STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AGENCY FOR HEALTH CARE ADMINISTRATION, )
)
Petitioner, )
)
vs. ) CASE NO. 96-0567
)
NED LAWRENCE MURTHA, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing was held before William A. Buzzett, Hearing Officer with the Division of Administrative Hearings, on May 2, 1996, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Joseph S. Garwood, Esquire
Agency for Health Care Administration 1940 North Monroe Street, Suite 60
Tallahassee, Florida 32399-0792
For Respondent: Sean M. Ellsworth, Esquire
Mark A. Dresnick, Esquire Grand Bay Plaza, Suite 201 2665 South Bayshore Drive Miami, Florida 33133
STATEMENT OF THE ISSUE
The issue to be resolved in this proceeding concerns whether disciplinary action should be taken against the Respondent's medical license based on an alleged violation of section 458.331(1)(s), Florida Statutes, concerning his ability to practice medicine with reasonable skill and safety by reason of illness, substance abuse, or mental or physical condition.
PRELIMINARY STATEMENT
This cause arose on August 17, 1995, when an Administrative Complaint was filed by the Petitioner agency alleging, in a single count, that section 458.331(1)(s), Florida Statutes, had been violated. Specifically, it is alleged that the Respondent, Dr. Murtha, is not able to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition. Dr. Murtha timely availed himself of the right to a formal proceeding pursuant to section 120.57(1), Florida Statutes. His cause was later assigned to the undersigned hearing officer for adjudication.
Prior to the final hearing in this matter, the undersigned hearing officer addressed a series of pending motions. On March 22, 1996, a telephonic conference was held on the Agency's Motion for Change of Venue and Dr. Murtha's Motion for Protective Order. In support for its Motion for Change of Venue, the Agency asserted: (1) that it unwittingly agreed to a Joint Stipulation placing the hearing in Tallahassee, (2) that the majority of its witnesses are located in Tampa, and (3) that all of the incidents alleged in the Administrative Complaint occurred in Tampa, Florida.
In response to the motion, Dr. Murtha asserted: (1) that the Agency had waived any right to contest venue because it had stipulated to Tallahassee as the location of the final hearing, (2) that Tallahassee represented a convenient location to both the Agency and the Division of Administrative Hearings, and (3) that Dr. Murtha would suffer adverse publicity if the final hearing was held in his home town of Tampa. The Motion for Change of Venue was denied. The undersigned hearing officer concluded that the parties had initially agreed to Tallahassee as the location for the hearing and that any inconvenience to the Agency's witnesses residing in Tampa could be remedied by use of closed circuit television for use during the final hearing.
With regard to the Motion for Protective Order, Dr. Murtha filed formal objections to the Agency's First Set of Requests for Admissions, asserting that his Fifth Amendment right to remain silent protected him from responding to the Request for Admissions. As support for his position, Dr. Murtha relied on Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973) and its progeny. The Agency filed no response to the motion and, subsequently at the hearing, withdrew any objection to the motion.
On April 24, 1996, Dr. Murtha filed a Motion to Strike the Agency's Previously Undisclosed Witnesses asserting that the witnesses should have been disclosed in the Agency's Answers to Interrogatories. The Motion was denied. The undersigned hearing officer concluded that ample time existed for the parties to perform the necessary discovery of all newly disclosed witnesses.
On May 2, 1996, immediately preceding the Final Hearing, two additional motions were offered. The first motion was the Agency's Motion for Official Recognition of Dr. Murtha's judgment of conviction of driving while intoxicated. Pursuant to section 90.202(6), Florida Statutes, the motion was granted subject to section 90.803(22)(a), Florida Statutes. 1/
The second motion for consideration was the Agency's Motion for Exemption of Expert Witness from the Rule of Sequestration. Specifically, the Agency asserted that its expert witness, Daniel J. Sprehe, M.D., is immune from the rule of sequestration based on exemptions contained in section 90.612(2)(b) and (c), Florida Statutes. Section 90.612(2)(b) provides that in a civil case 2/ a party's attorney may designate an officer or employee of the party as its representative and that such representative is exempt from the rule of sequestration. (emphasis provided). The Agency asserted that Dr. Sprehe had been designated as its representative. After a brief hearing, however, it was concluded that Dr. Sprehe was neither an officer nor an employee of the Agency. In Black v. Sears, Roebuck & Co., 621 So.2d 712 (Fla. 1993), the court held that it was improper to permit an expert witness to sit at counsel table throughout the trial, even though the witness had been designated as a corporate representative, where the witness was neither an officer nor an employee of the moving party. Based on the evidentiary hearing and Black, the portion of the Agency's motion based on section 90.612(2)(b) was denied.
As referenced earlier, the Agency also relied on section 90.616(2)(c) as authority to exempt Dr. Sprehe from the rule of sequestration. Section 90.616(2)(c) provides that any person whose presence is shown by the party to be essential to the presentation of the cause is exempt from the rule.
The burden to demonstrate why the presence of the witness is essential is on the party requesting that the witness be permitted to remain in the hearing. See Randolph v. State, 463 So.2d 186, 191-92 (Fla. 1984). After a brief evidentiary hearing, the undersigned hearing officer concluded that the Agency failed to meet its burden and the motion was denied. Specifically, the Agency failed to offer any evidence that demonstrated that Dr. Sprehe was necessary for the presentation of the Agency's case.
