STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELSA LISSETTE RIVERO, )

)

Petitioner, )

)

vs. ) CASE NO. 94-2882

)

AGENCY FOR HEALTH CARE ) ADMINISTRATION, BOARD OF MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on April 24, 1995, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Frank Valladares, Esquire

2955 Southwest 8th Street, Suite 204

Miami, Florida 33135

For Respondent: Gregory A. Chaires, Esquire

Christopher E. Butler, Legal Intern Office of the Attorney General Suite PL-01, The Capitol Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue presented is whether Petitioner's application for licensure as a physician by examination pursuant to Section 458.311(8), Florida Statutes, should be granted.

PRELIMINARY STATEMENT

By Corrected Order entered October 21, 1992, the Board of Medicine advised Petitioner that her application for licensure as a physician by examination pursuant to Section 458.311(8), Florida Statutes, was denied. Petitioner appeared before the Board of Medicine at its meeting in June of 1993, at which time it was determined by the Board that this cause involved disputed issues of material fact which required the matter to be referred to the Division of Administrative Hearings to conduct a formal proceeding. This cause was so referred on May 23, 1994.

Petitioner Elsa Lissette Rivero testified on her own behalf. Additionally, Joint Exhibits numbered 1-3 were admitted in evidence.

Both parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. Respondent's Motion to Strike Petitioner's Proposed Recommended Order, filed June 21, 1995, be and the same is hereby denied rather than delay the entry of this Recommended Order to allow Petitioner time to respond to Respondent's Motion to Strike. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner attended medical school in Cuba from September 1978 through July 1984. In that country, the academic year commences in September and ends in July.

   
   

2. The medical school program in Cuba is a six-year curriculum which is divided into three phases, with each phase lasting two years. Phase I involves the study of normal structures and functions of the human body (basic science courses); Phase II involves the study of pathological structures and functions (clinical rotations in hospitals); and Phase III involves integral medical care. Clinical rotations continue through the first half of Phase III, the student's fifth year in medical school. During the second half of Phase III, the medical student undertakes a rotating internship in four disciplines or a vertical internship in an individual discipline.

   
   

3. The four disciplines are internal medicine, pediatrics, obstetrics and gynecology, and surgery. The student must pass a theoretical and practical examination in each discipline in order to proceed to the next rotation. After the medical student successfully completes each Phase, including the internship, the student is awarded the degree of Doctor en Medicina.

   
   

4. During Phase III, instruction is given in the form of lectures, small group seminars, individual instruction, practical training, and problem-oriented instruction. Students rotate to different teaching hospitals and polyclinics. At the teaching hospitals, students review clinical records with the principal professors and discuss, as a group, patient symptoms, diagnoses, and treatment. The polyclinics are neighborhood clinics emphasizing preventative medicine. While students are working at the polyclinics, they are not members of the staff; rather, the staff doctors supervise and consult with the medical students rotating through the various polyclinics.

   
   

5. A medical student graduates after completion of the sixth year's curriculum without the necessity of taking a written examination. To practice medicine in Cuba, however, it is necessary for the medical school graduate to obtain a license and register with the national health registry. Upon registering, the physician receives a medical card, which carries the picture and signature of the physician.

   
   

6. Petitioner completed a rotating internship from September 1983 through July 1984 as part of her medical education. She was assigned to a physician/specialist in each field of study during her internship rotation. She examined patients in front of her fellow students and/or the professor. She participated in discussions regarding pathology or symptoms, particular diagnoses, and appropriate treatments. She interviewed patients, performed physical examinations, and ordered laboratory tests if indicated. She did not participate in surgical procedures during the surgical rotation of her internship.

7. Although Petitioner completed her medical school curriculum in July 1984, she did not receive a diploma. She did not register with the national registry and, therefore, did not receive a medical card. In September 1984 Petitioner left Cuba and went to Venezuela. Petitioner offered no evidence as to her activities from July 1984 when she completed her medical school curriculum until September 1984 when she left Cuba.

