STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
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FINAL ORDER
Pursuant to stipulation of the parties, the above consolidated cases were considered by the Division of Administrative Hearings by its duly designated Hearing Officer, Mary Clark, in Tallahassee, Florida by stipulated record and without need for further evidentiary hearing. Exhibits were submitted by the parties on May 23, 1994 and proposed Final Orders were submitted on July 25, 1994 and July 26, 1994.
APPEARANCES
For Petitioner: Kenneth E. Brooten, Jr., Esquire
631 West Fairbanks Avenue Winter Park, Florida 32789
For Respondent: Jon M. Pellett
Qualified Representative Department of Business &
Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street
Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES
The issues for determination are whether Petitioner, John Allison Rowe,
and Petitioner, Ralph E. Toombs, D.D.S., are entitled to recover reasonable attorney's fees and costs under section 57.111, Florida Statutes, for
defending against certain disciplinary actions initiated by the Respondent, Department of Professional Regulation (now Agency for Health Care Administration), Board of Dentistry.
After stipulation of the parties, these central issues remain for disposition: whether Petitioner, John Rowe, D.D.S., is a prevailing party as provided under Section 57.111(3)(c), Florida Statutes; whether the underlying disciplinary proceeding had a "reasonable basis in law and fact at the time that it was initiated by [the] state agency," as provided in Section 57.111(3)(e), Florida Statutes; whether special circumstances exist making an award to Petitioners unjust; whether Petitioner's attorney's fees and costs were reasonable or necessary; and whether multiple Department investigations in a single complaint and multiple complaints consolidated for a single evidentiary hearing "stack" the $15,000.00 maximum award provided for in Section 57.111(4)(d)2, Florida Statutes.
PRELIMINARY STATEMENT
These proceedings were initiated on January 31, 1994 and March 8, 1994 when Petitioners, John Allison Rowe, D.D.S. and Ralph E. Toombs, D.D.S., each timely filed his petition for attorney's fees and costs with the Division of Administrative Hearings. The petitions were opposed by the Respondent, which filed motions to dismiss the petitions. The proceedings were initiated following entry of a Final Order of the Board of Dentistry on January 11, 1994, dismissing all but one of the counts of the Amended Administrative Complaint filed against Petitioner, John Allison Rowe, D.D.S., and dismissing all counts of the Amended Administrative Complaint filed against Petitioner, Ralph E. Toombs, D.D.S.. The underlying disciplinary proceedings were heard as a consolidated action before this Hearing Officer. The current proceedings were consolidated by Order of this Hearing Officer on March 30, 1994, after receipt of an unopposed motion for consolidation from Respondent.
Subsequently, the parties at a conference call hearing held on May 20, 1994, agreed to disposition of these consolidated cases based upon a stipulated record. The following joint exhibits, which had been sequentially numbered by the parties, were received at the Division of Administrative Hearings on May 23, 1994:
EXHIBIT | NO. | PAGE NO. | DESCRIPTION | |
Exhibit | A. | 1 - 21 | Administrative Complaint (Rowe) 4/10/91 | |
Exhibit | B.* | 22 - | 1716 | Investigative file and consultant's opinion for DBPR file numbers 01-11379, 89- 02166, 8902167, 89-02372, & 89-13187 |
Exhibit | C. | 1717 | - 1734 | Excerpted transcript Probable Cause Panel Meeting November 2, 1990 |
Exhibit | D. | 1735 | - 1748 | Administrative Complaint (Rowe) 7/24/91 |
Exhibit | E.* | 1749 | - | 2353 | Investigative file and consultant's opinion for DBPR |
file numbers 01-12140, 01- 11377, & 01-11378 | |||||
Exhibit | F. | 2354 | - | 2364 | Excerpted transcript Probable Cause Panel Meeting April 10, 1991 |
Exhibit | G. | 2365 | - | 2372 | Administrative Complaint (Toombs) 12/20/90, election of rights |
Exhibit | H.* | 2373 | - | 2482 | Investigative Report and Consultant's opinion DBPR Case No. 89-13186 |
Exhibit | I. | 2483 | - | 2490 | Excerpted transcript of November 2, 1990 Panel Meeting for DBPR Case No. 89-13186 |
Exhibit | J. | 2491 | - | 2554 | Board's Final Order, Recommended Order, and Amended Administrative Complaints (Rowe/Toombs) |
Exhibit | K. | 2555 | - | 2598 | Memorandum of Finding of Probable Cause Panel April 9, 1992 for DBPR file numbers 01- 11379, 89-02166, 89-02167, 89- |
02372, 89-13187, 01-12140, 01- 11377, & 01-11378. Excerpted and corrected transcript of April 9, 1992 Probable Cause Panel Meeting and certification of Board of Dentistry search for audiotape and minutes of the meeting. | |||||
Exhibit | L. | 2599 | - | 2600 | Letter from Mr. Brooten to Mr. Peacock dated January 24, 1992 |
Exhibit | M. | 2601 | - | 2645 | Excerpted transcripts of the April 27, 1990 and June 4, 1990 Probable Cause Panel meetings and Memorandum of Finding of Probable Cause for DBPR file numbers 01-11379, 89-02166, 89-02167, 89-02372, |
89-13187, 01-12140, 01-11377, 01-11378. Excerpted Transcript of June 4, 1990 Panel Meeting for DBPR Case No. 13186. |
Exhibit | N. | 2646 | - | 2655 | Excerpted transcript of the Probable Cause Panel Meeting |
of July 12, 1989 | |||||
Exhibit | O.* | 2656 | - | 2687 | Excerpted transcript of the Probable Cause Panel Meeting of October 13, 1989 |
Exhibit | P. | 2688 | - | 2698 | Motion and Order of Consolidation and Motion and Order approval Amendment of Complaint |
Exhibit | Q. | 2699 | - | 2709 | Transmittal letter to DOAH, Amended Administrative Complaint, Second Election of Rights. |
Exhibit | R. | 2710 | - | 2722 | Initial Order, Petitioner's Motion to Consolidate, Order of Consolidation |
Exhibit | S. | 2723 | - | 2735 | Motion to Compel Discovery, Order Compelling Discovery, Motion for sanctions, Order to Show Cause, Order imposing sanctions |
Exhibit | T. | 2736 | - | 2741 | Affidavits received October 15, 1992 from Dr. Rowe, Karen G. Batton, and Martha A. Barber. |
Exhibit | U.* | 2742 | - | 2826 | February 6, 1992 Deposition of Leonard Rochefort |
Exhibit | V. | 2827 | - | 2829 | Affidavit of Richard D. Danley (Rowe) |
Exhibit | W. | 2830 | - | 2832 | Affidavit of Alan E. Rhodus, C.P.A. (Toombs) |
Exhibit | X. | 2833 | - | 2861 | Affidavit Kenneth E. Brooten, |
Jr., Esquire & Affidavit Ronald Hand, Esquire
Exhibit Y.* Transcript, deposition testimony, &
exhibits from the formal hearing held November 9, 1982 - November 13, 1982. (Filed with DOAH on March 28, 1994.
Exhibit Y was not numbered in sequence with the other joint exhibits).
*The exhibits containing confidential patient information have been sealed to protect patients' confidentiality pursuant to Section 455.241(3), F.S..
Petitioner and Respondent jointly requested that this Hearing Officer take Official Recognition of the Division's files for the underlying consolidated
proceeding, DOAH Case Numbers 19-03213, 91-06022, and 91-05362, which request was granted. The parties filed proposed Final Orders and argument on the issues presented in this consolidated proceeding. Without objection, Respondent's motion to exceed page limit is GRANTED. The findings of fact proposed by Respondent are substantially adopted here; Petitioners' proposed findings are addressed in the attached appendix.
