STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ADA GONZALEZ, )

)

Petitioner, )

)

vs. ) CASE NO. 93-7000F

) DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

BOARD OF MEDICINE, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on March 21, 1994, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Seth Stopek, Esquire

FINE, JACOBSON, SCHWARTZ, NASH & BLOCK

100 Southeast 2nd Street, Suite 3600 Miami, Florida 33131

For Respondent: Francesca Plendl, Senior Attorney

Department of Business

and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

At issue in this proceeding is whether petitioner is entitled to an award of attorney's fees and costs pursuant to Sections 57.111 and 120.57(1)(b)5, Florida Statutes, and, if so, the amount of such award.

PRELIMINARY STATEMENT

On December 10, 1993, petitioner filed a petition with the Division of Administrative Hearings (DOAH) for an award of attorney's fees and costs pursuant to Sections 57.111 and 120.57(1)(b)5, Florida Statutes.

On December 30, 1993, respondent replied to the subject petition, and admitted that: (a) the underlying licensure disciplinary "action in Department of Professional regulation v. Ada Gonzalez, M.D., DBPR Case No. 90-06789, was initiated by the Department of Professional Regulation (now Department of Business and Professional Regulation), a state agency, and, therefore, the Department is not a nominal party only"; (b) "that Petitioner qualifies as a small business party as defined by Section 57.111, Florida Statutes"; (c)

Petitioner prevailed in the underlying case . . . in that the Board of Medicine dismissed the case with a Final Order filed on October 27, 1993"; and (d) Petitioner's claimed attorney's fees and costs [attorney's fees of $20,189.00 and costs of $3,784.95] seem reasonable; however, Respondent asserts that the statutory cap of $15,000.00, inclusive of fees and costs, is applicable." In defense, respondent asserted that "at the time this action was initiated, there was reasonable basis in law and fact for the Agency's actions and that the proceedings were substantially justified." 1/

At hearing, petitioner presented the testimony of Seth Stopek and respondent presented the testimony of Barbara Makant. Joint exhibits 1-8 were received into evidence pursuant to the parties' stipulation, and an additional exhibit, marked exhibit 9, was received into evidence over respondent's objection.

The transcript of hearing was filed April 12, 1994, and the parties were accorded leave until April 28, 1994, to file proposed findings of fact.

Consequently, the parties waived the requirement that a final order be rendered within thirty days after the transcript is filed. 60Q-2.031, Florida Administrative Code. The parties' proposed findings have been addressed in the appendix to this final order.

FINDINGS OF FACT

The current petition

1. Following the entry of a final order of the Board of Medicine dismissing the administrative action previously filed against her, petitioner filed the pending request for an award of attorney's fees and costs, pursuant to Sections 57.111 and 120.57(1)(b)5, Florida Statutes. Respondent, Department of Business and Professional Regulation, Board of Medicine (Department), has conceded that: the underlying licensure disciplinary "action in Department of Professional Regulation v. Ada Gonzalez, M.D., DBPR Case No. 90-06789, was initiated by the Department of Professional Regulation (now Department of Business and Professional Regulation), a state agency, and, therefore, the Department is not a nominal party only"; the "Petitioner qualifies as a small business party as defined by Section 57.111, Florida Statutes"; the "Petitioner prevailed in the underlying case . . . in that the Board of Medicine dismissed the case with a Final Order filed on October 27, 1993"; and, the "Petitioner's claimed attorney's fees and costs [attorney's fees of $20,189.00 and costs of

   $3,784.95] seem reasonable; however, Respondent asserts that the statutory cap of $15,000.00 inclusive of fees and costs, is applicable." Under the circumstances, the sole issue with regard to the claim for attorney's fees and costs under Section 57.111, Florida Statutes, is whether the actions of the Department were "substantially justified" when it initiated the underlying disciplinary action and, with regard to the claim for attorney's fees and costs under Section 120.57(1)(b)5, Florida Statutes, apart from the applicability of such section to the instant case, is whether any pleading, motion or other paper was filed in the underlying proceeding for an "improper purpose."

   
   

   The underlying disciplinary action

   
   

2. On or about May 22, 1990, the Department received, pursuant to statutory requirement, a closed claim report from the Department of Insurance. The report reflected that an indemnity of $160,000 had been paid to the family of Patient C. D. through a settlement within the presuit period prescribed by

   Section 768.57, Florida Statutes. The predicate for the claim against petitioner, Ada Gonzalez, M.D., was the apparent assertion that the patient died as a consequence of petitioner's failure to appropriately treat her.

