STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Notice was provided and on April 28, 2008, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes (2007). The hearing took place at the Division of Administrative Hearings, DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. The hearing was held before Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Diane K. Kiesling, Esquire

Department of Health

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

For Respondent: Gina M. Dieudonne, M.D., pro se

48 Goldfield Cove Jackson, Tennessee 38305

STATEMENT OF THE ISSUE

Should discipline be imposed against Respondent's license to practice medicine for violation of Section 458.331(1)(b) and (kk), Florida Statutes (2005)?

PRELIMINARY STATEMENT

On October 26, 2007, in Case No. 2007-00789, the Department of Health (DOH) brought an Administrative Complaint against Respondent accusing her of violations of the statute referred to in the Statement of the Issue. The Administrative Complaint was premised upon the following factual allegations:

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1. The Illinois Department of Financial and Professional Regulation (IDFPR) is the licensing authority regulating the practice of medicine in the State of Illinois.

   
   

2. On or about January 4, 2006, the IDFPR entered an Order indefinitely suspending Respondent's license to practice as a Physician and Surgeon in the State of Illinois.

   
   

3. The IDFPR disciplined Respondent for failing to pay individual income tax for the tax years of 1999 and 2003.

   
   

4. The Order entered by the IDFPR constitutes disciplinary action against the Respondent's license to practice medicine in the State of Illinois.

   
   

5. Respondent failed to report, in writing, to the Florida Board of Medicine within thirty (30) days of the January 4, 2006, disciplinary action taken by the IDFPR.

Based upon the factual allegations, Respondent was alleged to have violated Section 458.331(1)(b), Florida Statutes (2005), as related in Count One in that:

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11. The January 4, 2006, Order entered by the IDFPR, which indefinitely suspended Respondent's license to practice as a Physician and Surgeon in the State of Illinois, constitutes disciplinary action against the Respondent's Illinois medical license.

Respondent was also alleged to have violated Section 458.331(kk), Florida Statutes (2005), as related in Count Two in that:

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15. Respondent failed to report, in writing, to the Florida Board of Medicine within thirty (30) days the disciplinary action taken in Illinois.

Respondent was provided a form entitled "Election of Rights," in which she was allowed to choose among several options in addressing the Administrative Complaint. She chose option three which states:

Option 3. X I do dispute the allegations of fact contained in the Administrative Complaint and request this to be considered a petition for formal hearing, pursuant to Section 120.569(2)(a) and 120.57(1), Florida Statutes, before an administrative law judge appointed by the Division of Administrative Hearings. I specifically dispute the

following paragraph of the Administrative Complaint:

I failed to notify the Florida Board of Medicine of the disciplinary action taken against my license in Illinois.

The date on which she executed the Election of Rights form is unknown.

On January 16, 2008, DOH forwarded the case to the Division of Administrative Hearings (DOAH) to assign an administrative law judge to conduct a hearing pursuant to Respondent's request for formal hearing. The assignment was made by Robert S. Cohen, Director and Chief Judge of DOAH in reference to DOAH Case No.

08-0304PL. The assignment was to the present administrative law judge.

The hearing was originally scheduled to be heard on March 20, 2008. Thereafter, on March 11, 2008, DOH filed a

motion for continuance based on the fact that Respondent in this case is married to another physician who also had a similar case pending at DOAH, DOAH Case No. 08-1147PL. DOH requested additional time to coordinate and prepare for the two cases.

The motion for continuance was granted.

DOH also filed a Motion to Consolidate this case with the case of DOH v. Cortez A. Tucker, DOAH Case No. 08-1147PL, DOH Case No. 2006-02927. (The motion for consolidation was for purposes of hearing only because Drs. Dieudonne and Tucker would

be driving together from their residence in Tennessee and the Department's witnesses would be the same.) The motion was granted on March 17, 2008, and the consolidated hearing was scheduled for April 28, 2008, in Tallahassee, Florida.

On March 21, 2008, DOH filed a Motion to Amend the Administrative Complaint. The motion was granted on April 2, 2008. The Amended Administrative Complaint was premised upon the following factual allegations:

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1. The Illinois Department of Financial and Professional Regulation (IDFPR) is the licensing authority regulating the practice of medicine in the State of Illinois.

   
   

2. On or about January 4, 2006, the IDFPR entered an Order indefinitely suspending Respondent's license to practice as a physician and surgeon in the State of Illinois.

   
   

3. The IDFPR disciplined Respondent for failing to pay individual income tax for the tax years of 1999 and 2003.

   
   

4. The Order entered by the IDFPR constitutes disciplinary action against the Respondent's license to practice medicine in the State of Illinois.

   
   

5. On or about July 10, 2006, the Respondent signed a Stipulation and Recommendation for Settlement that, if approved by the IDFPR, would lift the suspension and allow the Respondent to renew her Illinois license, while placing her Illinois medical license on indefinite probation until such time as the Respondent satisfactorily completed the payment of

   delinquent state income taxes and satisfactorily completed repayment of her Illinois Student Assistance Commission student loans.

   
   

6. The Stipulation and Recommendation for Settlement was approved by the Medical Disciplinary Board on August 2, 2006.

1. On or about October 18, 2006, the Director of the IDFPR signed an Order adopting the Stipulation and Recommendation for Settlement, subject to the terms therein, including the probation.[1/]

   
   

2. Respondent failed to report, in writing, to the Florida Board of Medicine within thirty (30) days of the January 4, 2006, suspension of her medical license by the IDFPR.

