STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GAYL S. READER, M.D., )

)

Petitioner, )

)

vs. )

) DEPARTMENT OF HEALTH, BOARD OF ) MEDICINE, )

)

Respondent. )

Case No. 01-2087

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this cause before Administrative Law Judge Don W. Davis in Tallahassee, Florida, on August 16, 2001. The following appearances were entered.

APPEARANCES

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

Holland and Knight LLP

400 North Ashley Drive Suite 2300

Tampa, Florida 33602-4300

For Respondent: Lee Ann Gustafson, Esquire

Office of the Attorney General Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner is eligible for licensure as a physician in Florida by endorsement pursuant to

Chapter 456, Florida Statutes, in view of his alleged violations of Section 458.331(1)(h),(k) and (m), Florida Statutes.

PRELIMINARY STATEMENT

The Board of Medicine (Respondent) denied the application of Gayl S. Reader, M.D. (Petitioner) for licensure by endorsement as a physician in Florida by written notice filed on April 25, 2001. Petitioner is presently licensed as a physician in Kentucky.

Petitioner requested formal administrative proceedings with regard to Respondent's denial. The case was transferred to the Division of Administrative Hearings on May 25, 2001.

Subsequently, the matter was set for final hearing.

During the final hearing, Petitioner testified in his own behalf and presented four exhibits. Respondent presented testimony of one witness and 11 exhibits. The Transcript of the proceedings was filed on August 22, 2001.

The parties requested and were granted leave to file proposed recommended orders more than 10 days from conclusion of the final hearing. Both Petitioner and Respondent filed Proposed Recommended Orders which have been reviewed and considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is licensed as a physician in the state of Kentucky. Petitioner's application for licensure by endorsement in the State of Florida was preliminarily denied by Respondent

   on April 25, 2001. As grounds for its intended denial, Respondent stated that Petitioner had: (1) signed a Kentucky death certificate for an individual that Petitioner had not examined; (2) diagnosed psychosis based on an informal conversation previously had with the individual; (3) failed to keep records of the informal conversation or consultation with the individual; and (4) submitted a post death diagnosis of the individual to the Social Security Administration, without a medical examination of the individual, in order to obtain social security benefits for the individual's wife.

2. The individual referenced by Respondent's denial was Claude B. Williams. He was the husband of the sister of Petitioner's wife.

3. Petitioner did not have a close relationship with Williams. Petitioner spoke with Williams a few times at their mother-in-law's house. In the course of one of these conversations on November 8, 1996, Petitioner refused to provide a prescription for back pain mediation to Williams on the basis that Williams was not his patient. On November 19, 1996, Williams suddenly took his pistol out of his bedroom and shot himself in the head in front of his wife and her two children by a former marriage. Williams died instantly.

4. Petitioner was not involved in an autopsy of Williams.

   
   

   Nevertheless, Williams' widow asked Petitioner to sign a death

   certificate for the dead man so that she could apply for social security benefits. The coroner investigating the death had not yet issued a death certificate.

5. Petitioner acceded to his sister-in-law's request in December of 1996, by writing a letter to the Social Security Administration. On Petitioner's professional letterhead, the letter was signed by Petitioner in his capacity as a physician. Petitioner recounted in the letter that Williams had "consulted" him on November 8, 1996. The letter concluded with Petitioner's diagnosis that Williams suffered an acute psychotic breakdown due to a toxic drug reaction, which in turn led to Williams' death. The letter was couched in terms that presumed a physician-patient relationship and did not reveal that Petitioner was not the treating physician for Williams.

6. On January 14, 1997, Petitioner met with and sought to influence the coroner (a lay person) who was investigating Williams' death in the state of Kentucky. The coroner told Petitioner that it could be a year before the death certificate was issued by the coroner as certain test results were not yet available. Petitioner did not discuss with the coroner the idea of Petitioner personally signing a death certificate for Williams.

7. Petitioner went to the funeral home following his discussion with the coroner and proffered a death certificate

   that he had prepared to the director of the funeral home, asking the director to file the certificate. The director refused to file the certificate.

8. In the proffered death certificate, Petitioner had set forth a diagnosis for Williams' death: "[A]cute toxic delirium, depression and psychosis" resulting from a reaction to a high dose of steroids. This diagnosis was based solely on the one conversation that Williams had with Petitioner on November 8, 1996, and was not based on a physical examination or any diagnostic tests of Williams. The parties have stipulated that Williams died of a self-inflicted gunshot wound on November 19, 1996.

9. The coroner filed a complaint against Petitioner on March 10, 1997, with the Kentucky Board of Medicine. In response to an investigation conducted by that Board, Petitioner asserted that "a physician/patient relationship existed" between himself and Williams. Petitioner did not have and did not maintain any records documenting treatment or consultation with Williams.

10. The Kentucky Board of Medicine found that Petitioner's actions constituted misconduct, although not serious enough to warrant issuance of a disciplinary complaint.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.569 and Section 120.57, Florida Statutes.

12. Respondent has noticed Petitioner of intent to deny his application for certification for licensure as a Florida physician by endorsement. Respondent's action is based on allegations that Petitioner took certain actions in the State of Kentucky, where he is licensed as a physician, which constitute violations of Section 458.331(1)(h), (k) and (m), Florida Statutes.

13. Section 458.331(1)(h) proscribes:

    
    

    1. aking or filing a report which the licensee knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing or inducing another person to do so. Such reports or records shall include only those which are signed in the capacity as a licensed physician.

       
       

14. Section 458.331(1)(k), Florida Statutes, prohibits:

    
    

    1. aking deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employing a trick or scheme in the practice of medicine.

15. Section 458.331(1)(m), Florida Statutes, prohibits: [F]ailing to keep legible, as defined by

    department rule in consultation with the

    Board, medical records that identify the licensed physician or the physician extender

    and supervising physician by name and professional title who is or are responsible for rendering, ordering, supervising, or billing for such diagnostic or treatment procedure and that justify the course of treatment of the patient, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations.

    
    

16. The preponderance of the evidence presented at Final Hearing fails to establish that Petitioner had a physician/patient relationship with Williams. Accordingly, Petitioner was not remiss in the keeping of medical records as required by Section 458.331(1)(m), Florida Statutes.

17. The preponderance of the evidence establishes that Petitioner is guilty of making deceptive representations to the Social Security Administration in the practice of medicine and in his capacity as a licensed physician in violation of Section 458.331(1)(k), Florida Statutes.

18. Petitioner is also guilty of filing a report which he knew was false in the context of his letter to the Social Security Administration on behalf of his sister-in-law. Additionally, Petitioner falsely asserted to the Kentucky Board of Medicine that "a patient/physician" relationship existed between himself and Williams.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That a Final Order be entered denying Petitioner's application for licensure in the State of Florida by endorsement.

DONE AND ENTERED this 13th day of September, 2001, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 13th day of September, 2001.

COPIES FURNISHED:

Lee Ann Gustafson, Esquire Office of the Attorney General Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

M. Catherine Lannon, Esquire Office of the Attorney General Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

A. S. Weekley, Jr., M.D., Esquire Holland and Knight LLP

400 North Ashley Drive Suite 2300

Tampa, Florida 33602-4300

Tanya Williams, Executive Director Board of Medicine

Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Theodore M. Henderson, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 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: 01-002087

Orders for Case No: 01-002087