   
   

3. By memorandum of May 22, 1990, the Division of Medical Quality Assurance recommended to the Department of Professional Regulation's complaints department that a case be opened. That memorandum provided:

   
   

   DISCUSSION: This review is predicated upon receipt of a closed claim DOI report.

   The specific allegation is that the doctor treated the patient for PID - rule out urinary tract infection. The patient was reportedly treated with antibiotics on 11/14/88 and on 11/16/88 appeared better. However, the patient reportedly did not improve and died of a ruptured ovarian abscess on 11/18/88.

   There are no medical records to review and there is no history or explanation given as to what happened in the time period from the onset of the pain to the demise of the patient.

   * * *

   COMMENTS AND RECOMMENDATIONS: I recommend a

   case be opened. There is a question of stan dard of care.

   Records should be obtained and referred to a similarly placed physician for review.

   
   

4. As a consequence of the foregoing referral, the Department opened its Case No. 90-06789, and assigned its investigator Providence Padrick to the case. The investigator obtained a copy of the Palm Avenue Physicians Center and the Fatima HMO medical records, which included the documentation reflecting petitioner's treatment of the patient; the Jackson Memorial Hospital medical records, the facility at which the patient expired; and the autopsy report. Petitioner was duly informed by the Department that the case had been opened against her, and she was offered an interview but declined.

   
   

5. The Palm Avenue Physicians Center and Fatima HMO medical records reflect that the patient was first seen by petitioner on November 14, 1988, and presented with a complaint of bilateral flank pain radiating to the lower abdomen, frequency of urination with some tingling on urination, a yellowish vaginal discharge, and a low grade temperature; such symptoms of approximately one day duration. Examination revealed lower abdominal tenderness to palpation, cervical motion tenderness, and a brown cervical discharge. Petitioner diagnosed pelvic inflammatory disease ("PID") and possible urinary tract infection ("UTI").

   
   

6. As a consequence of the history and examination, petitioner ordered x- rays of the abdomen, biochemical profile, pregnancy test, syphilis test and cultures of the vaginal discharge and urine; prescribed antibiotics; made a referral for the patient to see a gynecologist in two weeks; and, advised the patient to return for a follow-up visit in two days. As for the testing results, the urine culture and sensitivity came back positive for a urinary tract infection; however, all of the other laboratory tests came back negative.

7. The patient was next seen by petitioner on November 16, 1988, for her follow-up visit. At the time, the patient reported that she felt better, and petitioner's examination revealed less vaginal discharge and discomfort, although she still suffered a low grade fever. Petitioner confirmed her earlier diagnosis of pelvic inflammatory disease, and prescribed another antibiotic (Septra DS) for urinary tract infection.

   
   

8. The following day, November 17, 1988, the patient returned to see petitioner complaining of severe abdominal pain over the whole abdomen, nausea and vomiting. Examination revealed that the patient was in distress, with a distended abdomen, decreased bowel sounds and positive tenderness on palpation over the abdominal area. Petitioner again diagnosed pelvic inflammatory disease and urinary tract infection, and referred the patient to the Fatima HMO for observation, IV fluids and x-rays. The patient refused, however, to go to the Fatima HMO and, in fact, evidenced her intent to cancel her membership in the HMO.

   
   

9. At or about 6:34 p.m., November 17, 1988, the patient presented to the Jackson Memorial Hospital Emergency Room complaining of severe abdominal pain, nausea and vomiting, and yellow vaginal discharge. Routine laboratory work was undertaken, but when she was taken to the x-ray department and placed on the table she became unresponsive. Cardiopulmonary resuscitation was immediately commenced without success, and the patient was pronounced dead at 11:25 p.m. that evening. An autopsy performed by the Dade County Medical Examiner revealed the following abnormal findings:

   
   

   1. Diffuse peritonitis

   2. Ruptured left fallopian tubal abscess

   3. Crude intrauterine contraceptive device

   4. Bilateral ovarian cysts

   5. Soft liver, spleen, and kidneys

   6. Congested lungs

   7. Gallstones

   8. Scarred gallbladder

      
      

      The autopsy concluded that the cause of death was acute diffuse peritonitis due to ruptured fallopian tubal abscess.

