STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAMON G. VIDAL, )

)

Petitioner, )

)

vs. ) CASE NO. 94-1236

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, on June 21, 1994, in Tallahassee, Florida.

APPEARANCES

For Petitioner: William M. Furlow, Esquire

Katz, Kutter, et al.

106 East College Avenue Tallahassee, Florida 32301

For Respondent: Gregory A. Chaires, Esquire

Office of the Attorney General The Capitol, PL-01

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUES

The issue to be resolved in this proceeding concerns whether the Petitioner should be granted a license to practice medicine in the State of Florida which concerns the issue of whether the Petitioner attempted to obtain his license by fraudulent misrepresentations or concealment concerning a material fact and, thus, whether he violated Sections 458.331(1)(a) and (gg), Florida Statutes.

PRELIMINARY STATEMENT

This cause arose upon the filing of an application for a license to practice medicine in the State of Florida by the above-named Petitioner. The application was denied by the Board of Medicine by Order dated February 2, 1994. A formal proceeding, pursuant to Section 120.57(1), Florida Statutes, was requested by the Petitioner; and the matter was forwarded to the Division of Administrative Hearings on April 8, 1994. The denial was entered against the application because, according to the agency's position, the Petitioner failed to reveal an address in New Jersey, where he lived during 1988, at the appropriate question on the application and failed to reveal the fact that he had been a participant in a residency program in New Jersey during that year, in

response to a question concerning any medical job or position he had held since graduation from medical school. The Petitioner's position is that, indeed, he did not initially reveal that on the application but did so when further information was requested of the Petitioner and that he then completely disclosed the address where he lived and the fact of and location of the residency program he was briefly enrolled in unsuccessfully at the Jersey City Medical Center.

The cause came on for hearing as noticed. At the formal hearing, the Petitioner offered exhibits A-G and had them admitted into evidence and testified on his own behalf. The Respondent offered no exhibits into evidence and presented no witnesses. After the hearing, a transcript of the proceedings was obtained, and the parties timely availed themselves of the right to submit Proposed Recommended Orders containing proposed findings of fact and conclusions of law. Those proposed findings of fact are addressed in this Recommended Order and again in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner applied for licensure by endorsement in the State of Florida on October 30, 1992. The Petitioner is a medical doctor licensed in the State of New York. He completed his medical school training in the Dominican Republic and completed a residency in internal medicine at the Lincoln Memorial and Mental Health Center in New York, New York. He was found by his supervising physician, Dr. Gernsheimer, to be a superior physician. Dr. Gernsheimer found that he was extremely competent in terms of his medical knowledge, skills, and clinical judgment. He found the Petitioner to be very honest and forthright and that he related well to patients and colleagues in a compassionate, pleasant, and cooperative demeanor. Dr. Gernsheimer recommends him to the Florida Board of Medicine as being an outstanding physician. Upon his completion of the internal medicine residency program under Dr. Gernsheimer, the Petitioner, in a span of only two months, was able to successfully pass his board certification examinations in internal medicine and, thus, became a diplomate of the American Board of Internal Medicine. He thereafter embarked on a residency training program in emergency medicine, which he is currently engaged in.

   
   

2. The Petitioner also participated briefly, for a period of five months, in a residency program in internal medicine at the Jersey City Medical Center, located on Baldwin Avenue, in Jersey City, New Jersey. His evaluations by his supervising physician ranged from unsatisfactory to marginal to satisfactory in the various aspects of that program for which he was evaluated. He was evaluated by Dr. Danato, the Director of the Department of Medicine, as having a fund of medical knowledge which would not support a satisfactory rating in all categories. The Petitioner was described by Dr. Danato as well-motivated, with good humanistic qualities and as one who worked hard but could not overcome some of the major deficiencies in a demanding program. Dr. Danato advised him, apparently, to concentrate on his areas of deficiency and after correcting these, to go forward with his education. Because of his lack of success and, apparently, some friction with a supervisor in that program, the Petitioner resigned from the program after approximately five-months duration. He was in that residency training program from July 1, 1988 to November 30, 1988 at the Jersey City Medical Center.

   
   

3. The application that the Petitioner submitted on October 30, 1992 requested, on page two of the application, that the Petitioner list all places of residence during all periods in medical school and postgraduate training. The application requested that he account for all times from the date of

   graduation from medical school to the present and that he not leave out any time. The application, at page three, requested that he list all practice and employment experience from the date of graduation from medical school to the present date, that is, the date of application.