After the motion hearing, this cause came for hearing as noticed. The Agency presented live testimony of five witnesses 3/ by way of closed circuit television 4/ : Georgia Jacinta Gail Paille, R.N.; Margie Butler, R.N.; Dr.
Gilbert J. Pitisci, Vice President, Medical Affairs, St. Joseph's Hospital; Donna G. Murtha, the Respondent's ex-wife; and Richard Hess, an agency investigator. The Petitioner also presented the live testimony of Daniel J. Sprehe, M.D. Dr. Sprehe was accepted as an expert witness in the field of psychiatry. The Agency offered two exhibits at the hearing, both of which were admitted into evidence. 5/ As discussed earlier, at the Agency's request, official recognition was taken of Dr. Murtha's Conviction of driving under the influence.
Dr. Murtha presented the live testimony of Mark Stuart Goldman, Ph.D. Dr. Goldman was accepted as an expert in the field of alcohol and substance abuse. Dr. Murtha offered four exhibits into evidence, each of which was accepted into evidence 6/ .
The parties elected to transcribe the proceedings and requested the right to file proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders. A transcript of the proceeding was filed on May 15, 1996.
At the request of the parties, the time for filing Proposed Recommended Orders was set at 15 days after the filing of the transcript. Likewise, the hearing officer agreed to render a Recommended Order 15 days after receipt of the Proposed Recommended Orders. The Proposed Recommended Orders were timely filed. The rulings on each of the proposed findings of fact are addressed in the appendix to this Recommended Order.
FINDINGS OF FACT
The Petitioner is an agency of the State of Florida charged with regulating the practice of medicine as delineated in Chapter 458, Florida Statutes. The Board of Medicine is organized within the Agency and charged with determining and issuing final orders in disciplinary cases involving physicians within its jurisdiction.
At all times pertinent to this proceeding, Dr. Murtha has been licensed to practice medicine in the State of Florida, holding license no. 0037467. As a licensed physician in the State of Florida, Dr. Murtha is subject to the licensure and medical practice regulatory jurisdiction of the Board of Medicine of the Agency of Health Care Administration.
Dr. Murtha, at the time of the Agency's investigation, was approximately 42 years of age. He received his medical degree in 1978 from the University of Florida and completed his residency at the University of
Tennessee. In 1981, he became board certified in internal medicine. He has been on the staff of St. Joseph's Hospital in Tampa, Florida for the ten years prior to the initiation of this action.
In August 1995, the Agency filed a complaint against Dr. Murtha alleging that two episodes affected Dr. Murtha's ability to practice medicine with reasonable skill and safety to patients by reason of use of alcohol.
The first episode related to a charge of driving under the influence. On May 2, 1994, Dr. Murtha was involved in a minor traffic accident and charged with driving under the influence (DUI). On August 24, 1994, Dr. Murtha pled no contest to the charge, and he received 12 months probation, six months revocation of his driver's license, a $250.00 fine, required attendance of DUI school, and court costs. 7/ The officer who investigated the May 2, 1994 accident and who also charged Dr. Murtha was not available for the hearing and did not testify.
The second episode alleged by the Agency relates to the allegation that Dr. Murtha practiced medicine while intoxicated. Specifically, the Agency alleged that Dr. Murtha saw patients while intoxicated.
Relating to the second factual allegation, Nurse Georgia Jacinta Paille testified that on January 30, 1995, she encountered Dr. Murtha visiting a patient at St. Joseph's Hospital. Ms. Paille is the day charge nurse at St. Joseph's Hospital in Tampa, and she appeared as the first witness for the Agency.
Nurse Paille testified that on January 30, 1995, she encountered Dr. Murtha and that he had a strong odor of alcohol on his breath. She further testified that Dr. Murtha was acting angry and inappropriate and that he raised repetitive questions relating to care given to one of his patients. While Nurse Paille noticed the odor of alcohol, she did not notice if Dr. Murtha's speech or gait was affected by the alcohol. Furthermore, Nurse Paille could not testify that Dr. Murtha acted like someone who had been drinking.
Nurse Paille reported her observations of Dr. Murtha to her manager, Margie Butler, who in turn made a report to Dr. Gilbert J. Pitisci, the Hospital Administrator.
Gilbert J. Pitisci is a medical physician and the Senior Vice President for Medical Affairs at St. Joseph's Hospital in Tampa, Florida. In addition to various administrative duties, Dr. Pitisci is authorized to summarily suspend a physician's privileges at a hospital.
On January 30, 1995, the same day that Nurse Paille observed Dr. Murtha, Dr. Pitisci encountered Dr. Murtha. Dr. Pitisci also noticed the odor of alcohol on Dr. Murtha's breath, and he noticed that Dr. Murtha had a slight slurring of his speech and that there was a slight tremor in his hands.
Dr. Murtha declined Dr. Pitisci's invitation to discuss his condition in private. Rather, Dr. Murtha insisted that the discussion be held publicly at the nurses' station. Based on Dr. Murtha's physical appearance and based on the odor of alcohol on his breath, Dr. Pitisci summarily suspended Dr. Murtha as a potentially impaired physician and directed him to leave the hospital. Subsequently, Dr. Pitisci notified the state that it had a physician with a potential impairment with alcohol abuse.
