STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PANKAJ R. DESAI, M.D., )

)

Petitioner, )

)

vs. ) Case No. 98-5637

)

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal hearing on April 13, 1999, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: Eric B. Tilton, Esquire

Tilton and Metzger, P.A.

204 South Monroe Street, Suite 200 Tallahassee, Florida 32301

For Respondent: Lola M. Swaby, Esquire

Donna Erlich, Esquire

Office of the Attorney General Administrative Law Section

The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue is whether Respondent properly denied Petitioner's application for licensure as a physician by endorsement.

PRELIMINARY STATEMENT

On March 18, 1998, Respondent Department of Health, Board of Medicine (Respondent) issued a Notice of Intent to Deny the application of Petitioner Pankaj R. Desai, M.D. (Petitioner) for licensure as a physician by endorsement. Petitioner filed a Petition for Formal Hearing to challenge the denial of his application on April 14, 1998. Thereafter, Petitioner requested Respondent to hold his petition in abeyance pending Respondent's reconsideration of the aforementioned denial.

On November 14, 1998, pursuant to his request, Petitioner re-appeared before Respondent's credentials committee for reconsideration of his application.

On December 5, 1998, Respondent denied Petitioner's request for reconsideration. Respondent referred this matter to the Division of Administrative Hearings on December 21, 1998.

Respondent and Petitioner filed unilateral responses to the Initial Order on January 11, 1999, and January 14, 1999, respectively. Subsequently, the undersigned issued a Notice of Hearing, scheduling this matter for hearing on April 13, 1999.

On April 12, 1999, Petitioner filed a Motion for Summary Recommended Order. The motion argues that Respondent is required to issue Petitioner's license as a matter of law due to Respondent's failure to comply with the time frames contained in Section 120.60(1), Florida Statutes.

When the hearing commenced on April 13, 1999, the undersigned heard oral argument on Petitioner's Motion for Summary Recommended Order. During the oral argument, Respondent requested that the undersigned consider Petitioner's motion as a motion to dismiss for lack of disputed issues of material fact. Respondent made an ore tenus motion for continuance and for relinquishment of the case to Respondent for a ruling on the questions of law raised in Petitioner's motion.

After hearing oral argument, the undersigned denied Respondent's motion for continuance and relinquishment of the case to Respondent. The undersigned reserved ruling on Petitioner's Motion for Summary Recommended Order. That motion is hereby denied for the reasons set forth below in the Conclusions of Law.

During the hearing, the parties offered a joint composite exhibit, which was accepted into the record as evidence. The joint composite exhibit contains, among other documents from Petitioner's application file, a copy of Petitioner's application form. However, the joint exhibit does not contain a complete copy of the application materials sent to Petitioner before he filed his application.

Petitioner testified on his own behalf. He offered two Exhibits, P1 and P2, which were accepted as record evidence.

Respondent presented the testimony of one witness and offered two Exhibits, R1 and R2, which were accepted into

evidence. The third Exhibit offered by Respondent, R3, is an application packet, containing the following: (1) application instructions; (2) application form, last revised in October 1997;

(3) supplemental documentation forms; and (4) selected laws. The application form filed by Petitioner was last revised in

January 1995.

The undersigned reserved ruling on the admissibility of Respondent's Exhibit number R3 until Petitioner's counsel had an opportunity to examine it. Petitioner was directed to file post- hearing objections, if any, to Respondent's third exhibit.

Petitioner did not file any such objections. Accordingly, Respondent's third exhibit is hereby accepted into the record as evidence.

The undersigned directed Respondent's counsel to file a post-hearing exhibit containing a copy of the complete application packet actually furnished to Petitioner before he

filed his application. Petitioner's counsel was directed to file post-hearing objections, if any, to the late-filed exhibit.

Respondent filed the post-hearing exhibit, as directed, on April 21, 1999. The late-filed exhibit contains the following application materials: (1) application instructions;

1. application form, last revised on October 1997;

   
   

2. supplemental forms; and (3) selected laws. Petitioner did not file objections to the late-filed exhibit.

Consistent with the testimony of Respondent's witness at hearing, there is no substantive difference in the application materials that Respondent sent Petitioner before he filed his application and the application materials contained in Respondent's Exhibit numbered R3 and Respondent's late-filed exhibit. Accordingly, Respondent's post-hearing Exhibit is hereby accepted into evidence as exhibit number R4.

A Transcript of the proceeding was filed on April 27, 1999.

The parties filed their proposed recommended orders on May 17, 1999.

FINDINGS OF FACT

1. Petitioner is presently licensed to practice medicine in Maryland. He has been licensed there since 1990. The Maryland licensing board has never investigated him on any ground.

