STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 02-2576PL

) MICHAEL FELIX FRESHWATER, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case in accordance with Section 120.57(1), Florida Statutes, on August 29, 2002, in Miami, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kim M. Kluck, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

For Respondent: Jay Cohen, Esquire

Grossman and Roth, P.A. 2665 South Bayshore Drive

Grand Bay Plaza, Penthouse One Miami, Florida 33133

STATEMENT OF THE ISSUE

Whether Respondent committed the violation alleged in the Amended Administrative Complaint, and, if so, what disciplinary action should be taken against him.

PRELIMINARY STATEMENT

On March 6, 2002, Petitioner filed an Amended Administrative Complaint against Respondent, a Florida-licensed medical doctor, alleging that Respondent violated Subsection (1)(k) of Section 458.331, Florida Statutes, by "ma[king] deceptive, untrue, or fraudulent representations in or related to the practice of medicine [when he] indicate[ed] on his Application for Reappointment to the Medical Staff of Miami Children's Hospital that he had not previously relinquished clinical privileges at any hospital" and that he "had never relinquished hospital privileges." Petitioner indicated in the Amended Administrative Complaint that it was "not seek[ing] revocation or suspension of the Respondent's license," but rather was pursuing "one or more of the following penalties: restriction of the Respondent's practice, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, and/or any other relief that the Board [of Medicine] deems appropriate, to include the assessment of costs related to the investigation and prosecution of this case as provided for in Section 456.072(4), Florida Statutes." The

matter was referred to the Division of Administrative Hearings (Division) on June 27, 2002, for the assignment of a Division Administrative Law Judge to conduct the hearing Respondent had requested.

As noted above, the final hearing was held on August 29, 2002. Three witnesses testified at the hearing: Lisa Velasco, Elizabeth Menocal, and Respondent. In addition to the testimony of these three witnesses, 17 exhibits (Petitioner's Exhibits 1 through 6, and Respondent's Exhibits 1 and 11) were offered and received into evidence.

At the close of the evidentiary portion of the hearing, the undersigned established a deadline (20 days from the date of the filing of the hearing transcript with the Division) for the filing of proposed recommended orders.

A Transcript of the final hearing (consisting of one volume) was filed with the Division on October 1, 2002.

Petitioner and Respondent filed their Proposed Recommended Orders on October 21, 2002, and October 17, 2002, respectively. These post-hearing submittals have been carefully considered by the undersigned.

FINDINGS OF FACT

Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made:

1. Respondent is now, and has been since 1977, a Florida- licensed medical doctor specializing in surgery of the hand.

2. He is board-certified in plastic surgery and, in addition, holds a "certificate of added qualifications" in hand surgery issued by the American Board of Plastic Surgery.

3. Respondent's license (license number ME 0031502) has never been suspended or revoked.

4. In or around December of 1992 or January of 1993, Respondent was granted temporary clinical privileges at Deering Hospital (Deering) 1/, which is located in Miami, Florida.

5. Pursuant to the Medical Staff Bylaws of Deering, being granted these privileges did not provide Respondent "any form of staff membership or any rights and privileges or membership associated with the Medical Staff of the Hospital."

6. In or around January of 1993, Respondent also became "a member of what was called the South Dade Health Partnership, which was the business association that owned Deering Hospital in conjunction with Columbia [Healthcare]."

7. On October 28, 1993, Respondent was granted provisional staff membership at Deering. As a provisional member of the medical staff, Respondent enjoyed clinical privileges (to perform plastic surgery services) at Deering.

8. Provisional membership status was one of seven categories of staff membership status at Deering. The other six

   categories were: active, associate, courtesy, consultant, honorary, and adjunct.

9. Provisional staff membership status was addressed in Article VI, Section 7, of the Medical Staff Bylaws of Deering, which provided as follows:

   PROVISIONAL STATUS

   
   

   All initial appointments to or re- assignments to any category of the Medical Staff, except Honorary Staff, shall be provisional for at least twelve (12) months and may be extended for up to one additional year. Provisional Members are required to have an average of at least ten (10) Patient Encounters during each calendar [sic].

   Provisional Staff Members who fail to satisfy applicable Patient Encounter requirements during an appointment period may request of the Executive Committee at the time of reappointment an extension of one year to satisfy the Patient Encounter requirement applicable to their existing Staff category. Failure of the Provisional Staff Member to request such extension, or failure to satisfy the applicable Patient Encounter requirement during the one year period of extension shall result in the Member being removed from the Medical Staff.

   
   

10. Provisional staff members who desired to remain on the staff at Deering following the expiration of their provisional staff membership had to "go through a reappointment process." Article IV, Section 5, of the Medical Staff Bylaws of Deering discussed the "reappointment process." It provided, in pertinent part, as follows:

    REAPPOINTMENT PROCESS

    
    

    1. No Member shall be automatically entitled to or have a vested right of renewal of membership and Privileges.

       
       

    2. Each Member of the Medical Staff in all categories shall be subject to reappointment one (1) year from the date of initial appointment and thereafter, every two (2) years, except in case of any extension of Provisional status.