      
      

10. On August 11, 1992, the Department forwarded its investigative report and related exhibits to its expert, Stanley H. Bernstein, M.D., for review and opinion concerning petitioner's adherence to the appropriate standard of care. By letter of August 20, 1992, Dr. Bernstein responded to the Department's request as follows:

    
    

    The subject A. G. [petitioner] was treating this 49 year old female for symptoms related to the genito-urinary tract. The scant information noted in the medical office records suggested that the patient had a urinary tract infection as well as symptoms suggesting pelvic inflammatory disease.

    How ever no studies were initiated to define the extent of the infection in the pelvis.

    No consultations from either a urologist of [sic] gynecologist were obtained. Although

    antibiotic was given, there was no realization that the infection in the pelvis might have needed much more intensive therapy.

    
    

    1. The subject is unknown to me.

    2. There was no adequate assessment of the patient's condition. Since pelvic inflammatory disease was suspected, a consultant gynecologist and/or appropriate x-rays of the pelvis should have been done.

    3. Since the subject did not suspect the true diagnosis in this case, inappropriate antibiotics were given.

    4. Since appropriate diagnostic tests such as ultrasound and/or cat scan of the pelvis were not done the diagnosis could not be appreciated.

    5. The plan of treatment was inadequate.

    6. There was no adequate monitor being carried out for this patient in regard to antibiotic therapy.

    7. The written medical records were woefully inadequate.

    8. The applicable standard of care for this patient was not met since the subject did not appreciate the possibility that the patient had more extensive infection in her pelvis. The subject did note that pelvic infection was probably present but she never used appropriate consultants. This suggests that the subject had a poor understanding of

       the extent to which such infections can cause major catastrophic events. It seem to be that the subject needs further

       training-certainly in medical conditions where infection is present.

       
       

11. On September 24, 1992, the probable cause panel of the Board of Medicine (Board) met in Tampa, Florida. Those present at the meeting were panel members Louis Murray, M.D., chairman, and Mr. Gilbert Rodriguez; Alan Grossman, Assistant Attorney General; Larry McPherson, Jr., chief medical attorney for the Department; Randolph Collete, senior attorney for the Department; and, James Reese, chief medical investigator for the Department.

    
    

12. At the commencement of the meeting, the panel members (Dr. Murray and Mr. Rodriguez) acknowledged that they had received and reviewed the complete investigative file pertaining to, among others, the petitioner. With regard to petitioner's case, the transcript of that meeting reflects the following brief discussion:

    
    

    MR. COLLETTE: Item A-03 is on Ada Gonzalez, M.D., case number 90-06789. The case is before the Panel on a recommendation that probable cause be found and an

    adminis trative complaint be filed.

    It's alleged that the respondent practiced medicine below the acceptable level of care

    by failing to appropriately diagnose and treat the patient C. D.'s condition and mistakenly treating her for a urinary tract infection with antibiotics when, in fact, the patient was suffering from an ovarian abscess; and that the respondent failed to keep written medical records justifying the course of treatment; and that the records are sketchy and inadequate.

    Based upon these facts, the Department is alleging a violation of 458.331(1)(t) and (m), and recommends that probable cause be found and an administrative complaint be filed.

    MR. RODRIGUEZ: Move a finding of probable cause and the filing of an administrative complaint.

    MR. MURRAY: Second.

    MR. MURRAY: So moved a finding of probable cause and the filing of an administrative complaint, seconded, and passed without objection.

    
    

13. On October 8, 1992, an administrative complaint was filed against petitioner alleging that she violated the Medical Practices Act, Section 458.331(1)(m) and (t), Florida Statutes, by failing to practice medicine at the accepted standard of care in that petitioner was guilty of "mistakenly treating [the patient] for a urinary tract infection with antibiotics, when in fact [the patient] was suffering from an ovarian abscess," and that petitioner's "medical records are sketchy and inadequate in that they fail to justify [her] course of treatment."

    
    

14. Subsequent to the filing of the administrative complaint, petitioner's counsel employed an expert, Martin Arostegui, M.D., to review the matter and render an opinion regarding the merits of the claim against petitioner. Based on his review of the investigative file and an interview with petitioner, Dr. Arostegui concluded:

    
    

    . . . As a result of my extensive review, I have come to an opinion that is substantially different from that of the other physician who previously reviewed this file. I attribute this difference to the level and intensity of my review and scrutiny of the file records and my interview with Dr.

    Gonzalez who I found to be very professional, concerned and wholly credible.