2. Petitioner has passed all of his medical examinations on the first try. He passed the Educational Commission for Foreign Medical Graduates Examination in 1981 and the United States Medical Licensing Examination in 1987. He passed the examination for board certification in internal medicine in 1992.

3. Petitioner has published articles in peer review journals. He teaches medical students in residency programs at two separate hospitals.

4. Petitioner has a busy practice, seeing approximately 20-

   
   

   25 patients per day. He has staff privileges at two hospitals.

   He is an approved provider with a number of insurance companies and managed care organizations.

5. Petitioner has never had any Medicare or Medicaid complaints brought against him. He has never been sued for malpractice. A hospital peer review board has never investigated him for any reason.

6. Petitioner requested an application for licensure as a physician by endorsement sometime before March 21, 1997. Respondent sent him a packet of materials containing an application form, last revised on January 1995, together with application instructions, supplemental documentation forms, and selected laws.1

7. Section one of the application materials contained the application instructions. The instructions included the following relevant statements:

   PITFALLS: The following items in the application process cause delays in the process, therefore we strongly recommend:

   . . . Please remember the applicant is responsible for completing the application process and that as pieces/parts of the application are received they sometimes generate additional questions to be answered.

   * * *

   
   

   APPLICATION PROCESSING: Once the application is received in the Board office . . . , an initial review of the application and the supporting documentation is made. Then, the applicant is notified, in writing, of any deficiencies or any additional documentation that is or may be necessary either from the applicant or from any other source. The

   applicant is responsible for requesting the following information:

   
   

   * * *

   
   

   3. American Medical Association Data Profile (AMA).

   
   

   * * *

   
   

   Certain responses from any source may require additional clarification from the applicant. When all the requested information is received for a licensure application file, a supervisory second review is made for completeness and for eligibility determination.

   
   

   PERSONAL APPEARANCE: Appearances before the Credentials Committee or the Board of Medicine may be required for a variety of reasons, . . . If an appearance is required, written notification will be mailed . . . .

   * * *

   
   

   COMPLETING THE APPLICATION

   
   

   * * *

   
   

   11. PROFESSIONAL OR MEDICAL EDUCATION: Answer each question and complete the table by listing the name of each and every institution attended; the location of the institution, address, dates of attendance by month and year, domicile (where lived), did you graduate, if so degree received.

   
   

   * * *

   
   

   INTERNATIONAL MEDICAL GRADUATES CONTINUE WITH INSTRUCTIONS 12 THROUGH 43

   
   

   * * *

   
   

   NOTE: Questions 11, 15, 16, and 17 should contain and account for all periods of time from the date of graduation from Medical School to present date. Omission of this information will cause a delay in the application process.

   * * *

   
   

   1. PROFESSIONAL OR POSTGRADUATE TRAINING: Answer each question. In the section provided, list chronologically each program attended starting with the first program and ending with the last or current program. List all programs you began whether or not you completed or received credit for the program. Omission of any professional or

      medical postgraduate training program(s) will cause a delay in the application process.

      * * * International Medical Graduates.

      Submit certificates of completion for each year. Additionally, a letter from the Program Director is required confirming postgraduate training level and that the position was allocated.

   2. PRACTICE or EMPLOYMENT:

   List in the space provided all current and past practice and employment settings to include moonlighting and locum tenens. Also utilize this space to delineate any unaccounted period of time from date of matriculation into Medical School to present date.

   
   

   * * *

   
   

   After a correspondent reviews the application and the explanation provided you will be notified of any evaluation and/or documentation needed to complete the application process.

   
   

   * * *

   
   

   DOCUMENTS TO BE SUBMITTED WITH THE APPLICATION

   
   

   * * *

   
   

   8. CERTIFICATES OF COMPLETION FROM ALL PROFESSIONAL, MEDICAL-INTERNSHIP, RESIDENCY,

   FELLOWSHIP AND PGY LEVELS -- submit

   certificates of completion of all levels of training.

   
   

   * * *

   
   

   19. Contact each applicable agency listed below on the form provided, to request the appropriate information be sent to the Florida Board of Medicine: . . .

   
   

   * * *

   
   

   AMERICAN MEDICAL ASSOCIATION DATA PROFILE ON FORM PROVIDED

   
   

   * * *

   
   

   A COPY OF EACH REQUEST MUST ACCOMPANY YOUR APPLICATION

   
   

8. Section two of the application materials is the application form. It requests the following relevant information:

   11. PROFESSIONAL/MEDICAL EDUCATION:

   
   

   MEDICAL EDUCATION: List all medical schools and universities attended, whether completed or not. [Table provided to include information required in application instructions]

   
   

   * * *

   
   

   1. PROFESSIONAL/POSTGRADUATE TRAINING: List all professional/postgraduate training program(s) began, whether completed or not.

