STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-5903

) DOUGLAS R. SHANKLIN, M.D., )

)

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 January 10, 1995, in Gainesville, Florida.

APPEARANCES

For Petitioner: Steven Rothenburg, Senior Attorney

Agency for Health Care Administration 9125 Bay Plaza Boulevard, Suite 210

Tampa, Florida 33619

For Respondent: Larry G. Turner, Esquire

Post Office Box 508 Gainesville, Florida 32602

STATEMENT OF THE ISSUES

The issue to be resolved in this proceeding concerns whether disciplinary action should be imposed against the licensure of Douglas R. Shanklin, M.D., the Respondent, for allegedly falsely testifying that he had not been issued a "Letter of Guidance", in violation of Section 458.331(1)(k), Florida Statutes.

PRELIMINARY STATEMENT

This cause arose upon the filing of an Administrative Complaint against the Respondent on February 15, 1994 by the above-named agency. The complaint charged that the Respondent is guilty of making deceptive, untrue, or fraudulent representations in or related to the practice of medicine by falsely testifying that he had not been issued a Letter of Guidance, during the course of expert medical testimony he provided in a medical, malpractice proceeding. The Respondent timely requested a formal hearing to contest that Administrative Complaint and the subject proceeding ensued.

The cause was assigned to the undersigned Hearing Officer and, in due course, on January 10, 1995, a formal hearing was conducted. The Petitioner offered three (3) exhibits at hearing, all of which were admitted into evidence. The Petitioner presented the testimony of Joseph Callahan, the Medical Quality

Assurance Investigator for the agency. The Respondent offered three (3) exhibits, all of which were admitted into evidence and the Respondent testified on his own behalf.

Upon conclusion of the proceeding, the parties elected to obtain a transcript thereof and to avail themselves of the opportunity to submit proposed findings of fact and conclusions of law. Those proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders were timely submitted and have been considered in the rendition of this Recommended Order.

The proposed findings of fact are considered again and specifically ruled upon in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. At all times material hereto, the Respondent was a physician licensed in the State of Florida. He holds license number ME0009372. The Petitioner is an agency of the State of Florida charged with regulating the licensure status and related practice standards of physicians in Florida, including making investigations and bringing Administrative Complaints against those physicians, in their licensure status, believed to be departing from those practice standards.

   
   

2. On January 8, 1993, the Respondent testified as a defense witness, by deposition, in a medical malpractice case. The case style was Faircloth v. Coastal Empire Pathology Services, P.C., et al. The trial occurred in Savannah, Georgia.

   
   

3. During his deposition, the Respondent was asked three times, by opposing counsel, if he had ever been issued a Letter of Guidance by any state licensing agency. The Respondent stated three times that, indeed, he had not.

   
   

4. In fact, on May 15, 1984, a Probable Cause Panel of the Board of Medical Examiners in Florida considered a complaint against the Respondent. The Probable Cause Panel made a determination that while probable cause existed to believe that the Respondent had violated the provisions of the Medical Practice Act, the complaint should be dismissed with a Letter of Guidance.

   
   

5. The Board stated in its Order that:

   
   

   Probable cause exists to believe that subject has violated the provisions of the Medical Practice Act. In light of the circumstances presented, however, this case should be and the same is hereby dismissed with a letter

   of guidance to subject.

   
   

6. Thereafter, an undated letter was sent to and received by the Respondent. See Petitioner's Exhibit 2 in evidence. The Closing Order was never mailed to, nor received, by the Respondent. The Respondent was unaware of the Closing Order until March of 1993, when the investigation in this case was commenced and at which time he was first supplied a copy of that Closing Order of the Board's Probable Cause Panel.

   
   

7. The Petitioner's Exhibit 2 in evidence, the undated letter, is not entitled or otherwise delineated as a "Letter of Guidance" and at no place in the letter is the word "guide" or "guidance" used. Consequently, at the time the Respondent received the letter, which is Exhibit 2, he did not understand or

   perceive it to be a Letter of Guidance but, rather, understood it to be a letter of closing indicating that he had prevailed in the complaint case.

   
   

8. On January 8, 1993, when the Respondent testified at the deposition referenced above, he did not have in mind, nor did he remember, the undated letter. On January 8, 1993, when he testified at that deposition that he had not been issued the Letter of Guidance, he believed he was answering those questions truthfully. He did not know or understand that he had been issued a Letter of Guidance.

