STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS VINCENT SAVINO, M.D., )

)

Petitioner, )

)

vs. ) Case No. 97-3635

)

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this matter before the Division of Administrative Hearings, by its designated Administrative Law Judge, Diane Cleavinger, on February 5, 1998, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Eric B. Tilton, Esquire

Gustafson, Tilton, Henning and Metzger, P.A.

204 South Monroe Street, Suite 200 Tallahassee, Florida 32301

For Respondent: Lynne Quimby Pennock, Esquire

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

Whether Petitioner should be granted a license to practice medicine in the State of Florida.

PRELIMINARY STATEMENT

In May of 1996, Petitioner submitted an application for licensure by endorsement to the Florida Board of Medicine. It was subsequently deemed to be complete. At the request of the Board, Petitioner appeared before the medical credentials committee of the Board on January 18, 1997, to answer questions about his medical education. That committee forwarded Petitioner's application to the full Board without a recommendation for either approval or disapproval.

The full Board met on April 5, 1997, and voted to deny Petitioner's application. That action was memorialized in an order issued on April 25, 1997, and filed on May 2, 1997.

On May 21, 1997, Petitioner timely filed a petition requesting a formal administrative hearing on the Board's denial.

At the hearing, Petitioner testified on his own behalf. Respondent called one witness to testify. Additionally, the parties introduced 2 joint composite exhibits into evidence.

After the hearing, the parties submitted Proposed Recommended Orders on February 27, 1998. The parties' proposed findings of fact have been considered and utilized in the preparation of this Recommended Order, except where such findings were not shown by the evidence, or were immaterial, irrelevant, cumulative, or subordinate.

FINDINGS OF FACT

1. Dr. Thomas Vincent Savino, M.D., is presently licensed in New York and New Jersey. He has taken and passed all the necessary examinations in order to be licensed under Florida law.

2. Prior to medical school, Petitioner was enrolled in osteopathic medical school for one year. Eventually in part due to financial considerations and in part because Petitioner desired to go to medical school, Dr. Savino was accepted to medical school at the State University of New York (SUNY) medical school. While in medical school, Dr. Savino had some academic difficulties that were documented in the transcript presented to the Board. His academic difficulty was unrelated to his abilities to render medical care. Eventually, the problems he had at SUNY were the subject of a lawsuit against the University. The lawsuit took over a year during which time Petitioner was enrolled and attended classes at SUNY, including a neurology course or clerkship. The neurology course was successfully completed as attested to in a letter from the Dean of Students of SUNY. The letter was submitted to the Board. Petitioner eventually lost his suit against the University and did not receive credit for the neurology course. Therefore, Petitioner's transcript from SUNY showed that Dr. Savino eventually successfully completed every required course except

   neurology. Neurology is not required by most medical schools. However, Petitioner was permitted to take the course. He successfully completed the course at St. Vincent's Medical Center.

3. Dr. Savino did not list the neurology course under the area designated for listing medical school clerkships in the application. The reason that the neurology clerkship was not listed in Petitioner's application was that Petitioner did not receive credit for it despite completing the course successfully. Petitioner reasonably believed that listing the neurology course as a clerkship would have implied that he had received credit for it. The information was not hidden, but was contained in other documentation to the application. Clearly Petitioner was not attempting to mislead or hide the information from the Board.

4. Petitioner finished his last year of medical school at Ross University. Petitioner was awarded an M.D. degree from Ross University School of Medicine in 1990. Petitioner adequately documented that he attended and passed the medical school curriculum necessary for licensure in the State of Florida.

5. Importantly, since Petitioner has been in practice, there have been no allegations of malpractice made against him,

   nor have there been any Medicare or Medicaid complaints filed against him. He has had a successful career after graduation.

6. The Board contends that Petitioner misrepresented the facts in response to question 11 on the application. Question

   11 states: Was attendance in medical school for a period other than the normal curriculum? Petitioner answered "no" to question 11.

7. In Petitioner's case, he took 4 years to complete medical school while he was officially enrolled in various medical school programs. The question is at best vague, ambiguous, and subject to varying interpretations, especially on facts like those here. Moreover, the dates of Petitioner's attendance at medical school were documented in his application. The Board was never misled by Petitioner's negative response and was well aware of Petitioner's time in medical school. The Board discussed this very subject at its meeting regarding Dr. Savino. In short, the answer to question 11 was not material to any matter necessary to be found by the Board and does not demonstrate bad character.

8. The Board, in its order, and in its pretrial statement, contends that Dr. Savino misrepresented a material fact by stating on his curriculum vitae that he was an Assistant Clinical Physician at a time prior to when he graduated from medical school. It was a phrase Petitioner made up in order to

   describe his position while he was employed as an assistant office manager/aide in his father's medical practice.