      
      

      * * *

      
      

      List in chronological order from date of graduation from medical school all professional/postgraduate training (Internship, Residency, Fellowship) to the present. [Table provided to include information required in the application instructions]

   2. PRACTICE/EMPLOYMENT:

   List in chronological order from date of graduation to present date, all practice employment, non-employment and/or any unaccounted period of time from date of matriculation into medical school. [Table included to provide information required in application instructions]

   
   

9. The last page of the application form contains an affidavit, which requires an applicant to swear as follows in relevant part:

   I have carefully read the questions in the foregoing application and have answered them completely, without reservations of any kind, and I declare under penalty of perjury that my answers and all statements made by me herein are true and correct. Should I furnish any false information in the application, I hereby agree that such act shall constitute cause for denial, suspension or revocation of my license to practice medicine/surgery in the State of Florida.

10. On February 22, 1997, Petitioner signed the affidavit at the end of his application form.

11. Section three of the application materials includes the form for applicants to use to request the AMA physician data profile. After receiving the request form, the AMA sends the requested information directly to Respondent.

12. On March 21, 1997, Respondent received Petitioner's AMA physician data profile directly from the AMA. This information reflected, among other things, that Petitioner was in an anatomic and clinical pathology postgraduate training program at the

    University of Maryland Medical System (University of Maryland) from July 1, 1988 through June 30, 1989.

13. On March 24, 1997, Respondent received Petitioner's application for licensure by endorsement, along with an attached copy of his curriculum vitae (CV). The CV was not required as part of the application process.

14. In response to question 15 on the application form, Petitioner listed the following: (a) an internship at Harbor Hospital Center in Baltimore Maryland from July 1989 to June 1990; and (b) a residency at Harbor Hospital Center in internal medicine from July 1991 to June 1992. Petitioner did not list his participation in a postgraduate training program at the University of Maryland in anatomic and clinical pathology from July 1, 1988 to approximately June 15, 1989, in his application form or CV.

15. Petitioner's CV represented that he was an associate professor of pre-clinical medicine and co-director of student health services at Ross University of Medicine in the Commonwealth of Dominica, West Indies, from July 1982 through June 1989. This information was incorrect.

16. In response to question 16 on the application form, Petitioner stated that he was employed at Ross University School of Medicine as an associate professor in internal medicine from June 1982 to June 1989 in Dominica, West Indies. This information was incorrect because Petitioner resided in Maryland

    in 1988 through 1989. As stated above, he actually attended the University of Maryland from July 1, 1988 to approximately

    June 15, 1989.

    
    

17. Respondent processed Petitioner's application in the usual and customary manner. His application file was subject to the same scrutiny that is customary for all applications. Petitioner does not contend that Respondent treated him any differently than other applicants.

18. There were no gaps in dates, blank spaces, or questions left unanswered in Petitioner's application form. Petitioner's application form, on its face, did not contain any apparent errors or omissions relative to his training program at the University of Maryland. In fact, Petitioner's application form listed other activities accounting for all of the time in question here.

19. Respondent discovered the apparent inconsistencies contained within Petitioner's application file by comparing his application form and CV with the AMA physician data profile. Because the documents were inconsistent, Respondent had reason to initiate an investigation to determine whether Petitioner had intentionally misrepresented information on his application form and CV.

20. By letter dated April 28, 1997, Respondent requested the current program director of the University of Maryland's pathology department to furnish information as to why Petitioner

    left the four-year residency program in pathology after one year. Respondent sought responses to the following questions:

    1. Why did he leave the program?

    2. Did he leave the program in good standing?

    3. Did he break his contract?

    4. Did he receive full credit for his training?

    5. Please confirm the dates and the PGY level of his training.

    6. Was any disciplinary action ever taken against him? If yes, please explain.

       
       

21. On April 28, 1997, 35 days after Petitioner filed his application, Respondent sent Petitioner a letter2 commencing with the following notice in relevant part:

    NO APPLICATION WILL BE CONSIDERED COMPLETE UNTIL ALL OF THE REQUESTED INFORMATION HAS BEEN RECEIVED IN THE BOARD OFFICE.

    
    

22. The April 28, 1997, letter informed Petitioner that he needed to furnish Respondent with numerous documents before his application would be complete. It requested additional information on several items. The letter also sought an explanation for Petitioner's failure to list his pathology training at the University of Maryland on his application form.

23. On May 19, 1997, Respondent received a form from the University of Maryland, verifying that Petitioner completed a residency in pathology from July 1, 1988 through June 8, 1989.

24. Petitioner sent Respondent a letter dated May 31, 1997. Respondent received this letter on June 3, 1997. Petitioner's letter states as follows in pertinent part:

    I apologize for the discrepancy regarding the dates in training/teaching. I was enrolled in the Pathology Department of the University of Maryland from 7/1/88 - 6/30/89.