    CONCLUSION:

    Dr. Ada Gonzalez was faced with a very difficult patient who was obese and, as a result, difficult to examine and who appeared to be clinically less sick than she really was. This patient developed a severe pelvic infection as a result of a home made intrauterine contraceptive device which probably was placed illegally and without regard for patient safety. The device was not disclosed to Dr. Gonzalez by the patient

    and it is reasonable to expect that Dr. Gonzalez would not uncover the device under the circumstances. Dr. Gonzalez attempted to get proper surgical evaluation and care for this patient but the patient refused, went home and, at least six hours later, appeared at an emergency department where the continuity of communication with Dr.

    Gonzalez was broken, the diagnosis was completely missed and the patient expired.

    In my opinion, Dr. Ada Gonzalez' care did not fall below community standards. However, Dr. Gonzalez did a less than satisfactory job of documenting her care of this patient and this probably had a role in the formulation of the different opinion by the other reviewing physician. It is particularly worth noting that the physician reviewer did not mention the existence of the home made intrauterine contraceptive device.

    
    

15. On or about February 11, 1993, petitioner's counsel provided the Department a copy of their expert's report with the understanding that the Department would provide the report to its expert and if the expert's opinion was materially changed as a result the Department "would entertain taking this case back to probable cause, perhaps dismissing it or softening at least the consent agreement by eliminating perhaps probation or other items" [TR. pp. 15- 16].

    
    

16. Upon receipt and review of the aforesaid report, the Department amended the administrative complaint to correct certain factual inaccuracies.

    In this regard, paragraphs three, four and five of the original compliant, which had inaccurately averred that petitioner had treated the patient on October 8 and 31, 1988, were dropped; paragraph 7 of the original complaint, now paragraph

    4 of the amended complaint, was amended to reflect that petitioner had "referred her [the patient] to a gynecologist in two weeks, and asked her to return in two days," as opposed to having simply "scheduled her to see a gynecologist" as alleged in the original complaint; and paragraph 10 of the original complaint, now paragraph 7 of the amended complaint, was amended to correctly reflect that petitioner referred the patient to Fatima HMO for observation, as opposed to referring her to Jackson Memorial Hospital as alleged in the original complaint. Other than such factual corrections, the premise for the charges leveled against petitioner remained unchanged.

    
    

17. On April 16, 1993, the Department forwarded a copy of the amended complaint, which had been filed that date with its clerk, and a copy of petitioner's expert report to Dr. Bernstein for review. The cover letter that accompanied such materials concluded "Please read over the enclosed materials. If you see anything that you want to bring to my attention, please give me a call . . . ." Here, the proof fails to demonstrate any change in Dr. Bernstein's opinion as a consequence of his review of the materials, but fails to explicate why no change occurred. 2/

18. By letter of April 19, 1993, the Department advised petitioner's counsel of the amendment of the complaint, consequent to her review of his expert's analysis, and encouraged petitioner's agreement to a proposed stipulation for settlement of the case. Ultimately, in September 1993, the parties entered into a written consent agreement, subject to Board approval, to resolve the subject dispute.

    
    

19. On or about October 2, 1993, the consent agreement was presented to the Board of Medicine for consideration. Present were fourteen members of the Board; however, one member, Dr. Louis Murray, was excused from participating since he had served on the probable cause panel. Pertinent to this case, the transcript of the Board meeting reflects the following comments by Board members:

    
    

    CHAIRMAN DAUER: Thank you. I just want to make a few opening comments here.

    I was a little bit disturbed when I saw the materials here, and let me express my concerns here.

    I think the doctor in this case probably did everything right. You had a patient that she first saw on November 14th, she ordered a beta HCG, it's clearly on the order here, the pregnancy test came back negative, there's no history of the IUD, she appropriately treated her, I think her medical records are adequate, and what happened, she even referred her to a gynecologist. She got the patient back in

    48 hours, and I think it was an incident that could not be expected. There's no way to expect this woman to have a ruptured tubal with the results she had done, the history that was not adequate. I think this doctor did everything right. I looked at this case material and I said why is this even here.

    I think the case should have been dismissed.

    * * *

    DR. ECHEVARRIA: I thoroughly agree with your comments, Mr. Chairman. As I read the original AC, I made a note to take issue with the Administrative Complaint to start with, and I really feel that she did things according to the book and it is an unfortunate final ending in this case, and I'm kind of wondering why peritonitis with a ruptured tubal would kill her this quickly.

