STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 95-0322

)

JOSEPH OVADIA, M. D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case at Miami, Florida, on March 1, 1996, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joseph S. Garwood, Esquire

Agency for Health Care Administration 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: John Sutton, Esquire

Sutton and Montoto

7721 Southwest 62nd Avenue, Suite 101 South Miami, Florida 33143

STATEMENT OF ISSUE

This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations in a Corrected Administrative Complaint to the effect that the Respondent violated Section 458.331(1)(k), Florida Statutes, by making a deceptive, untrue, or fraudulent representation in or related to the practice of medicine.

PRELIMINARY STATEMENT

At the hearing on March 1, 1996, the Petitioner presented the testimony of one witness and offered five exhibits, all of which were received in evidence. Following the conclusion of the Petitioner's case in chief, the Respondent testified on his own behalf and also recalled the Petitioner's witness for additional testimony. The Respondent also offered three exhibits, all of which were received in evidence. At the conclusion of the hearing the parties requested, and were granted, ten days from the filing of the transcript within which to file their proposed recommended orders.

A transcript of the proceedings was filed with the Hearing Officer on March 11, 1996. Thereafter, all parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. The parties' proposals have been carefully considered during the preparation of this Recommended Order. Specific rulings on all findings of fact proposed by the parties are contained in the appendix hereto.

FINDINGS OF FACT

1. The Petitioner agency is the state agency charged with regulating the practice of medicine in the State of Florida.

   
   

2. The Respondent, Joseph Ovadia, M. D., is now, and has been at all relevant times, a physician licensed to practice medicine in the State of Florida. The Respondent holds license number ME 0046214.

   
   

3. On July 9, 1992, the Respondent testified under oath during the course of a deposition which was taken in connection with a civil lawsuit.

   
   

4. During the deposition, in response to a cross examination question about his education, the Respondent volunteered the information that he practiced orthopedic surgery.

   
   

5. The next cross examination question was whether he was licensed to practice in the State of Florida. The Respondent answered, "yes."

   
   

6. During the deposition the last question on redirect examination was, "Are you board certified, doctor?" The Respondent's answer to that question was, "yes." There was no follow up question.

   
   

7. The Respondent has never been board certified by the American Board of Orthopedic Surgeons.

   
   

8. On April 15, 1985, the Board of Medical Examiners of the State of Florida issued a certificate to the Respondent which includes the following language: "This certifies that Joseph Ovadia, M. D., has fulfilled the requirements of Chapter 458, Florida Statutes, governing the practice of medicine and is hereby certified to practice Medicine in the State of Florida.

   
   

9. The Respondent is foreign-born and is a foreign medical graduate, having graduated from the Medical School at McGill University in Canada. Among graduates of Canadian medical schools it is common to refer to the examinations for licensure in the United States, such as those of the National Board of Medical Examiners or the Federation of State Medical Boards, as the "boards." When the Respondent gave the answer described in paragraph 6 of these findings of fact he was thinking in terms of the Canadian jargon, rather than the American jargon. The Respondent did not intend by the answer described in paragraph 6 to imply that he was board certified by the American Board of Orthopedic Surgeons. The Respondent has never intentionally represented to anyone that he was board certified by the American Board of Orthopedic Surgeons.

   
   

   CONCLUSIONS OF LAW

   
   

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

11. In a case of this nature where the Petitioner is not seeking either revocation or suspension of the Respondent's license, the Petitioner "shall have the burden, by the greater weight of the evidence, to establish the existence of grounds for disciplinary action." See Section 458.331(3), Florida Statutes. Stated otherwise, the Petitioner must prove its case by a preponderance of the evidence, but is not required to do so by clear and convincing evidence.

    
    

12. Section 458.331(1), Florida Statutes, authorizes the Board of Medicine to take disciplinary action against a physician upon proof of any of several acts which are itemized in detail in numerous paragraphs of that statutory provision. In this case the Corrected Administrative Complaint charges that the Respondent has violated the provisions of paragraph (k) of Section 458.331(1), Florida Statutes, "and is guilty of 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."

    
    

13. At all times relevant to this proceeding, paragraph (k) of Section 458.331(1), Florida Statutes, described the following conduct for which the Board of Medicine could take disciplinary action:

    
    

    (k) 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.