    Consequently, my Internal Medicine training was from 7/1/89 - 6/30/92. The certificates from Harbor Hospital support that. Also, I joined the Northwest Primary Care Group on July 1, 1995, not 7/94, as listed in my c.v.

25. On June 30, 1997, Respondent received a letter from Dr. Sanford A. Stass, M.D., Pathology Resident Program Director and Director of Pathology Laboratories at the University of Maryland. This letter states as follows:

    I was not the Pathology Resident Training Program Director during Dr. Desai's residency. It was noted in his file by the previous Program Director, Seena Aisner, M.D., that Dr. Desai would not be given credit for the year from July 1, 1988 - June 30, 1989 since he did not fulfill his contractual year.

26. Respondent sent Petitioner a letter dated July 1, 1997. This letter states as follows in pertinent part:

    Please explain why you left the Pathology program at the Univ. of Maryland after one year. Did you leave in good standing? Did you break your contract? Were you given full credit for your training?

    
    

    Respondent's letters dated July 23, 1997, and August 5, 1997, made an identical inquiry. The August 5, 1997, letter3 contains an additional notice at its conclusion, which states as follows:

    YOUR APPLICATION REMAINS INCOMPLETE FOR THE ABOVE. PLEASE BE ADVISED THAT YOUR APPLICATION WILL EXPIRE March 26, 1998. The

    application fee is non-refundable.

27. Petitioner sent Respondent a letter dated August 24, 1997. Respondent received this letter on September 10, 1997. The letter states as follows in pertinent part:

    I did not break my contract at the University of Maryland. I was offered an internship at Harbor Hospital Center in Baltimore, and I took the vacation due to me and transferred over into clinical medicine.

    
    

    This response was incomplete. It did not state whether Petitioner left the program at the University of Maryland in good-standing or whether he received credit for the program.

28. Respondent sent Petitioner a letter dated September 11, 1997, which states as follows in relevant part:

    Did you leave the Pathology program at the Univ. of Maryland in good standing? Did you receive full credit for your training? Why did you not list this training on your application?

    
    

29. By letter dated October 6, 1997, Petitioner indicated that he was enclosing additional documents for his application file and that documents related to his staff privileges at Harbor Hospital would be sent as soon as Respondent provided the hospital with the required paperwork. This letter did not reference Respondent's inquiry regarding the incomplete residency program in pathology.

30. Respondent sent Petitioner a letter dated October 15, 1997, which states as follows in relevant part:

    Did you leave the Pathology program at the Univ. of Maryland in good standing? Did you receive full credit for your training? Why

    did you not list this training on your application?

    
    

31. Petitioner sent Respondent a letter dated October 23, 1997. Respondent received this letter on November 3, 1997. It states as follows in pertinent part:

    3. I have mentioned to you previously that I did one year of residency in Pathology, and left at the end, when my accrued vacation was due to me, to pursue clinical medicine. Whether I got credit for this or not is irrelevant, since it would not have counted towards my Internal Medicine training. I apologize if I did not list it in the application.

    This explanation does not state whether Petitioner left the program in good standing or whether he received credit for the program.

32. Respondent determined that Petitioner's application file was complete on November 5, 1997.

33. Respondent sent Petitioner a letter dated November 5, 1997. This letter states as follows:

    Your application is pending a secondary supervisory review.

    
    

    Please be advised you will be required to make a personal appearance before the Credentials Committee to discuss your postgraduate training at the University of Maryland and any relevant issues the Board may deem necessary.

    
    

    Pending passage of the above mentioned second review, and provided that no further issues need to be clarified, nor additional documentation submitted, your name will be placed on the agenda for the next scheduled Credentials Committee meeting of the Florida Board of Medicine. Your will be advised of

    the specific date, time, and location of the scheduled appearance.

    
    

34. By letter dated November 6, 1997, Respondent advised Petitioner that he would be required to appear before the credentials committee to discuss his failure to list his training at the University of Maryland on his licensure application and his CV. Petitioner was to appear before the committee on November 22, 1997. He was advised that Respondent would consider the committee's recommendation and take final action on Petitioner's application at Respondent's meeting on December 6-7, 1997.4

35. Petitioner sent Respondent a letter dated November 10, 1997. This letter states as follows in pertinent part:

    1. Because of previous commitments to my on- call group, I will not be able to attend the meeting on 11/22/97. I will need at least 4-

       6 weeks notice to make arrangements, if I am required to make a personal appearance.

       
       

    2. If you can provide me with a rational and pertinent reason for my personal appearance to explain the lapse in the c.v. and the application as regards the training at the University of Maryland in the Pathology program, I shall be happy to respond. As stated previously, I made an error in not listing this aspect of my career, but it was not applied towards any credit to the Internal Medicine residency that I later completed. In this day of instant communication, a phone conference would be just as appropriate. Please have the Board present me the necessary information so that I can justify a trip to Tallahassee.

