STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
RICHARD W. MERRITT, D.C., )
)
Petitioner, )
)
vs. ) CASE NO. 94-3383RX
)
DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, BOARD ) OF CHIROPRACTIC, )
)
Respondent. )
)
SUMMARY FINAL ORDER
This matter came before the undersigned on Petitioner's Motion for Summary Final Order. A hearing was held on the Motion by telephone conference call, attended by counsel for both parties and the undersigned, on July 29, 1994.
APPEARANCES
For Petitioner: Paul R. Ezatoff, Esquire
William Furlow, Esquire
Katz, Kutter, Haigler, Alderman, Marks & Bryant, P.A.
Post Office Box 1877 Tallahassee, Florida 32302-1877
For Respondent: Michael Mone, Esquire
Assistant Attorney General PL-01, The Capitol
Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUES
The issue for consideration in this matter is whether Respondent's Rule 61F2-17.007, F.A.C., is an invalid exercise of delegated legislative authority.
PRELIMINARY MATTERS
Petitioner filed his challenge under Section 120.56, Florida Statutes, to the provisions of Rule 61F2-17.007, F.A.C. on June 15, 1994, alleging that the subject rule was an invalid exercise of delegated legislative authority, and citing as his reasons therefore, all the grounds listed for challenge in Section 120.52(8), Florida Statutes. The matter was thereafter forwarded to the Division of Administrative Hearings and by Notice of Hearing dated June 27, 1994, after waiver of time constraints by both parties, the undersigned set the matter for hearing in Tallahassee on August 22, 1994.
Also on June 27, 1994, Petitioner filed his Motion for Summary Final Order asserting that (1) there are no disputed issues of fact, and (2) Petitioner is
entitled to entry of a summary Final Order as a matter of law because; (a) he has standing, and (b) the challenged rule is an invalid exercise of delegated legislative authority. In support of the latter grounds, Petitioner alleges:
(1) the Board exceeded its statutory grant of rulemaking authority; (2) the rule enlarges, modifies, or contravenes the specific provision of the law implemented; (3) the rule is vague, fails to establish adequate standards for agency decision, and vests unbridled discretion in the agency; and (4) the rule is arbitrary and capricious.
A hearing was held on Petitioner's Motion by telephone conference call on July 29, 1994, attended by counsel for both parties and the undersigned. At the hearing, both parties presented their position on the motion, after which Respondent's counsel was allowed a time certain to submit his rebuttal in writing to the Petitioner's motion.
Respondent's Response to Petitioner's Motion for Summary Final Order was filed with the Division on August 4, 1994. There was some issue as to the timeliness of Respondent's filing, but Petitioner waived any irregularity on that count. Respondent's Response also sought entry of a Final Order of the Hearing Officer declaring the challenged rule to be valid, and included therewith an affidavit of Dr. Ronald W. Scott, D.C., Chairman of the Board of Chiropractic's Peer Review Committee established pursuant to Section 460.4104, Florida Statutes and an attachment thereto consisting of the Committee's Peer Review Procedures Manual. In his waiver of the suggested untimeliness of the filing of Respondent's Response, Petitioner's counsel also moved to strike the Affidavit by Dr. Scott and the attachment thereto.
Some issues may be resolved easily by reference to the pleadings. For example, there is no dispute as to the facts of this case. Petitioner outlined undisputed facts in his Motion For Summary Final Order which have been agreed to by Respondent and which, upon review by the undersigned, are accepted and incorporated herein. Respondent concedes Petitioner has standing to challenge the rule in issue, and it is so found both as a matter of fact and of law.
Petitioner having waived the possible untimeliness of Respondent's Response to his Motion for Summary Final Order, that matter is moot and requires no further discussion. The issue of Petitioner's Motion to Strike the Affidavit and attachment thereto remains, however. Petitioner contends neither the Affidavit nor its attachments are discussed in Respondent's Response and asserts that Respondent does not allege the Affidavit and attachment tend to establish material facts concerned in this hearing. Petitioner urges the documents allege facts outside the parameters of the Rule in issue and are, therefore, not material to the issue of the Rule's validity on the grounds alleged in Petitioner's Motion for Summary Final Order.