FINDINGS OF FACT
Respondent is the state agency charged with regulating the practice of dentistry, pursuant to Sections 20.165, 20.42, and Chapters 455 and 466, Florida Statutes and was not a nominal party to the proceedings.
Petitioner, John Allison Rowe, D.D.S., (hereinafter referred to as Petitioner Rowe), is a Florida licensed dentist having been issued license number DN-0009364. Petitioner Rowe, at all times material hereto, practiced through a professional service corporation with principal office in the State of Florida.
Petitioner, Ralph E. Toombs, D.D.S., (hereinafter referred to as Petitioner Toombs), is a Florida licensed dentist having been issued license number DN-0007026. Petitioner Toombs, at all times material hereto, practiced through a professional service corporation, with principal office in the State of Florida.
Petitioner Rowe and Petitioner Toombs each employed less than twenty- five (25) employees at the time this action was initiated. Petitioner Rowe and Petitioner Toombs each had a net worth, including both personal and business investments, of less than two million dollars.
In or around 1988, and in or around 1989, Respondent received several complaints from insurance companies concerning Petitioner Rowe's treatment, services, and fees charged to patients through the Central Florida Dental Association and/or other entities. Each insurance company had obtained a review of the services, treatment, and fees charged to the patients and had included that information in their complaint to Respondent.
As a result, Respondent began a series of investigations into the allegations against Petitioner Rowe, whose name had appeared as the treating or certifying dentist on all health insurance claim forms submitted on behalf of the patients. The insurance companies alleged that Petitioner Rowe's fees were excessive relative to the customary and usual fees charged for the services, that certain diagnostic tests had been provided to the patients although of questionable medical necessity and acceptance in the dental community, and that certain procedures had been performed in excess of the justified needs of the patient.
During the course of the investigation, it became necessary for the Respondent to consult with the Probable Cause Panel on the Board of Dentistry on or about July 12, 1989, and on or about October 13, 1989, to obtain certain patient records without patient authorization. The Probable Cause Panel of July 12, 1989, was composed of members Robert Ferris, D.D.S., Orrin Mitchell, D.D.S., and Thomas Kraemer. Each of the panel members at the July 12, 1989, meeting indicated that they had received and reviewed the Department's investigative materials.
The July 12, 1989, panel found-reasonable cause to believe that there was a question of the medical necessity for the treatment provided such that Petitioner Rowe had practiced below prevailing standards and authorized the Department pursuant to Section 455.241(2), Florida Statutes, to seek the patient's records by subpoena.
On or about October 13, 1989, the Respondent again consulted with panel members Robert Ferris, D.D.S., Orrin Mitchell, D.D.S., and Thomas Kraemer to determine if reasonable cause existed to obtain certain patient records as part of its investigation of Petitioner Rowe. Each of the panel members indicated at the October 13, 1989, meeting that he had received and reviewed the investigative materials presented by the Respondent. The October 13, 1989, panel found reasonable cause to believe that there was a question of medical necessity for the treatment provided to the patient such that Petitioner Rowe had practiced below prevailing standards and authorized the Department pursuant to Section 455.241(2), Florida Statutes, to seek patients' records by subpoena.
Following completion of its investigation, on or about April 10, 1991, Respondent initiated an action against Petitioner Rowe, within the meaning of Section 57.111(3)(b)(3), Florida Statutes, through the filing of an Administrative Complaint against his license to practice dentistry.
Each count of the April 10, 1991, Administrative Complaint filed against Petitioner Rowe represented a separate Department investigation and a separate case number was assigned to each investigation by Respondent as follows:
Count I patient H.W. DBPR Case No. 01-11379 Count II patient E.M. DBPR Case No. 89-02166 Count III patient J.T. DBPR Case No. 89-13187 Count IV patient M.Z. DBPR Case No. 89-02167 Count V patient M.R.V. DBPR Case No. 89-02372
Respondent alleged in the April 10, 1991 Administrative Complaint that Petitioner Rowe committed the following violations with respect to each patient:
Patient H.W. (Count I)
Section 466.028(1)(n), Florida Statutes, by exercising influence over the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party:
Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; and
Section 466.028(1)(u), Florida Statutes, by having engaged in fraud, deceit, or misconduct in the practice of dentistry or dental hygiene.
Patient E.M. (Count II)
Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false;
Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry;
Section 466.028(1)(n), Florida Statutes, by exercising influence over the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; and
Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance.
Patient J.T. (Count III)
Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false;
Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry.
Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient;
Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and
Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance.
Patient M.Z. (Count IV)
Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false;
Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry;
Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient;
Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and
Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance.
Patient M.R.V. (Count V)
Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false;
Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry;
Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient;
Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and
Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. (Ex-A pgs. 1-18).
The April 10, 1991 Administrative Complaint was filed at the direction of the November 2, 1990 Probable Cause Panel of the Board of Dentistry. The panel was composed of members Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson.
The investigative reports, including the consultant's opinion for each report, were on the agenda for the November 2, 1990 panel meeting with the Department's recommendation that an administrative complaint be filed against Petitioner Rowe. Each panel member acknowledged that he had received the investigative materials and that he had reviewed the materials that were on the agenda for the meeting. After brief discussion and receipt of the advice of counsel, the Panel separately took up each investigative report but recommended that the Department consider consolidation of the charges into a single filed administrative complaint The Panel members felt very strongly about the charges as revealed by the investigative reports and consultant's opinions, and in accordance with Section 466.028(7), Florida Statutes, the panel recommended that the Department seek revocation of licensure in the disciplinary proceeding.
Prior to presentation of the investigative reports for a determination of probable cause, the Department obtained the assistance of Howard L. Lilly, Jr., D.D.S., M.S. to provide an expert opinion of the materials gathered during the investigation. The Department's decision to seek and expert opinion was done with the concurrence of the June 4, 1990, Probable Cause Panel and pursuant to Section 455.203(6), Florida Statutes and Rule 21-1.012, Florida Administrative Code.
On or about June 4, 1990, the Department presented the investigative reports to the Probable Cause Panel composed of Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson for purpose of determining the need for expert review. The Panel expressed concerns about Petitioner Rowe's statements regarding the billing practices at the dental practice and the justification for his treatment and the fees charged for the services. The Panel found that expert review was necessary.
On or about July 18, 1990, Respondent forwarded the investigative reports to Howard Lilly, D.D.S., M.S., for his review and opinion.
On or about August 29, 1990, September 11, 1990, September 17, 1990, and September 18, 1990, Dr. Lilly issued individual detailed reports from review of the investigative materials noting several areas of concern with each patient's treatment and the billing associated with that treatment. As had the June 4, 1990, Probable Cause Panel, Dr. Lilly noted that Petitioner Rowe seemed to disclaim any responsibility for what was taking place in the dental practice, particularly with respect to patient billing and the fees charged for patient treatment and services.
The November 2, 1990, panel, composed of the same membership as the June 4, 1990, meeting, expressed similar concerns regarding Petitioner Rowe and an apparent lack of concern for treatment effectiveness. Panel member Robert Ferris, D.D.S. expressed praise for Dr. Lilly's reports noting that they were "excellent."
The panel's findings were supported by the investigative reports which contained at least patient records and billing records certified as complete by the records custodian, interviews and statements of Petitioner Rowe and Petitioner Toombs, interview and statements from Frank Murray, D.D.S., recorded statements from a meeting between Petitioner Rowe and Dr. Murray over alleged embezzled funds, and Dr. Lilly's consultant opinion.
The investigative reports revealed that Petitioner Rowe delegated responsibility for patient billing to the staff of the dental practice, that he did not see the bills before they were submitted to the insurance carriers or the patients, and that he had given staff the authority to sign the claim forms on his behalf or had signed blank insurance claim forms for use by the staff.
