondent at his home address. This was the first written communication between the parties since the mid-October 1991 mailing.

    
    

20. Respondent mailed a check in the amount of $500.00 for the renewal of his license to the Department in September 1992. On October 6, 1992, the Department wrote Respondent at his former address on West 4th Avenue and advised that prior to the renewal of his license, Respondent had to pay an additional fee in the amount of $350.00 for the processing of his renewal application and that he would also have to submit proof that he had earned required continuing medical education credits.

    
    

21. On February 15, 1993, the Department sent to Respondent a letter at his East 49th Street address that provided as follows:

    
    

    This letter is in response to your (sic) to your submission to renew your Florida medical license which was received in the Board office

    on 9-15-92. Unfortunately the Board of Medicine cannot comply with your request until the follow- ing is received:

    1. $350.00 renewal fee. (in addition to the

       $500 already submitted)

    2. You did not fill out the Financial Respon- sibility portion of the renewal application, therefore, you will need to fill out a new form, and have it properly notarized.

    3. Please submit an affidavit for your active practice activities between January 1, 1992, and the present date.

    4. Any person applying for reactivation of a license must show either that such licensee main- tained tail insurance coverage which provided liability coverage for incidents that occurred

       on or after January 1, 1987, or the initial date of licensure in this state, whichever is later, and incidents that occurred before the date on which the license became inactive; OR that such licensee MUST SUBMIT A NOTARIZED AFFIDAVIT STATING THAT SUCH LICENSEE HAS NO UNSATISFIED MEDICAL MALPRACTICE JUDGMENTS OR SETTLEMENTS AT THE TIME OF APPLICATION FOR REACTIVATION.

    5. After July 1, 1992, you will need to submit copies of at least 40 hours of Category I CME earned between January 1, 1990, and the present date. Five of these hours must be in Risk Management. Also one hour of HIV/AIDS Category I CME needs to be submitted.

       Once the above items are received, we will proceed

       with the issuance of an active Florida medical license. (Emphasis is in the original.)

       
       

22. Respondent met all requirements for the renewal of his medical license on March 16, 1993, the date on which his license was reactivated. Between January 1, 1992, and March 15, 1993, Respondent engaged in the practice of medicine in the State of Florida without an active license.

    
    

    Case 93-6929

    
    

23. Petitioner filed an Administrative Complaint against Respondent on April 27, 1988, which was subsequently referred to the Division of Administrative Hearings and assigned DOAH Case No. 88-5546. On February 28, 1989, the parties to that proceeding executed a "Stipulation" which settled the dispute. On April 19, 1989, the Board of Medicine entered a Final Order that accepted the Stipulation and ordered the parties to abide by its terms. Pertinent to this proceeding, Paragraph 4 of the Stipulation required the following:

    
    

    4. Within one (1) year of the date of filing of the Final Order incorporating the terms of this stipulation, Respondent shall complete twenty-five (25) hours of Category I Continuing

    Medical Education in the areas of Risk Management and/or Medical Records Keeping. Such continuing education shall be in addition to that amount required for renewal of licensure.

    
    

24. Category I Continuing Medical Education is a course approved by the American Medical Association as a top level course. In March 1990, Respondent completed a 25 hour course sponsored by Jackson Memorial Hospital in the area of "Medical Records Keeping". Respondent notified Petitioner on March 21, 1990, that he had completed this course. This was the only course that Respondent claimed to have taken in satisfaction of the Final Order entered in DOAH Case

    88-5546. This course has not been designated as a Category I Continuing Medical

    Education course by Jackson Memorial Hospital. The Petitioner advised the Respondent that the course he had taken did not satisfy its order. Respondent thereafter requested that the matter be reviewed by Petitioner's Probation Committee. This request was granted, but the Probation Committee determined that the course was not acceptable. Respondent did not comply with the order until March 16, 1993.

    
    

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of these proceedings pursuant to Section 120.57(1), Florida Statutes, and Section 455.225, Florida Statutes.

