STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HENRY CALAS, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 94-5015

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on November 8, 1994, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Wilson Jerry Foster

Attorney at Law

227 East Virginia Street Tallahassee, Florida 32301

For Respondent: Gregory A. Chaires

Assistant Attorney General Department of Legal Affairs PL-01, The Capitol

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUES

The issue for determination is whether Petitioner misrepresented or concealed a material fact on his application regarding his qualifications for licensure to practice medicine in the State of Florida.

PRELIMINARY STATEMENT

By Order dated August 8, 1994, Respondent approved Petitioner's application for licensure by endorsement, contingent upon Petitioner's successful completion of two years probation. Respondent's conditioned approval also required that six months of the probationary period be completed under the indirect supervision of another Florida physician.

Petitioner sought formal administrative proceedings to contest Respondent's denial. Subsequently, the matter was transferred to the Division of Administrative Hearings for conduct of formal hearings pursuant to Section 120.57(1), Florida Statutes.

At the final hearing, the parties entered five joint exhibits. Petitioner presented two additional exhibits. A third exhibit of Petitioner, upon which ruling had been reserved, is now admitted as corroborative hearsay. Petitioner testified on his own behalf.

The transcript of the final hearing was filed with the Division Of Administrative Hearings on November 10, 1994. By agreement of the parties, deadline for the filing of proposed recommended orders was extended to November 22, 1994.

Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.

FINDINGS OF FACT

STIPULATED FACTS

The facts set forth below in paragraphs 1.-20. are stipulated to by the parties.

1. The initial notarized application of Petitioner, Henry Calas, for licensure by endorsement was filed on September 29, 1993, and is known as the "September 29 Application."

   
   

2. A second notarized application submitted by Dr. Calas on or about January 27, 1994, is known as the "January 27 Application."

   
   

3. A third notarized applcation was submitted by Dr. Calas on or April 25, 1994, and is identified as the "April 25 Application." This third application was filed at the direction of the Credentials Committee during its March 25, 1994 meeting.

   
   

4. On March 25, 1994, Petitioner appeared before the Credentials Committee of the Board of Medicine. At the time, the Credentials Committee had two applications before it, the September 29 Application and the January 27 Application.

   
   

5. On May 13, 1994, Dr. Calas appeared before the Credentials Committee of the Board of Medicine. At that time, the Credentials Committee had before it all materials dated prior to that time that are presently contained in the parties' joint exhibit 1. This exhibit consists of all materials in Petitioner's application file.

   
   

6. By order filed August 10, 1994, the Board of Medicine approved Dr. Calas' application for licensure:

   
   

   . . .contingent upon applicant being on probation for 2 years, 6 months of said probation shall be under indirect supervision by a licensed physician who shall review 50 percent of patient records including billing. The Board hereby states as the basis for this decision that you misrepresented your qualifi- cations on your application for licensure.

   See Section 458.331(1)(gg).

7. Petitioner timely filed his Petition for Formal Hearing disputing the Board's finding that he had misrepresented his qualifications on his application and requested that he be granted an unrestricted Florida medical license.

   
   

8. Dr. Calas obtained his Doctor of Medicine degree from Universidad Central Del Este in the Dominican Republic on February 3, 1984.

   
   

9. Dr. Calas participated in a residency in Internal Medicine at Northwestern Ohio College of Medicine from May 15, 1989, until December 30, 1990. Throughout that time, the program director was Dr. Andre J. Ognibene, Professor of Medicine and Chairman of the Department of Medicine.

   
   

10. Dr. Callas successfully completed a three year residency in Neurology at Albany Medical College, Albany Medical Center Hospital, Albany, New York from January 1, 1991 to December 31, 1993. During his third year, Petitioner served as Chief Resident.

    
    

11. Dr. Calas meets all statutory educational and training qualifications required of him for licensure as a physician in Florida.

    
    

    THE ELLIS HOSPITAL ISSUE

    
    

12. In his September 29, 1993 application on page 3, Dr. Calas represented that he currently had privileges at Ellis Hospital stating "Ellis Hospital 1101 Nott St. Schenectady NY 12308 I just obtained privieleges (sic), and I have not begun to work there yet."

    
    

13. Dr. Michael SS. Jakubowski, Vice President, Medical Affairs, Ellis Hospital, wrote the Florida Board of Medicine regarding Petitioner on April 6, 1994.

    
    

    THE NORTHEASTERN OHIO COLLEGE OF MEDICINE ISSUE

    
    

14. On October 18, 1990, Dr. Calas and Dr. Ognibene met regarding the Petitioner's record and performance in his Internal Medicine Residency. That meeting was memorialized by Dr. Ognibene in a document entitled, "Counseling Session/Longitudinal Evaluation" and signed by Dr. Ognibene and placed in Petitioner's file at Northeastern College of Medicine.

    
    

15. On October 18, 1993, Dr. Andre J. Ognibene wrote the Florida Board of Medicine to return a training and evaulation form of the Board regarding Petitioner.

    
    

16. On October 28, 1993, the Medical Board staff wrote Dr. Ognibene inquiring, in part, "Accordingly, please clarify why [Calas] left prior to completion, or if he was given credit for a complete year, on what basis(es); indicate whether he left in good standing and specify if he was (or would have been) offered a contract to continue to complete the program."

    
    

17. On November 4, 1993, Dr. Ognibene responded by letter to the Board staff's letter of October 28, 1993.

18. On February 11, 1994, the Medical Board staff wrote Dr. Ognibene, acknowledged receipt of his November 4, 1993 letter and inquired as follows:

    
    

    Please specify if he was (or would have been) offered a contract to continue to complete your program?