Dr. Lilly found that in some cases diagnostic services had been billed twice on the same day although it was customary in the profession to perform the services in one session, that services had been billed which had not been provided to the patients, records were inadequate to justify those services provided, that treatment was provided without appropriate use of diagnostic information, orthotic devices were mischaracterized as surgical devices, fees greatly exceeded the usual and customary charges for certain services, questionable use of arthrogram studies was employed by Petitioner Rowe, certain other diagnostic studies conducted on the patients were of questionable medical necessity, and Petitioner Rowe had misdiagnosed a patient's condition.
On or about July 24, 1991, Respondent initiated a second action against Petitioner Rowe, within the meaning of Section 57.111(3)(b)(3), Florida Statutes, through the filing of an Administrative Complaint against his license to practice dentistry. Each count of the July 24, 2991 Administrative Complaint filed against Petitioner Rowe represented a separate Department investigation and a separate case number was assigned to each investigation by Respondent as follows:
Count I patient H.D. DBPR Case No. 01-11377 Count II patient R.M. DBPR Case No. 01-11378 Count III patient S.R. DBPR Case No. 01-12140
Respondent alleged in the July 24, 1991, Administrative Complaint that Petitioner Rowe committed the following violations with respect to each patient:
Patient H.D. (Count I)
Section 466.028(1)(n), Florida Statutes, by exercising influence over the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party:
Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient;
Section 466.028(1)(u), Florida Statutes, by having engaged in fraud, deceit, or misconduct in the practice of dentistry or dental hygiene.
Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; and
Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry;
Patient R.M. (Count II)
Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue or fraudulent representations in the practice of dentistry;
Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient;
Section 466.028(1)(u), Florida Statutes, by having engaged in fraud, deceit, or misconduct in the practice of dentistry of dental hygiene.
Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance.
Patient S.R. (Count III)
Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false;
Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry;
Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient;
Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and
Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance.
The July 24, 1991, Administrative Complaint was filed at the direction of the April 10, 1991, Probable Cause Panel of the Board of Dentistry. The panel was composed of members Donald Cadle, D.M.D., William Robinson, D.D.S., and Robert Hudson. The investigative reports, including the consultant's opinion for each report, were on the agenda for the April 10, 1991, panel meeting with the Department's recommendation that an administrative complaint be filed against Petitioner Rowe. Each panel member acknowledged that he had received the investigative materials and that he had reviewed the materials that were on the agenda for the April 10, 1991, panel meeting.
After brief discussion and receipt of the advice of counsel, the Panel considered the three investigative reports together and recommended that the Department file charges as a single filed administrative complaint. The Panel members in accordance with Section 466.028(7), Florida Statutes, recommended that the Department seek revocation of licensure in the disciplinary proceeding.
Prior to presentation of the investigative reports for a determination of probable cause, the Department obtained the assistance of Howard L. Lilly, Jr., D.D.S., M.S. to provide an expert opinion of the materials gathered during the investigation. The Department's decision to seek an expert opinion was done with the concurrence of the April 27, 1990, Probable Cause Panel and pursuant to Section 455.203(6), Florida Statutes and Rule 21-1.012, Florida Administrative Code.
On or about April 27, 1990, the department presented the investigative reports to the Probable Cause Panel composed of Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson for purpose of determining the need for expert review. The Panel expressed concerns about Petitioner Rowe's statements regarding the billing practices at the dental practice and the justification for his treatment and the fees charged for the services. The Panel found that expert review was necessary.
On or about December 13, 1990, Respondent forwarded the investigative reports to Howard Lilly, D.D.S., M.S., for his review and opinion.
On or about February 21, 1991, February 27, 1991, and February 28, 1991, Dr. Lilly issued individual detailed reports from review of the investigative materials again noting several areas of concern with each
patient's treatment and the billing associated with that treatment. Dr. Lilly again noted that Petitioner Rowe seemed to disclaim any responsibility for what was taking place in the dental practice, particularly with respect to patient billing and the fees charged for patient treatment and services. Dr. Lilly noted that, despite the verification of completeness of records executed by the records custodian and obtained during the investigation of the allegations against Petitioner Rowe, certain patient records and billing information were clearly missing from some patient files.
Despite lack of detailed discussion about the Department's recommendations, the April 10, 1991, panel's findings were supported by the investigative reports which contained at least patient records and billing records certified as complete by the records custodian, interviews and statements of Petitioner Rowe and Petitioner Toombs, interview and statements from Frank Murray, D.D.S., recorded statements from a meeting between Petitioner Rowe and Dr. Murray over alleged embezzled funds, and Dr. Lilly's consultant opinions.
The investigative reports revealed that Petitioner Rowe delegated responsibility for patient billing to the staff of the dental practice, that he did not see the bills before they were submitted to the insurance carriers or the patients, and that he had given staff the authority to sign the claim forms on his behalf or had signed blank insurance claim forms for use by the staff.
Dr. Lilly's findings from review of DBPR Case Numbers 01-11377, 01- 11378 and 01-12140 were not dissimilar from those found in reviewing other investigative reports concerning Petitioner. Respondent's investigation of the allegations against Petitioner Rowe was extensive and included information gathering and interviews with the patients, Petitioner Rowe, Frank Murray, D.D.S., and others.
On or about December 20, 1990, Respondent initiated an action against Petitioner Toombs, within the meaning of Section 57.111(3)(b)(3), Florida Statutes, through the filing of an Administrative Complaint against his license to practice dentistry. The December 20, 1990, Administrative Complaint filed against Petitioner Toombs concerned allegations filed by patient J.T., who had also filed a similar complaint against Petitioner Rowe.
Both Petitioner Rowe and Petitioner Toombs disclaimed any knowledge about the care and treatment J.T. had received from them. Petitioner Toombs claimed that Petitioner Rowe and Dr. Frank Murray were responsible for setting the fees charged for services. Petitioner Toombs claimed that he was aware excessive charges had been incurred by some patients who had seen Petitioner Rowe and that the dental practice was aware of the problem and had ignored the problem.
Respondent's investigation of Petitioner Toombs was coordinated with its investigation of Petitioner Rowe.
In the Administrative Complaint filed December 20, 1990, Respondent alleged that Petitioner Toombs committed the following violations:
Patient J.T.
Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry;
Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false;
Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party;
Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and
Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient.
The December 20, 1990, Administrative Complaint was filed at the direction of the November 2, 1990, Probable Cause Panel of the Board of Dentistry, which had also considered the investigative materials for Petitioner Rowe. The panel was composed of members Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson.
The investigative reports, including the consultant's opinion for each report, were on the agenda for the November 2, 1990, panel meeting, with the Department's recommendation that an administrative complaint be filed against Petitioner Toombs.
Each panel member acknowledged that he had received the investigative materials and that he had reviewed the materials that were on the agenda for the November 2, 1990, panel meeting. After brief discussion and receipt of the advice of counsel, the Panel considered the investigative report and recommended that the Department file and administrative complaint against Petitioner Toombs. The Panel members in accordance with Section 466.028(7), Florida Statutes, recommended that the Department seek a suspension, probation, and fine in the disciplinary proceeding.
Prior to presentation of the investigative reports for a determination of probable cause, the Department obtained the assistance of Howard L. Lilly, Jr., D.D.S., M.S. to provide an expert opinion of the materials gathered during the investigation.
The Department's decision to seek an expert opinion was done with the concurrence of the June 4, 1990, Probable Cause Panel and pursuant to Section 455.203(6), Florida Statutes and Rule 21-1.012, Florida Administrative Code. On or about June 4, 1990, the Department presented the investigative report to the Probable Cause Panel composed of Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson for purpose of determining the need for expert review.
The June 4, 1990, Probable Cause Panel expressed specific concerns about the billing practices and on the care provided to the patient, i.e., the immediate seeking of oral surgery prior to excluding the use of less invasive techniques. The Panel found that expert review as necessary.