36. Respondent sent Petitioner a letter dated December 8, 1997. This letter states in relevant part:

    At a meeting on November 22, 1997 the Board of Medicine accepted the recommendation of it's [sic] Credentials Committee to defer action on your application until the next meeting of the Credentials Committee at which time you must appear to discuss the issues.

    
    

    The next meeting of the Credentials Committee is scheduled for January 17, 1998 in Miami, Florida.

    
    

37. By letter dated December 15, 1997, Respondent advised Petitioner to appear before the credentials committee on January 17, 1998. Petitioner was also advised that the

    recommendation of the committee would be presented to Respondent on February 6-8, 1998, for final action. Petitioner agreed to attend the scheduled meeting in a letter dated December 19, 1997.

38. At the meeting with the credentials committee on January 17, 1998, Petitioner revealed for the first time that he began receiving anonymous letters during the last two months of his pathology residency. The letters threatened him with physical harm if he did not leave the program.

39. Petitioner got along very well with his colleagues and faculty members when he began his residency program in pathology in July 1988. Petitioner stated that he was not aware that he had problems with anyone in the residency program or hospital when he began receiving the letters.

40. Petitioner discussed the anonymous letters with the director of the training program. Petitioner took no action until he was due for two weeks of vacation at the end of the

    first year of the program. On or about June 15, 1989, he decided to take his vacation and not return to the program.

41. The program director of the residency program in pathology did not object to Petitioner's withdrawal from the program. Petitioner was not failing at the time of his withdrawal. However, he did not receive credit for his residency training in pathology because he technically withdrew from the program before he completed his first year.

42. Petitioner subsequently transferred to another residency training program in internal medicine at the University of Maryland. He successfully completed that program.

43. At the meeting of the credentials committee, Petitioner alleged that he had repressed his memory of the incomplete residency when he filed his application form on March 24, 1997. At the conclusion of the meeting, the committee advised Petitioner that his application would be denied based on misrepresentations and falsifications in the application. He was advised that a full report would be sent to Respondent. The decision by the credentials committee on January 17, 1998, marked the end of Respondent's investigation.

44. By letter dated February 13, 1998, 27 days after Respondent completed its investigation and seven days after Respondent made its decision, Respondent advised Petitioner that it denied his application at a meeting on February 6-7, 1998.

    The letter purports to be unofficial notification of Respondent's

    action. It states that Petitioner would receive an order outlining his rights under Sections 120.57(1) and 120.57(2), Florida Statutes.

45. On March 18, 1998, 60 days after Respondent completed its investigation and 39 days after Respondent made its decision, Respondent issued a formal Notice of Intent to Deny Petitioner's application. The denial was based on the following:

    . . . your inability to practice medicine with reasonable skill and safety, and your fraudulent misrepresentations or falsification on your application, as demonstrated by your application [which] failed to document your training at the University of Maryland Medical System, your application failed to reflect your residency location or your practice in Maryland during 1988 and failed to account for the period of time between 1989 and 1995; your curriculum vitae failed to reflect: your "Educational Qualifications" at the University of Maryland Medical System, the conclusion of your "Appointments" at Ross University of Medicine in 1988, the conclusions of your "Teaching Experience" at Ross University of Medicine in 1988, and the conclusion of your "Clinical Experience" at Ross University of Medicine in 1988.

46. In 1990, Petitioner applied for licensure in Maryland. He notified the Maryland Medical Board of his incomplete residency program. Petitioner disclosed his incomplete residency in pathology when he applied for staff privileges at Northwood Hospital in 1992. Petitioner revealed his incomplete residency in pathology when he underwent the application process to become a teacher at the University of Maryland in 1995. In 1998, after

    filing his application with Respondent, Petitioner disclosed his incomplete residency when he applied to Sinai Hospital.

47. In this case, the evidence demonstrates that Petitioner made intentional or fraudulent misrepresentations on his application and CV by omitting information relative to his training in pathology at the University of Maryland. In an attempt to conceal his omission, Petitioner falsified other sections of his application and CV as outlined in Respondent's Notice of Intent to Deny.

48. When Respondent began its investigation, Petitioner acknowledged his mistake. He explained that he entered a training program in internal medicine after leaving the pathology program. That was a truthful but incomplete statement.

49. In subsequent correspondence with Respondent, Petitioner deliberately concealed his private reason for leaving the pathology program and transferring to an internal medicine program. He failed to answer direct questions about his withdrawal from the pathology program such as whether he left the program in good-standing or whether he received full credit for his training in 1988-1989. He stated that he had not broken his contract for the first year of his pathology residency even though he had not met all requirements to receive credit for his work. He took the position that it was irrelevant whether he received credit for the incomplete residency.