    
    

14. In Gentry v. Department of Professional and Occupational Regulation, State Board of Medical Examiners, 293 So.2d 95 (1st DCA 1974), the court addressed the meaning of statutory language similar to the language quoted immediately above. In Gentry the court was considering an allegation that a physician had violated Section 458.0201(1) of the Medical Practice Act, which at that time prohibited: "Making misleading, deceptive and untrue representations in the practice of medicine." The facts in that case established that the physician had made a number of erroneous diagnoses of gonorrhea as a result of using a testing procedure that was arguably less than state of the art. The court in Gentry concluded there was no violation because, in the court's words:

    
    

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

    
    

15. More recently, in the case of Agency For Health Care Administration v. Douglas R. Shanklin. M. D., DOAH Case No. 94- 5903 (Recommended Order issued May 3, 1995, Final Order issued June 10, 1995), both the Hearing Officer and the Board of Medicine applied the Gentry rationale to the interpretation of paragraph (k) of Section 458.331(1), Florida Statutes, and concluded that in order to prove a violation of the subject statutory provision it must be shown that the Respondent intentionally testified to a falsehood. There is no such showing in this case. To the contrary, the greater weight of the evidence is to the effect that when the Respondent gave the answer described in paragraph 6 of the findings of fact he believed he was giving an accurate answer.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the Board of Medicine issue a final order in this case dismissing all charges against the Respondent.

DONE AND ENTERED this 10th day of June 1996, at Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH, 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 10th day of June, 1996.

APPENDIX

The following are my specific rulings on all proposed findings of fact submitted by all parties.

Findings submitted by Petitioner:

Paragraphs 1, 2, 3, 4, and 5: Accepted in substance with some additional clarifying details.

Paragraph 6: The first three sentences of this paragraph are accepted in substance with some additional clarifying. details. The last sentence is rejected as irrelevant, because the intent of the questioner was not communicated to the Respondent at the time of the subject deposition.

Paragraph 7: Accepted in substance.

Paragraph 8: Accepted in part and rejected in part. It is accepted that the Respondent subsequently telephoned the lawyer who had taken his deposition to inquire as to the nature of the complaint against the Respondent. The portion of this paragraph describing the Respondent's explanation is rejected as not supported by persuasive competent substantial evidence (at hearing the lawyer was rather vague about the nature of the explanation) and as contrary to the greater weight of the evidence (the Respondent's testimony about the telephone conversation makes it highly unlikely that he said he was board certified in Canada). See Transcript, page 44, line 9: "There's no board certification in Canada."

Paragraphs 9 and 10: It is accepted in substance that the Respondent made the statements attributed to him in these paragraphs, but the implication that they are inconsistent explanations is rejected.

Paragraph 11: First sentence is rejected because it is predicated on the notion that the Respondent has given inconsistent answers and the greater weight of the evidence is otherwise. The second sentence is accepted with some additional clarifying details. The third sentence is rejected as not supported by persuasive competent substantial evidence in the record of this case. The last sentence is rejected as argument about credibility, rather than being a proposed finding of material fact.

Paragraph 12: Rejected as not supported by persuasive competent substantial evidence and as contrary to the greater weight of the evidence. (The Respondent's testimony to the contrary of what is proposed in the subject paragraph has been found to be persuasive.)

Findings submitted by Respondent:

The Respondent submitted seven numbered paragraphs of proposed findings of fact and proposed conclusions of law, but did not clearly separate the two.

Therefore, a number of conclusions of law and legal arguments are interspersed amongst the Respondent's proposed findings of fact. The rejection of those conclusions of law and legal arguments in the paragraphs which follow is a ruling only on whether they should be included in the findings of fact; it is not a ruling on the merits of the legal conclusion or legal argument.

Paragraph 1: Rejected as subordinate and unnecessary procedural details that do not need to be included in the findings of fact.

Paragraph 2: First sentence rejected as subordinate and unnecessary procedural details that do not need to be included in the findings of fact. Second sentence rejected as legal argument about the burden of proof.

Paragraph 3: Rejected as constituting a- statement of the Respondent's position, rather than being proposed findings of fact. By way of clarification, it is noted that the factual implications which underlie the statement of position have been accepted.

Paragraph 4: Rejected as subordinate and unnecessary procedural details that do not need to be included in the findings of fact.