       
       

       * * *

       
       

       1. Ninety (90) days prior to expiration, the Chief Executive Officer, or his/her designee will provide each Staff Member with a Reappointment application form. The Staff Member desiring reappointment will complete the re-appointment application a[n]d submit it to the Chief Executive Officer sixty (60) days prior to expiration of his/her reappointment. Failure, without good cause, to file the application for reappointment shall result in automatic termination of membership at the end of the current term. The Chief Executive Officer shall collect and verify the information regarding the Member's professional activities, performance and conduct in the Hospital. When the information has been collected and verified, the Chief Executive Officer shall transmit the application and supporting materials to the Chairman of each Department in which the staff member requests privileges.

          
          

       2. Upon receiving a Member's application for reappointment, each Department Chairperson shall review and evaluate the Member's Staff membership activity and Clinical Privileges for reappointment. (The Chairperson shall provide information concerning the Member's professional performance, judgment, technical skill, ability to work with and cooperate with

          Hospital staff and personnel, current competence and ability, current health status and his/her opinion of the Staff member's physical and mental status as it relates to ability to practice and exercise Hospital and Clinical Privileges in compliance with these Bylaws.[)] The Chairperson shall submit a recommendation to the Credentials Committee.

          
          

       3. The Credentials Committee shall review the Department Chairperson's recommendation and the application, and shall submit its recommendation in writing to the Executive Committee.

          
          

       4. Within sixty (60) days of the Chief Executive Officer's initial receipt of the application, the Executive Committee shall review the recommendation made by the Credentials Committee, and shall submit its recommendation through the Chief Executive Officers to the Governing Body.

       
       

       * * *

       
       

       L. If the review is not completed due to the Member's failure to provide the requested information, the practitioner will be sent a certified letter stating that failure to provide the information within 30 days will be deemed a voluntary withdrawal of the application for reappointment and a voluntary resignation from the Medical Staff. If the review is not completed due to circumstances totally within the Hospital's control, the Member shall be referred to the Credentials Committee.

       
       

11. Article IV, Section 4, of the Medical Staff Bylaws of Deering further provided that "[n]o applicant shall be deemed to have been accepted for Medical Staff membership except upon

    application made and fully acted upon according to these Bylaws."

12. Respondent was "up for reappointment" in October of 1995. 2/

13. Respondent submitted an Application for Reappointment to the Medical Staff of Deering on or about February 24, 1995.

14. Sometime on or prior to July 3, 1995, "concerns" were raised about the quality of care Respondent had provided two patients (in the operating room) at Deering. 3/

15. Respondent was advised of these "concerns."

    
    

16. On or about July 3, 1995, Respondent sent the following letter to Deering's Chief Executive Officer, Anthony Degina:

    Please send me a copy of the medical staff rules and regulations, a copy of the Fair Hearing plan, and copies of all written statements made by any witnesses concerning any of the incidents that are the subject of the hearing. The requested materials may be hand delivered.

    
    

    Thank you in advance for your anticipated cooperation.

    
    

17. On or about July 5, 1995, Deering's Director of Quality Management, Barbara Dahlfuss, R.N., sent a letter to Respondent, which read as follows:

    Tony Degina has asked me to inform you that the Medical Executive Committee will meet on Tuesday, July 18, 1995 to discuss the care rendered to [patients I. H. and R. P.] It

    has not been possible to schedule an earlier meeting.

    
    

    The meeting will take place in the Classroom of the 9275 Building across the street from the Emergency Room at 7:00 p.m.

    
    

18. On or about July 6, 1995, Mr. Degina sent Respondent the following letter:

    As you have requested, enclosed are the medical staff rules and regulations, together with a copy of the medical staff bylaws which contain the Fair Hearing Plan.

    
    

    The meeting scheduled for July 18, 1995, is a preliminary interview and does not constitute a hearing. At this time, no disciplinary action has been [sic] against you. If a decision is made to recommend disciplinary action, you will then be given the opportunity to request a hearing in accordance with the fair hearing plan and to review further evidence.

    
    

    If you have any questions, please call me.

    
    

19. "Disciplinary action" against members of Deering's medical staff was addressed in Article VII, Section 1, of the Medical Staff Bylaws of Deering. Subsection D through G of Article VII, Section 1, provided as follows:

    1. When the disciplinary action requested may constitute a revocation, reduction or suspension of membership or Clinical Privileges, the Executive Committee may conduct an investigation or promptly submit such request to the Chairperson of the Department to which the Member has Privileges. The affected Member shall be notified if an investigation is initiated. Upon receiving such a request, the appropriate Chairperson shall immediately

       conduct a detailed investigation of the matter. A report of the findings and recommendations of the Chairperson shall be made to the Chairperson of the Executive Committee within thirty (30) days after the Department Chairperson's receipt of the request. Before the Department Chairperson makes his/her report, if the affected Member requests, he/she shall be permitted to appear before the Chairperson or his/her designee(s), be informed of the general nature of the complaint against him/her, and be permitted to make a statement on his/her behalf. This appearance shall constitute an interview and shall not be a hearing, shall be preliminary in nature, and none of the procedural rules provided in these Bylaws with respect to hearings shall apply. A record of such appearance shall be made by the Chairperson of the Executive Committee.

       
       

    2. The Executive Committee shall consider the report from the Department Chairperson within thirty (30) days after receiving it. If the report recommends suspension, reduction or revocation of Membership or Privileges on the Medical Staff, if the Member requests, he/she shall be permitted to appear before the Executive Committee before it acts on such report. This appearance shall not constitute a hearing, shall be preliminary in nature, and none of the procedural rules provided in these Bylaws with respect to hearing shall apply. A record of such appearance shall be made by the Executive Committee.