Respondent, on the other hand, cites the provisions of Rule 60Q-2.030,
which provide for filing of supporting Affidavits in response to a Motion for Summary Final Order. Respondent claims the Affidavit in issue supports its position that the Peer Review Committee must apply standards set by agency rule and statute and may not establish its own standards.
Review of the Affidavit reveals it in no way places in controversy any of the factual matters asserted by Petitioner and agreed to by Respondent as it is no more than the chairman's recitation of the history of the committee and its purpose. The manual contains nothing more than a description as to how the committee is to work, and forms for accomplishment of the committee's business. Paragraphs IX E, F, and G of the manual, definitions, are no more than
recitations of the definitions of "appropriate medical treatment", "properly utilized services", and "appropriate costs", as they appear in the challenged rule. Nothing is added and no issues of fact are raised by inclusion of the manual. As such, they are not objectionable and the Motion to Strike is denied.
FINDINGS OF FACT
Petitioner, Richard W. Merritt, D.C. is a chiropractic physician licensed under Chapter 460, Florida Statutes, and is actively practicing chiropractic in the State of Florida.
By this action Petitioner challenges the validity of Rule 61F2- 17.007(6)(a), F.A.C.. The pertinent portions of the challenged Rule purport to define several terms to be utilized by the peer Review Committee in evaluation of chiropractor performance as brought before it. Specifically in issue are provisions of Rule 61F2-17.007:
(6)(a) "Appropriate medical treatment" as used in Section 460.4104, Florida Statutes,
is defined as a determination made of treatment and other services performed, which by virtue of a substantiated and properly diagnosed condition, appears to be of a type consistent with that diagnosis as reviewed by the peer review committee.
"Properly utilized services" as used in Section 460.4104, Florida Statutes, means a determination made of appropriate medical treatment services rendered including frequency and duration which are substantiated as being necessary and reasonable by clinical records and reports of the provider as reviewed by the peer review committee.
"Appropriate costs" as used in Section 460.4104, Florida Statutes, mean a determination made of charges submitted for properly utilized services performed which appear to be necessary and reasonable charges for similar provider services
in the judgement of the peer review committee.
As a licensed chiropractic physician subject to Chapter 460, Florida Statutes, Petitioner is substantially affected by the challenged rule because:
he is a "health care provider" as defined by Section 460.403(5), Florida Statutes, and as used in Section 460.4104, the specific authority for and statute implemented by the challenged rule;
the challenged rule expressly applies to health care providers and establishes definitions of statutory standards applicable to the peer review of the practice of chiropractic by chiropractic physicians including Petitioner; and
the rule, when applied in conjunction with Section 460.4104, Florida Statutes, may subject chiropractic physicians, including Petitioner, to potential penal sanctions for the practice
of chiropractic which violates the definitions incorporated in the challenged rule applied consistent with the statutory standard.
The Respondent, Department of Business and Professional Regulation, (now Agency for Health Care Administration), Board of Chiropractic, (Board), promulgated the challenged rule and has the responsibility for implementing it as well as the whole of Chapter 460, Florida Statutes and Chapter 61F2, F.A.C..
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings, Section 120.56(1), Florida Statutes.
Section 120.52(8), Florida Statutes defines "invalid exercise of delegated legislative authority" as:
... action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule
is an invalid exercise of delegated legislative authority if any one or more of the following apply:
The agency has materially failed to follow the applicable rulemaking procedures as set forth in s. 120.54;
The agency has exceeded its grant of rule- making authority, citation to which is required by s. 120.54(7);
The rule enlarges, modifies, or contravenes the specific provisions of the law implemented, citation to which is required by s. 120.54(7);
The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or
The rule is arbitrary or capricious.