On or about July 18, 1990, Respondent forwarded the investigative report for Petitioner Toombs, as well as the reports for Petitioner Rowe, to Howard Lilly, D.D.S., M.S., for his review and opinion.
On or about August 29, 1990, Dr. Lilly issued his report from review of the investigative materials noting several areas of concern with patient J.T.'s treatment and the billing associated with treatment. Dr. Lilly noted that Petitioner Toombs seemed to disclaim any responsibility for what was taking place in the dental practice, particularly with respect to patient billing and the fees charged for patient treatment and service.
Despite lack of detailed discussion about the Department's recommendation for Petitioner Toombs, the November 2, 1990, panel's findings were supported by the investigative reports which contained at least patient records and billing records certified as complete by the records custodian, interviews and statements of Petitioner Rowe and Petitioner Toombs, interview and statements from the patient J.T., interview and statements from Frank Murray, D.D.S., recorded statements from a meeting between Petitioner Rowe and Dr. Murray over alleged embezzled funds, and Dr. Lilly's consultant opinions.
Respondent's investigation of the allegations against Petitioner Toombs was extensive and included information gathering and interviews with the patient, Petitioner Rowe, Petitioner Toombs, subsequent providers, Frank Murray, D.D.S., and others.
On or about July 24, 1991, Respondent amended the Administrative Complaint filed against Petitioner Toombs without substantially altering the alleged violations committed by Petitioner Toombs.
In each case, Respondent was required by Section 455.225(4), Florida Statutes, to file the administrative complaints at the direction of the Probable Cause Panel for the Board of Dentistry and prosecute the administrative complaints against the Petitioners according to Chapter 120, Florida Statutes.
Both Petitioner Rowe and Petitioner Toombs disputed the allegations of the administrative complaints and the cases were referred to the Division of Administrative Hearings for formal hearing.
Petitioner Rowe, without objection from Respondent, sought consolidation of DOAH Case Number 91-03213, representing the charges of the April 10, 1991, Administrative Complaint against him, with DOAH Case Number 91- 6022, representing the charges of the July 24, 1991, Administrative Complaint against him. Petitioner Rowe's cases were consolidated into a single proceeding on or about October 2, 1991.
On or about October 18, 1991, this Hearing Officer entered an Order to Show Cause why Petitioner Toombs' case should not be heard concurrently with Petitioner Rowe's consolidated cases. Respondent did not object to hearing the cases concurrently and an Order was issued on November 4, 1991, setting Petitioner Toombs case for hearing concurrently with Petitioner Rowe's consolidated cases.
On or about November 4, 1991, Respondent with the full agreement and consent of Petitioners Rowe and Toombs, requested consolidation of the then existing two proceedings. On or about November 18, 1991, the proceedings against Petitioners Rowe and Toombs were consolidated into a single action by Order of this Hearing Officer.
During discovery, Petitioner Rowe obtained the original patient records for the eight patients at issue in the consolidated proceeding from Dr. Murray and/or the Central Florida Dental Association. Counsel for Petitioner Rowe provided the Respondent with copies of the records he had obtained in discovery. Counsel for Petitioner Rowe found that approximately 426 pages of records were then contained in the files of Dr. Murray and/or the Central Florida Dental Association, which had not been previously provided to the Respondent despite certification that the records provided to Respondent were complete. The majority of the records obtained by Petitioner Rowe, subsequent to the original finding of probable causes, were records of billing information not previously contained in the patient records.
Based on the additional records, Petitioner Rowe and the Respondent moved this Hearing Officer to permit Respondent to amend the administrative complaints against Petitioner Rowe, which request was granted by this Hearing Officer.
On or about April 9, 1992, Respondent conferred with the Probable Cause Panel of the Board of Dentistry for the purpose of amending the administrative complaints against Petitioner Rowe. The April 9, 1992, Probable Cause Panel was composed of members William Robinson, D.D.S., Faustino Garcia, D.M.D., and Robert Hudson.
Prior to presentation of the proposed amended administrative complaint to the April 9, 1992, Probable Cause Panel, Respondent obtained the assistance of Reda A. Abdel-Fattah, D.D.S. in evaluating the patient records and in the drafting of the amended complaint.
Prior to the Panel's consideration of the investigative materials, the Respondent obtained from Petitioner Rowe approximately 426 additional pages from the patient records of the Central Florida Dental Association and/or Dr. Murray and received additional records and information through supplemental investigation.
Before directing that an amended administrative complaint be filed against Petitioner Rowe, the panel members at the April 9, 1992, meeting indicated that he had received the investigative materials and reviewed the materials along with the Department's recommendation to amend the complaint.
Following receipt of the material and after having the opportunity to inquire of counsel, the April 9, 1992, Probable Cause Panel directed that the proposed Amended Administrative Complaint be filed against Petitioner Rowe.
The Amended Administrative Complaint was filed against Petitioner Rowe, at the direction of the April 9, 1992, Probable Cause Panel, on or about April 22, 1992, and alleged the following violations:
Count I
Section 466.028(1)(b), Florida Statutes by having had a license to practice dentistry acted against by the licensing authority of another state; and/or
Section 466.028(1)(jj), Florida Statutes by having failed to report to the Board, in writing, within 30 days if action has been taken against one's license to
practice dentistry in another state.
Count II patient H.W. DBPR No. 01-11379, DOAH No. 91-03213
Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false;
Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry;
Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party;
Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and
Section 466.028(1)(l), Florida Statutes (1978) by making deceptive, untrue or fraudulent representations in the practice of dentistry.
Count III patient E.M. DBPR No. 89-02166, DOAH No. 91-03213
Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false;
Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry;
Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party;
Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance;
Section 466.028(1)(bb), Florida Statutes (1987) through violation of Section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition; and
Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry,
Count IV patient M.Z. DBPR No. 89-02167, DOAH No. 91-03213
Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false;
Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry;
Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party;
Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and
Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry,
Count V patient R.P.V. [sic, M.R.V.] DBPR No. 89-2372, DOAH No. 91-3213
Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false;
Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit or misconduct in the practice of dentistry;
Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party;
Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance;
Section 466.028(1)(bb), Florida Statutes (1987) through violation of Section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonable calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition and
Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry.
Count VI patient H.D. DBPR No. 01-11377, DOAH No. 91-6022
Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false;
Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry;
Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party;
Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and
Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry.
Count VII patient R.M. DBPR No. 01-11378, DOAH No. 91-6022
Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false;
Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry;
Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party;
Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and
Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry.
Count VIII patient S.R. DBPR No. 01-12140, DOAH 91-6022
Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false;
Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry;
Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party;
Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and
Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry.
Count IX patient J.T. DBPR No. 89-13187, DOAH No. 91-3213
Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false;
Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry;
Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party;
Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry.
Count I of the Amended Administrative Complaint was based on records obtained from the Tennessee Board of Dentistry and had not been previously charged as a violation in this proceeding. Panel Member Donald Cadle, D.M.D., had originally requested in the meeting of April 27, 1990, that the Department included findings as to the Tennessee Board of Dentistry's discipline of Petitioner Rowe in its expert review as possible violation of Section 466.0268(1)(jj), Florida Statutes. Dr. Cadle withdrew his request, after discussion with Panel Member Robert Ferris, D.D.S., finding that the previous disciplinary action was too remote in time for the statute to be applicable in Petitioner Rowe's case.
The Probable Cause Panel of April 9, 1992, revisited the issue of the Tennessee Board of Dentistry's discipline of Petitioner Rowe and found that it
should be included in the current disciplinary proceeding as part of the amended complaint. The panel failed to recognize the effective date of Section 466.028(1)(jj), Florida Statutes.