    
    

26. The Administrative Complaints filed by Petitioner against Respondent requests revocation or suspension of licensure as penalties. Consequently, Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See, Section 458.331(3), Florida Statutes. See also, Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112 (Fla. 1st DCA 1989). Evans Packing, supra, 550 So. 2d 112, 116, fn. 5, provides the following pertinent to the clear and convincing evidence standard:

    
    

    That standard has been described as follows:

    [C]lear 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 evidence 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 the firm belief of (sic) conviction, without hesi- tancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

27. Section 458.331, Florida Statutes (1991), provides, in pertinent part, as follows:

    
    

    (1) The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

    * * *

    (m) Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered;

    and reports of consultations and hospitalizations.

    * * *

    (t) Gross or repeated malpractice, or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. . . .

    * * *

    (v) Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities which the licensee knows or that he has reason to know that he is not competent to perform.

    * * *

    (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 or failing to comply with a lawfully issued subpoena of the department.

    * * *

    (dd) Failing to supervise adequately the activities of those physician assistants, paramedics, emergency medical technicians, or advanced registered nurse practitioners

    acting under the supervision of the physician.

    
    

28. Section 458.327(1)(a), Florida Statutes, provides as follows:

    
    

    1. Each of the following acts constitutes a felony of the third degree, punishable as pro- vided in s. 775.082, s. 775.083, or s. 775.084:

       1. The practice of medicine or an attempt

    to practice medicine without a license to practice in Florida.

    
    

29. Count One of the Administrative Complaint in Case 93-6927 charged Respondent with practicing beyond the scope of his competence in violation of Section 458.331(1)(v), Florida Statutes. There was insufficient evidence to establish the level of Respondent's competence or that he practiced beyond the scope of his competence. As discussed below, it is found that Respondent committed certain of the violations alleged in the three Administrative Complaints. Those findings, however, do not establish that Respondent violated Section 458.331(1)(v), Florida Statutes.

    
    

30. Count Two of the Administrative Complaint in Case 93-6927 charged Respondent with practicing below the accepted standard of care in violation of Section 458.331(1)(t), Florida Statutes. This allegation is bottomed on an assumption that the medical records that constitute Petitioner's Exhibit 5 establish by clear and convincing evidence what Respondent did or did not do with these patients. While it is appropriate to examine these medical records to determine whether they adequately document the course of treatment of the respective patients, these records were not authenticated and cannot be relied upon to establish the truth of the matters asserted therein. See, Section 120.58(1)(a), Florida Statutes. There was no other competent evidence that Respondent practiced below the standard of care. Consequently, it is concluded that Petitioner failed to establish by clear and convincing evidence that Respondent violated the provisions of Section 458.331(1)(t), Florida Statutes, as alleged in Count Two of Case 93-6927.

    
    

31. Count Three of the Administrative Complaint in Case 93-6927 charged Respondent with failing to keep proper medical records in violation of Section 458.331(1)(m), Florida Statutes. Respondent's counsel responded to the subpoena that was served upon Respondent that his client had no medical records pertaining to the named patients and that any such records were maintained by

    MIEC. The records maintained reviewed by Ms. Bernhardt at MIEC and the records submitted by MIEC in response to subpoena during the course of an official investigation fail to justify the course of treatment of the patients. There was no evidence that other medical records exist. It is concluded that Petitioner presented sufficient evidence to establish a prima facie violation of Section 458.331(1)(m), Florida Statutes, so that the burden of going forward with the evidence shifted from the Petitioner to the Respondent. The burden of proof did not shift and remained with the Petitioner. In the absence of any evidence to rebut the prima facie showing established by Petitioner, it is concluded that the Respondent failed to justify or adequately document the course of treatment of his patients as alleged.

    
    

32. Count Four of the Administrative Complaint in Case 93-6927 charged Respondent with failing to properly supervise a nurse anesthetist in violation of Section 458.331(1)(dd), Florida Statutes. As reflected by the findings of fact, Petitioner failed to establish this violation as it pertains to his supervision of Mr. Martin when the patient experienced breathing difficulties, but it did establish this violation by clear and convincing evidence as it pertains to the absence of emergency drugs on the crash cart.