In its first of four numbered challenges to the rule, Petitioner contends that in adopting the challenged rule, with its definitions as discussed, the agency exceeded its grant of rulemaking authority which is provided for generally in Section 460.405, and more specifically in Section 460.4104, Florida Statutes. The former provision grants the Board the authority to make "such rules not inconsistent with law as are necessary to carry out the duties and authority conferred upon [it] "
Section 460.4104(9), Florida Statutes, provides:
The criteria or standards established for peer review shall be adopted by the board as rules pursuant to 120. Such criteria shall be developed to conform with medically accepted standards.
"Medically accepted standards" are defined in Section 460.403(6), Florida Statutes, as:
...those standards of care, skill, and treatment which are recognized by a reasonably prudent
similar health care provider as being acceptable under similar conditions and circumstances.
Section 460.4104(5), Florida Statutes requires a peer review committee to determine, as to each inquiry submitted to it, whether or not the health care provider:
...properly utilized services and rendered or ordered appropriate medical treatment or services and whether or not the cost of such treatment was appropriate.
A reading of the above citations together, rather than as individual segments, causes the reader to come to the inescapable conclusion that the overriding standard to be applied by the peer review committee in the rules developed by the Board for its use is the definition established for "medically accepted standards" by Section 460.403(6), Florida Statutes. In other words, when the peer review committee assesses the appropriateness of medical treatment utilized by the individual under scrutiny, the proper utilization of services, and the appropriateness of costs, each is to be evaluated within the parameters of "medically accepted standards" as defined in the statute. This definition has repeatedly successfully defied challenge.
Petitioner urges that the challenged rule fails to provide the peer review committee with meaningful criteria for use in their evaluation. Clearly this is not so, but in any case, other authority promulgated by both the Legislature and the Board have established clear criteria both for licensure and for all facets of practice and licensee discipline, a matter which also concerns Petitioner. In the latter case, the decision to discipline is made only after another panel, the Probable Cause Panel of the Board of Chiropractic, finds after independent investigation and being satisfied that "probable cause" exists at a hearing at which the licensee may appear.Probable cause is a far more severe test than that applied by the peer review committee.
The determination by the peer review committee to initiate a complaint against a licensee comes only after determination that "reasonable cause" exists indicating the provider has violated any provision of Chapter 460, Chapter 455, or a rule adopted pursuant thereto which applies the "medically accepted standards" test, a test established by the Legislature, not by the Board. Consequently, it is clear the promulgation of the challenged rules by the Board did not exceed its grant of rulemaking authority, and the rule is consistent with and cites the legislative authority therefor.
Petitioner's assertion that the rule under challenge enlarges, modifies, or contravenes the specific provisions of the law implemented is equally without merit. By statute the Legislature has defined the standard by which the practice of chiropractic is to be measured in this state. The rule provisions under challenge, which require the committee to review treatment and other services performed against the diagnosed condition; which require the committee to review medical treatment services rendered for necessity and reasonableness against clinical records and reports of the provider; and which obligate the committee to judge and evaluate charges for properly utilized services against criteria including both necessity and reasonableness; in no way enlarge, modify or contravene the statutorily defined standard of practice. To contend that the inclusion of the word "necessary" along with reasonableness adds to the statutory requirement is both specious and ingenuous. Nothing is
added by the rule; nothing is modified; and no statutory requirement is contravened.
Petitioner also contends that the challenged rule is vague, fails to establish adequate standards for Board decisions, and vests unbridled discretion in the Board. The standards definition found in Section 460.4104(9), Florida Statutes sets the test to be applied. Clearly, this provision is not vague and the standards set thereby are clear and unequivocal. By the same token, the committee's discretion to evaluate provider performance is, far from being unbridled, clearly constrained by the precise terms found in the statutory definition. All that is granted to the committee is the authority to review and evaluate performance and charges within the standard defined by statute. Such discretion can hardly be classified as unbridled and the guidelines by which the committee is charged to perform its function can hardly be classified as vague. Therefore, this claim is also without merit.