After considering the additional records provided by Petitioner Rowe and the records obtained in supplemental investigation, the Amended Administrative Complaint dropped the previous allegations that Petitioner Rowe had violated Section 466.028(1)(m), Florida Statutes by failing to keep adequate written records for each patient.
The remaining allegations of the original administrative complaints filed against Petitioner Rowe were included in the Amended Administrative Complaint and the following additional allegations were made for each patient:
Count II patient H.W. DBPR No. 01-11379, DOAH No. 91-03213
Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false;
Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and
Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry.
Count III patient E.M. DBPR No. 89-02166, DOAH No. 91-03213
Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry;
Section 466.028(1)(bb), Florida Statutes (1987) through violation of section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition; and
Count IV patient M.Z. DBPR No. 89-02167, DOAH No. 91-03213
Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry.
Count V patient R.P.V. [sic, M.R.V.] DBPR No. 89-2372, DOAH No. 91-3213
Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry;
Section 466.028(1)(bb), Florida Statutes (1987) through violation of section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition; and
Count VI patient H.D. DBPR No. 01-11377, DOAH No. 91-6022
Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and
Count VII patient R.M. DBPR No. 01-11378, DOAH No. 91-6022
Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false;
Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party;
Count VIII patient S.R. DBPR No. 01-12140, DOAH No. 91-6022
Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry;
Count IX patient J.T. DBPR No. 13187, DOAH No. 91-3213
Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry;
Section 466.028(1)(jj), Florida Statutes was added as a disciplinary provision for the Board of Dentistry effective July 6, 1990, pursuant to Section 3, Chapter 90-341, Laws of Florida (1990). Section 466.028(1)(n), Florida Statutes was repealed effective April 8, 1992, pursuant to Section 6, Chapter
92-178 Laws of Florida (1992).
A formal hearing was held on the charges of the Amended Administrative Complaints beginning on or about November 9, 1992, and ending on or about November 13, 1992.
As sanction for his non-compliance with prehearing discovery, Petitioner Toombs was limited at the formal hearing to the cross-examination of witnesses and the ability to object to evidence but was not permitted to call witnesses or enter evidence on his behalf.
At the formal hearing, the patient records were found to be inherently unreliable and untrustworthy as evidence, due to the inconsistencies found to then exist in the patient records. At the formal hearing, it was established
that Frank Murray, D.D.S. had custody and control of the patient records and that he had full control over patient billing and the fees charged for the treatment or services rendered through the Central Florida Dental Association.
At the time Petitioner Rowe provided treatment or services to the patients who were the subject of the administrative complaints and amended administrative complaints, Petitioner Rowe was an employee and a shareholder of the Central Florida Dental Association. At the time that Petitioner Rowe provided treatment or services to the patients at issue in the underlying disciplinary proceeding, Frank Murray, D.D.S. made all operational decisions affecting the clinic and its patients.
Petitioner Toombs was an associate dentist working for the Central Florida Dental Association and was not a shareholder of the clinic.
At the time these cases were investigated, Respondent permitted individuals from whom patient records were sought to copy those records and provide the records to Respondent with an executed verification of completeness of records. For each patient who was the subject of the Respondent's investigation, an employee of the Central Florida Dental Association copied the patient records and submitted the records to the Respondent's investigator with a verification of completeness of records. There was no reason for the investigator to question the accuracy of the executed verification of completeness of records and the patient records appeared generally consistent across patient files.
On or about January 11, 1994, the Board of Dentistry entered a Final Order in the consolidated action finding that Petitioner Rowe had violated Section 466.028(1)(b), Florida Statutes.
On or about January 11, 1994, the Board of Dentistry entered a Final Order in the consolidated action dismissing all charges against Petitioner Toombs and the remaining charges against Petitioner Rowe.
At the time services were provided to the patients by Petitioners Rowe and Toombs, Section 466.018, Florida Statutes, required that there be a dentist of record identified in the patient record. Section 466.018, Florida Statutes (1987) provided that the dentist of record was presumed responsible for the patient's care and treatment unless otherwise noted in the record.
The records maintained for each of the patients at issue in the underlying disciplinary proceeding revealed that either no dentist of record had been charted or that Petitioner Rowe was the treating dentist of record as indicated by the patient medical history form and the health insurance claim forms submitted on behalf of the patient.
Absent the identification of the dentist of record in the chart, Section 466.018(2), Florida Statutes (1987) provided that the owner of the dental practice was the dentist of record for the patient, in this case, Frank Murray, D.D.S., Petitioner Rowe, and the other shareholders of the dental practice.
Section 466.018(4), Florida Statutes provided that a dentist of record could be relieved of his/her responsibility to maintain dental records by transferring records to the owner dentist and maintaining a list of all records transferred.
There was no evidence presented during the investigation of the underlying disciplinary proceeding or offered at formal hearing to demonstrate that either Petitioner Rowe or Petitioner Toombs had complied with Section 466.018(4), Florida Statutes in transferring patient records to Frank Murray,
D.D.S. or the Central Florida Dental Association, i.e., a written statement signed by dentist of record, the owner of the practice, and two witnesses, that listed the date and the records transferred to either Frank Murray, D.D.S. or Central Florida Dental Association.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding pursuant to the Florida Equal Access to Justice Act (FEAJA), Section 57.111, Florida Administrative Code, and Chapter 120, Florida Statutes.
Section 57.111(4)(a), Florida Statutes, states the following:
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 initiated by a state agency, unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust.
Under Section 57.111(4)(d), Florida Statutes, no award can be made where the state agency was a nominal party.
The Respondent was not a nominal party to the proceedings and initiated a separate action against each Petitioner as defined by Section 57.111(3)(b)3, Florida Statutes.
Thus, Petitioners' burden is to establish that they are prevailing small business parties from an action initiated by a state agency. Rudloe v. Department of Environmental Regulation, 11 F.A.L.R. 54, 59 (November 8, 1988); Romaquera v. Department of Professional Regulation, Board of Medical Examiners,
10 F.A.L.R. 929, 931 (January 4, 1988); Gentele v. Department of Professional Regulation, Board of Optometry, 9 F.A.L.R. 310, 326, 327 (June 20, 1986); aff'd, 513 So.2d 672 (Fla. 1st DCA 1987).
Once Petitioners have met this burden, the burden then shifts to the Respondent to establish that it had a reasonable basis in law and fact when it initiated action against each petitioner and/or to establish if any circumstances exist that would make the award unjust. Id.
Petitioners have not met their burden to show entitlement to an award of attorney's fees and costs under Section 57.111, Florida Statutes.
Section 57.111, Florida Statutes provides for an award of attorney's fees and costs under certain limited circumstances. Thompson v. Department of Health and Rehabilitative Services, 533 So.2d 840, 841 (Fla. 1st DCA 1988). One such circumstance is that Petitioners must demonstrate that they are small business parties as defined under Section 57.111(3)(d), Florida Statutes.
Section 57.111(3), Florida Statutes defines the term "small business party" as:
1.a A sole proprietor of an unincorporated business, including a professional practice, whose principal office is in this state, who is domiciled in this state, and whose business or professional practice has, at the time the action is initiated by a state agency, not more than 25 full-time employees or a net worth of not more than $2 million, including both personal and business investments;
b. A partnership or corporation, including a professional practice, which has its
principal office in this state and has at the time the action is initiated by a state agency not more than 25 full-time employees or a net worth of not more than $2 million.
At the time Respondent initiated action against the Petitioners, neither Petitioner was employed by the Central Florida Dental Association. If Respondent had initiated action against the Petitioners at the time of the alleged incidents, Petitioner Rowe, as an employee, would not have been entitled to an award of attorney's fees and costs under Section 57.111, Florida Statutes. Thompson at 841. (individual employees are not entitled to fees and costs under Section 57.111, Florida Statutes); Pages v. Department of Professional Regulation, 11 F.A.L.R. 1821, 1824 (February 21, 1989).