    
    

33. Count One of the Administrative Complaint filed in Case 93-6928 charged Respondent with violating Sections 458.319(5) and 458.331(1)(x), Florida Statutes, by failing to notify Petitioner of his change of address. There was no evidence that Respondent attempted to notify the Department verbally or in writing as to the change of his primary place of practice until well after the move from the West 4th Avenue address to the East 49th Street address. It is concluded that Petitioner established by clear and convincing evidence that Respondent violated the provisions of Section 458.319(5) and, consequently, 458.331(1)(x), Florida Statutes, as alleged in Count One.

    
    

34. Count Two of the Administrative Complaint filed in Case 93-6928 charged Respondent with violating Sections 458.327(1)(a) and 458.331(1)(x), Florida Statutes by practicing medicine with an inactive license. Petitioner established by clear and convincing evidence the violation alleged in Count Two by establishing that Respondent engaged in the practice of medicine without an active license between January 1, 1992, and March 15, 1993.

    
    

35. Respondent's attempt to shift the responsibility for his lapsed licensure to the Department's method of keeping addresses has little merit as a defense to the alleged violation. The factors Respondent attempts to assert in defense are more appropriately considered as mitigating factors in determining the penalty to be imposed. It remains the responsibility of the physician to make sure his or her license is properly renewed and that the Department has his correct address on record. There was no evidence that the Respondent notified the Department before he relocated his primary place of practice and there was no evidence that Respondent attempted to contact the Department until six months after it expired.

    
    

36. The Administrative Complaint in Case No. 93-6929 charges Respondent with failing to timely comply with the terms of the final order entered in the previous action in violation of Section 458.331(1)(x), Florida Statutes. The only evidence that Respondent attempted to comply with the final order's requirement pertaining to CME was that he took a course at Jackson Memorial Hospital. Since this course has not been designated a Category I course by Jackson Memorial Hospital, that course did not satisfy the conditions of the final order. Consequently, it is concluded that Petitioner established the

    violation alleged in Case No. 93-6929 by clear and convincing evidence. A minimum fine is recommended for this violation because of the evident confusion as to whether the course at Jackson Memorial Hospital was a Category I course.

    
    

37. Rule 59R-8.001(2), Florida Administrative Code, provides a range of penalties for the violations that are contained herein. For a violation of Section 458.331(1)(m), Florida Statutes, the recommended penalty is as follows: "From a reprimand to denial or two (2) years suspension followed by probation, and an administrative fine from $250.00 to $5,000.00." For a violation of Section 458.331(1)(dd), Florida Statutes, the recommended penalty is as follows: "From probation to denial or two (2) years suspension followed by probation, and an administrative fine from $250.00 to $5,000.00." For a violation of Section 458.331(1)(x), Florida Statutes, the recommended penalty is as follows: "From a reprimand to revocation or denial, and an administrative fine from $250.00 to

$5,000.00."

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that adopts the

findings of fact and conclusions of law contained herein and which incorporates the following:

1. Find Respondent not guilty of practicing beyond the scope of his competence in violation of Section 458.331(1)(v), Florida Statutes, as alleged in Count One of Case 93-6927.

   
   

2. Find Respondent not guilty of practicing below the standard of care in violation of Section 458.331(1)(t), Florida Statutes, as alleged in Count Two of Case 93-6927.

   
   

3. Find Respondent guilty of failing to keep proper medical records in violation of Section 458.331(1)(m), Florida Statutes, as alleged in Count Three of Case 93-6927. For this violation, Respondent should be reprimanded, assessed an administrative fine in the amount of $1,000.00, and placed on probation for a period of two years, to run concurrently with any other period of probation imposed on Respondent.

   
   

4. Find Respondent not guilty of failing to properly supervise the nurse anesthetist when the patient experienced breathing difficulties in violation of Section 458.331(1)(dd), Florida Statutes, as alleged in Count Four of Case 93- 6927.

   
   

5. Find Respondent guilty of failing to ensure that the crash cart was appropriately equipped, thereby failing to properly supervise the nurse anesthetist in violation of Section 458.331(1)(dd), Florida Statutes, as alleged in Count Four of Case 93-6927. For this violation, Respondent should be reprimanded and assessed an administrative fine in the amount of $250.00.