       
       

    3. The Member upon receiving the notice of a disciplinary action may waive all further proceedings as outlined herein and request a final hearing before the Governing Body. Such a request shall be deemed a waiver of any further rights to hearing procedures and appeals according to these Bylaws. Such waiver shall be in writing to the Chief Executive Officer within 14 days after receipt of such notice.

       
       

    4. The action of the Executive Committee may take the form of recommending a letter of warning, admonition, or reprimand; reduction, suspension, o[r] revocation of clinical Privileges; terms of probation, or suspension or revocation of membership on the Medical Staff. Only those actions described in Article VIII, Section 2 shall entitle[] the Member to the rights . . . of hearing and appeal; the other actions shall entitle the Member to an interview with the Executive Committee before it sends it[s] recommendation to the Governing Body. All action of the Executive Committee shall be subject to approval or modification by the Governing Body.

    
    

20. The "Fair Hearing Plan" that Mr. Degina referenced in his July 6, 1995, letter to Respondent was set forth in Article VIII of the Medical Staff Bylaws of Deering.

21. On or about July 8, 1995, Respondent sent the following letter to Mr. Degina:

    I resign as a provisional member of the medical staff of Deering Hospital. Although it will be a financial sacrifice for me, I have come to the conclusion that I cannot remain at Deering Hospital because I cannot practice the highest level of medicine that my conscience and my patients demand of me.

    
    

    I have been a provisional member of the medical staff since 1992 when I was recruited by your predecessor, Jamie Hopping, to bring the highest level of hand surgical care to an institution that was crippled by Hurricane Andrew and subsequent withdrawal from practice of your prior hand surgeon. You were kind enough to send me a copy of the medical staff bylaws, rules and regulations last week after I requested it. The bylaws clearly state that provisional

    appointments last for no more than 24 months (p. 32). I received my provisional appointment to the medical staff more than

    24 months ago. I have no confidence in the ability and integrity of those medical staff officers who are charged with obeying the bylaws, rules and regulations that exist to protect the rights of practitioners and have failed to do so.

    
    

    I am uncomfortable with the competency of many of the operating room and inpatient area personnel. As you know, we agreed more than one year ago that Deering recruit either a nurse practitioner or physician's assistant whose duties would include training hospital personnel whose knowledge in the care of hand surgery patients has been clearly deficient. No person has been recruited and major deficiencies remain in the staff's knowledge. I have tried my best to improve the quality of care at Deering by education and constructive criticism, but your support has not resulted in sufficient substantive improvements on a regular basis by the employees.

    
    

    We agreed that the marketing efforts for the hand and microsurgery program be transferred from Cedars to Deering. More than a year has passed and there has not been a single marketing effort by Deering's marketing director! Indeed, due to the incompetency of the administrative staff, my former telephone number 234-2600, that remains listed in Yellow pages ads that cost me thousands of dollars, became unusable in January. It remains impossible to place a recording on the former number indicating that I have a new telephone number at Deering. Instead persons calling 234-2600 hear a recording that the number has been disconnected and no additional information is available. Can you imagine how much revenue has been lost from new patients who were lead to believe that my practice was closed?

    
    

    Very clearly a pattern has emerged in there being a major disparity between what you and Jamie have agreed to with me and what has been achieved by your staff. I realize that you rely on your subordinates to execute your requests and that you cannot devote the time that is necessary to be sure that they, in fact, do so.

    
    

    I cannot continue expending my time and energies to effect important change for the better while risking legal exposure and financial ruin as a result of the substandard work ethic of others, hence I am withdrawing my application as I am allowed under the hospital's by laws.

    
    

    I have enjoyed working with you personally and wish you the best of luck in the never ending challenge of managing Deering Hospital.

    
    

22. At the time that Respondent submitted this letter of resignation to Mr. Degina, he knew that Deering's Medical Executive Committee was considering whether to recommend that disciplinary action be taken against him for the "care [he had] rendered to [patients I. H. and R. P.]."

23. Respondent chose not to appear before Deering's Medical Executive Committee on July 18, 1995, for a "preliminary interview."

24. On or about July 21, 1995, Mr. Degina sent Respondent the following letter:

    I acknowledge that I have received notice of your correspondence dated July 8, 1995, wherein you submitted to the Medical Executive Committee your voluntary

    resignation from the medical staff of Deering Hospital. As you know, there is an existing Professional Services Agreement entered into between yourself and the hospital for the provision of Medical Directorship Services for the hand and microsurgery program. Section 1.2.3 required that you must maintain medical staff membership at Deering Hospital throughout the term of the Agreement.

    Therefore, in accordance with Section 3.5 of the Agreement, I am providing written notice of the termination of the Professional Services Agreement effective July 8, 1995.

    
    

    It is my hope that we will be able to afford a smooth transition of services. If you have any questions, please do not hesitate to contact me.

    
    

25. Respondent's resignation having been accepted, there was no need to decide whether disciplinary action should be taken against him as a result of the operating room "incidents" involving patients I. H. and R. P. 4/

26. Respondent enjoyed privileges at other hospitals, including Miami Children's Hospital (Children's), following his "resign[ation] as a provisional member of the medical staff of Deering Hospital."