   
   

4. The Petitioner failed to list on his initially-filed application where he resided during the residency program, of five-months duration, at the Jersey City Medical Center. He failed to show the period of time in which he participated in the program on that application, as initially submitted. He did not list his participation in the program under the post-graduate training section of his application, on page two thereof. He did not list that participation under the "practice and employment" section on page three of the application.

   
   

5. The Petitioner admitted omitting the information, referenced above, regarding his training for five months in the residency program of the Jersey City Medical Center. The Petitioner believed that "practice", as inquired about on the application, meant "practice being having finished residency and being in private practice for five or six years." By this, he meant that it was his belief that "practice" meant actually practicing as a fully-qualified physician in private practice treating patients. This is why the Petitioner stated on page three of his application, "I held no job or position in medical field during this time." The Petitioner admitted that this was incorrect. He contends that at the time, he wrote the statement and, as to the other questions on the application, failed to disclose his participation in the subject residency program, he did not believe that it constituted a "job or position" working in the medical field. He believed that terminology referenced actually working in a career position as a private physician caring for patients and believed that since he did not receive any credits for the aborted residency program, that that was not the sort of medical experience information that the question sought to elicit. The Petitioner's address while he participated briefly in that New Jersey Medical Center residency program was on Baldwin Avenue, and that address was not listed for the same reason.

   
   

6. Thus, the Petitioner submitted his application for licensure to practice medicine in Florida in this fashion, and it was received by the Respondent Board on November 13, 1992. Some 83 days later, on February 4, 1993, the Board of Medicine sent a letter to the Petitioner listing certain deficiencies in the application and requesting additional information.

   
   

7. On February 9, 1993, the Petitioner responded to the February 4, 1993 letter making a complete explanation concerning his tenure in the residency program in internal medicine,during 1988, at Jersey City Medical Center. Although the Board asserts in the denial order that he knowingly omitted a year of training from his application, during which he received less than favorable evaluations, that is not accurate. In fact, he was in the training program for a period of five months and received unfavorable or less than favorable evaluations and voluntarily resigned from the program. In his explanation and in his testimony at hearing, he explains that he did not list the program nor the related address nor did he list his experience in the five months of the aborted residency program as a "job or position in a medical field" (from April 1, 1986 to May 30, 1989) because he had a good-faith belief that the five months in the aborted residency program which he never completed and received no credit for did not qualify as a experience or education which the application sought to elicit. He believed that since he did not complete the program and received no credit for it that it was simply irrelevant and, therefore, mistakenly and inadvertently failed to list it in his application.

8. Prior to his application becoming complete on July 9, 1993, in his response on or after February 9, 1993 to the February 4, 1993 Board letter, he made the above-referenced full explanation of his experience in that residency program and his residence address during the period of time in dispute.

   
   

9. The Hearing Officer has observed the candor and demeanor of the Petitioner when he testified at hearing and has thoroughly read and considered the explanation provided in Petitioner's exhibits, as well as the superior recommendation and evaluation from his supervising physician in the residency program in internal medicine which he completed. That superior recommendation is corroborated by the fact that he was able to pass his board examinations, to be board certified in internal medicine, only two months after completing that program. After considering the evidence and the candor and demeanor of the Petitioner on the witness stand, the Hearing Officer is convinced that he is telling the truth and that his testimony is credible. Therefore, it is accepted, and the Hearing Officer finds that his deletion of the information in the questions on the application relied upon by the Respondent was not due to any intent to conceal part of his medically-related experience merely because it was less than satisfactory nor was it as a result of any effort to make a misrepresentation to the Board. The Hearing Officer accepts the Petitioner's representation and explanation at hearing and in his response to the February 4, 1993 letter of inquiry as credible. That representation and explanation was not refuted by substantial, competent testimony or evidence and is, therefore, accepted as fact.

   
   

10. On July 9, 1993, the Petitioner's application was deemed "complete" by the Board and at that time contained all information requested by the Board concerning the Petitioner's training and experience, including, specifically, the five months of residency at Jersey City Medical Center at issue herein. The Petitioner was then requested to personally appear before the Credentials Committee of the Board of Medicine. He was scheduled to appear before that body on September 17, 1993, but he cancelled the appearance or re-scheduled it on his own volition. The Petitioner, thereafter, was noticed on October 22, 1993 requesting his personal appearance before the Credentials Committee of the Board of Medicine on November 19, 1993. The Petitioner testified under oath before the Credentials Committee on that date and freely admitted and acknowledged that he had omitted the information, referenced above, from his application. The Committee then voted to recommend denial of licensure.