Finally, Petitioner claims the challenged rule is arbitrary and capricious. The law is well settled on the definition of the terms arbitrary and capricious, and is correctly set out in Petitioner's Motion for Summary Final Order. A rule is arbitrary and capricious if it is not supported by fact or logic, if it was adopted without thought or reason, or if it is otherwise not based on competent, substantial evidence. Humana, Inc. v. Department of Health and Rehabilitative Services, 469 So.2d 889, 890 (Fla. 1st DCA 1985). Specifically, a "capricious" action is one taken without thought or reason, or which is taken irrationally. An "arbitrary" action is one that is not supported by facts or logic or is despotic. Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759,763 (Fla. 1st DCA 1978) cert. denied 376 So.2d 74 (Fla. 1979).
Contra to Petitioner's assertion, it is clear that the challenged rule conforms to and requires no deviation from the statutory standard against which provider performance is to be gauged. It is clear and non-confusing and there can be little question in the mind of the reader what standard of care or criterion is to be applied. No evidence was presented to demonstrate the rule was conceived, developed or promulgated other than within the clear dictates of professional logic and necessity.
Based on the foregoing, it is, therefore:
ORDERED THAT
Petitioner's challenge to Rule 61F2-17.007(6), F.A.C. is hereby dismissed. DONE and ORDERED this 12th day of August, 1994, in Tallahassee, Florida.
ARNOLD H. POLLOCK
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 12th day of August, 1994.
COPIES FURNISHED:
Paul R. Ezatoff, Esquire William Furlow, Esquire
Katz, Kutter, Haigler, Alderman, Marks & Bryant, P.A.
Post Office Box 1877 Tallahassee, Florida 32302-1877
James R. Meyer, Esquire Meyer and Meyer
Post Office Drawer 1356 Bartow, Florida 33830-1356
Grover C. Freeman, Esquire Freeman, Hunter and Malloy
201 East Kennedy Boulevard, Suite 1950 Tampa, Florida 33602
Michael Mone, Esquire Assistant Attorney General PL-01, The Capitol
Tallahassee, Florida 32399-1050
Liz Cloud, Chief
Bureau of Administrative Code The Capitol, Room 1802 Tallahassee, Florida 32399-0250
Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300
Sam Power, Agency Clerk Agency For Health Care
Administration
The Atrium, Suite 301
325 John Knox Road Tallahassee, Florida 32303
Harold D. Lewis, Esquire Agency For Health Care
Administration
The Atrium, Suite 301
325 John Knox Road Tallahassee, Florida 32303
Jack McRay
Acting General Counsel Department of Business and
Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-0792
Diane Orcutt Executive Director Board of Chiropractic
1940 North Monroe Street Tallahassee, Florida 32399-0792
NOTICE OF RIGHT TO JUDICIAL REVIEW
A party who is adversely affected by this Final Order is entitled to Judicial Review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, (or, when appropriate, a certificate of indigence), 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.
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DISTRICT COURT OPINION
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IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
RICHARD W. MERRITT, NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION AND
Appellant, DISPOSITION THEREOF IF FILED
CASE NO. 94-2831
v. DOAH CASE NO. 94-3383RX
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, BOARD OF CHIROPRACTIC,
Appellee.
/ Opinion filed May 22, 1995.
An Appeal from the Division of Administrative Hearings. Arnold H. Pollock, Hearing Officer
Paul R. Ezatoff of Katz, Haigler, Alderman, Marks & Bryant, Tallahassee, and James R. Meyer of Meyer and Meyer, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, and Michael A. Mone, Assistant Attorney General, Tallahassee, for Appellee.
PER CURIAM.
Merritt, a chiropractic physician, appeals the dismissal of his petition challenging the validity of Rule 61F2-17.007 (now 59N-17.007), Florida Administrative Code, relating to peer review. Following an informal hearing via telephone conference, Hearing Officer Arnold H. Pollock dismissed the petition having found no basis to invalidate the challenged rule. Finding the challenged rule to be an invalid exercise of delegated legislative authority, we reverse.