27. Respondent had been on the medical staff and had had clinical privileges at Children's since 1979.

28. Of the 400 surgeries that Respondent performed in 1995 and 1996, only 10 were done at Children's.

29. Of the revenues that Respondent's medical practice generated during those two years, only one tenth of one percent were attributable to the work he did at Children's.

30. Although he did not reap great financial reward from his work at Children's, he nonetheless wanted to continue his association with the hospital.

31. Accordingly, in March of 1996, Respondent submitted an Application for Reappointment to the Medical Staff of Miami Children's Hospital (Application).

32. The Application contained a statement that Respondent signed and dated (March 6, 1996). It read, in pertinent part, as follows::

    In making application for reappointment to the Medical Staff of Miami Children's Hospital, I fully understand that any misstatements in or omissions from this application constitute cause for denial of appointment or cause for summary dismissal from the Medical Staff of Miami Children's Hospital. All information submitted by me in this application is true to my knowledge and belief.

    
    

33. The Application contained a "Professional Practice Information and Certification of Health" section with nine numbered questions that applicants were instructed to answer. Applicants were further instructed to "provide full details on a separate sheet of paper" with respect to any question answered in the affirmative.

34. The questions contained in the "Professional Practice Information and Certification of Health" section were as

follows:

1. Has your license to practice your profession in any jurisdiction ever been voluntarily or voluntarily limited, suspended, revoked, denied, subjected to probationary conditions, or relinquished; or have challenges or proceedings toward any of those ends ever been instituted?

   
   

2. Have your clinical privileges at any other hospital or health institute ever been voluntarily or involuntarily limited, suspended, revoked, not renewed, subjected to probationary conditions, or relinquished; or have proceedings toward any of those ends ever been instituted or recommended by a Medical Staff Committee or the Governing Board?

   
   

3. Has your Medical Staff membership or Medical Staff status at any hospital or health care institution ever been voluntarily or involuntarily limited, suspended, revoked, not renewed, subjected to probationary conditions (excluding initial conditions routinely placed on all such privileges at the institution), or relinquished; or have proceedings toward any of those ends ever been instituted or recommended by a Hospital or Medical Staff Committee or officer or an institutional Governing Board?

   
   

4. Has your request for any specific clinical privilege ever been denied or granted with stated limitations (excluding initial limitations routinely placed on all such privileges at the institution); or has such a denial or limitation ever been recommended by a Hospital or Medical Staff Committee or officer or a Governing Board?

5. Have you ever been denied membership or renewal thereof or been subject to any disciplinary action or revocation in any medical organization or professional society (local, state, or national); or have proceedings toward any of those ends ever been instituted?

   
   

6. Has your Drug Enforcement Agency or other controlled substances authorization ever been voluntarily or involuntarily denied, revoked, suspended, reduced, relinquished, or not renewed; or have proceedings toward any of those ends ever been instituted?

   
   

7. Have you ever been convicted of a felony?

   
   

8. Have you ever been denied professional liability insurance or has your policy ever been canceled?

   
   

9. Have any final settlements or judgments ever been made in any malpractice suits in which you were named as a defendant?

1. Respondent answered "no" to all nine questions, including questions 2 and 3.

2. His answers to questions 2 and 3 were in fact untrue, and he knew that they were untrue at the time he filled out the Application. 5/

3. Only eight months previous (after having been advised that Deering's Medical Executive Committee was looking into whether it should recommend that disciplinary action be taken against him), Respondent had "voluntarily . . . relinquished"

   his provisional staff membership at Deering and the clinical privileges that went along with such membership. 6/

4. On or about May 10, 1996, Patricia K. Conover, Children's Director of Medical Staff Services, sent the following letter to Respondent:

   We are in receipt of your application for renewal of clinical privileges.

   
   

   The hospital has received notification from the National Practitioner[] Data Bank that an adverse action was taken against your privileges by Deering Hospital for alleged unprofessional conduct. The response indicated that you resigned from staff while an investigation was ongoing.[7/]

   
   

   Prior to consideration of your application by the Credentials Committee, the following information will be required:

   
   

   1. A description of the incident/s that provoked your resignation and the charges made by Deering Hospital.

      
      

   2. The reappointment application specifically asks, on Page 3: "Has your Medical Staff membership or Medical Staff status at any hospital or health care institution ever been voluntarily or involuntarily limited, suspended, revoked, not renewed, subjected to probationary conditions (excluding initial conditions routinely placed on all such privileges at the institution), or relinquished; or have proceedings toward any of those ends ever been instituted or recommended by a Hospital or Medical Staff Committee or officer or an institutional Governing Board?" Your response was "no." Please provide an explanation of this inaccurate statement.

   3. You indicate that you are exempt from demonstrating financial responsibility and that you meet State criteria, one requirement of which is that you maintain a part-time practice of not more than 1,000 patient hours per year. Please provide the hours of operation of any and all locations so that the committee can determine whether you are indeed in a part-time practice, or should be required to carry malpractice insurance.

      
      

      As these are indeed serious credentialing issues, please provide the above-requested information within 10 days of receipt of this letter.

      
      

5. Respondent responded to Ms. Conover's May 10, 1996, letter by letter dated May 15, 1996, which read as follows:

   Thank you your letter of May 10, 1996, which was received by me today, May 15, 1996.

   
   

   The notification from the data bank is incorrect. No action was ever taken against me by Deering Hospital.