    
    

19. On February 14, 1994, Dr. Ognibene responded by letter to Board staff's letter of February 11, 1994.

    
    

20. At the request of Dr. Calas, Dr. Ognibene wrote a letter to the Board of Medicine dated April 25, 1994, which was received by the Board in time for the Credentials Committee meeting of May 13, 1994.

    
    

    OTHER FACTS

    
    

21. By letter dated January 12, 1994, Petitioner represented to the Board of Medicine that he "completed PGY-1 [Post Graduate Year 1] in good standing" and "chose not to remain in medicine despite the offer of a PGY-2 contract" in the residency program at Northeastern Ohio College of Medicine's internal medicine program. By letter dated January 15, 1994, to an administrative assistant to the Board, Petitioner stated he "declined" the contract for a second year.

    
    

22. In actuality, Petitioner had completed PGY-1 in good standing, but was counseled by Dr. Andre J. Ognibene, the program director, to seek another specialty. Petitioner was perceived as deficient in organizational skills necessary to meet the complexities of internal medicine. Petitioner elected neurology. Ognibene concurred with Petitioner's choice "because he could then focus on one organ system and not 17 organ systems which were rather difficult for him [Petitioner] to assimilate." If Petitioner were unable to secure a PGY-

    2 position in neurology, Ognibene agreed that Petitioner would be permitted to stay for another year in internal medicine, although there was no expectation by Ognibene that Petitioner could complete the internal medicine residency. Petitioner, in effect, was promised a safety net in the event he did not secure a neurology position, but he was not "offered" a position for the subsequent year in internal medicine which he could have immediately accepted or declined.

    
    

23. Petitioner's statement on the September 29 application that he currently had privileges at Ellis Hospital was also artfully inaccurate. Petitioner possessed no documentary evidence confirming any grant of privileges from the hospital to himself at the time he completed the application. Instead, if his testimony is credited, he relied upon the representation of a clerical worker at the hospital made to him in the course of a telephone conversation which he instigated wherein he was allegedly told that "all approvals had been received and he was ready to begin." This recital by Petitioner of a statement made to him on the telephone by an individual known only as "Nancy" is not corroborated by other direct evidence and is further complicated by Petitioner's almost hypertonic demeanor and behavior while testifying; consequently, Petitioner's testimony on this point is not credited.

    
    

24. Although his application was pending, privileges are granted only when a staff vacancy ocurrs and employment begins. Petitioner knew at the time that he stated he had privileges at Ellis Hospital that a neurology position on the staff was not yet available and added the words "I have not begun to work there yet." As stated by Petitioner at the final hearing, he would have better served his own interest by not representing that he possessed privileges since the

    purpose of disclosure of such information is to enable the Board of Medicine to review an applicant's performance. Petitioner's action in stating that he possessed privileges at Ellis Hospital constituted misrepresentation by him, notwithstanding the addition by him on the application of the words "I have not begun to work there yet".

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

26. Petitioner bears the burden of demonstrating his fitness to practice medicine. Fla. DOT v.J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA, 1981).

    
    

27. Subsection 458.331(1)(gg), Florida Statutes, states that Respondent may impose disciplinary action for the concealment or misrepresentation of a material fact "at any time during any phase of a licensing or disciplinary process or procedure."

    
    

28. Subsection 458.331(2), Florida Statutes, in pertinent part, reads as follows:

    
    

    When the board finds any person guilty of any of the grounds set forth in subsection (1), including conduct that would constitute a substantial violation of subsection (1) which occurred prior to licensure, it may enter an order imposing one or more of the following penalties:

    1. Refusal to certify, or certification

       with restrictions, to the department an application for licensure, certification or registration.

       
       

29. To determine whether Petitioner's mispresentations were material, consideration should be given to the function of the Board of Medicine and its review of applications for licensure. The purpose of information provided in submitted applications is to provide the Board with a starting point for its ultimate determination of an applicant's fitness to practice.

    
    

30. Petitioner's misrepresentation that he left an internal medicine residency to pursue neurology in spite of an offer to continue in internal medicine was a material misrepresentation which would, absent investigation, have led the Board to a conclusion that Petitioner had not experienced any difficulties with that subject matter area. A conclusion which, in view of Dr. Ognibene's deposition testimony concerning Petitioner's organizational skills, is erroneous.

    
    

31. Likewise, Petitioner's written assertion that he possessed staff privileges when in reality he was not yet a staff member can only viewed as misleading since, as even admitted by Petitioner, the purpose of that inquiry on the application is to permit the Board of Medicine to review an applicant's performance and ability to practice. Petitioner's false representation of staff privileges constitutes a material misrepresentation.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying Petitioner's application, absent the legal determination of the Board of Medicine to permit the conditioned admission of Petitioner to the practice of medicine in the State of Florida.

DONE AND ENTERED this 6th day of December, 1994, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 6th day of December, 1994.

APPENDIX

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's Proposed Findings.

1. Adopted.

2. Adopted as to first sentence, remainder rejected as redundant.

3.-12. Adopted.

13.-35. Rejected, subordinate to HO findings. Respondent's Proposed Findings.

1.-10. Adopted, but not verbatim and frankly in much more condensed form than that proposed by Respondent's counsel.

COPIES FURNISHED:

Wilson Jerry Foster Attorney at Law

227 E. Virginia St. Tallahassee, FL 32301

Gregory A. Chaires Assistant Attorney General Department of Legal Affairs PL-01, The Capitol

Tallahassee, Florida 32399-1050

Harold D. Lewis General Counsel

Agency for Health Care Administration The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

Dr. Marm Harris Executive Director Board of Medicine

Agency for Health Care Administration The Northwood Centre

1940 N. Monroe St.

Tallahassee, Florida 32399-0750

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: 94-005015

Orders for Case No: 94-005015