Merritt petitioned the Department of Business and Professional Regulation, Board of Chiropractic (Board) pursuant to section 120.56, Florida Statutes (1993) asserting all the grounds listed in section 120.52(8) as the bases for his challenge. Prior to a hearing on the merits, Merritt moved for summary final order asserting that there were no disputed issues of fact and that the challenged rule was invalid as a matter of law. At hearing, the parties presented arguments on the merits of the motion. The hearing officer allowed the Board a time certain following the hearing to submit its rebuttal in writing.
Merritt is a chiropractic physician, licensed and actively practicing in the State of Florida. The challenged rule purports to define statutory terms in order to provide "criteria or standards" to guide peer review pursuant to section 460.4104(9)(a), Florida Statutes (1993). As a "health care provider" licensed under chapter 460, Merritt is subject to the provisions of the challenged rule. The Board promulgated the challenged rule and is responsible for administering it.
The challenged rule and the implemented statute regulate the practice of chiropractic in the state of Florida. "The sole legislative intent for enacting [Chapter 460] is to ensure that every chiropractic physician practicing in this state meets minimum requirements for safe practice." Section 460.401, Florida Statutes (1993). The legislature delegated to the Board of Chiropractic the authority "to make such rules not inconsistent with law as are necessary to carry out the duties and authority conferred upon the board by [Chapter 460]." Section 460.405, Florida Statutes (1993). In order "to provide for the regulation of the cost of health care and its impact upon the business of insurance," the legislature authorized the Department of Professional Regulation to "review ... the fees of certain health care providers." Section 460.4104(1), Florida Statutes (1993). If directed by the Board of Chiropractic, "peer review shall be performed by peer review committees which are constituted by the department or by the department's contractual arrangements." Section 460.4104(2), Florida Statutes (1993). "The peer review committee shall file with the department a complaint against a health care provider if it determines that reasonable cause exists to believe the health care provider has violated any provision of [chapter 460] or chapter 455, or rules adopted pursuant thereto
...." Section 460.4104(4), Florida Statutes (1993). "The findings of a peer review committee on each inquiry submitted to it shall include a determination of whether or not the health care provider properly utilized services and rendered or ordered appropriate medical treatment or services and whether or not the cost of such treatment was appropriate." Section 460.4104(5), Florida Statutes (1993)(emphasis supplied)
In order to guide the peer review committee the Legislature provided that "[t]he criteria or standards established for peer review shall be adopted by the board as rules pursuant to chapter 120. Such criteria shall be developed to
conform with medically accented standards. "Section 460.4104, Florida Statutes (1993)(emphasis supplied). 1/ Chapter 460 defines "medically accepted standards" for peer review purposes as "those standards of care, skill, and treatment which are recognized by a reasonably prudent similar health care provider as being acceptable under similar conditions and circumstances." Section 460.403(6), Florida Statutes (1993)
If otherwise valid, the challenged rule does not exceed its grant of rulemaking authority. Section 460.405 grants the authority to make such rules not inconsistent with law as are required to carry out the duties and authority conferred upon the board by chapter 460. On its face, the challenged rule purports to define the terms "appropriate medical treatment," "properly utilized services," and "appropriate costs." Each of these is a statutory term that constitutes part of the factual determination the peer review committee is required by the statute to make. Section 460.4104(5), Florida Statutes (1993). The challenged rule thus purports to elaborate statutory criteria. The statute further directs, however, that the rule's elaboration of the statutory criteria conform with medically accepted standards. Section 460.4104(9)(a), Florida Statutes (1993). The statute defines "medically accepted standards" for peer review as "those standards of care, skill, and treatment which are recognized by a reasonably prudent similar health care provider as being acceptable under similar conditions and circumstances." Section 460.403(6), Florida Statutes (1993). Accordingly, if the rule conforms to that standard as defined by the statute, the board has not exceeded its grant of rulemaking authority.