In the instant proceeding, Respondent did not dispute, and Petitioners provided sufficient evidence, that each employed less than 25 full-time employees and had a net worth of not more than $2 million.
91 Both Petitioner Rowe and Petitioner Toombs claim entitlement to attorney's fees and costs under Section 57.111(3)(d)1.b., Florida Statutes.
They plead, and it is undisputed, that they are each a professional service corporation, existing and operating under the laws of the State of Florida, with its principal place of business in Osceola County, Florida.
Section 621.03(2), Florida Statutes defines a professional service corporation as a corporation organized for the sole and specific purpose of rendering professional service and which has as its shareholders only other professional corporations, professional limited liability companies, or individuals who themselves are duly licensed or otherwise legally authorized to render the same professional service as the corporation. Respondent's argument that only the individual practitioner can be disciplined, and therefore only an individual practitioner is entitled to fees, is rejected here, as it was in Gentele, supra, 9 F.A.L.R., at 322. See also, Ann & Jan Retirement Villa v. DHRS, 580 So.2d 278 (Fla. 4th DCA 1991)
Petitioners are prevailing parties as defined by Section 57.111(3), Florida Statutes. Section 57.111(3)(c), Florida Statutes defines the term "prevailing small party" as:
A final judgment or order has been entered in favor of small business party and such judgment or order has not been reversed
on appeal or the time for seeking judicial review of the judgment or order has expired;
A settlement has been obtained by the small business party which is favorable to the small business party on the majority of the issues which such party raised during the course of the proceeding; or
The state agency has sought voluntary dismissal of its complaint.
Petitioner Toombs is a prevailing party from the action styled Department of Professional Regulation v. Ralph E. Toombs, D.D.S., DBPR Case Number 89-13186, DOAH Case Number 91-05362, as defined by Section 57.111(3)(c)1, Florida Statutes.
The Board's Final Order of January 11, 1994 finds Petitioner Rowe guilty of a violation of Section 466.028(1)(b), Florida Statutes and imposes as discipline a $250.00 fine against his license. The Board's Final Order dismisses all of the remaining eight counts. The violation which was sustained was admitted by Petitioner Rowe and no part of his vigorous defense could be attributed to effort as to that violation. That he substantially prevailed in the underlying proceeding is manifest by the fact that from the Board's earnest initial recommendations of revocation, the ultimate penalty was reduced to a token $250.00 fine.
Even if Petitioners are prevailing small business parties as defined, Respondent was substantially justified in initiating the proceeding against the Petitioners.
Section 57.111(3)(e), Florida Statutes, states that "[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." (emphasis added). For purpose of this consolidated proceeding, there are three actions at issue. Delk v. Department of Professional Regulation, Board of Dentistry, 14 F.A.L.R. 4551, 4560 (September 29, 1992), aff'd per curiam, Case No. 92-3525 (Fla. 1st DCA December 3, 1993).
Section 455.225, Florida Statutes (1987), provides that when an investigation is complete and legally sufficient, the Department shall prepare and submit to the Probable Cause Panel of the Board of Dentistry the investigative report, findings, and recommendations of the Department. If the panel finds, through a majority vote of its members, that probable cause exists, under Section 455.225(3), Florida Statutes (1987), it shall direct the Department to file a formal complaint, which the Department must then prosecute pursuant to the provision of Chapter 120, Florida Statutes. This was done in the instant case.
Respondent's investigative files contain sufficient evidence upon which a finding of probable cause could have been based. The investigative reports contained patient interviews, with Petitioner Rowe and Petitioner Toombs, interviews with Frank Murray, D.D.S., disciplinary records for Petitioner Rowe, Uniform Complaint forms completed by the complaining witnesses detailing the nature of their complaints, patient records, x-rays, results of diagnostic testing, and expert opinions.
"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) Gentele, 9 F.A.L.R. at 328.
It is sufficient if the Panel had evidence before it that would constitute prima facie proof of a violation if credited at the final hearing. Gentele, 9 F.A.L.R. at 328. This standard is far less than required to establish the factual allegation at formal hearing. See generally, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987)(Court rejecting the sliding scale standard of Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981) finding that where a person's livelihood is at stake, the charges and factual allegations must be established by clear and convincing evidence).
From a review of Respondent's investigative materials for the Petitioners, it was reasonable for the Panel to determine that there was probable cause to believe that the Petitioners had committed the acts alleged in the Administrative Complaints filed against their licenses.
As noted by the First District Court of Appeal in Toledo Realty, Inc., 549 So.2d at 719, Section 455.225, Florida Statutes, suggests that "...an investigative report may be the most substantial and relevant evidence necessary to assist the panel in rendering a decision of whether probable cause exists for the issuance of a formal complaint against a licensee." See also Delk 14
F.A.L.R. at 4560.
As further noted by the Court in Toledo, "although a review of the entire transcript of the proceedings before the panel might be helpful in deciding whether the panel's initiation of prosecution was substantially justified, it is not essential to a resolution of [the] issue." 549 So.2d at 719.
A decision to prosecute is in part based upon a credibility assessment of the witnesses and investigative files and has been found to have a reasonable basis in law and fact to justify the initiation of proceedings against a licensed professional. See Gentele, 9 F.A.L.R. at 328, 329, 513 So.2d at 673; David v. Department of Professional Regulation, Board of Medicine, 13
F.A.L.R. 2454, 2460 (May 31, 1991); Arias v. Department of Professional Regulation, Board of Medicine, 13 F.A.L.R. 2648, 2657 (July 1 1991); Delk, 14
F.A.L.R. at 4559.
The decision to prosecute the Petitioners with respect to these cases was not based upon a wholly deficient investigation but was based upon an investigative report which contained the patient records, witness statements, and expert opinion. Brown v. Department of Professional Regulation, Board of Psychological Examiners, 13 F.A.L.R. 3444, 3451 (August 2, 1991)(Hearing Officer noting that an investigative report based upon a wholly insufficient investigation will not support a finding of probable cause).
Additionally, the Probable Cause Panels of the Board of Dentistry were composed of at least two (2) licensed dentist from the Board of Dentistry who were capable of reviewing the patient records, the opinion of the Departmental Consultant, and the original complaints to determine if the violations alleged had occurred. David, at 2460 (Hearing Officer concluding that a finding of probable cause made after the physician members of a probable cause panel have reviewed the patient records of an opinion rendered by another physician has a reasonable basis in law and fact); Arias at 2655 (Hearing
Officer noting that it is not the function of the Probable Cause Panel to duplicate the evaluation of the Departmental consultant or be skeptical of his/her conclusions).
It is not disputed that Petitioners signed blank insurance claim forms and authorized or allowed office staff to sign their names to insurance claim forms and authorized or allowed office staff to sign their names to insurance claim forms, which they had never reviewed. This information was related to the panel in the form of an interview with the Petitioner Rowe and Petitioner Toombs, who indicated that they did not complete the forms or see them before submission to the insurance companies.
The patient records received during the course of the investigation were certified by the custodian of the records as being a complete copy of each patient's file. The certification indicated that the custodian searched the medical record and determined that the attached number of pages were true and correct copies of all of the patient records for each patient who was the subject of the filed Administrative Complaint.
The investigative report noted that Petitioners were no longer in custody of the patient records; Petitioner Rowe and Dr. Murray were involved in a dispute, which Dr. Murray alleged was caused by wrongful behavior of the Petitioner; and that the records were in the custody of Central Florida Dental Association. The patient records were non-specific as to who was the dentist of record for each patient; however, Petitioners, with the exception of patient J.T., did not dispute that they were not the treating dentist of record for each of the patients. There was no indication in the investigative reports that the "completeness certification" for each patient record was defective or otherwise untrustworthy.