   
   

   I enclose a copy of my letter to the administrator at Deering, in which I stated that the medical staff had violated its bylaws by maintaining me in the provisional category for greater than 24 months. The violation of the bylaws, and other problems enumerated in the letter, resulted in my withdrawing my application, as is clearly stated in the next to last paragraph of the letter.

   
   

   Based upon the Deering bylaws, I did not resign from the medical staff, because I had never been appointed to the medical staff,[8/] and my application was allowed to remain in limbo for a significantly longer period of time than the bylaws allowed.

   Hence, as was recommended to me by the

   administrator at Deering, I withdrew my application.

   
   

   I will be glad to discuss this matter further, if it is necessary, with the Credentials Committee.

   
   

   I have maintained a part-time practice for over ten years. I have office hours for six hours per week, 45 weeks a year, and never spend more than 500 hours in hospital patient care. Hence, my total patient contact hours have not exceeded 1,000 hours per year.

   
   

   If I can provide you with any additional information, please feel free to contact me.

   
   

6. On or about July 31, 1996, Ms. Conover sent the following letter to Respondent:

   Thank you for responding to my letter of May 10, 1996. In that letter we requested information of the incidents surrounding the adverse action filed by Deering regarding your voluntary surrender of privileges for unprofessional conduct and resignation from the Medical Staff at Deering while under investigation for quality of patient care issues. It is our understanding that the same incident was filed both with the Agency for Health Care Administration (AHCA) and the National Practitioner[] Data Bank (Data Bank). Additionally, we had requested an explanation of the negative response to Question #3 which was not addressed in your response.

   
   

   In your response letter dated May 15th, you enclosed a letter you wrote to the administrator at Deering which makes reference to your request to withdraw your application for privileges at Deering but fails to provide the information giving rise to the report filed by Deering.

   Unfortunately, Deering has failed to respond

   to our written requests for information from the Data Bank indicating that you have submitted a request for correction of the alleged incorrect report filed by Deering.

   The same incident regarding your resignation of privileges was also reported to AHCA. Unfortunately, we are unable to obtain any further information from AHCA at this time since this agency does not currently have any "public" information regarding this matter available for public request.

   
   

   The Credentials Committee is charged with the affirmative duty of investigating any reported adverse actions and to request additional information from the applicant in order to make an informed determination regarding the qualification of its applicants. Moreover, pursuant to section

   2.7.1 of the Medical Staff Bylaws the "applicant shall have the burden of producing information for the adequate evaluation of his qualification and suitability for the clinical privileges and staff category requested and for satisfying requests for information." At this time, Miami Children's Hospital has made all reasonable efforts to attempt to obtain such information. However, the information needed by the Credentials Committee to review your application is still incomplete and unsatisfactory.

   
   

   Based on the foregoing and in order to provide the Credentials Committee with complete information on which the committee may base a decision regarding your application for reappointment, please submit the following information:

   
   

   1. Your curriculum vitae, original application for Medical Staff privileges and subsequent reappointment applications reflect inconsistent and incomplete listing of hospitals in which you have held Medical Staff privileges. Again, your negative response to Question #3 is inconsistent with

      other documentation which you have submitted in the past. Please keep in mind that the application which you submitted to Miami Children's Hospital contains the following (signed) statement: "In making application for reappointment to the Medical Staff of Miami Children's Hospital, I fully understand that any misstatements in or omissions from this application constitute cause for denial of appointment or cause for summary dismissal from the Medical Staff of Miami Children's Hospital."

      
      

      Please provide a complete listing of any and all hospitals on which you have held membership or privileges from the time of your initial appointment to the staff at Miami Children's Hospital on August 20, 1979. Please include the dates of such association, the status that you held, whether you currently hold privileges there, and if not, the reasons for discontinuance.

      
      

   2. In light of your negative response to Question #3, please provide a written explanation of your failure to disclose discontinuance of membership and/or privileges at Deering and/or at any other facility.

      
      

   3. Whereas we have been unsuccessful in our attempts to secure information from Deering Hospital and other hospitals which you purported to hold staff appointment, please contact each hospital on which you held privileges since August, 1979 and have them provide verification of staff appointment, dates of service, and reasons for discontinuance if applicable.

      
      

   4. In reference to the discontinuance of privileges at Deering Hospital in particular, please contact the responsible administrator at that institution to provide a full disclosure of the circumstances which resulted in their report to the National Practitioner[] Data Bank.

      
      

   5. In reference to your declaration that you are exempt from carrying medical malpractice insurance, you stated that you "have office hours for six hours per week,

   45 weeks a year, and never spend more than

   500 hours in hospital patient care." So that the hospital may determine if your "part-time practice" provides sufficient operative experience to sufficiently demonstrate current clinical competence, please provide case listings from any and all hospitals or ambulatory centers at which you performed surgery during the past two years.

   
   

   So that further delay of your application for continuation of privileges may be avoided, please provide your response to these foregoing documentation requests within the next thirty (30) days.

   
   

7. Respondent responded to Ms. Conover's July 31, 1996, letter by letter dated August 27, 1996, which read as follows:

   I enclose the information that I have received to date, which you had requested in your last letter.