It is not clear on the record whether or not the challenged rule conforms to the statutory standard of "medically accepted standards." There is no medical testimony from which we are able to discern the conformity of the rule to the statute. The hearing officer concluded that the statutory definition has repeatedly defied challenge, although he provides no authority in support of that conclusion. Moreover, we have found no case that considered a challenge to "medically accepted standards" as defined by chapter 460. /2 The central issue of this appeal is whether the challenged rule establishes valid criteria to govern the Board's actions. The statute restricts the criteria to conform to medically accepted standards and defines that term by reference to "a reasonably prudent similar health care provider." 460.403(6), Florida Statutes (1993).
Because there was no evidence taken below, there is no evidence in the record to determine if the rule does, in fact, conform to that standard.
Nonetheless, the challenged rule enlarges, modifies, or contravenes the specific provisions of the law implemented. "Medically accepted standards," as defined by the statute, depends for its meaning on "a reasonably prudent similar health care provider." Section 460.403, Florida Statutes (1993). The challenged rule, which was intended to guide the members of the peer review committees, fails to elaborate the statutory standard. Rather than elaborate the statutory standard, the challenged rule replaces that standard with the personal judgment of the members of the peer review committee. "Appropriate medical treatment," according to the challenged rule, is that treatment which "appears" to the members of the review committee to conform to the treating physician's diagnosis, "as reviewed by the peer review committee." Rule 59N-17.007(6)(a), Florida Administrative Code. The other definitions similarly defer for the determinations involved to the personal judgment of the members of the review committee. The challenged rule thus provides no guidance to the actions of the committee external to the committee members themselves. /3 The challenged rule vests absolute discretion in the committee members and, therefore, provides no criteria or standards. The Legislature did not intend this result in mandating
elaboration of a statutory standard by rulemaking. The challenged rule thus enlarges, modifies, or contravenes the statute and is invalid, therefore.
Similarly, the challenged rule is vague, fails to establish adequate standards, and vests unbridled discretion in the committee. The challenged rule is inordinately vague. The rule defines each statutory term passively as "a determination made a Although there is no grammatical indication of agency, the Board's counsel conceded at oral argument that the peer review committee itself makes the determination. If so, the challenged rule fails to establish adequate standards. Indeed, the rule establishes no standard at all. The rule, which purports to elaborate a statutory standard to guide committee action, circularly defines the standard as a determination made by the committee itself. The challenged rule, from which the statute demands guiding criteria, is thus vague, fails to establish adequate standards, and vests unbridled discretion in the committee. It is therefore an invalid exercise of delegated legislative authority.
Finally, for the reasons discussed above, the rule is also arbitrary and capricious. The rule defies a deliberative reading. It is thick with terms more uncertain by passive grammatical construction than the statutory language that it purports to define. The rule thus serves more to obfuscate the statutory language than to elaborate statutory criteria or standards. It is irrational to obscure terms for which the statute demands clarification by rulemaking. It is also not rational to elaborate statutory standards to guide the discretion of the committee with a rule that depends upon the judgment of the committee members themselves for its determination. The rule is therefore arbitrary and capricious. Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA), cert. denied, 376 so.2d (Fla.1979).
Having found the challenged rule invalid, we decline to address Merritt's second issue, whether the challenged rule should elaborate statutory standards as rules in addition to the statutory definition of medically accepted standards.
The order is, therefore, REVERSED.
ZEHMER, C.J., BARFIELD, J., and SHIVERS, Senior Judge, CONCUR.
ENDNOTES
1/ Although section 460.4104 directs the board to "establish criteria for screening requests for peer review," S 460.4104(2), Florida Statutes (1993)(emphasis supplied), this section does not provide specific statutory authority to adopt "criteria or standards" for peer review. Neither does the chapter otherwise provide specific rulemaking authority directing the agency to adopt "criteria or standards" for peer review purposes. Rather, section 460.4104(9)(a) mandates merely that criteria or standards for peer review be adopted as rules. Section 460.4104(9)(a) thus mandates the exclusive reliance upon rulemaking, as opposed to development of statutory standards by ad hoc litigation, for establishing criteria or standards for peer review. The board's rulemaking authority remains, therefore, the broad grant provided by section
460.405. We therefore reject Merritt's contention that section 460.4104
specifically limits the general broad grant of rulemaking authority provided by section 460.405.