    We see people with ruptured diverticulitis, ruptured appendices that linger on and on and on, and it doesn't kill them. So I don't know why the death occurred so quickly without a lot of other symptoms being associated with it. So I think there may have been something like toxic shock or whatever, as a result of the foreign body.

    I would agree, I would certainly favor a move to dismiss.

    Following such dialogue, a motion was made by a member of the Board to reject the consent agreement and dismiss the case. The motion passed unanimously, and by final order dated October 8, 1993, filed with the Department of Professional Regulation October 27, 1993, the consent agreement was formally rejected and the case dismissed.

    
    

    Whether the action of the agency was substantially justified or other special circumstances exist which would make an award of attorney's fees and costs unjust.

    
    

20. Here, facially, the probable cause panel had before it evidence in the form of its expert's report that would, if his opinions were credited at final hearing, suggest that petitioner had failed to maintain adequate medical records and had failed to maintain the appropriate standard of care. The reliability or efficacy of that expert's opinions has, however, been rendered suspect by the Board's unanimous conclusion that petitioner's medical records and treatment were appropriate. Under such circumstances, and the Department having failed to demonstrate, at hearing, that the information upon which the Board based its decision differed in some marked degree from that considered by the probable cause panel or to offer proof to explicate the basis or reasonableness of the expert's conclusions, the expert's report cannot be accepted at face value as reasonably indicating that the violations had occurred. Therefore, it must be concluded that the Department has failed to demonstrate that its decision to initiate the underlying action was substantially justified or special circumstances exist which would make an award of attorney's fees and costs unjust.

    
    

21. While the Department may have failed in its burden to demonstrate that its action was substantially justified, such does not compel the conclusion that any pleading or paper filed by the Department was interposed for an "improper purpose," such that attorney's fees and costs would be appropriately awarded under Section 120.57(1)(b)5, Florida Statutes. To the contrary, the proof fails to support such conclusion. Moreover, and most importantly, the proof fails to demonstrate that the subject charges ever pended before the Division of Administrative Hearings and, therefore, as discussed in the Conclusions of Law, there is no basis upon which to assess attorney's fees and costs under Section 120.57(1)(b)5, Florida Statutes.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 57.111 and 120.57(1), Florida Statutes.

    
    

23. Here, petitioner has filed a petition with the Division of Administrative Hearings for an award of attorney's fees and costs pursuant to Sections 57.111 and 120.57(1)(b)5, Florida Statutes.

    The claim for attorney's fees and costs pursuant to Section 57.111, Florida Statutes

    
    

24. Pertinent to this case, the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes, provides:

    
    

    (4)(a) Unless otherwise provided by law, an award of attorney's fees and costs shall be made to a prevailing small business party in any adjudicatory proceeding or administrative proceeding pursuant to chapter

    120 initiated by a state agency, unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust. (Emphasis added).

    
    

25. In this case, the Department has, by its response to the petition, conceded that petitioner is a small business party, that the underlying action was initiated by the Department, that petitioner prevailed in the underlying case, and that the claimed attorney's fees and costs are reasonable, although limited to $15,000 by law. Accordingly, an award of attorney's fees and costs is appropriate in the instant case absent the Department's establishment, by a preponderance of the evidence, that its actions were "substantially justified or special circumstances exist which would make the award unjust." Section 57.111(4)(a), Florida Statutes, and Department of Professional Regulation v. Toledo Realty, Inc., 549 So.2d 715 (Fla. 1st DCA 1989).

    
    

26. A proceeding is "substantially justified" if "it had a reasonable basis in law and fact at the time it was initiated by a state agency." Section 57.111(3)(e), Florida Statutes.

    
    

27. The reasonableness of government action was addressed in McDonald v. Schweiker, 726 F.2d 311, 316 (7th Cir. 1983) where the court defined "substantially justified" as meaning "the government must have a solid though not necessarily correct basis in fact and law for the position it took" in the action. Accord, Department of Health and Rehabilitative Services v. S. G., 613 So.2d 1380, 1386 (Fla. 1st DCA 1993), ("While governmental action may not be so unfounded as to be frivolous, it may nonetheless be based on such an unsteady foundation factually and legally as not to be substantially justified"). Moreover, "to sustain a probable cause determination there must be some evidence considered by the panel that would reasonably indicate that the violations alleged had indeed occurred." Kibler v. Department of Professional Regulation, 418 So.2d 1081, 1084 (Fla. 4th DCA 1982).