50. After Respondent advised Petitioner that he would have to make a personal appearance before the credentials committee, Petitioner continued to assert that there was no "pertinent reason" for his personal appearance.

51. At the meeting of the credentials committee meeting on January 17, 1998, Petitioner revealed the real reason that he withdrew from the pathology program for the first time. Petitioner's testimony that he repressed his memory of the incomplete residency when he filed his application is not credible.

52. During the formal hearing, Petitioner stated that he did not answer the questions in Respondent's letters because he did not feel that it was appropriate to answer them. He stated that he did not want to answer the questions because of the nature of the reasons for his withdrawal from the program.

    CONCLUSIONS OF LAW

    
    

53. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

54. This is a proceeding to consider whether Petitioner is entitled to obtain a license to practice medicine in Florida by endorsement pursuant to Section 458.313, Florida Statutes.

55. Petitioner argues in his Motion for Summary Recommended Order that he is entitled to a license to practice medicine by endorsement as a matter of law pursuant to Section 120.60(1),

    Florida Statutes. First, the motion states that Respondent did not notify Petitioner of apparent errors and omissions in his application within thirty days of March 24, 1997, the day that Respondent received Petitioner's application form. Second, the motion argues that Respondent did not deny Petitioner's application within 90 days of April 23, 1997, the date that Petitioner's application was deemed complete. Third, the motion asserts that Respondent did not deny the application within 90 days of November 5, 1997, the date that Respondent declared Petitioner's application complete. Finally, the motion claims that Respondent did not deny the application within 15 days of February 6-7, 1998, the date that Respondent held a public hearing on the application.

56. Section 120.60(1), Florida Statutes, provides as follows:

    (1) Upon receipt of an application for a license, an agency shall examine the application and, within 30 days after such receipt, notify the applicant of any apparent errors or omissions and request any additional information the agency is permitted by law to require. An agency shall not deny a license for failure to correct an error or omission or to supply additional information unless the agency timely notified the applicant within this 30-day period. An application shall be considered complete upon receipt of all requested information and correction of any error or omission for which the applicant was timely notified or when the time for such notification has expired.

    Every application for a license shall be

    approved or denied within 90 days after receipt of a completed application unless a shorter period of time for agency action is

    provided by law. The 90-day time period shall be tolled by the initiation of a proceeding under ss 120.569 and 120.57. An application for a license must be approved or denied within the 90-day or shorter time period, within 15 days after the conclusion of a public hearing held on the application, or within 45 days after a recommended order is submitted to the agency and the parties, whichever is later. The agency must approve any application for a license or for an examination required for licensure if the agency has not approved or denied the application within the time periods prescribed by this section.

57. In his Proposed Recommended Order, Petitioner argues that Respondent did not exercise its discretion to issue a written 90-day licensure delay, pursuant to Section 458.313(3), Florida Statutes, to extend the time frames contained in Section 120.60(1), Florida Statutes. Section 458.313(3), Florida Statutes, states as follows:

    (3) The department and the board shall ensure that applicants for licensure by endorsement meet applicable criteria in this chapter through an investigative process. When the investigative process is not completed within the time set out in s. 120.60(1) and the department has reason to believe that the applicant does not meet the criteria, the secretary or the secretary's designee may issue a 90-day licensure delay which shall be in writing and sufficient to notify the applicant of the reason for the delay. The provision of this subsection shall control over any conflicting provisions of s. 120.60(1).

58. Petitioner's arguments would have merit if Sections 120.60(1) and 458.313(3), Florida Statutes, were the only statutes that apply here. For instance, the inconsistencies

    between Petitioner's application form and CV and the AMA physician data profile were apparent upon a simple comparison of documents in Petitioner's application file on March 24, 1997.

    Reading Section 120.60(1), Florida Statutes, alone would require Respondent to notify Petitioner about the inconsistencies and request an explanation within 30 days after receipt of the application on March 24, 1997.

59. Respondent did not send its first omission letter and request for additional information until April 28, 1997, 35 days after Petitioner filed the application. This letter inquired about the apparent incomplete residency in pathology as well as nine other apparent omissions. Therefore, under Section 120.60(1), Florida Statutes, the application was deemed complete on April 23, 1997. Because Respondent did not issue a 90-day licensure delay pursuant to Section 458.313(3), Florida Statutes, Respondent should have issued its intent to approve or deny the license on or about July 22, 1997, 90 days after the application was deemed complete.

60. However, Sections 120.60(1) and 458.313(3), Florida Statutes are not the only statutes to be considered here. The procedural requirements of those statutes do not apply where Respondent has reason to believe, ab initio, that an applicant is attempting to obtain a license by fraudulent misrepresentations. Under the circumstances of this case, Petitioner is not entitled to licensure by default.