/2 There is, of course, the so-called national standard in professional negligence cases which holds non-specialist physicians to "that degree of care and skill which is expected of a reasonably competent practitioner in the same class to which he belongs, acting in the same or similar circumstances." 4 Stuart M. Speiser, Charles F. Krause & Alfred W. Gans, The American Law of Torts, 15:19 at 432 (1987). With some inter-jurisdictional variation as to the application of the locality rule to this standard, it is otherwise widely accepted. The hearing officer may have been referring to this standard of care for professionals in tort actions in concluding that the definition has repeatedly defied challenge. This standard was developed not for measuring medical performance in peer review, however, but for evaluating the admissibility of testimony and evidence from expert medical witnesses. Id. at 427.
3/ The Appellee contends that the committee members are themselves "reasonably prudent similar health care providers." Therefore, any determination made by them would satisfy the statutory definition of "medically accepted standards." This contention fails for two reasons. First, there is no evidence in the record that the peer review committee would be constituted by "reasonably prudent" health care providers, similar to the physician being reviewed.
Secondly, even if there were evidence to so indicate, the statute demands reliance upon a settled standard. The rule would replace the statutory standard with the judgment of the individual members of the committees.
| Issue Date | Proceedings |
|---|---|
| May 23, 1995 | First DCA Opinion filed. |
| Dec. 21, 1994 | Index, Record, Certificate of Record sent out. |
| Nov. 01, 1994 | Payment in the amount of $26.00 filed. |
| Oct. 21, 1994 | Index & Statement of Service sent out. |
| Oct. 17, 1994 | BY ORDER OF THE COURT filed. |
| Sep. 02, 1994 | Letter to DOAH from DCA filed. DCA Case No. 1-94-28312. |
| Sep. 01, 1994 | Certificate of Notice of Administrative Appeal sent out. |
| Aug. 31, 1994 | Notice of Appeal filed. |
| Aug. 29, 1994 | Order Denying Motion for Reconsideration or Clarification sent out. (motion for reconsideration denied) |
| Aug. 26, 1994 | (Respondent) Response to Petitioner's Motion for Reconsideration or Clarification filed. |
| Aug. 22, 1994 | Petitioner's Motion for Reconsideration or Clarification filed. |
| Aug. 12, 1994 | Summary Final Order (telephonic motion hearing held July 29, 1994). CASE CLOSED. |
| Aug. 09, 1994 | Notice of Appearance of Additional Counsel For Petitioner filed. |
| Aug. 05, 1994 | Response to Petitioner's Notice of Waiver and Motion to Strike filed. |
| Aug. 05, 1994 | Petitioner's Notice of Waiver and Motion to Strike filed. |
| Aug. 04, 1994 | (Respondent) Response to Petitioner's Motion for Summary Final Order w/Affidavit & Procedural Manual filed. |
| Jul. 27, 1994 | Petitioner's Request for Oral Argument On Motion for Summary Final Order filed. |
| Jul. 27, 1994 | Petitioner's Motion for Summary Final Order filed. |
| Jul. 25, 1994 | (Petitioner) Notice of Taking Deposition filed. |
| Jun. 27, 1994 | Notice of Hearing sent out. (hearing set for 08/22/94, 1:00 p.m., Tallahassee) |
| Jun. 23, 1994 | Order of Assignment sent out. |
| Jun. 22, 1994 | Letter to Liz Cloud & Carroll Webb from Marguerite Lockard w/cc: Agency General Counsel sent out. |
| Jun. 17, 1994 | Petition to Determine Invalidity of Existing Rule filed. |
| Issue Date | Document | Summary |
|---|---|---|
| May 22, 1995 | Opinion | |
| Aug. 12, 1994 | Recommended Order | Board rule which defined terms of art within statutory-based standard not invalid for any reason. |