   
   

   You will find in this package a copy of my most recent curriculum vitae and list of surgical procedures performed at Cedars Medical Center over the past two years. I am still in the process of obtaining the information from the other hospitals that I have practiced at during the past two years (excluding Miami Children's); namely, Aventura Hospital. You will note that my curriculum vitae accurately reflects information that has been previously provided to you, regarding my medical staff appointments. My attorney is in the process of attempting to obtain the additional information that you requested from Deering Hospital. I have discussed this matter with Dr. Tidwell and he is aware of the

   difficulties that I have experienced with Deering Hospital; hence the need for my attorney's intervention.

   
   

   As soon as the additional information is forthcoming, I shall gladly forward it to you.

   
   

8. Sometime in the fall of 1996, Respondent received a letter from Children's informing him that his Application "had been turned down and that [he] had a right to have a fair hearing."

9. Respondent requested, and was granted, a "fair hearing" on the denial of his Application.

10. Thereafter, a final determination was made to deny Respondent's Application and remove him from Children's medical staff.

    CONCLUSIONS OF LAW

    
    

11. The Board of Medicine (Board) is now, and has been at all times material to the instant case, statutorily empowered to take disciplinary action against a Florida-licensed medical doctor based upon any of the grounds enumerated in Subsection

    (1) of Section 458.331, Florida Statutes.

    
    

12. The Board may take such action only after the licensee has been given reasonable written notice of the charges and an adequate opportunity to request a proceeding pursuant to Sections 120.569 and 120.57, Florida Statutes.

13. An evidentiary hearing must be held if requested by the licensee when there are disputed issues of material fact. Sections 120.569(1) and 120.57(1), Florida Statutes.

14. At the hearing, Petitioner bears the burden of proving that the licensee engaged in the conduct, and thereby committed the violations, alleged in the charging instrument.

15. "In any administrative action against a [medical doctor] which does not involve revocation or suspension of license [like the instant case], [Petitioner has] the burden, by the greater weight of the evidence, to establish the existence of grounds for disciplinary action." Section 458.331(3), Florida Statutes.

16. Regardless of the punitive action sought to be taken against the doctor, in determining whether Petitioner has met its burden of proof, it is necessary to evaluate Petitioner's evidentiary presentation in light of the specific factual allegations made in the charging instrument. Due process prohibits an agency from taking disciplinary action against a licensee based upon conduct not specifically alleged in the charging instrument. See Hamilton v. Department of Business and Professional Regulation, 764 So. 2d 778 (Fla. 1st DCA 2000); Lusskin v. Agency for Health Care Administration, 731 So. 2d 67,

    69 (Fla. 4th DCA 1999); and Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996).

17. Furthermore, "the conduct proved must legally fall within the statute or rule claimed [in the charging instrument] to have been violated." Delk v. Department of Professional Regulation, 595 So. 2d 966, 967 (Fla. 5th DCA 1992). In deciding whether "the statute or rule claimed to have been violated" was in fact violated, as alleged by Petitioner, if there is any reasonable doubt, that doubt must be resolved in favor of the licensee. See Whitaker v. Department of Insurance and Treasurer, 680 So. 2d 528, 531 (Fla. 1st DCA 1996); Elmariah v. Department of Professional Regulation, Board of Medicine, 574 So. 2d 164, 165 (Fla. 1st DCA 1990); and Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

18. In those cases where the proof is sufficient to establish that the licensee committed the violation(s) alleged in the charging instrument and that therefore disciplinary action is warranted, it is necessary, in determining what disciplinary action should be taken against the licensee, to consult the Board's "disciplinary guidelines," as they existed at the time of the violation(s). See Parrot Heads, Inc. v. Department of Business and Professional Regulation, 741 So. 2d 1231, 1233 (Fla. 5th DCA 1999)("An administrative agency is bound by its own rules . . . creat[ing] guidelines for disciplinary penalties."); and Orasan v. Agency for Health Care

    Administration, Board of Medicine, 668 So. 2d 1062, 1063 (Fla. 1st DCA 1996)("[T]he case was properly decided under the disciplinary guidelines in effect at the time of the alleged violations."); see also State v. Jenkins, 469 So. 2d 733, 734 (Fla. 1985)("[A]gency rules and regulations, duly promulgated under the authority of law, have the effect of law."); Buffa v.

    Singletary, 652 So. 2d 885, 886 (Fla. 1st DCA 1995)("An agency must comply with its own rules."); Decarion v. Martinez, 537 So. 2d 1083, 1084 (Fla. 1st DCA 1989)("Until amended or abrogated, an agency must honor its rules."); and Williams v. Department of

    Transportation, 531 So. 2d 994, 996 (Fla. 1st DCA 1988)(agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees).

19. At the time of the alleged violation in the instant case, the Board's "disciplinary guidelines" were found in Rule 61F6-20.001, Florida Administrative Code, which provided, in pertinent part, as follows:

    1. Purpose. [T]he Board provides within this rule disciplinary guidelines which shall be imposed upon . . . licensees whom it regulates under Chapter 458, F.S. The purpose of this rule is to notify . . . licensees of the ranges of penalties which will routinely be imposed unless the Board finds it necessary to deviate from the guidlelines for the stated reasons given within this rule. The ranges of penalties provided below are based upon a single count of each provision listed; . . . Each range includes the lowest and highest penalty and

       all penalties failing between. The purposes of the imposition of discipline are to punish the . . . licensees for violations and to deter them from future violations; to offer opportunities for rehabilitation, when appropriate; and to deter other . . . licensees from violations.