Other than detecting the odor of alcohol on Dr. Murtha's breath, Dr. Pitisci had no information as to the amount of alcohol consumed by Dr. Murtha.
On or about March 24, 1995, the Agency received notification of Dr. Murtha's suspension from St. Joseph's Hospital. In response, the Agency opened an investigation that led to the filing of an order compelling physical and mental examination.
Subsequently, Dr. Murtha received an order from the Agency compelling him to submit to both a physical and mental examination. The Agency chose the physician and directed Dr. Murtha when to appear for his appointment.
On June 6, 1995, Dr. Murtha complied with the Agency order compelling his mental examination, and he was evaluated by Daniel J. Sprehe, M.D.
Daniel J. Sprehe, M.D. is a psychiatrist licensed in the State of Florida. He has been qualified by various Florida courts as an expert in clinical and forensic psychiatry and was accepted as an expert in the area of psychiatry on behalf of the Agency.
Dr. Sprehe's examination and testing of Dr. Murtha lasted approximately three hours. Dr. Sprehe obtained and prepared a detailed social and medical history of Dr. Murtha, administrated the Minnesota Multiphasic Personality Inventory Psychological Test (MMPI) and MMPI II, administered the Michigan Alcoholism Screening Test (MAST), and administered a Beck Depression Inventory. He also questioned Dr. Murtha and performed a mental status examination. The purpose of the evaluation was to determine Dr. Murtha's medical condition and to make any recommendations for treatment concerning his fitness to practice medicine. Dr. Sprehe completed a written evaluation, including a written opinion based on the evaluation. In addition to the aforementioned tests, Dr. Murtha was given a blood test that revealed no alcohol or drugs in his system.
Dr. Sprehe's report indicated that Dr. Murtha scored rather low, a score of 7 (out of a possible 30), on the MAST test. He stated that the MAST is a self-reporting test and that a score of five or more places the subject in the range to be considered an alcoholic. Later, Dr. Sprehe indicated that based on the facts presented in other reports relating to Dr. Murtha, he would have modified Dr. Murtha's score to 9. Still later at the hearing, Dr. Sprehe again revised his scoring of Dr. Murtha's MAST test and concluded that he scored a 20. Dr. Sprehe surmised that Dr. Murtha did not answer the test questions candidly and that his score should have been higher. Dr. Sprehe also found that Dr. Murtha minimalized his abuse of alcohol. Based on the MAST test, Dr. Sprehe found that Dr. Murtha fell into the alcoholic range. For reasons fully stated in paragraphs 26, 27, and 41, the undersigned declines to adopt, as a finding of fact, any diagnosis of Dr. Murtha based on the MAST test.
Dr. Sprehe explained the differences between the definitions of abuse and dependence. Subsequently, Dr. Sprehe opined, within a reasonable degree of medical certainty, that the Respondent was an alcohol abuser. Based on his opinion, Dr. Sprehe recommended that Dr. Murtha consider a diversionary program such as the Physicians Recovery Network.
Dr. Sprehe also opined that Dr. Murtha suffered from narcissistic personality disorder, which can complicate the diagnosis of alcoholism. A person with narcissistic personality disorder tends to deny defects in
themselves. Dr. Sprehe's diagnosis of narcissistic personality disorder was made after a one-hour examination of Dr. Murtha.
Dr. Sprehe could not state with certainty that Dr. Murtha could not practice with reasonable skill and safety. Dr. Sprehe did opine, however, that "there is at least a question in my mind as to [Dr. Murtha's] ability to practice medicine with reasonable skill and safety." Dr. Sprehe opined that the results of the MAST test and the mental examination, coupled with Dr. Murtha's history, placed Dr. Murtha in the high risk category. No where in the written report to the Agency did Dr. Sprehe advise the Agency that Dr. Murtha was not able to practice medicine with skill and safety.
Dr. Sprehe also opined, based on a hypothetical question, that Dr. Murtha "is not in a position to practice medicine safely to patients." The hypothetical question, however, was based on the testimony of Dr. Murtha's ex- wife which has been found to lack consistency. (See paragraphs 28-30). Therefore, for the reasons stated in paragraphs 28-30, the undersigned declines to adopt, as a finding of fact, Dr. Sprehe's opinion which was based on a factually deficient hypothetical question.
On August 9, 1995, sixty-five days after Dr. Sprehe's examination and report, the Agency issued an Emergency Suspension Order against Dr. Murtha's license to practice medicine.
Dr. Murtha called Mark Stuart Goldman, Ph.D. as his sole witness. Dr. Goldman is a clinical psychologist and distinguished Professor of Psychology at the University of South Florida. Dr. Goldman specializes in the area alcohol research and is currently the director of the Alcohol and Substance Abuse Institute at the University of South Florida. Dr. Goldman was accepted as an expert witness in the field of alcohol and alcoholism, and he testified on behalf of Dr. Murtha.