   
   

8. Petitioner has taken the examination offered by the Educational Commission for Foreign Medical Graduates once, but she did not receive a passing grade on that examination.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

   
   

10. Petitioner applied for licensure as a physician by examination pursuant to Section 458.311(8), Florida Statutes, which provides, in part, as follows:

    
    

    (8) Notwithstanding any of the provisions of this section, the department shall issue a restricted license to any applicant who successfully completes the Florida Board Examination and who the board certifies has met the criteria of subparagraph (1)1. or subparagraph (1)2. as follows:

    1. 1.a. Is a graduate of a foreign medical institution located in a country in the Western Hemisphere with which the United States does not maintain diplomatic relations;

       1. Received a medical education which was substantially similar at the time of the applicant's graduation to approved United States medical programs;

       2. Practiced medicine in a foreign country from which he immigrated to the United States of America and has lawful immigration status, including employment authority. . .

    * * *

    This subsection is repealed effective October 1, 1993.

    
    

11. Petitioner argues that she has complied with Subsection (8)(a)1.c in that she practiced medicine in Cuba during the last year of her medical school program while she was participating in the required internship. Petitioner asserts that she was practicing medicine simultaneously with completing her medical education requirements since during that last year of her medical school education she was diagnosing, prescribing, and treating patients. Petitioner sees no distinction between activities performed under supervision as a medical student and activities performed subsequent to graduation from medical school and licensure. Petitioner cites no legal authority for her suggestion that an internship constitutes the practice of medicine, and Petitioner's interpretation of the statutory requirement is contrary to the commonly understood meaning of the term "practicing medicine." Petitioner's interpretation, although novel, is not persuasive. To interpret practicing medicine to mean less than the licensed

    or authorized practice of medicine subsequent to completion of all educational requirements would not be consistent with the clearly-stated legislative intent in regulating the practice of medicine ". . . to insure that every physician practicing in this state meets minimum requirements for safe practice." Section 458.301, Florida Statutes.

    
    

12. More importantly, the Board of Medicine does not have the authority to adopt Petitioner's suggestion that studying medicine is the same as practicing medicine and grant her application for licensure for the reason that the special program pursuant to which Petitioner seeks licensure no longer exists. Subsection (8) of Section 458.311, Florida Statutes, was repeal-ed, by its own terms, effective October 1, 1993. See, Asuncion Interian v. Dept. of Business and Professional Regulation, Bd. of Medicine, DOAH Case No. 93-1672 (Final Order entered March 9, 1994).

    
    

13. The law in Florida is well settled that when a change in the law occurs during the pendency of an application, that change in the law is operative as to the application so that the law as changed, rather than as it existed at the time the application was filed, determines whether the application should be granted. See, for example, Lavernia v. Dept. of Professional Regulation, Bd. of Medicine, 616 So.2d 53 (Fla. 1st Dist. 1993); Bruner v. Bd. of Real Estate, Dept. of Professional Regulation, 399 So.2d 4 (Fla. 5th Dist. 1981); City of Boynton Beach v. Carroll, 272 So.2d 171 (Fla. 4th Dist. 1973). Since the program pursuant to which Petitioner seeks licensure no longer exists, her application for licensure must be denied.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application

for licensure pursuant to Section 458.311(8), Florida Statutes.

DONE and ENTERED this 22nd day of June, 1995, at Tallahassee, Florida.

LINDA M. RIGOT, 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 22nd day of June, 1995.

APPENDIX TO RECOMMENDED ORDER

1. Petitioner's proposed findings of fact numbered 1, 4, 5, and 5 [sic] have been adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed finding of fact numbered 2 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law.

3. Petitioner's proposed finding of fact numbered 3 has been rejected as not being supported by the evidence in this cause.

4. Respondent's proposed findings of fact numbered 2-9 have been adopted either verbatim or in substance in this Recommended Order.

5. Respondent's proposed findings of fact numbered 1 and 10 have been rejected as not constituting findings of fact but rather as constituting conclusions of law.

COPIES FURNISHED:

Frank Valladares, Esquire 2955 Southwest 8th Street Suite 204

Miami, Florida 33135

Gregory A. Chaires, Esquire Christopher E. Butler, Legal Intern Office of the Attorney General Suite PL01, The Capitol Tallahassee, Florida 32399-1050

Dr. Marm Harris, Executive Director Agency for Health Care Administration Board of Medicine

1940 North Monroe Street Tallahassee, FL 32399-0770

Tom Wallace, Assistant Director Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building 3, Suite 3431

Tallahassee, Florida 32308-5403

Sam Power, Agency Clerk

Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building 3, Suite 3431

Tallahassee, Florida 32308-5403

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 94-002882

Orders for Case No: 94-002882