       
       

    2. Violations and Range of Penalties. In imposing discipline upon . . . licensees, in proceedings pursuant to Section

       120.57(1) . . . Florida Statutes, the Board shall act in accordance with the following disciplinary guidelines and shall impose a penalty within the range corresponding to the violations set forth below. The verbal identification of offenses are descriptive only; the full language of each statutory provision cited must be consulted in order to determine the conduct included.

       
       

       VIOLATION

       
       

       * * *

       
       

       (k) Deceptive, untrue, or fraudulent representations in the practice of medicine (458.331(1)(k), F.S.)

       
       

       RECOMMENDED RANGE OF PENALTY

       
       

       * * *

       
       

       (k) From probation to revocation or denial and an administrative fine from $250.00 to

       $5,000.00.

       
       

       * * *

       
       

    3. Aggravating and Mitigating Circumstances. Based upon consideration of aggravating and mitigating factors present in an individual case, the Board may deviate from the penalties recommended above. The Board shall consider as aggravating or mitigating factors the following:

       
       

       1. Exposure of patient or public to injury or potential injury, physical or otherwise: none, slight, severe or death;

          
          

       2. Legal status at the time of the offense: no restraints or legal constraints;

          
          

       3. The number of counts or separate offenses established;

          
          

       4. The number of times the same offense or offenses have previously been committed by the licensee . . .;

          
          

       5. The disciplinary history of the . . . licensee in any jurisdiction and the length of practice;

          
          

       6. Pecuniary benefit or self-gain inuring to the . . . licensee;

          
          

       7. Any other relevant mitigating factors.

    
    

20. The Amended Administrative Complaint issued in the instant case alleges that Respondent violated Subsection (l)(k) of Section 458.331, Florida Statutes, by making false representations on his Application for Reappointment to the Medical Staff of Miami Children's Hospital.

21. At all times material to the instant case, Subsection (1)(k) of Section 458.331, Florida Statutes, has authorized the Board to take disciplinary action against a Florida-licensed medical doctor for "[m]aking deceptive, untrue, or fraudulent representations in or related to the practice of medicine."

22. "[D]eceptive, untrue, or fraudulent representations" made on an application for hospital privileges cannot be said to have been made "in . . . the practice of medicine"; however, the making of such representations are "related to the practice of medicine," within the meaning of Subsection (1)(k) of Section 458.331, Florida Statutes. See Elmariah v. Department of

    Professional Regulation, Board of Medicine, 574 So. 2d at 165,

    
    

    n.1. ("[I]t is of no consequence that the Board found appellant's deceptive applications for staff privileges bore some relation to his practice or attempt to practice medicine. Regardless of whether appellant's misrepresentations somehow related to his practice or attempt to practice, it cannot be said that they were made 'in' the practice of medicine. . . .

    n.1. We note that the subsection in question, which was redesignated as subsection (k) in 1986, was amended in 1989. See ch. 89-374, § 11, Laws of Fla. At present, the following constitutes a valid basis for disciplinary action: '(k) Making deceptive, untrue, or fraudulent representations in or related

    to the practice of medicine or employing a trick or scheme in the practice of medicine.' Section 458.331(1)(k), Fla. Stat. (1989)(emphasis added). Although we would not presume to interpret a statute not presently before us, we note that the added language (emphasized) should give pause to those who might assume that actions similar to appellant's remain

    unpunishable."); and Department of Health, Board of Medicine, v. Hays, Nos. 97-5910 and 97-5911, 1998 WL 929950 (Fla. DOAH

    1998)(Recommended Order)("Respondent's use of the term 'pending' in describing his affiliations with St. Anthony's and Bayfront when he signed the Palms of Pasadena Hospital application [for privileges], was an untrue representation related to the practice of medicine."; recommended that Board "find Respondent guilty of having violated the provisions of Section 458.331(1)(k), Florida Statutes ").

23. To establish that a licensee committed a violation of Subsection (1)(k) of Section 458.331, Florida Statutes, by "[m]aking deceptive, untrue, or fraudulent representations" on an application for hospital privileges, it must be shown, not only that the licensee provided false or misleading information on the application, but also that the licensee knowingly did so. See Gentry v. Department of Professional and Occupational Regulations, 293 So. 2d 95, 97 (Fla. 1st DCA 1974)(former statutory provision prohibiting licensed medical doctors from "[m]aking misleading, deceptive and untrue representations in the practice of medicine" held not to apply to "representations which are honestly made but happen to be untrue"; "[t]o constitute a violation, . . . the legislature intended that the misleading, deceptive and untrue representations must be made willfully (intentionally)"); see also Munch v. Department of

    Professional Regulation, Division of Real Estate, 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992)("It is clear that Section 475.25(1)(b) [Florida Statutes, which, in its first clause, authorizes the Florida Real Estate Commission to discipline a licensee guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction] is penal in nature. As such, it must be construed strictly, in favor of the one against whom the penalty would be imposed. . . . Reading the first clause of Section 475.25(1)(b), and applying to the words used their usual and natural meaning, it is apparent that it is contemplated that an intentional act be proved before a violation may be found.").

24. In the instant case, Petitioner made such a showing.

    
    

    It proved by the greater weight of the evidence that, as alleged in the Amended Administrative Complaint, Respondent knowingly 9/ made false representations on his Application for Reappointment to the Medical Staff of Miami Children's Hospital by indicating thereon "that he had not previously relinquished clinical privileges at any hospital" and "that he had never relinquished hospital privileges."