Dr. Goldman testified to the issue of alcoholism and discussed in detail the Michigan Alcoholism Screening Test (MAST). As discussed earlier, Dr. Sprehe relied on the MAST to help make his diagnosis that Dr. Murtha is dependent on alcohol. Dr. Goldman testified that the MAST can be skewed and that the very accusation of alcohol abuse can result in the subject having points scored against him. Dr. Goldman stated that tests such as MAST are crude devices used for screening alcohol problems but are not designed for the purpose of making diagnosis. To make this point, Dr. Goldman cited the Handbook of Alcoholism Treatment Approaches, by Hester and Miller, for the purpose that screening tests such as MAST should not be used for the purpose of making a diagnosis and that to do so represents a violation of professional and ethical standards. The undersigned is persuaded by Dr. Goldman's position that tests such as MAST should be used as screening not diagnostic tools. As such, any opinions based on results from the MAST test are rejected as not supported by credible evidence.
Dr. Goldman examined Dr. Murtha on two separate occasions. Dr. Goldman obtained and reviewed Dr. Sprehe's report, and he reviewed the results of the MMPI and the MAST. Based on his review of the materials generated by Dr. Sprehe and on his own examination of Dr. Murtha, Dr. Goldman could not offer an opinion as to whether Dr. Murtha is safe to practice medicine. In addition, Dr. Goldman felt the record was incomplete to offer an opinion as to whether the Respondent was dependent on alcohol. In summary, Dr. Goldman found that a conclusive diagnosis would take considerably more time and would involve additional examination techniques. The undersigned adopts Dr. Goldman's
position that inadequate information was available to render an opinion regarding Dr. Murtha's ability to safely practice medicine.
In addition to the expert testimony received at the hearing, the Agency also offered the testimony of Dr. Murtha's ex-wife, Donna Gail Murtha. Mrs. Murtha is a registered nurse employed at James A. Haley Veterans Administration Hospital, and she was married to Dr. Murtha for 23 years until their divorce in December of 1994. Mrs. Murtha was offered for the purpose of establishing that Dr. Murtha was an abuser of alcohol and that he regularly consumed alcohol while engaging in the practice of medicine.
Mrs. Murtha offered conflicting testimony relating to the quantity of alcohol Dr. Murtha consumed during their marriage. At the hearing she stated that he consumed "at least a pint [of liquor] a day. During the discovery deposition, however, she stated that "she couldn't state an amount [of alcohol consumed]." She also denied ever stating that he [Dr. Murtha] drank a fifth a day.
Mrs. Murtha offered additional conflicting testimony as it related to Dr. Murtha's use of alcohol while on call at the hospital. At the hearing she testified that Dr. Murtha consumed alcohol while on call. During the discovery deposition, however, she testified that she knew of no specific incident when Dr. Murtha used alcohol on call. She also stated that she could not recall any instance when Dr. Murtha went to the office after having consumed alcohol. Mrs. Murtha's testimony is rejected because it is inconsistent and it lacks reliability 8/
At no time during or prior to the Agency's investigation had any complaints been received against Dr. Murtha.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.
The Administrative Complaint filed in DOAH Case No. 96-0567 alleges that Dr. Murtha violated section 458.331(1)(s), Florida Statutes. Section 458.331(1)(s) provides as grounds for discipline:
[b]eing unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition. In enforcing this para- graph, the department shall, upon a finding of the secretary or his designee that prob- able cause exists to believe that the licen- see is unable to practice medicine because of the reasons stated in this paragraph, the
authority to issue an order to compel a licen- see to submit to a mental or physical exami- nation by physicians designated by the department.
The Board of Medicine has the authority to take disciplinary action against a physician based on the grounds stated in section 458.331(1), Florida Statutes. Permissible penalties for the violations identified in section 458.331(1) include suspension or revocation of the license to practice medicine, imposition of an administrative fine not to exceed $5000 for each violation, and placement of the physician on probation for a specified period or time and subject to conditions set by the Board. Section 458.331(2), Florida Statutes. The Agency seeks to suspend Dr. Murtha's license and to impose a fine of $5000.
The Petitioner has the burden of proving by clear and convincing evidence the allegations against the Respondent. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Nair v. Department of Business & Professional Regulation, 654 So.2d 205 (Fla. 1st DCA 1995); Evans Packing Co. v. Department of Agriculture & Consumer Services, 550 So.2d 112 (Fla. 1st DCA 1989).
The standard of "clear and convincing evidence" requires that: the evidence must be found to be credible;
the facts to which the witnesses testify must
be distinctly remembered, the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produced in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).
Based on Ferris and Slomowitz, the Agency has not proven by clear and convincing evidence that Dr. Murtha is unable to practice medicine with reasonable safety to his patients due to use of alcohol. First, the only testimony questioning Dr. Murtha's ability to safely practice medicine is that of Dr. Sprehe. Even though Dr. Sprehe is the Agency's expert witness, he failed to opine, with any certainty, that Dr. Murtha was unable to practice medicine with reasonable safety to his patients. At best, Dr. Sprehe suggested that a "question" existed as to Dr. Murtha's ability to safely practice medicine. Certainly, a "question" does not rise to the level of "clear and convincing." Furthermore, Dr. Sprehe's response to a hypothetical that Dr. Murtha is not in a position to practice medicine was based, in part, on the testimony of Mrs. Murtha. Such testimony has been found to be inconsistent and therefore taints Dr. Sprehe's opinion.
