STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANAND LATTANAND, )

)

Petitioner, )

)

vs. ) CASE NO. 94-5828F

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

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on April 19, 1995, in Tampa, Florida. The Hearing Officer conducted the proceeding by videoconference.

APPEARANCES

For Petitioner: Veronica E. Donnelly, Esquire

J. B. Donnelly, Esquire GREENE, DONNELLY, SCHERMER,

TIPTON & MOSELEY

100 North Tampa Street, Suite 2825 Tampa, Florida 33602

For Respondent: Steve Rothenburg, Esquire

Senior Attorney, Medical Section Agency for Health Care Administration 9325 Bay Plaza Boulevard, Number 210

Tampa, Florida 33619 STATEMENT OF THE ISSUE

The issue is whether the Petitioner should be awarded attorney's fees under Section 57.111, Florida Statutes.

PRELIMINARY STATEMENT

Following entry of a Final Order in DOAH Case No. 93-6252 (AHCA Case No.

93-8352) the Petitioner filed a Petition for Costs and Attorney's Fees pursuant to the Florida Equal Access to Justice Act, alleging that the actions of the Respondent were substantially unjustified.

The Petitioner requested an evidentiary hearing. At the hearing, the Petitioner presented the testimony of one witness and had one exhibit admitted into evidence. By agreement of the parties, the Petitioner also presented the

deposition testimony of one witness. Joint exhibits numbered 1-5 were admitted. The prehearing stipulation of the parties was admitted as a Hearing Officer's exhibit.

A transcript of the hearing was filed. Both parties filed proposed final orders. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Final Order.

FINDINGS OF FACT

1. On or about May 6, 1993, the Department of Professional Regulation, Board of Medicine (predecessor agency to the Agency for Health Care Administration, Board of Medicine) received a complaint from patient A. L. alleging that the Petitioner had attempted inappropriate sexual contact with the patient during an examination.

   
   

2. The complaint was assigned to a DPR investigator who notified the Petitioner that the complaint had been received.

   
   

3. The DPR investigator interviewed the patient, obtained the patient's medical records from the Petitioner, and obtained a letter apparently written on the day of the incident from the patient confirming the nature of the complaint. The investigator also obtained information regarding the Petitioner's licensure and confirmation from the patient that he would appear to testify at a hearing if an Administrative Complaint was filed.

   
   

4. During the interview and by letter, the patient alleged that during the dermatological examination, the Petitioner had asked the patient if he was single and did he "play" with himself. The patient further alleged that the Petitioner requested that the patient masturbate while the Petitioner watched.

   
   

5. The DPR investigator compiled a report including the complete investigative file, relevant discovery, the agency's recommendation and memoranda, and the proposed administrative complaint. The report also advised that, allegedly according to agency legal counsel, other administrative complaints were pending against the Petitioner.

   
   

6. The report was forwarded to the members of the Probable Cause Panel (PCP) prior to their meeting on September 14, 1993. The PCP received and reviewed the materials.

   
   

7. Present at the September 14 meeting were panel members Edward A. Dauer, M.D., Robert Katims, M.D., and Maribel C. Diblan. Also present were legal counsel and administrative personnel.

   
   

8. Upon review of the materials, the PCP unanimously determined that probable cause existed for the filing of the Administrative Complaint.

   
   

9. Probable cause was found that the Petitioner violated Section 458.331(1)(j) and (x), Florida Statutes.

   
   

10. On September 17, 1993, the agency filed the Administrative Complaint, AHCA Case No. 93-8352, subsequently DOAH Case No. 93-6252.

    
    

11. On April 19, 1994, the case was heard in formal hearing before William

    F. Quattlebaum, Hearing Officer, Division of Administrative Hearings.

12. A Recommended Order was issued, finding that the testimony of the patient lacked credibility and recommending that the Administrative Complaint be dismissed.