   
   

6. Find Respondent guilty of violating the provisions of Section 458.319(5), Florida Statutes, and thereby violating Section 458.331(1)(x), Florida Statutes, by failing to timely notify Petitioner of his change of business address as alleged in Count One of Case 93-6928. For this violation, Respondent should be reprimanded and assessed an administrative fine in the amount of $250.00.

7. Find Respondent guilty of violating the provisions of Section 458.327(1)(a), Florida Statutes, and thereby violating Section 458.331(1)(x), Florida Statutes, by practicing medicine in the State of Florida after his license expired as alleged in Count Two of Case 93-6928. For this violation, Respondent should be reprimanded and assessed an administrative fine in the amount of $1,000.00, and placed on probation for a period of two years, to run concurrently with any other period of probation imposed on Respondent.

   
   

8. Find Respondent guilty of violating the provisions of Section 458.331(1)(x), Florida Statutes, by failing to timely comply with an order of the Board of Medicine alleged in Case 93-6929. For this violation, Respondent should be reprimanded and assessed an administrative fine in the amount of

   $250.00.

   
   

   DONE AND ENTERED this 31st day of January, 1995, in Tallahassee, Leon County, Florida.

   
   

   
   

   CLAUDE B. ARRINGTON

   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 January, 1995.

   
   

   ENDNOTE

   
   

   1/ The violation alleged in connection with the breathing difficulties experienced by this patient is that the Respondent failed to properly supervise the nurse anesthetist by not ordering Mr. Martin to assist the patient.

   
   

   APPENDIX TO RECOMMENDED ORDER

   
   

   The following rulings are made as to the proposed findings of fact submitted by the Petitioner.

   
   

   1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 8 (there are two separates paragraphs numbered 8), 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 20, 22, 24, and 25 are adopted in material part by the Recommended Order.

   2. The proposed findings of fact in paragraph 17 are rejected as being unnecessary and as being vague. Ms. Bernhardt testified that Mr. Martin - not the Respondent - failed to take the acts referred to in Paragraph 17. The Respondent was not charged with failure to supervise Mr. Martin as to these acts.

   3. The proposed findings of fact in paragraph 21 are adopted in part by the Recommended Order, but are rejected to the extent they are contrary to the findings made.

   4. The proposed findings of fact in paragraph 23 are subordinate to the findings made.

   5. The proposed findings of fact in paragraph 25 are rejected as being unsubstantiated by the evidence.

The following rulings are made as to the proposed findings of fact submitted by the Respondent.

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 13, 14, 15, 16, 17, 19, 21, 25, and 26 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 10 are adopted in part, but are rejected in part as being dependent upon hearsay.

3. The proposed findings of fact in paragraph 12 are rejected in part as being contrary to the findings made.

4. The proposed findings of fact in paragraph 18 are rejected as being unsubstantiated by the evidence since there was no evidence that the renewal notice was returned.

5. The proposed findings of fact in paragraph 20 are adopted in part, but the reference to the course as being the "required" course is rejected as being unsubstantiated by the evidence.

6. The proposed findings of fact in paragraphs 22 and 23 are rejected as being unnecessary to the conclusions reached.

7. The proposed findings of fact in paragraph 24 are rejected as being contrary to the record.

8. The proposed findings of fact in paragraphs 27, 28, 29, 30, 31, 32, 33, 34, and 35 are subordinate to the findings made.

COPIES FURNISHED:

Albert Peacock, Esquire

Agency for Health Care Administration Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Manuel R. Morales, Jr., Esquire Biscayne Building, Suite 711

19 West Flagler Street Miami, Florida 33130

Dr. Marm Harris, Executive Director Board of Medicine

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32303-4131

Tom Wallace, Assistant Director Agency for Health Care Administration

325 John Knox Road, Suite 301 Tallahassee, Florida 32303-4131

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 ten 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.

Docket for Case No: 93-006927

Orders for Case No: 93-006927