Second, Dr. Murtha's prior conviction of DUI, while demonstrating extreme poor judgment on his part, is not sufficient to establish that he is not fit to practice medicine.
Third, the January, 1995 incident at St. Joseph's Hospital does not rise to the level of establishing, by clear and convincing evidence, Dr. Murtha's inability to practice medicine with reasonable skill and safety. At most, the incident demonstrates poor judgment on the part of Dr. Murtha to consume any alcohol before seeing a patient. The evidence, however, does not indicate that Dr. Murtha was impaired in any way. Furthermore, no patient complained about the care rendered 9/ and only Dr. Pitisci can testify that Dr. Murtha had a slight slur in his speech and that his hand trembled. While
such observations might be helpful to supplement the charges against Dr. Murtha, they alone do not establish grounds for discipline.
Furthermore, much of the other testimony received from Dr. Murtha's professional colleagues was not directed to his ability to reasonably practice medicine. Other than establishing the fact that Dr. Murtha appeared at St. Joseph's Hospital with the odor of alcohol on his breath, no significant evidence was offered relating to his abilities. Specifically, testimony that Dr. Murtha's hand trembled or that he spent inordinate time with one patient does not indicate impairment. While it is important not to condone the use of alcohol in the setting of the practice of medicine, such use by itself does not establish the requirements of section 458.331(1)(s), Florida Statutes.
The majority of the testimony received related to categorizing Dr. Murtha as an alcoholic. The accusation that Dr. Murtha suffers from the disease of alcoholism, while probative of the pending charges, is not dispositive. Even if the allegation of alcoholism was dispositive of the pending charges, it was not proven by clear and convincing evidence. First, much of the evidence presented showed the divergent viewpoints within the medical community relating to the importance of the various tests administered to Dr. Murtha. Second, while the evidence indicates that the MAST test may be a useful device to screen for alcohol abuse or dependency, it is also clear that such tests are subject to wide and varied interpretation. Specifically, it is very troublesome that the scores given by Dr. Sprehe varied by three fold from his initial scoring to his final scoring at the final hearing. Such deviations demonstrate that the MAST test is far from precise and that it alone does not rise to the level of clear and convincing evidence. Third, the testimony of Mrs. Murtha is of no relevance regarding the charges pending in this action. Specifically, the fact that Dr. Murtha may have abused alcohol during his marriage does not mean that he abused it afterwards. More to the point, Mrs. Murtha's testimony was inconsistent as it related to her husband's use of alcohol while attending to patients or the amount used. Mrs. Murtha's testimony was neither "precise" nor "lacking confusion" and based on Slomowitz, it does not constitute clear and convincing evidence.
In summary, the burden rests with the Agency to prove, by clear and convincing evidence, that Dr. Murtha is unable to practice medicine with reasonable skill and safety to patients by reason of use of alcohol. The Agency has failed to meet that burden.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED:
That a final ordered be entered dismissing with prejudice the complaint filed against the Respondent in DOAH Case No. 96-0567.
DONE and ENTERED this 20th day of June, 1996, in Tallahassee, Florida.
WILLIAM A. BUZZETT, 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 20th day of June, 1996.
ENDNOTES
1/ The evidence code does not contain an exception to the hearsay rule for judgments of previous convictions. Specifically, section 90.803(22)(a), Florida Statutes, provides that a conviction is not admissible in subsequent litigation to prove the truth of some essential element of the conviction. The absence of an exception to the hearsay rule, however, does not affect the admissibility of a conviction when offered for some other admissible purpose.
Ehrhardt, Florida Evidence section 803.22a (1995 Edition). In this case, the conviction is offered as an isolated event that might be considered in addition to other events to establish a pattern of alcohol abuse.
2/ While not raised in these proceedings, it is interesting to note that section 90.616(2)(b), Florida Statutes, has been interpreted to apply only in civil matters. Because disciplinary matters have been characterized as penal in nature and equated to a criminal matter, Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973), the exclusion for agents and employees of a party may not be available in professional disciplinary matters.
3/ Irene Robinson, R.N. was subpoenaed and failed to appear for this hearing. 4/ The witnesses testified from a studio located in Tampa, Florida.
5/ The Agency introduced two exhibits: (1) Hillsborough County Traffic Court Record (August 24, 1994) and (2) Report of Dr. Sprehe.
6/ Respondent's Exhibits 1-4 were marked for identification only but were not offered into evidence. Respondent's Exhibit 5, deposition of Donna Murtha, was accepted for the sole purpose of impeaching Mrs. Murtha. Respondent's Exhibit 6, Order Granting Motion to Stay Sentencing Pending Appeal, was accepted subject to the provision of a certified copy. Respondent's Exhibit 7, the Curriculum Vitae of Dr. Mark Goldman, was accepted. Respondent's Exhibit 8, Results of Review Hearing, was accepted subject to the provision of a certified copy.
7/ The DUI conviction of the Respondent is currently under appeal, and as a result, the penalties referenced in paragraph five have been stayed.