25. Accordingly, Respondent should be found guilty of violating Subsection (1)(k) of Section 458.331, Florida Statutes, as charged.

26. In its Proposed Recommended Order, Petitioner suggests that the undersigned recommend that the Board impose the following penalties upon Respondent: "a Reprimand, payment of an Administrative Fine in the amount of $5,000.00 to be paid within 180 days, and payment of costs of investigation and prosecution."

27. Having carefully considered the facts of the instant case in light of the provisions of Rule 61F6-20.001, Florida Administrative Code, set forth above, and further recognizing that the Board is now, and has been at all times material to the instant case, statutorily authorized to "assess costs related to the investigation and prosecution" of those disciplinary cases it decides, 10/ the undersigned concludes that the penalty suggested by Petitioner is an appropriate one to impose in the

instant case.

RECOMMENDATION

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

RECOMMENDED that Petitioner issue a final order in which it finds Respondent guilty of the violation of Subsection (1)(k) of Section 458.331, Florida Statutes, alleged in the Amended Administrative Complaint and, as punishment therefor, reprimands Respondent and requires him to pay a fine in the amount of

$5,000.00, as well as the "costs related to the investigation

and prosecution of the case," 11/ within 180 days of the date of the final order.

DONE AND ENTERED this 29th day of October, 2002, in Tallahassee, Leon County, Florida.

STUART M. LERNER

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 29th day of October, 2002.

ENDNOTES

1/ Deering now operates as Jackson South Community Hospital.

2/ The undersigned has rejected the assertion made by Respondent (in his proposed finding of fact 6) that the record is devoid of evidence that "Respondent's provisional status was ever extended an additional twelve (12) months from October, 1994." On page 11 of Respondent's Application for Appointment to the Deering Medical Staff (Petitioner's Exhibit 4), which (according to the printed notation on the top of the page) was "not to be filled in by applicant" and was "for hospital records only," is the handwritten "remark," "up for reappointment 10/95." Further proof that Respondent remained a provisional member of the Deering medical staff after October of 1994, can be found in the July 8, 1995, letter in which Respondent announced his resignation "as a provisional member of the medical staff of Deering Hospital" (Petitioner's Exhibit 2) and in Respondent's Application for Reappointment to the Medical Staff of Deering, which is dated "2/24/95" (Petitioner's Exhibit 5). Furthermore, Respondent himself testified that he continued on the Deering medical staff after October of 1994, and that he "performed surgery at Deering" as recently as "late June 1995."

3/ It is unclear who reported the incidents in question to the hospital administration.

4/ At some point in time, the Agency for Health Care Administration investigated these "incidents" and found that there was no probable cause to initiate disciplinary action against Respondent's license to practice medicine in Florida.

5/ Respondent testified that he "thought that question number three was basically asking have you been thrown off the staff at another hospital for practicing bad medicine." The undersigned has rejected this testimony inasmuch as it is difficult to believe that a reasonable person with Respondent's education and background would have read the question so narrowly, given the language used in the question, which makes abundantly clear that Children's was interested in finding out other things from the applicant (in addition to whether the applicant had ever "been thrown off the staff at another hospital for practicing bad medicine"), including whether the applicant had ever "voluntarily . . . relinquished" his or her "Medical Staff membership or Medical Staff status at any hospital or health care institution."

6/ There is no reason to believe that, at the time he filled out the Application, Respondent had forgotten about his voluntary dissociation with Deering.

7/ Children's had obtained this information from the National Practitioner Data Bank on or about February 11, 1996

8/ The evidentiary record reveals otherwise. Respondent had "been appointed to the medical staff" of Deering (as a provisional staff member) and, until his resignation, had enjoyed the privileges of such membership status.

9/ Although Respondent testified that he never intended to be untruthful on his Application, his actions belie this claim.

See State v. Breland, 421 So. 2d 761, 766 (Fla. 4th DCA 1982)("Actions manifest intent.").

10/ See Section 456.072(4), Florida Statutes ("In addition to any other discipline imposed through final order, or citation, entered on or after July 1, 2001, pursuant to this section or discipline imposed through final order, or citation, entered on or after July 1, 2001, for a violation of any practice act, the board, or the department when there is no board, shall assess

costs related to the investigation and prosecution of the case."). The Board has had such authority "to assess costs related to the investigation and prosecution of the case" since before the violation committed by Respondent in the instant case. See Section 9 of Chapter 94-119, Laws of Florida.

11/ "In the absence of a rule setting out a procedure for establishing the appropriate amount of such costs, fundamental fairness requires that the Board . . . require [Petitioner] to submit to the Board and to the Respondent an itemized listing of the costs for which payment is requested and that the Respondent be given an opportunity to contest the accuracy and/or reasonableness of the costs before the Board determines the amount of costs the Respondent will be required to pay." Department of Health, Board of Nursing v. Matus, No. 97-1911, 1997 WL 1053326 (Fla. DOAH 1997)(Recommended Order).

COPIES FURNISHED:

Kim M. Kluck, Esquire Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

Jay Cohen, Esquire Grossman and Roth, P.A. 2665 South Bayshore Drive

Grand Bay Plaza, Penthouse One Miami, Florida 33133

Larry McPherson, Executive Director Board of Medicine

Department of Health 4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

R. S. Power, 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: 02-002576PL

Orders for Case No: 02-002576PL