    
    

11. The Board of Medicine met on December 4, 1993, 148 days after the application was considered "complete" and voted to deny the application. The reason for denial was ". . . you knowingly omitted a year of training from your application during which you received less than favorable evaluations." In fact, however, as found above, the relevant training which he omitted from his first application filing was for a period of five months, and not a year. Further, the Petitioner has more than satisfied any perceived deficiency in his level of skill and training in the field of internal medicine, if such is the subject of the reference in the Board's denial order to "less than favorable evaluations". He successfully completed the residency program in internal medicine at Lincoln Memorial and Mental Health Center, receiving a superior evaluation and recommendation from his supervising physician in that program and becoming board certified in internal medicine by successfully passing the relevant examination with his first effort, approximately two months after completing the residency program.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

    
    

13. Section 458.331(1)(a), Florida Statutes, authorizes the Board of Medicine to deny licensure if an applicant is guilty of "attempting to obtain .

    . . a license to practice medicine by . . . fraudulent misrepresentations . .

    .". Section 458.331(1)(gg), Florida Statutes, authorizes the Board to deny licensure if the applicant is guilty of ". . . misrepresenting or concealing a material fact at any time during any phase of a licensing or disciplinary process or procedure."

    
    

14. There has been no proof adduced that the Petitioner was, indeed, guilty of fraudulent misrepresentation or concealment of a material fact. The omission in the original application was due to a good-faith, mistaken belief, on the part of the Petitioner, as to what was required to be disclosed on the application. The Petitioner did not believe that his five-month stint in the aborted residency program constituted a "medical job or position", which he interpreted to mean being gainfully employed as a practicing physician, and a like mistaken, but good-faith belief, attended the other omissions referenced in this proceeding by the Respondent as to his application as originally filed.

    The omission in the original application, at most, was negligent on the Petitioner's part, rather than being an intentional effort to conceal or misrepresent. It was corrected prior to the application being considered complete by the Board and prior to this de novo proceeding to determine the Petitioner's qualifications for licensure in Florida, focused on the issues raised by the Respondent in its denial letter. This is a de novo proceeding under Section 120.57(1), Florida Statutes, and the agency's initial action carries no presumption of correctness. See, Moore v. Department of Health and Rehabilitative Services, 596 So.2d 759, 761 (Fla. 1st DCA 1990); McDonald v.

    Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1979); Florida Department of Transportation v. J.W.C. Co., 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

15. The Petitioner bears the burden of demonstrating his fitness to practice medicine in compliance with the relevant conditions required, as pertinent thereto. See, Balino V. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977); Florida Department of Transportation v. J.W.C. Co., supra.

    
    

16. There was no demonstration that the applicant's failure to complete the relevant residency program at Jersey City Medical Center is material to the determination of his fitness to practice medicine in Florida in terms of his having the required skills, education and experience to do so, since he later completed an internal medicine residency program "with flying colors." His fitness to practice medicine in Florida, likewise, has not been tainted by any fraudulent misrepresentation or concealment in terms of the omissions on the originally-filed application. Fraud, misrepresentation or concealment is an offense involving the necessary element of specific intent or scienter to conceal, misrepresent, or perpetrate fraud. Such intent has not been proven in this case and, in fact, has been affirmatively disproven. Pearl v. Florida Board of Real Estate, 394 So.2d 189 (Fla. App. 3rd Dist. 1981).

    
    

17. The Petitioner maintains that the license should be granted by operation of law, pursuant to Section 120.60(2), Florida Statutes. The Petitioner asserts that the decision to deny the application was made 148 days

    after the application was completed, instead of within the 90-day period required by the statute. Further, the correspondence to the Petitioner requesting the additional information was not sent to him within the 30-day period required by Section 120.60(2), Florida Statutes, but was sent 83 days after the original application was received by the Board. Therefore, the Petitioner maintains that since the "failure to correct an error or omission or to supply additional information shall not be grounds for denial of the license unless the agency timely notified the applicant within this 30 day period", the Board is precluded by law from denying licensure based upon the failure to include the aborted residency program information in the initial application.

    
    

18. The parties stipulated that the application was complete on July 9, 1993. The Petitioner was then requested and scheduled to appear before the Credentials Committee of the Board on September 17, 1993, some 70 days after the application was deemed complete. The Petitioner testified that he requested that the appearance be re-scheduled to the next meeting of the Credentials Committee on his own volition. That request effectively tolled the time of the relevant 90-day period until the Petitioner could appear before the Credentials Committee meeting scheduled on November 19, 1993, since the delay was by the Petitioner's "own motion." The Board then met and voted on his application on December 4, 1993. The tolling of the application decision period thus ended on November 19, 1993 and began running again on that date. That left 15 days until the Board of Medicine ruled on the application, or a total of 85 days from when the application was deemed complete. That constitutes compliance by the Board with the relevant provision of Section 120.60(2), Florida Statutes, requiring action on the application within 90 days.