8/ In addition to the inconsistencies found in Mrs. Murtha's testimony, the undersigned questions the relevancy of her testimony. Specifically, Mrs.
Murtha's testimony is limited to events that occurred during her marriage to Dr. Murtha. Mrs. Murtha has no knowledge of the events that underlie this action.
9/ Section 458.331(1)(s) does not require an actual harm to patients or actual failure to practice medicine with reasonable skill and safety. In Major v.
Department of Professional Regulation, 531 So.2d 411 (Fla. 3d DCA 1988), the court held that the Board of Medicine need not wait for an impaired physician to commit gross malpractice before it acts to protect the public interest by imposing penalties and restrictions of the physician's ability to practice medicine. According to the court in Major, discipline may be imposed pursuant to section 458.311(1)(s) even though a physician "has not yet, let her personal problems affect her professional performance." Id. at 414.
APPENDIX Case No. 96-0567
Rulings are made as to each of the proposed findings of fact as follows: Petitioner's Findings:
1-2. Accepted.
The first sentence is accepted. The remainder is rejected as irrelevant.
Rejected as not supported by the weight of the evidence. See findings of fact Number 28-30.
Rejected as irrelevant.
Rejected as not supported by the weight of the evidence, See finding of fact Number 30.
Rejected as irrelevant.
Accepted to the extent consistent with finding of facts Number 28-30.
Accepted to the extent consistent with finding of fact Number 5
10-17. Accepted to the extent consistent with findings of fact Number 6-13. All testimony referencing Nurse Robinson is rejected as hearsay. Nurse Robinson did not testify at the final hearing. Evidence that Dr. Murtha's breath was stronger than that of a person who had only one or two drinks is rejected as not supported by the weight of credible evidence. (See also finding of fact
Number 13.)
Incorporated in findings of fact Number16-24.
Accepted to the extent that it establishes that Dr. Murtha arrived at the hospital with the odor of alcohol on his breath.
Rejected as irrelevant.
Rejected as constituting a recitation of the testimony and not a finding of fact and subordinate to the Hearing Officer's findings of fact on this subject matter.
Rejected as irrelevant. The complaint against the Respondent makes no reference to this incident.
To the extent consistent, incorporated in findings of fact Number28-30.
To the extent consistent, incorporated in finding of fact Number17-24.
Incorporated in finding of fact Number21.
The finding that Dr. Murtha is unsafe to practice medicine with skill and safety to patients is not supported by the weight of credible evidence and is rejected as an unsupported conclusion.
To the extent consistent, incorporated in findings of fact Number17-24.
Rejected as not supported by the greater weight of the evidence. The significance of Mrs. Murtha's testimony is addressed in finding of facts Number28-30 and the conclusions of law.
To the extent consistent, incorporated in findings of fact Number25-27. The opinion of Dr. Goldman, based on the hypothetical facts, is of no significance because it is based in part on the inconsistent testimony of Mrs. Murtha.
Rejected as unwarranted conclusion.
Respondent's Findings:
1-22. Accepted.
COPIES FURNISHED:
Joseph S. Garwood, Esquire
Agency for Health Care Administration 1940 North Monroe Street, Suite 60
Tallahassee, Florida 32399-0792
Sean M. Ellsworth, Esquire Mark A. Drenick, Esquire Grand Bay Plaza, Suite 201 2665 South Bayshore Drive Miami, Florida 33131
Marm Harris, Executive Director Agency for Health Care Administration 1940 North Monroe Street
Tallahassee, Florida 32399-0792
Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive
Tallahassee, Florida 32308-5403
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 BOARD OF MEDICINE
AGENCY FOR HEALTH CARE ADMINISTRATION,
Petitioner,
vs. DOAH CASE NO. 96-0567
CASE NO: 95-04443
NED LAWRENCE MURTHA, M.D., LICENSE NO.: ME0037465
Respondent.
/
FINAL ORDER
THIS CAUSE came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)(10), Florida Statutes, on August 3, 1996, in Orlando, Florida, for the purpose of considering the Hearing Officer's Recommended Order in the above- styled cause. Petitioner was represented by Larry G. McPherson, Jr., Chief Attorney. Respondent was not present, but was represented by Sean Ellsworth, Esquire.
Upon review of the Recommended Order, the argument of the parties, and after a review of the complete record in this case, the Board makes the following findings and conclusions.
FINDINGS OF FACT
The findings of fact set forth in Paragraphs 1.-4. of the Recommended Order are approved and adopted and incorporated herein by reference.
Based upon the report of Dr. Sprehe indicating Dr. Murtha's admission (Pet. Ex. 2), the second sentence of paragraph 5. shall be amended to read "On May 2, 1994, Dr. Murtha was involved in a minor traffic accident and charged with driving under the influence (DUI); this incident was related to Dr. Murtha's use of alcohol and Valium."
The findings of fact set forth in Paragraphs 6.-7. of the Recommended Order are approved and adopted and incorporated herein by reference.
The last sentence of paragraph 8. shall be amended to read "Although Nurse Paille could not venture an opinion that Dr. Murtha acted like someone who had been drinking her testimony clearly shows that she believed that Dr. Murtha was acting inappropriately and that she was concerned that this was related to the influence of alcohol." The Board bases its findings on the testimony of Nurse Paille.