   Petitioner's father was a clinical physician. The curriculum vitae itself shows that Dr. Savino was not awarded an medical degree until 1990. The curriculum vitae listed the assistant

   clinical physician's job from 1987-1988.

   
   

9. Additionally, Dr. Savino properly reflected his job in his father's office as "assistant and office manager" in a letter he wrote to the Board dated May 6, 1996. The letter was written to the Board prior to the curriculum vitae's becoming an issue. In reviewing the record, all the facts regarding Petitioner's job with his father were contained in Petitioner's application. They were not hidden from the Board.

10. In short, the statement regarding Petitioner's job with his father is not a material misrepresentation. It was a poor choice of words and use of the English language.

11. Finally, the Board asserted that Petitioner received his other medical licenses and medical degree through fraudulent means. The Board bases this charge on the job description discussed above. However, the record is devoid of any evidence that any other jurisdiction or school relied on or used this information or description in any manner or that any fraud was committed by Dr. Savino in regard to these other jurisdictions.

12. There is no evidence that Dr. Savino intended to mislead the Board as to either when he became licensed elsewhere or when he began active practice. There is no evidence in the record that contradicts either his testimony or the written evidence that he supplied concerning the jobs he has held in the past or his medical education, all of which was in Petitioner's favor. None of the technicalities raised by the Board demonstrate that Petitioner is of bad character, lacks candor, or has committed any fraud or misrepresentation to the Board or in any other jurisdictions. Therefore, Petitioner is entitled to licensure by endorsement.

    CONCLUSIONS OF LAW

    
    

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

14. Chapter 458, Florida Statutes is the statute regulating the licensing and disciplining of physicians in the state of Florida. Section 458.313, Florida Statutes, sets forth the standards for licensure by endorsement.

15. Among the requirements established in Section 458.313, Florida Statutes, are that candidates meet the requirements set forth in Section 458.311(1)(b)-(f), Florida Statutes, and not be in violation of the standards set forth in Section 458.331,

    Florida Statutes. The charges in this case involve the sections on fraud and misrepresentation.

16. The Petitioner bears the burden of demonstrating his fitness to practice medicine and entitlement to licensure. See Balino v. Department of Health and Rehabilitative Services, 348

    So. 2d 349 (Fla. 1st DCA 1977); Florida Department of Transportation v. J.W.C., Co., supra.

17. Petitioner does meet the educational standards established in Section 458.311(1)(f), Florida Statutes. Moreover, he did provide documentation adequate to support that conclusion to the Board. Petitioner did not intend to fraudulently deceive the Board concerning his work history prior to obtaining a medical degree. His fitness to practice medicine in Florida, likewise, has not been tainted by any fraudulent misrepresentation or concealment in terms of statements made on the originally-filed application.

18. Fraud, misrepresentation, or concealment is an offense involving the necessary element of specific intent or scienter to conceal, misrepresent, or perpetrate fraud. Such intent was not proven in this case and, in fact, was disproven. The fact that the information relating to Petitioner was available on the curriculum vitae that was originally submitted, on the letter given to the Board prior to its meeting and in the documentation submitted with the application demonstrates the

lack of any fraudulent intent by Petitioner. Moreover, an unintentional misstatement or omission is insufficient to support a charge of fraud. See Department of Professional Regulation, Board of Medical Examiners v. Suarez, DOAH Case No. 82-540; Suarez v. Department of Professional Regulation, Board

of Medical Examiners, DOAH Case No. 86-3996; and Department of Professional Regulation, Board of Medicine v. Rosenthal, DOAH Case No. 91-2815. Therefore Dr. Savino is entitled to licensure by endorsement in Florida.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is

RECOMMENDED:

That a Final Order be entered granting the Petitioner's license to practice medicine in the State of Florida.

DONE AND ENTERED this 3rd day of April, 1998, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings

this 3rd day of April, 1998.

COPIES FURNISHED:

Eric B. Tilton, Esquire Gustafson, Tilton, Henning

and Metzger, P.A.

204 South Monroe Street, Suite 200 Tallahassee, Florida 32301

Lynne Quimby Pennock, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

Dr. Marm Harris, Executive Director Board of Medicine

Department of Health 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Angela T. Hall, Agency Clerk Department of Health

1317 Winewood Boulevard, Building 6

Tallahassee, Florida 32399-0700

Pete Peterson, General Counsel Department of Health

Building 6, Room 102-E 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Dr. James Howell, Secretary Department of Health Building 6, Room 306

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

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: 97-003635

Orders for Case No: 97-003635