    
    

28. Here, for the reasons set forth in the findings of fact, it cannot be concluded that the Department sustained its burden to demonstrate that its decision to initiate the underlying action was substantially justified or that special circumstances exist which would make an award unjust. Therefore, pursuant to the mandate of Section 57.111(4)(a), Florida Statutes, petitioner is entitled to an award of attorney's fees and costs, although limited to the maximum recover of $15,000 established by law.

    The claim for attorney's fees and costs

    pursuant to Section 120.57(1)(b)5, Florida Statutes

    
    

29. With regard to petitioner's claims for attorney's fees and costs pursuant to Section 120.57(1)(b)5, Florida Statutes, it is observed that the instant claim is an independent action and is not a request interposed during the course of a Section 120.57(1) proceeding, pending before the Division of Administrative Hearings, on the underlying action. Indeed, it does not appear from the proof that the administrative complaint was ever forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes. Under such circumstances, there is no authority for an award of fees and costs pursuant to Section 120.57(1)(b)5, Florida Statutes.

    
    

30. It is axiomatic that statutes authorizing an award of attorney's fees are in derogation of common law, and should be strictly construed. Kittel v. Kittel, 210 So.2d 1 (Fla. 1967), and Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla. 1982). Moreover, "it is well recognized that the powers of administrative agencies are measured by the statutes or acts in which such powers are expressly granted or implicitly conferred." Department of Environmental Regulation v. Puckett Oil, Inc., 577 So.2d 988, 991 (Fla. 1st DCA 1991).

    
    

31. Here, there is no authority for the application of Section 120.57(1)(b)5, Florida Statutes, to an administrative proceeding independent of the underlying action. Mercedes Lighting & Electrical Supply, Inc. v. Department of General Services, 560 So.2d 272, 276 (Fla. 1st DCA 1990), (The objective of section 120.57(1(b)5 is similar to that of its federal counterpart, Rule 11, Federal Rules of Civil Procedure, which is "designed to discover dilatory or abusive tactics and to streamline the litigation process.").

Accord, Department of Health and Rehabilitative Services v. S. G., 613 So.2d 1380, (Fla. 1st DCA 1993). Nor can section 120.57(1)(b)5 be read to reasonably imply the allowance of attorney's fees and costs sought by petitioner.

Accordingly, there is no basis to award petitioner the relief she seeks under the provisions of such statute. See, Florida Hospital v. Department of Health and Rehabilitative Services, 507 So.2d 696 (Fla. 1st DCA 1987).

CONCLUSION

Based on the foregoing findings of fact and conclusions of law, it is ORDERED that:

1. Petitioner recover from respondent the sum of $15,000, as reasonable attorney's fees and costs, under the provisions of Section 57.111, Florida Statutes.

   
   

2. Petitioner's claim for attorney's fees and costs pursuant to Section 120.57(1)(b)5, Florida Statutes, is denied.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 27th day of June 1994.

WILLIAM J. KENDRICK

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 27th day of June 1994.

ENDNOTES

1/ Respondent's reply to the petition further asserted, as a defense, that an award of attorney's fees and costs would be unjust "when Respondent has acted at all times according to its mandate to protect the public from the practice of incompetent or dangerous physicians." In its proposed final order, respondent does not repeat such contention, and it may be considered abandoned.

Nevertheless, it is observed that the explanation offered by respondent as to why an award would be unjust in this case is inadequate as a matter of law.

2/ The competent and credible proof demonstrates that the Department's counsel did discuss the report with Dr. Bernstein, and as a consequence of that discussion did not alter its position on the case. Dr. Bernstein did not, however, testify at hearing and any comments he may have made to counsel regarding the merits of the report or his opinion are hearsay and cannot support a finding of fact.

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1. Accepted, but unnecessary detail.

2. Addressed in paragraph 2.

3. Addressed in paragraph 4.

4-10. Addressed in paragraphs 5 and 6, otherwise unnecessary detail or not supported by the proof.

11. Addressed in paragraph 7.

12 & 13. Addressed in paragraph 8, otherwise unnecessary detail or not supported by the proof.

1. Addressed in paragraph 9.

2. To the extent supported by the proof, addressed in paragraph 9, otherwise rejected.

3. Accepted that the medical records fail to evidence such disclosure.

4. Addressed in paragraph 10. Last sentence rejected as not relevant since the autopsy report forwarded to the expert reflected such fact.