The findings of fact set forth in Paragraphs 9.-12. of the Recommended Order are approved and adopted and incorporated herein by reference.
Paragraph 13. shall be amended to read "In addition to detecting the odor of alcohol on Dr. Murtha's breath, Dr. Patisi was convinced by his own observations of Dr. Murtha and the observations of other critical personnel that Dr. Murtha was under the influence of alcohol." The Board bases its findings on a complete review of Dr. Paftisi's testimony.
The findings of fact set forth in Paragraphs 14.-18. of the Recommended Order are approved and adopted and incorporated herein by reference.
The last sentence of Paragraph 19. shall be amended to read "For reasons fully stated in paragraphs 26, 27, and 41, the undersigned declines to adopt, as findings of fact, any diagnosis of Dr. Murtha based solely on the MAST test."
The findings of fact set forth in Paragraphs 20.-22. of the Recommended Order are approved and adopted and incorporated herein by reference.
The finding of fact set forth in the first sentence of Paragraph 23. of the Recommended Order is approved and incorporated herein by reference. The remaining sentences in Paragraph 23. are rejected as not being supported by competent and substantial evidence in the record.
The last sentence of Paragraph 26. shall be amended to read "As such, any opinions based solely on results from the MAST test are rejected as not supported by credible evidence." The Board bases its findings upon evidence in the record that, although the Mast may not be the sole basis for diagnosis of Dr. Murtha's condition, when combined with all the other testimony and evidence, there is competent substantial evidence to support the Board's findings.
The last sentence of Paragraph 27. shall be deleted. The Board bases its finding on the fact that there is enough evidence in the record to support a conclusion that Mrs. Murtha's testimony when added to the other testimony in this case supports the conclusion that Dr. Murtha has a problem with alcohol.
The findings of fact set forth in Paragraph 28. is amended to add an additional sentence to the paragraph to state as follows: "Although Mrs. Murtha was unable to answer some questions regarding specific incidents over the course of her years with Dr. Murtha, and there were some inconsistencies as to specific details during that period of time, her testimony is accepted for the purposes for which it was offered."
Paragraphs 29. and 30. are rejected because the substance of these paragraphs are addressed in Paragraph 28.
Paragraph 31 is accepted by the Board.
There is competent substantial evidence to support the findings of fact as amended by the Board.
CONCLUSIONS OF LAW
The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.
The conclusions of law set forth in Paragraphs 32.-36. of the Recommended Order are approved and adopted and incorporated herein by reference.
Paragraph 37. of the conclusions of law is rejected by the Board as not being supported by competent substantial evidence. The Board would replace Paragraph 37. with the following language: "The Agency has proven by clear and convincing evidence that Dr. Murtha is unable to practice medicine with reasonable skill and safety due to the use of alcohol."
Paragraph 38. of the conclusions of law is amended to read as follows: "Dr. Murtha's prior conviction of DUI, while demonstrating poor judgment on his part, is not sufficient in itself to establish that he is not fit to practice medicine."
Paragraph 39. is amended to read as follows: "The January 1995 incident at St. Joseph's Hospital, along with the other testimony and evidence, rises to the level of establishing by clear and convincing evidence Dr. Murtha's inability to practice medicine with reasonably skill and safety. The incident demonstrates Dr. Murtha's poor professional judgment in consuming alcohol before seeing a patient. The evidence does indicate that Dr., Murtha was impaired. No patient Complained about the care rendered. However, Section 458.331(1)(s) does not require an actual harm to patients or actual failure to practice medicine with reasonable skill and safety. In Major v. Department of Professional Regulation, 531 So.2d 411 (Fla. 3d DCA 1988), the court held that the Board of Medicine need not wait for an impaired physician to commit gross malpractice before it acts to protect the public interest by imposing penalties and restrictions on the physician's ability to practice medicine. According to the court in Major, discipline may be imposed pursuant to section 458.331(1)() even though a physician `has not yet, let her personal problems affect her professional performance.' Id. at 414. Dr. Patisi did testify that Dr. Murtha had a slight slur in his speech and that his hand trembled. The totality of the testimony and evidence regarding Dr. Murtha's use of alcohol while involved in the practice of medicine established grounds for discipline."
Paragraphs 40.-41. are rejected as not being based upon competent substantial evidence.
The last sentence of Paragraph 42. is amended to read, "The Agency has met that burden."
There is competent substantial evidence to support the conclusions of law as amended by the Board.
PENALTY
Upon a complete review of the record in this case, the Board determines that the penalty recommended by the Hearing Office be REJECTED.
WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED
Respondent's license to practice medicine is hereby SUSPENDED until such time as he can demonstrate that he has entered into an advocacy contract
with the Physician Recovery Network (PRN). As part of developing the contract, Respondent must undergo an inpatient evaluation through PRN and he must abide by all terms and conditions set by PRN under such contract.
At the time Respondent returns to the active practice of medicine, he shall be placed on PROBATION for a period of five years with terms and conditions of the probation to be set at that time.
This Order shall take effect upon being filed with the Clerk of the Agency for Health Care Administration.
DONE AND-ORDERED this 7th day of October, 1996.