   
   

9. On January 8, 1993, when he testified at the deposition, he did not testify falsely, because he had not been given the Closing Order at the time that the undated letter (Exhibit 2) was received. He thus did not understand that undated letter to be a Letter of Guidance from the then Department of Professional Regulation. He was never served a copy of the actual Closing Order which might have explained the situation to him. Consequently, he had a genuine, good-faith belief that he had not been issued a Letter of Guidance. Because his belief was genuine and he had no specific intent to tell a false story in those particulars, he made no false or fraudulent representation and committed no deception in conjunction with his answers to those questions at his deposition.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. Pursuant to Section 458.331(2), Florida Statutes, the Board of Medicine is entitled to revoke, suspend, or otherwise discipline the license of a physician for the violation of Section 458.331(1)(k), Florida Statutes. That section provides:

    
    

    Making deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employing a trick or scheme in the practice of medicine.

    
    

12. Disciplinary actions are penal in nature. State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973). In a disciplinary proceeding such as this, the Petitioner must prove the alleged violations of Section 458.331(1)(k), Florida Statutes, by clear and convincing evidence. See, Ferris v. Turlington, 510 So.2d 292 (Fla. 1st DCA 1987); Addington v. Texas, 441 U.S. 426 (1979).

    
    

13. The Petitioner charged that the Respondent violated Section 458.331(1)(k), Florida Statutes, by falsely testifying that he had not been issued a Letter of Guidance. The Petitioner has not proven by clear and convincing evidence that that section was violated because it has not been shown that the Respondent actually falsely testified.

    
    

14. Webster's New Universal Unabridged Dictionary, Second Edition, Copyright 1979, Simon and Schuster, defines "false", when used as an adverb, as follows:

    
    

    false, adv. not truly; not honestly; in a false manner.

15. That same dictionary defines "falsely", when used as an adverb, as follow:

    
    

    falsely, adv. 1. in a false manner or a manner contrary to truth and fact; not truly; as, to testify falsely. 2. treacherously; perfidiously.

    
    

16. The District Court of Appeal for the First District considered a similar case in Gentry v. The Department of Professional and Occupational Regulation, State Board of Medical Examiners, 293 So.2d 95 (Fla. 1st DCA 1974), wherein the court considered an allegation that a physician had violated Section 458.0201(1) of the Medical Practice Act, as it was then numbered and delineated, which prohibited:

    
    

    Making misleading, deceptive and untrue representations in the practice of medicine.

    
    

    These are analogous to the charges in the instant case. The court in Gentry concluded:

    
    

    To constitute a violation, we believe the legislature intended that the misleading, deceptive and untrue representations must be made willfully (intentionally). Id. 97

    
    

17. The Petitioner herein has failed to prove, by clear and convincing evidence, that the Respondent willfully and knowingly violated Section 458.331(1)(k), Florida Statutes. The Petitioner has not proven that on January 8, 1993, when the Respondent testified at the deposition, that he had not been issued a Letter of Guidance, that he willfully and intentionally made a deceptive, untrue, or fraudulent representation in that regard. Rather, it was shown by the Respondent that he had a genuine, good-faith belief at that time that he had not been issued a Letter of Guidance due to the fact that the Order with that information had never been served on him. The undated letter he received concerning the dispute, in 1984, with the Medical Board did not indicate, in any fashion, that it was a Letter of Guidance. Consequently, at the time he made his statements in the deposition, the Respondent was not aware of a Letter of Guidance and thus did not intentionally testify to a falsehood.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence or record, the candor and credibility of the witnesses, it is

RECOMMENDED that a Final Order be entered finding the Respondent not guilty of violating Section 458.331(1)(k), Florida Statutes, and that the Complaint be dismissed in its entirely.

DONE AND ENTERED this 3rd day of May, 1995, 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 3rd day of May, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5903

Petitioner's Proposed Findings of Fact 1-3. Accepted.

4-6. Rejected, as not entirely in accord with the greater weight of the evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter.

Respondent's Proposed Findings of Fact 1-11. Accepted.

COPIES FURNISHED:

Steven Rothenburg, Senior Attorney Agency for Health Care Administration 9125 Bay Plaza Boulevard

Suite 210

Tampa, FL 33619

Larry G. Turner, Esquire Post Office Box 508 Gainesville, FL 32602

Dr. Marm Harris Executive Director

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

Tom Wallace, Assistant Director Agency for Health Care Administration The Atrium, Suite 301

325 John Knox Road Tallahassee, FL 32303

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: 94-005903

Orders for Case No: 94-005903