    
    

19. Section 120.60(2), Florida Statutes, however, also requires that when an application for licensure is made, the agency shall conduct the proceedings required with reasonable dispatch, with a due regard to the rights and privileges of all affected parties. It provides:

    
    

    Within 30 days after receipt of an application for a license, the agency shall examine the application, notify the applicant of any apparent errors or omissions, and request any additional information the agency is permitted by law to require. Failure to correct an error or omission or to supply additional information shall not be grounds for denial of the license unless the agency timely notified the applicant within this

    30 day period.

    
    

    The Board is thus legally precluded from denying the license based upon a failure to include information about the aborted residency in the Petitioner's initial application. See, Lanier v. Turlington, 488 So.2d 612 (Fla. App. 1st Dist. 1986); Doheny v. Grove Isle, Ltd., 442 So.2d 966, at 975 (Fla. App. 1st Dist. 1983).

    
    

20. Moreover, it must be remembered that the application, by stipulation of the parties, was not deemed to be complete until July 9, 1993. Thus, during the investigative process, prior to that date, as shown by unrefuted evidence, the Petitioner supplied the missing information immediately upon being notified of the Board's request for it. Thus, the Petitioner voluntarily, fully disclosed the missing information and related circumstances to the Board before it made its initial decision to deny and before it even deemed the application to be complete. The Board's initial decision to deny was then rendered non-

final by the Petitioner availing himself of the right to a Section 120.57(1), Florida Statutes, proceeding. Such a proceeding is designed to take evidence and produce findings of fact and conclusions of law regarding the circumstances underlying the manner in which he completed his application. It is designed to formulate the final agency decision on this issue, after taking into account all of the circumstances surrounding the relevant answers to the questions at issue; including his voluntary disclosures of the information at issue during the

"free-form", investigatory process and including the testimony and evidence adduced up through the end of the hearing, since this is a de novo proceeding. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1979). Thus, by the time the application was deemed complete, so the Board was then prepared to act on it, all pertinent information had been voluntarily disclosed to the Board. Since the Petitioner did not actually fail to disclose the relevant information because it was voluntarily disclosed to the Board during the investigatory process, before the application was complete, and before the initial decision was issued, (which was rendered a nullity because of the timely initiation of the formal de novo adjudicatory proceeding), the application should not be denied based upon the initial omission of the answers at issue. See, William C. Harrell v. State of Florida, Department of Insurance and Treasurer, DOAH Case No. 89-2767, Recommended Order entered February 9, 1990 (Final Order entered reversing, in part, on other grounds, October 3, 1990).

Because of this fact, because of the fact that the initial omission of the subject answers was not due to any fraudulent intent or effort to misrepresent or conceal and because the applicant was not notified of the additional information request within the 30-day period referenced above, the application should be granted.

RECOMMENDATION

Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is

RECOMMENDED that a Final Order be entered granting the Petitioner's license to practice medicine in the State of Florida.

DONE AND ENTERED this 3rd day of October, 1994, in Tallahassee, Florida.

P. MICHAEL RUFF 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 4th day of October, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1236

Petitioner's Proposed Findings of Fact 1-10. Accepted.

Respondent's Proposed Findings of Fact

1-11. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter, including the finding that no fraudulent intent or scienter was attributable to the Petitioner's initial application filing in the manner in which he filed it and the finding that he voluntarily supplied all missing information before the application was complete and before the initial agency action occurred.

1. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter in the sense that the subject matter of this proposed finding of fact was not intentionally false on the part of the Petitioner.

2. Accepted.

3. Accepted, except as to the date the information was received by the Board.

4. Accepted.

5. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter, which are controlling.

6. Rejected, as not supported by a preponderance of the evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter.

COPIES FURNISHED:

William M. Furlow, Esq. KATZ, KUTTER, ET AL.

106 East College Avenue Tallahassee, FL 32301

Gregory A. Chaires, Esq. Office of the Attorney General The Capitol, PL-01 Tallahassee, FL 32399-1050

Dr. Marm Harris Executive Director Board of Medicine

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

Jack McRay, Esq. Acting General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 94-001236

Orders for Case No: 94-001236