At the time of the initial investigation, there was no reason to disbelieve Dr. Murray's version of the events surrounding his dispute with Petitioner Rowe. This is the type of initial credibility assessment that is proper for the Probable Cause Panel to make. The patient records provided, and certified as being a complete copy of the records, supported his assertions in the opinion of a Department consultant. There was information from the Osceola Sheriff's Department supporting his assertions about Petitioner Rowe and a transcript of tape-recorded conversation between Petitioner Rowe and other members of Central Florida Dental Association.
There was no reason, at the time of the initial investigation or at the time of the Probable Cause Panel Meetings to believe that anyone at Central Florida Dental Association would alter or tamper with the patient records.
Therefore, the Respondent had a reasonable basis in law and fact to initiate action against the Petitioners' licenses to practice dentistry. The Probable Cause Panels had at least some evidence before it (investigative report, witness statements, expert opinion and certified patient records) that if credited at the formal hearing would reasonable indicate that the violations alleged had occurred.
The Respondent carefully evaluated the patient J.T.'s complaints about the care and treatment she had not only received from Petitioner Toombs but from Petitioner Rowe, as well. The patients's complaint centered around Petitioner Toombs holding himself out as an orthodontist when in fact he was not, engaging in excessive charges for services provided, unnecessary diagnostic testing, and recommendations for treatment not warranted by the patient's
medical condition. Advertisements from the local yellow pages supported the patient's original complaint that Petitioner Toombs held himself out as an orthodontist. Petitioner Toombs claimed, during the investigation, to have not remembered providing treatment or services to the patient. Petitioner Toombs claimed that Petitioner Rowe and his assistant were involved in inappropriate fee splitting and that there were allegations of excessive charges for some patients referred to Petitioner Rowe. Petitioner Rowe had claimed in other related cases that it was Petitioner Toombs and Dr. Murray who determined the charges for services provided and that he did not recall this patient. Dr.
Lilly specifically noted the cross allegations between Petitioner Toombs and Petitioner Rowe in making his recommendations to the Department. The patient records Respondent received from Central Florida Dental Association and Central Florida Oral & Maxillofacial Surgery were verified by the records custodians as complete copies of the patient's records. Considering the investigative reports and Dr. Lilly's opinions, it was not unreasonable for either Dr. Lilly or the Probable Cause Panel to conclude that Petitioners had committed the violations alleged in the Administrative Complaints and Amended Administrative Complaints.
The Respondent enlisted the assistance of the Probable Cause Panel in evaluating the investigative report and in determining the need for expert review of the case. Expert review of the case was obtained prior to presentation of the cases for a finding of probable cause. The Panel carefully considered the investigative report and made a determination of probable cause of a violation. After careful review, the Panel directed that the Department file administrative complaints against the Petitioners. The Department and the Panel complied with Section 455.225, Florida Statutes in the investigation and prosecution of each complaint. Given the circumstances of the case, the Respondent's action were not unreasonable in the initiation of disciplinary action against the Petitioners.
On April 9, 1992, the Probable Cause Panel directed the Department to continue with the prosecution of Petitioner Rowe through a single Amended Administrative Complaint. The Panel had before it the Department's investigative report for each patient, expert opinions, information obtained in supplemental investigation, and notice that the previous records reviewed were deficient in that approximately 426 pages of materials had not been included in the prior patient records received for review from Central Florida Dental Association.
Despite knowledge of the missing records, at the time of the Probable Cause Panel meeting of April 9, 1992, there was still no reason to completely doubt the Panel's initial credibility assessments of the witnesses or to otherwise believe that, as augmented, the patient records were completely untrustworthy.
Petitioner Rowe was, at all times material to the Amended Administrative Complaint, the treating dentist of record for each patient. It was not disputed that Petitioner Rowe had pre-signed blank insurance claim forms or delegated the signing of insurance claim forms to staff employed by Central Florida Dental Association.
Previously, after carefully considering the detailed investigative reports and Petitioner Rowe's response, a Department consultant found, prior to the initial determination of probable cause, that for each patient the charges were clearly excessive and the use of diagnostic testing was not justified by the patient records. As to some of the patients, there was double billing
present, records were inadequate and the treatment was below prevailing community standards.
After considering the augmented patient records, for each patient, the Panel directed the Department to drop the charges that Petitioner Rowe had failed to keep inadequate records in violation of Section 466.028(1)(m), Florida Statutes.
Petitioner Rowe alleges that Respondent did not have a reasonable basis in fact because Respondent failed to conduct a competent investigation and failed to obtain all patient records prior to the determination of probable cause.
For reasons set forth above, Respondent and the Probable Cause Panel were entitled, at the time of the initial determination of probable cause, to rely upon the verification of completeness of records executed by the custodian of records.
Further, the investigatory process is an ongoing process until the investigation is found to be complete and the report is submitted to the Probable Cause Panel for a determination of probable cause. See Section 455.225(2), Florida Statutes. Pursuant to Section 455.203(6), Florida Statutes, the Department may make use of the technical or expert advice of the Board of Dentistry for purposes of investigation.
The Department implements Section 455.203(6), Florida Statutes, in part, through Rule 21-1.012, Florida Administrative Code and through the use of the Probable Cause Panel in "pre-expert" review.
Each patient record, which was the subject of the two original Administrative Complaints was previously considered by the Panel in their meetings of April 27, 1990, and June 4, 1990.
After discussion and review of the investigative reports, the Panels directed that expert review be obtained by the Department. The Department obtained review of each of these cases by Dr. Howard L. Lilly, Jr., D.D.S., M.S., who prepared detailed reports on the information received and reviewed for each patient. Dr. Lilly made credibility assessments as to the witness statements presented for review, and, as discussed, the panel was entitled to make similar assessments of credibility of the investigative reports and witness statements.
Contrary to Petitioner Rowe and Toombs' assertions, the Panel could legally consider whether the fees charged for Petitioners' dental treatment and diagnostic services were excessive such that the Petitioner was in violation of Section 466.028(1)(n), Florida Statutes (1989).
Sections 11.61, 455.201 and 466.001, Florida Statutes (1989) states the intent of the Legislature with respect to professions under the jurisdiction of the Board of Dentistry and Department of Professional Regulation.
Section 455.201(2), Florida Statutes (1989) specifically states the following:
The Legislature further believes that such professions shall be regulated only for the preservation of the health, safety and
welfare of the public under the police powers of the state. Such professions shall be regulated when:
Their unregulated practice can harm or endanger the health, safety, and welfare of the public, and when the potential for such harm is recognizable and clearly outweighs any anticompetitive impact which may result from licensing.
The public is not effectively protected by other means, including, but not limited to, the state statutes, local ordinances, or federal legislation.
Less restrictive means of regulation are not available.
Section 455.201(3), Florida Statutes further provides that "No board shall take any action which tends to create or maintain an economic condition that unreasonably restricts competition, except as specifically provided by law."
By enforcing Section 466.028(1)(n), Florida Statutes, the Board of Dentistry was not setting or controlling the fees that could be charged for dental treatment or services. To the extent that fees were impacted, it was State action for which there is a clear policy that is not subject to the provisions of the Sherman Act (15 U.S.C., Section 1 et seq.) and Section 542.19, Florida Statutes. See Section 542.20, Florida Statutes.
The Board of Dentistry was statutorily mandated to prevent dentists, who are in a position of superior knowledge, from improperly using that knowledge and position to the financial detriment of the patients or clients, who are not experienced in such matters. As such, the Board of Dentistry had a legal basis for originally charging the Petitioner with violations of Section 466.028(1)(n), Florida Statutes (1989).