Paragraph 5: Accepted in part and rejected in part. This paragraph contains a number of intertwined factual assertions, procedural details and arguments. The procedural details and arguments are rejected. The basic facts set forth in this paragraph are accepted in substance.

Paragraph 6: Accepted in part and rejected in part. This paragraph contains a number of intertwined factual assertions and arguments. The arguments are rejected. The basic facts set forth in this paragraph are accepted in substance.

Paragraph 7: Rejected as constituting the ultimate legal conclusion, rather than being a proposed finding of fact.

COPIES FURNISHED:

Joseph S. Garwood, Esquire

Agency for Health Care Administration 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

John Sutton, Esquire Sutton and Montoto

7721 Southwest 62nd Avenue, Suite 101 South Miami, Florida 33143

Douglas M. Cook, Director

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Dr. Marm Harris, Executive Director Board of Medicine

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION BOARD OF MEDICINE

AGENCY FOR HEALTH CARE ADMINISTRATION, BOARD OF MEDICINE,

Petitioner,

1. AHCA CASE NO: 93-1425

   DOAH CASE NO: 95-0322

   JOSEPH OVADIA, M.D., LICENSE NO: ME 0046214

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   THIS MATTER was heard by the Board of Medicine (hereinafter Board) pursuant to Section 12O.5(1)(b)10., Florida Statutes, on August 2, 1996, in Orlando, Florida, for consideration of the Hearing Officer's Recommended Order (Attached as App. A) in the case of Agency for Health Care Administration, Board of Medicine v. Joseph Ovadia, M.D. At the hearing before the Board, Petitioner was represented by Larry G. McPherson, Jr., Chief Medical Attorney. Respondent was not present and was not represented by counsel. Upon consideration of the Hearing Officer's Recommended Order after review of the complete record and having been otherwise fully advised in its premises, the Board makes the following findings and conclusions:

   FINDINGS OF FACT

   
   

   1. The Hearing Officer's Recommended Findings o Fact are approved and adopted and are incorporated herein by reference as the Findings of Fact of the Board in this cause.

      
      

   2. There is competent, substantial evidence to support the Board's findings herein.

CONCLUSIONS OF LAW

1. The Board has jurisdiction over the parties and subject matter of this case pursuant to Section 120.S and Chapter 458, Florida Statutes.

   
   

2. The findings of fact set forth above do not establish that Respondent has violated Section 458.331(1)(k), Florida Statutes as charged in the Corrected Administrative Complaint.

   
   

3. The Conclusions of Law of the Recommended Order are approved and adopted and incorporated herein.

DISPOSITION

Based upon the Recommended Findings of Fact and Conclusions of Law of the Hearing Officer, the Board hereby determines that pursuant to Rule 59R-8, Florida Administrative Code, the penalty recommended by the Hearing Officer is appropriate as set forth in the Recommended Order.

WHEREFORE, it is found, ordered and adjudged that the Respondent is not guilty of violating Section 458.331(1)(k), Florida Statutes, and the Corrected Administrative Complaint filed in this matter is hereby DISMISSED.

This Final Order becomes effective upon its filing with the Clerk of the Agency for Health Care Administration.

NOTICE

The parties are hereby notified pursuant to Section 120.59(4), Florida Statutes, that an appeal of this Final Order may be taken pursuant to Section 120.68, Florida Statutes, by filing one copy of a Notice of Appeal with the Clerk of the Agency for Health Care Administration and one copy of a Notice of Appeal with the required filing fee with the district Court of Appeal within thirty (30) days-of the date this Final Order is filed.

DONE and ORDERED this 6th DAY OF September, 1996.

BOARD OF MEDICINE

MARY KATHRYN GARRETT, M.D. CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order and its attachments have been forwarded by US Mail to Joseph Ovadia, M.D., 100 NE 15th Street, Suite 102, Homestead, Florida 33030, John R. Sutton, Esquire, Sutton and Montoto, 21 SW 62nd Avenue, Suite 101, South Miami, Florida 33143, Michael N. Parrish, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550 and by hand delivery to Larry G. McPherson, Jr., Chief Medical Attorney, Agency for Health Care Administration, 2727 Mahan Drive, Building 4, P.O. Box 14229, Tallahassee, Florida 3231 on this 12th day of September, 1996.

Marm Harris, Ed.D. Executive Director

Docket for Case No: 95-000322

Orders for Case No: 95-000322