BOARD OF MEDICINE
MARY KATHRYN GARRETT, M.D. CHAIRPERSON
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, IF REVIEW OF THE FINAL AGENCY DECISION WOULD NOT PROVIDE AN ADEQUATE REMEDY. 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 AGENCY FOR HEALTH CARE ADMINISTRATION 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 THIRTY (30) DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Ned Lawrence Murtha, M.D., 2602 West Sligh Avenue, Tampa, Florida 33614-4342; to Sean Ellsworth, Esquire, Law Offices of Mark A. Dresnick, P.A., Grand Bay Plaza, Suite, 201, 2665 South Bay Shore Drive, Miami, Florida 33133; to William A. Buzzett, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; and by interoffice delivery to Larry McPherson, Chief Attorney, Agency for Health Care Administration, 1940 North Monroe Street, Tallahassee, Florida 32399-0792, on or before 5:00 p.m., this 8th day of October, 1996.
MARM HARRIS
| Issue Date | Proceedings |
|---|---|
| Apr. 03, 1998 | First DCA Opinion (Dismissed and the Motion Attorney`s Fees Denied)filed. |
| Apr. 02, 1998 | Notice of Agency Appeal filed. |
| Oct. 17, 1996 | Final Order filed. |
| Jun. 20, 1996 | Recommended Order sent out. CASE CLOSED. Hearing held 05/02/96. |
| May 30, 1996 | Dr. Murtha`s Proposed Recommended Order; Order Granting Motion to Stay Sentencing Pending Appeal; Affidavit of Mandy Oakes; Cover Letter from S. Ellsworth filed. |
| May 28, 1996 | Petitioner`s Proposed Recommended Order filed. |
| May 15, 1996 | (2 Volumes) Transcript filed. |
| May 02, 1996 | CASE STATUS: Hearing Held. |
| May 01, 1996 | Petitioner`s Motion for Exemption of Expert Witness From Rule of Sequestration filed. |
| Apr. 26, 1996 | Joint Pre-Hearing Stipulation filed. |
| Apr. 25, 1996 | Dr. Murtha`s Motion to Strike AHCA`s Witnesses Listed in Violation of the Prehearing Order and Request for Emergency Hearing filed. |
| Apr. 24, 1996 | (Petitioner) Motion for Official Recognition filed. |
| Apr. 23, 1996 | (Petitioner) Response to Motion to Strike filed. |
| Apr. 22, 1996 | (Petitioner) Notice of Cancellation Taking Deposition filed. |
| Apr. 22, 1996 | (Petitioner) Notice of Taking Deposition filed. |
| Apr. 22, 1996 | Dr. Murtha`s Motion to Strike AHCA`s Previously Undisclosed Witnesses; Dr. Murtha`s Emergency Request for Oral Argument In Support of His Motion to Strike Previously Undisclosed Witnesses filed. |
| Apr. 19, 1996 | (Petitioner) Notice of Taking Deposition filed. |
| Apr. 18, 1996 | (Petitioner) Amended Notice of Taking Deposition; Notice of Taking Deposition filed. |
| Apr. 01, 1996 | Order on Motions sent out. |
| Mar. 29, 1996 | Dr. Murtha`s Objection to Renewal Order Issued by A.H.C.A. Compelling Physical Examination; Dr. Murtha`s Objection to Order Issued by A.H.C.A. Compelling Dr. Murtha to Produce Documents filed. |
| Mar. 26, 1996 | Order sent out. (Motion for change of venue is denied) |
| Mar. 25, 1996 | Dr. Murtha`s Notice of Serving Answers to Petitioner`s First Set of Interrogatories filed. |
| Mar. 19, 1996 | Dr. Murtha`s Motion in Opposition to AHCA`s Motion to Change Venue w/cover sheet filed. |
| Mar. 18, 1996 | Petitioner`s Notice of Unavailability filed. |
| Mar. 13, 1996 | (AHCA) Motion to Change Venue filed. |
| Mar. 13, 1996 | (Petitioner) Notice of Serving Answers to Respondent`s First Set of Interrogatories filed. |
| Mar. 07, 1996 | Dr. Murtha`s Objections to Petitioner`s First Set of Request for Admissions and Motion for Protective Order filed. |
| Feb. 27, 1996 | Notice of Serving Petitioner`s First Request for Admissions, Set of Interrogatories, and Request for Production of Documents; Petitioner`s First Request for Admissions, Set of Interrogatories, and Request for Production of Documents filed. |
| Feb. 16, 1996 | Prehearing Order sent out. |
| Feb. 16, 1996 | Notice of Hearing sent out. (hearing set for May 2-3, 1996; 9:30am; Talla) |
| Feb. 13, 1996 | (Petitioner) Joint Response to Initial Order filed. |
| Feb. 08, 1996 | Initial Order issued. |
| Jan. 30, 1996 | Notice Of Appearance; Agency referral letter; Administrative Complaint; Request For Formal Hearing, Letter Form filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 02, 1998 | Opinion | |
| Oct. 07, 1996 | Agency Final Order | |
| Jun. 20, 1996 | Recommended Order | Petitioner failed to demonstrate by clear and convincing evidence that respondent violated section 458.331(1)(s), Florida Statute; dismissal of complaint |