    
    

13. On August 15, 1994, the agency issued a Final Order adopting the recommended order issued by the hearing officer and dismissing the Administrative Complaint.

    
    

14. The Petitioner asserts that the agency investigation was flawed because no dermatological expert was sought to review the case. There is no credible evidence that an expert is required to review allegations of sexual misconduct such as those charged in the administrative complaint filed against Dr. Lattanand.

    
    

15. The Petitioner further asserts that alleged inconsistencies in addresses provided by the patient to various entities warranted further review by the agency and apparently suggest a lack of credibility on the complainant's part. Review of the alleged address inconsistencies indicates only that the complainant maintained more than one address. The implication related to credibility is not supported by evidence.

    
    

    Based on the prehearing stipulation of the parties, the following Findings of Fact are made:

    
    

16. The Petitioner qualifies as a small business party as defined by section 57.111, Florida Statutes.

    
    

17. The Petitioner is the prevailing party.

    
    

18. The amount of fees claimed by the Petitioner are reasonable.

    
    

19. Special circumstances do not exist which would make an award of costs and fees unjust.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Sections 57.111(4)(b) and 120.57(1), Florida Statutes.

    
    

21. In an action to recover attorney's fees under Florida's Equal Access to Justice Act, a prevailing small business party is entitled to fees "unless the actions of the agency were substantially justified." Section 57.111(4)(a), Florida Statutes. "Substantially justified" means that the agency's actions "had a reasonable basis in law and fact at the time it was initiated by the state agency." Section 57.111(3)(e), Florida Statutes.

    
    

22. In this case, the agency had received and reviewed a complaint of sexual misconduct against the Petitioner. The evidence fails to establish that the agency investigation and review were insufficient or flawed. Based on the information provided by the complainant, the agency had a reasonable basis in law and fact at the time the Administrative Complaint was filed.

FINAL ORDER

Based on the foregoing, it is hereby ORDERED that

The Petitioner's Amended Petitioner for Costs and Attorney's Fees Pursuant to the Florida Equal Access to Justice Act is DISMISSED.

DONE and ORDERED this 13th day of June, 1995, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

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 13th day of June, 1995.

APPENDIX to Case No. 94-5828F

The following constitute rulings on proposed findings of facts submitted by the parties.

Petitioner

The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Final Order except as follows:

1. Rejected, argumentative.

2. Rejected, not supported by the greater weight of credible and persuasive evidence. No evidence that an medical expert is required to medical records when allegation of sexual misconduct is made.

3. Rejected, irrelevant. No evidence that the patient was "trying to hide his whereabouts or traveling patterns." Further, the alleged "inconsistencies" in addresses provided by patient are not material. There is no evidence that any investigator was unable to contact the patient, if such contact were desired.

6-7. Rejected, immaterial.

8. Rejected, not supported by the greater weight of credible and persuasive evidence. No evidence that dermatologist is required to medical records when allegation of sexual misconduct against another dermatologist is made.

11. Rejected, not supported by the greater weight of credible and persuasive evidence. The lack of expert dermatological review is immaterial and does not suggest any absence of substantial justification for presentation of the complaint to the PCP or the filing of the Administrative Complaint.

12-14. Rejected, not supported by the greater weight of credible and persuasive evidence.

Respondent

The Respondent's proposed findings of fact are accepted as modified and incorporated in the Final Order except as follows:

8-10. Rejected, subordinate.

COPIES FURNISHED:

Veronica E. Donnelly, Esquire

J. B. Donnelly, Esquire

GREENE, DONNELLY, SCHERMER, TIPTON & MOSELEY

100 North Tampa Street, Suite 2825 Tampa, Florida 33602

Steve Rothenburg, Esquire

Senior Attorney, Medical Section Agency for Health Care Administration 9325 Bay Plaza Boulevard #210

Tampa, Florida 33619

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.

Docket for Case No: 94-005828F

Orders for Case No: 94-005828F