61. Sections 458.313(1)(a), 458.313(6) and 458.313(7),

Florida Statutes, provide as follows:

1. The department shall issue a license by endorsement to any applicant who, upon applying to the department and remitting a fee not to exceed $500 set by the board, the board certifies:

   1. Has met the qualifications for licensure in s. 458.311(1)(b)-(g).

* * *

1. The department shall not issue a license by endorsement to any applicant who is under investigation in any jurisdiction for an act or offense which would constitute a violation of this chapter until such time as the investigation is complete, at which time the provisions of s. 458.331 shall apply. Furthermore, the department may not issue an unrestricted license to any individual who has committed any act or offense in any jurisdiction which would constitute the basis for disciplining a physician pursuant to s.

   458.331. When the board finds that an individual has committed an act or offense in any jurisdiction which would constitute the basis for disciplining a physician pursuant to S. 458.331, the board may enter an order imposing one of more of the terms set forth in subsection (7).

2. When the board finds that any applicant for licensure by endorsement has failed to meet, to the board's satisfaction, each of the appropriate requirement set forth in this section, it may enter an order requiring one or more of the following terms:

   1. Refusal to certify to the department an application for licensure, certification, or registration;

   2. Certification to the department of an application for licensure, certification, or registration with restriction on the scope of practice of the licensee; or

   3. Certification to the department of an application for licensure, certification, or registration with placement of the physician on probation for a period of time and subject to such conditions as the board may specify,

including, but not limited to, requiring the physician to submit to treatment, attend continuing education courses, submit to reexamination, or work under the supervision of another physician.

1. Section 458.331, Florida Statutes, provides as follows in pertinent part:

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

      1. Attempting to obtain, obtaining, or renewing a license to practice medicine by bribery, by fraudulent misrepresentation, or through an error of the department of the board.

         * * *

         (gg) Misrepresenting or concealing a material fact at any time during any phase of a licensing or disciplinary process or procedure.

         * * *

   2. When the board finds any person guilty of any of the grounds set forth in subsection (1), including conduct that would constitute a substantial violation of subsection (1) which occurred prior to licensure, it may enter an order imposing one or more of the following penalties:

      1. Refusal to certify, or certification with restrictions, to the department an application for licensure, certification, or registration. . . .

2. Respondent did not deny Petitioner's application based on his failure to meet the criteria contained in Sections 458.311(1) and 458.313(1), Florida Statutes, for licensure by endorsement. Instead, Respondent determined that Petitioner was unable "to practice medicine with reasonable skill and safety" and that he made "fraudulent misrepresentations or falsification" on his application pursuant to 458.331(1)(a), Florida Statutes.

   The greater weight of the evidence demonstrates that Respondent is guilty of these charges. Therefore, Respondent is entitled to deny the license or issue a restricted license pursuant to Sections 458.313(6) and 458.313(7), Florida Statutes, not withstanding the procedural requirements of Sections 120.60(1) and 458.313(3), Florida Statutes, concerning the time constraints for approving or denying the application.

3. In Gentile v. Department of Professional Regulations, Board of Medical Examiners, 448 So. 2d 1087, 1090 (Fla. 1st DCA 1986), the court stated that making false or misleading statements on an application is relevant to whether an applicant can safely engage in the practice of medicine.

4. In Chames v. Department of Professional Regulation, Board of Medicine, DOAH Case No. 86-1438 (Recommended Order issued April 14, 1987), the Administrative Law Judge stated as follows:

   In a field as sensitive as the medical profession, even a talented practitioner must not be in the practice of medicine regardless of his technical qualifications, and clinical and diagnostic shills, if he cannot be called upon to tell the truth when required.

   Regardless of how qualified a physician might be, such an individual may well at any time be subject to unknown stresses or pressures which would cause him to be less than forthcoming to the detriment of his patients. It is just this eventuality that the review process of the Board was designed to prevent.

   Based on Gentile and Chames, Respondent was not obligated to demonstrate that Petitioner lacked sufficient training or

   experience to allege that he lacked the ability to practice medicine with reasonable skill and safety.

5. In Calas v. Board of Medicine, Agency for Health Care Administration, DOAH 94-5015 (Recommended Order issued

   December 6, 1994) the Administrative Law Judge stated as follows:

   
   

   To determine whether Petitioner's misrepresentations were material, consideration should be given to the function of the Board of Medicine and its review of applications for licensure. The purpose of information provided in submitted applications is to provide the Board with a starting point for its ultimate determination of an applicant's fitness to practice.

6. In this case, Petitioner cannot argue that his errors and omissions on his application form and CV are not material. Respondent certainly is entitled to know the sum of Petitioner's professional training. Respondent would never know whether it was fulfilling its statutory duties if applicants could decide whether a particular training program was material to their applications.

