STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 97-0178

)

EDWARD PAUL GRACE, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on March 3, 1998, by video-conference between Tallahassee and Tampa, Florida, before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gabriel Mazzeo, Esquire

Office of the General Counsel

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: A. S. Weekley, Jr., M.D., Esquire

Holland and Knight, L.L.P.

510 Vonderburg Drive Suite 3005

Brandon, Florida 33511 STATEMENT OF THE ISSUE

Whether Respondent committed the offenses alleged in the Amended Administrative Complaint and, if so, what penalty should be imposed on his license to practice medicine.

PRELIMINARY STATEMENT

On March 1, 1996, the Agency for Health Care Administration (Agency) filed an Administrative Complaint alleging that Respondent, Edward P. Grace, M.D. (Respondent), had been found guilty by the State of New York, Department of Health, State Board of Professional Medical Conduct of certain violations for which his New York license to practice medicine was disciplined. Respondent challenged the allegations and timely requested a formal hearing. By letter dated October 3, 1997, the matter was referred to the Division of Administrative Hearings. Prior to the final hearing, the style of the case was changed to reflect that the responsibility for disciplining physicians was transferred to the Department of Health (Department), although the Agency actually prosecutes the cases.

At commencement of the hearing, Respondent's Motion for Official Recognition of Required Standard of Proof and Strict Construction filed on February 24, 1998, and Petitioner's Motion for Leave to Amend Administrative Complaint filed on February 26, 1997, and unopposed by Respondent, were granted.

At the hearing, the Department presented no witnesses, and offered and had one exhibit admitted into evidence. Respondent testified on his own behalf and had two exhibits admitted into evidence. Petitioner and Respondent offered one joint exhibit which was admitted into evidence. Upon request of Respondent, the undersigned took judicial notice of applicable New York

statutes. A transcript of the proceeding was filed on March 13, 1998. Both parties filed proposed recommended orders.

FINDINGS OF FACT

1. At all times relevant to this proceeding, Respondent, Edward P. Grace, M.D., was licensed to practice medicine in the State of Florida, having been issued License No. NE0051807.

2. The Arkansas Medical Board initiated disciplinary action against Respondent in December 1989. As a result thereof, on

   May 2, 1990, Petitioner appeared before the Arkansas State Medical Board pursuant to an Order and Notice of Hearing, which charged him with aiding and abetting an unlicensed person to practice medicine. At the conclusion of the hearing on May 2, 1990, the Board voted to dismiss the charges against the Respondent.

3. On February 10, 1994, the State of New York, Department of Health, State Board of Professional Medical Conduct (New York Board of Professional Medical Conduct) entered a Determination and Order (Order) imposing a censure and reprimand, and a fine of

   $14,000.00 on the Respondent.

   
   

4. In the Order, the New York Board of Professional Medical Conduct concluded that Respondent did not truthfully answer questions on two separate applications, both of which related to the practice of medicine.

5. The Order found that Respondent submitted an application, signed on July 23, 1990, to a New York hospital for

   medical staff appointment and clinical privileges. Respondent checked "No" on the application in response to the following questions: (1) "Have any disciplinary actions been initiated or are any pending against you by any state licensure board?"; (2) "Have you ever been involved in any professional misconduct action in any state?"; and (3) "Has your professional liability insurance coverage ever been terminated by action of the insurance company?"

6. The Order found that Respondent submitted to the New York State Department of Education a registration application, signed on December 11, 1990. Furthermore, the Order found that Respondent checked "No" on the application in response to the question, "Since you last registered has any state other than New York instituted charges against you for professional misconduct, unprofessional conduct, incompetence or negligence or revoked, suspended or accepted surrender of a professional license held by you?"

7. Based on Respondent's answers to the aforementioned questions on the July 23, 1990, application and December 11, 1990, application, the Order stated that the Hearing Committee concluded that: "(1) the Respondent made false representations of that which should have been disclosed; (2) the Respondent knew the representations were false; and (3) the Respondent intended to mislead through false representation."

8. According to the Order, the Hearing Committee sustained

   "four specifications of Practicing the Profession Fraudulently and four specifications of Conduct Evidencing Moral Unfitness to Practice Medicine." As to the specifications of moral unfitness, the Order states that these were "not in any way related to patient care" and thus, a lesser penalty was imposed.

9. The penalty imposed on Respondent by the Order was censure and reprimand, and a fine of $14,000.00.

   CONCLUSIONS OF LAW

   
   

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

11. Pursuant to Section 458.331(2), Florida Statutes, the Board of Medicine (Board) is empowered to revoke, suspend or otherwise discipline the license to practice medicine by any licensee found guilty of the offenses enumerated in Section 458.331(1), Florida Statutes.

12. In its Amended Administrative Complaint, the Board alleges that the Respondent violated Section 458.331(1)(b), Florida Statutes, which provides in relevant part:

    1. The following shall constitute grounds for which disciplinary action specified in subsection (2) may be taken:

       
       

       * * *

       
       

       (b) Having a license or the authority to practice medicine revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of any jurisdiction, including its agencies or subdivisions.

       
       

13. In a disciplinary action, the burden is on the Petitioner to establish the facts upon which its allegations of misconduct are based. In this case, the Department must prove those allegations by clear and convincing evidence. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Sterne and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

14. The nature of clear and convincing evidence has been described as follows:

    . . . clear an convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be precise and explicit and the witness must be lacking in confusion as to the facts in issue.

    The evidence must be of such weight that it produces 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.

    Solomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)

    
    

15. It is undisputed that in 1994, the New York Board of Professional Medical Conduct took action against Respondent and that such action was related to his license to practice medicine in 1994. The Department established by clear and convincing proof that Respondent is guilty of the offense specified in Section 458.331(1)(b), Florida Statutes, as alleged in the Amended Administrative Complaint. Therefore, the Department has met its burden of proof in this case.

16. Petitioner has recommended in its Proposed Recommended Order that Respondent be reprimanded and fined $1,000.00. The recommended disciplinary action is appropriate under the facts of this case and under the disciplinary guidelines set forth in Rule 64B8-8.001, Florida Administrative Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health, Board of Medicine, enter a final order finding that Respondent has violated Section 458.331(1)(b), Florida Statutes, issue a reprimand, and impose a fine of $1,000.00.

DONE AND ENTERED this 7th day of May, 1998, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUMCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1998.

COPIES FURNISHED:

Gabriel Mazzeo, Esquire Agency for Health Care

Administration

Post Office Box 14229 Tallahassee, Florida 32317-4229

A. S. Weekley, Jr., Esquire Holland and Knight, L.L.P. Suite 3005

510 Vonderburg Drive Brandon, Florida 33511

Sam Power, Agency Clerk

Fort Knox Building Three, Suite 3431 2727 Mahan Drive

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 97-000178

Orders for Case No: 97-000178