5. Addressed in paragraph 10. Last sentence rejected as commentary or argument. Indeed, based on the record, the significance of the intrauterine device to the patient's condition or cause of death is anything but clear or apparent in this record.

6. Addressed in paragraphs 11 and 12.

7. The Department's statement to the Board are accepted, but the characterization of those statements as a material misrepresentation is rejected.

8. To the extent pertinent, addressed in paragraph 12.

9. Rejected as contrary to the proof. See paragraph 12.

10. Rejected as contrary to the proof. See paragraphs 9, 10, and 12.

11. Addressed in paragraph 13.

25 & 26. Addressed in paragraph 14.

27 & 28. To the extent supported by the proof, addressed in paragraph 15.

1. The suggestion that the Department breached any agreement by taking such actions is rejected as not supported by the proof. Rather, such actions were innocuous or not inappropriate. The complaint was amended to correct certain factual discrepancies, the report was forwarded to the expert at petitioner's request, and if the proposed consent agreement was changed, that was the Department's prerogative since it had not been accepted by petitioner.

2. Rejected as not a fair comment on the evidence or supported by the proof. Otherwise addressed in paragraph 18.

3. First sentence rejected as contrary to the proof. Second sentence rejected as not supported by competent proof.

4. Rejected as not supported by the record relied upon. 33-36. Addressed in paragraphs 19 and 20.

37. To the extent supported by the proof, addressed in paragraph 20.

38 & 39. To the extent necessary, addressed in paragraph 1.

1. Rejected as contrary to the credible proof. See paragraph 21.

2. Addressed in paragraphs 21 and 22, otherwise rejected as more in the nature of argument than a finding of fact.

3. Rejected. Indeed, as heretofore noted, the significance of the intrauterine device to the patient's condition or cause of death is anything but clear or apparent in this record.

4. Rejected as not supported by the proof and not relevant to the subject claim for attorney's fees and costs.

44 & 45. To the extent supported by the proof, addressed in paragraphs 20 and 21, otherwise rejected.

The Department's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2 & 3. Addressed in paragraphs 4 and 9.

4a & b. Rejected as contrary to the proof. 4c & d. Addressed in paragraphs 5-7.

4e. First two sentences addressed in paragraph 8. Last sentence rejected as contrary to the proof.

4f. Addressed in paragraph 9.

1. Addressed in paragraph 10.

2. Addressed in paragraph 17 and endnote 2.

7-14. Addressed in paragraphs 11 and 12, otherwise unnecessary detail.

15. Addressed in paragraphs 13, 16 and 17.

COPIES FURNISHED:

Seth Stopek, Esquire

FINE JACOBSON SCHWARTZ NASH & BLOCK

Suite 2800

100 Southeast 2nd Street Miami, Florida 33131

Francesca Plendl Senior Attorney Department of Business

and Professional Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Dr. Marm Harris Executive Director Board of Medicine Department of Business

and Professional Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jack McCray General Counsel

Department of Business

and Professional Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules Of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Agency Clerk Of The 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

AGENCY FOR HEALTH CARE NOT FINAL UNTIL TIME EXPIRES TO ADMINISTRATION, FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED.

Appellant,

CASE NO. 94-2393

vs. DOAH CASE NO. 93-7000F

ADA GONZALEZ, M.D.,

Appellee.

/ Opinion filed July 3, 1995.

An appeal from an order of the Division of Administrative Hearings.

Kathryn L. Kasprzak, Assistant General Counsel, Tallahassee, for Appellant. Seth Stopek, of Seth Stopek, P.A., Miami, for Appellee.

PER CURIAM.

The order of the Division of Administrative Hearings awarding attorney fees and costs under section 57.111, Florida Statutes, to a medical doctor after the disciplinary action against her was dismissed is REVERSED. The evidence which the hearing officer acknowledged was before the probable cause panel constituted substantial justification for institution of the disciplinary action, but he erroneously determined that this evidence did not constitute substantial justification in light of the Board of Medicine's subsequent dismissal of the proceeding after more evidence was presented. See Gentele v. Department of Professional Regulation, Board of Optometry, 513 So.2d 672 (Fla. 1st DCA 1987); see also Department of Professional Regulation Division of Real Estate v. Toledo Realty Inc., 549 So.2d 715 (Fla. 1st DCA 1989).

BARFIELD, KAHN, and DAVIS, JJ., CONCUR.

Docket for Case No: 93-007000F

Orders for Case No: 93-007000F