It was appropriate for the Department to continue with the prosecution of Section 466.028(1)(n), Florida Statutes even though Section 466.028(1)(n), Florida Statutes was repealed by the Florida Legislature effective April 8, 1992. The State's policy regarding over-utilization and improper billing was continued through the enactment of the Patient Self- Referral Act of 1992. See Ch. 92-178, 1992 Laws of Fla.
However, although Respondent in good faith believed it could continue with prosecution of Section 466.028(1)(n), Florida Statutes, Respondent admitted that it was no longer justified in continuing with prosecution of that charge once the Legislature had repealed the statute. Further, Respondent admitted that it was not justified, as to patient R.M., with charging a violation of Section 466.028(1)(n), Florida Statutes despite the fact that the alleged wrongful behavior had occurred prior to the effective date for repeal of the statute.
As found at the time of the formal hearing, Respondent was not justified in charging Petitioner Rowe with a violation of Section 466.028(1)(jj), Florida Statutes. This one charge is too inconsequential to consider in the face of the serious substantially justified remaining charges. It is impossible to determine what, if any, part of the defense effort was directed to this charge.
Further, substantial justification as defined by Section 57.111(3)(e), Florida Statutes, existed for the Respondent to have initiated each of the Administrative Complaints which were consolidated into one action against the Petitioner Rowe's license to practice dentistry. The Respondent provided to the Probable Cause Panels, in accordance with Section 455.225, Florida Statutes, its completed investigative report for each case, including the detailed opinion of the Departmental Consultant who had reviewed the reports prior to Panel consideration. Throughout the course of the entire investigatory process, there was meaningful discussion by the Panels rather than merely a rubber stamp of the Department's recommendations, particularly where the panel requested expert evaluation of the case files prior to any determination of probable cause.
Petitioners have also applied for attorney's fees and costs under Section 120.59(6), Florida Statutes, which section is inapplicable to the circumstances of the underlying disciplinary proceeding. Respondent is a state agency and under the express language of the statute, the provisions do not apply to a nonprevailing party that is an agency.
Based on the foregoing, it is hereby, ORDERED:
That Petitioners' requests for award of attorney's fees and costs are DENIED.
DONE AND ORDERED this 23rd day of November, 1994, in Tallahassee, Leon County, Florida.
MARK CLARK
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 1994.
APPENDIX
The following constitute specific rulings on the findings of fact proposed by Petitioners, pursuant to Section 120.59(2), F.S.
Adopted in Paragraph 1.
& 3. Rejected as unnecessary.
Adopted in part in Paragraph 64. The charges with regard to influence for financial gain were included in the amended complaint.
& 6. Rejected as immaterial. The panel explained in an earlier meeting that its real concern was with the exercise of influence for financial gain.
Rejected as contrary to the weight of evidence.
Adopted in Paragraph 54.
Rejected as argument that is not supported by the record or immaterial.
Adopted in conclusions of law, as to section 57.111, but rejected-as immaterial as to section 120.59(6)(a), F.S. since the agency is not a "nonprevailing party".
Adopted in conclusions of law. This finding is, however, disputed by Respondent.
Adopted in Paragraphs 2 and 3.
Adopted in Paragraph 4
14.-16. Rejected as contrary to the weight of evidence. 17.-19. Rejected as unnecessary, given the conclusion that
the complaints were "substantially justified" at the time they were filed.
COPIES FURNISHED:
Mr. William Buckhalt Executive Director Board of Dentistry
1940 North Monroe Street Tallahassee, Florida 32399-0765
Harold D. Lewis, Esquire General Counsel
Agency for Health Care Administration The Atrium, Suite 301
325 John Knox Road Tallahassee, Florida 32303
Sam Power, Agency Clerk
Agency for Health Care Administration The Atrium, Suite 301
325 John Knox Road Tallahassee, Florida 32303
George Stuart, Secretary Department of Business and
Professional Regulation Northwood Centre
1940 North Monroe Street Tallahassee, Florida 32399-0792
Kenneth E. Brooten, Jr., Esquire 660 West Fairbanks Avenue
Winter Park, Florida 32789
Jon M. Pellett, Qualified Representative Department of Business and
Professional Regulation
1940 North Monroe St., Suite 60
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.
| Issue Date | Proceedings |
|---|---|
| Nov. 23, 1994 | CASE CLOSED. Final Order sent out. (facts stipulated) |
| Jul. 26, 1994 | (3) Supplemental Affidavit of Attorney`s Time and Taxable Costs; (2) Notice of Charging Lein; Notice of Filing; Petitioner`s Proposed Final Order Awarding Attorneys Fees and Costs filed. |
| Jul. 26, 1994 | (Petitioners) Notice of Filing; Petitioner`s Proposed Final Order Awarding Attorneys Fees and Costs; Supplemental Affidavit of Attorney`s Time and Taxable Costs filed. |
| Jul. 25, 1994 | Respondent`s Proposed Final Order; Motion to Exceed Page Limit for Recommended Orders filed. |
| Jul. 21, 1994 | (Respondent) Notice of Filing w/Affidavit of John Allison Rowe, D.D.S. & Affidavit of Ralph E. Toombs, D.D.S. filed. |
| May 23, 1994 | Order sent out. (hearing date to be rescheduled at a later date; parties to file stipulation by 5/27/94) |
| May 23, 1994 | Joint Notice of Filing Joint Exhibits and Motion for Official Recognition of the Original Record; Joint Exhibit List; Exhibits (1 Box Tagged) filed. |
| May 12, 1994 | Affidavit of Alan E. Rhodus, C.P.A. (filed in 94-1250F); Affidavit of Richard D. Danely, Accountant filed. |
| May 09, 1994 | Letter to MWC from Kenneth E. Brooten, Jr. (re: Cost & Fees) filed. |
| Apr. 06, 1994 | Respondent`s First Request for Production of Documents filed. |
| Apr. 06, 1994 | (Respondent) Notice of Filing (2); Respondent`s First Request for Production of Documents filed. |
| Mar. 30, 1994 | Order of Consolidation and Notice of Hearing sent out. (Consolidated cases are: 94-0542F & 94-1250F; Hearing set for 5/23/94, refer to notice of hearing dated 3/17/94; Respondent`s motion to accept qualified representative, Jon Pellett, Granted) |
| Mar. 28, 1994 | (Respondent) Notice of Filing Original Record w/Memorandums & Exceptions to Recommended Order Dated April 2, 1993; Record (TAGGED ONE BOX) filed. |
| Mar. 28, 1994 | (Respondent) Motion to Consolidate (with DOAH Case No. 94-1250F) filed. |
| Mar. 17, 1994 | Notice of Hearing sent out. (hearing set for 5/23/94; 10:00am; Tallahassee) |
| Mar. 17, 1994 | Notice sent out. (Re: scheduling of Evidentiary Hearing) |
| Mar. 15, 1994 | (Respondent) Response to Petition for Attorney`s Fees and Costs and Motion to Dismiss w/Exhibits A-K filed. |
| Feb. 21, 1994 | Order sent out. (Motion to accept Jon M. Pellett as qualified representative granted; Motion for extension granted; Respondent to file responsive pleadings by 3/15/94) |
| Feb. 17, 1994 | Respondent`s Motion to Accept Qualified Representative and Notice of Appearance filed. |
| Feb. 17, 1994 | (Respondent) Motion for Extension of Time to File Respondent`s Response and/or Motions in Oppositions Verified Motion for Attorney`s Fees and Costs filed. |
| Feb. 08, 1994 | Notification card sent out. |
| Jan. 31, 1994 | Verified Motion for Attorney's Fees and Costs; Affidavit of Attorney's Time and Taxable Costs filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 23, 1994 | DOAH Final Order | Thorough investigation and adequate probable cause panel review indicates there was reasonable basis for complaints at time they were filed. |