7. It is true that Respondent may not have denied Petitioner's application on grounds that he withdrew from the pathology program after receiving anonymous and threatening letters, provided he had been more forthcoming. Nevertheless, Respondent had a right to expect Petitioner's complete candor regarding his reason for withdrawing from the pathology residency at the conclusion of the first year. Petitioner revealed that reason for the first time at the meeting of the credentials

   committee on January 17, 1998. By that time, Respondent appropriately was concerned more with Petitioner's failure to tell the truth than the reason behind his withdrawal from the residency in pathology.

8. The falsifications contained in Petitioner's application form and CV on their face, absent the inconsistencies contained in the AMA physician data profile and Respondent's subsequent investigation, would have led Respondent to conclude the following: (a) that Petitioner had no personal problems, which caused him to withdraw prematurely from his pathology training program; (b) that Petitioner had not attended any other professional/postgraduate training programs, other than the two programs listed on his application form; (c) that Petitioner had accounted for all of his practice employment history, including non-employment and/or any unaccounted period of time, from date of matriculation into medical school; (d) that Petitioner was not living in the United States of America from June 1988 through June 1989; (e) that Petitioner was an associate professor at Ross University School of Medicine in the Dominica, West Indies, from June 1988 through July 1989. These conclusions would have been erroneous. Petitioner's falsifications and subsequent refusal to answer Respondent's questions in a forthright manner were material misrepresentations which impeded Respondent's review of Petitioner's ability to practice medicine.

9. Respondent must show not only that Petitioner provided false or misleading information which was material to his application, but that he knowingly did so with intent to deceive. Department of Professional Regulation, Board of Medicine v. Vladimir Rosenthal, M.D., DOAH Case No. 91-2815 (Recommended Order issued October 2, 1992).

10. In Gentry v. Department of Professional and Occupational Regulations, 293 So. 2d 95, 97 (Fla. 1st DCA 1974), the court found that the statutory provision prohibiting licensed physicians from making "misleading, deceptive and untrue representation in the practice of medicine" do not apply to "representations which are honestly made but happen to be untrue." Such is not the case here.

11. Petitioner's testimony that he repressed his memory of his incomplete pathology residency after he disclosed it to other entities and reviewing boards in 1990, 1992, and 1995 is not credible. The greater weight of the evidence indicates that he did not repress his memory of that training program when he filed his application form. Instead, he deliberately concealed his pathology training by carefully changing all relevant dates on his application form and CV.

12. During the investigation, Petitioner continued to intentionally conceal information concerning the incomplete residency program because he did not want to reveal the nature of his personal program. He did not reveal the true reason for his

    failure to list his pathology residency on his application form. He never responded to questions whether he received credit for the program or left it in good-standing. He unequivocally stated that he did not break his contract for the first year of the program even though he had prematurely withdrawn from it.

13. Finally, Petitioner prepared his CV specifically to accompany his application form even though Respondent did not solicit a CV. Petitioner has not forwarded the CV to any other entity or reviewing board.

14. In summary, Respondent has sustained its intent to deny Petitioner a license by endorsement, based upon clear and convincing evidence that Petitioner is guilty of attempting to obtain a license by fraudulent misrepresentations. See Section 458.331(1)(a), Florida Statutes. Clear and convincing evidence is the standard of proof here in that Petitioner's conduct warrants disciplinary action.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED:

That Respondent enter a final order denying Petitioner a license to practice medicine by endorsement.

DONE AND ENTERED this 11th day of June, 1999, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1999.

ENDNOTES

1/ Respondent revised the application form in October 1997. However, the revision only changed the format of the application form. The application instructions have not been revised since Petitioner filed his application.

2/ Respondent's letters dated July 1, 1997, July 23, 1997,

August 5, 1997, September 11, 1997, October 15, 1997, and November 5, 1997, contain this same notice.

3/ Respondent's letters dated September 11, 1997, and

October 15, 1997, conclude with the same notice in addition to the notice referenced above in endnote number 2.

4/ If Petitioner had appeared at the credentials committee meeting on November 22, 1997, Respondent would have made its decision on the application within 15 days of the date that Respondent completed its investigation and within 32 days of the date that Respondent declared the application file to be complete.

COPIES FURNISHED:

Eric B. Tilton, Esquire Tilton and Metzger, P.A. Suite 200

204 South Monroe Street Tallahassee, Florida 32301

Lola M. Swaby, Esquire Donna Erlich, Esquire

Office of the Attorney General Administrative Law Section

The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

Tanya Williams, Executive Director Board of Medicine

Department of Health 1940 North Monroe Street

Tallahassee, Florida 32399-0750

Angela T. Hall, Agency Clerk Department of Health

Bin A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703

Pete Peterson, General Counsel Department of Health

Bin A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701

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: 98-005637

Orders for Case No: 98-005637