   
   

3. Respondent failed to report, in writing, to the Florida Board of Medicine, within thirty (30) days of the October 18, 2006, Order, the stipulated probation of her medical license by the IDFPR.

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1. The January 4, 2006, Order entered by the IDFPR, which indefinitely suspended Respondent's license to practice as a physician and surgeon in the State of Illinois, constitutes disciplinary action against the Respondent's Illinois medical license.

   
   

2. The October 18, 2006, Order entered by the IDFPR adopting the Stipulation and Recommendation for Settlement, subject to the terms therein, including the probation, constitutes disciplinary action against the Respondent's Illinois medical license.

In relation to the Amended Administrative Complaint, Count One charged a violation of Section 458.331(1)(b), Florida Statutes (2005), and Count Two charged a violation of Section 458.331(1)(kk), Florida Statutes (2005).

At hearing Petitioner presented the testimony of Fred Lanier and Tanya Daniels. Petitioner's Exhibits numbered 1 through 5 were admitted.

Respondent testified in her own behalf and presented three exhibits jointly with the Respondent in DOAH Case No. 08-1147PL. Those exhibits referred to as Tucker/Dieudonne Exhibits numbered

1 and 2 were not admitted but are included with this record.

The Tucker/Dieudonne Exhibit numbered 3 was admitted.

On May 19, 2008, the transcript of the combined hearing in DOAH Case Nos. 08-0304PL and 08-1147PL was filed with DOAH. The transcript explains to what extent it is related to each case.

Petitioner filed a proposed recommended order in this case. Respondent did not. Petitioner's proposed recommended order has been considered in preparing the Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state department charged with the regulation of the practice of medicine pursuant to Chapter 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 458, Florida Statutes.

2. Respondent is Gina Marie Dieudonne, M.D.

3. Respondent is a licensed medical doctor in the State of Florida, having been issued license ME 89209.

4. Respondent's mailing address-of-record is 48 Goldfield Cove, Jackson, Tennessee 38305.

5. The Illinois Department of Financial and Professional Regulation (IDFPR) is the licensing authority regulating the practice of medicine in the State of Illinois.

6. On or about January 4, 2006, the IDFPR entered an Order indefinitely suspending Respondent's license to practice as a physician and surgeon in the State of Illinois.

7. The IDFPR disciplined Respondent for failing to pay Illinois individual income tax for the tax years of 1999 and

   2003.

   
   

8. On March 27, 2006, Respondent executed a Petition for

   
   

   Restoration in front of a Notary Public in Illinois, seeking to have her Illinois license to practice medicine reinstated.

9. On or about July 10, 2006, the Respondent signed a Stipulation and Recommendation for Settlement that, if approved by the IDFPR, would lift the suspension and allow the Respondent to renew her Illinois license, while placing her Illinois medical license on indefinite probation, until such time as the Respondent satisfactorily completed the payment of delinquent state income taxes and satisfactorily completed repayment of her

   Illinois Student Assistance Commission student loans outstanding.

10. The Stipulation and Recommendation for Settlement was approved by the Medical Disciplinary Board on August 2, 2006.

11. On or about October 18, 2006, the Director of the IDFPR signed an Order adopting the Stipulation and Recommendation for Settlement, subject to the terms therein, including the indefinite probation.

12. The January 4, 2006, Order entered by the IDFPR, which indefinitely suspended Respondent's license to practice as a physician and surgeon in the State of Illinois, constitutes disciplinary action against the Respondent's Illinois medical license.

13. The October 18, 2006, Order entered by the IDFPR adopting the Stipulation and Recommendation for Settlement, subject to the terms therein, including the indefinite probation, constitutes disciplinary action against the Respondent's Illinois medical license.

14. Respondent failed to report, in writing, to the Board within thirty (30) days of the January 4, 2006, suspension of her medical license by the IDFPR.

15. Respondent reported the October 18, 2006, order of stipulated indefinite probation of her medical license by the IDFPR to the Board on February 12, 2007. The report letter

    dated February 12, 2007, had a copy of the disciplinary documents from Illinois attached to it and was received by DOH Licensure Services Unit on February 15, 2007.

16. On April 3, 2007, an order was entered by IDFPR terminating the earlier order of probation on Respondent's Illinois' license pertaining to Respondent's failure to repay student loans. Other restrictions imposed on the license remained in force and effect.

    Prior Disciplinary History

    
    

17. Respondent's Illinois medical license was subjected to disciplinary action in two prior cases. In Case No. 92-2870 Respondent's Illinois medical license was placed on probation by terms of a Consent Order signed by Respondent on September 14, 1992, for failure to repay student loans. The probation was terminated by Consent order approved March 26, 1993. In Case No. 96-4999, an Order was issued, effective July 31, 1996, ordering that her license not be renewed for failure to repay student loans. Her license was restored by Order to Restore dated August 20, 1996.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding in accordance with Sections 120.569, 120.57(1) and 456.073(5), Florida Statutes (2007).

19. Respondent is a licensed physician in Florida. She was issued the license by DOH. The license number is ME 89209.

20. Through the Amended Administrative Complaint, Respondent has been accused of violating two provisions within Chapter 458, Florida Statutes (2005).

21. Count One accuses Respondent of violating Section 458.331(1)(b), Florida Statutes (2005), by:

    Having a license or the authority to practice medicine revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of any jurisdiction, including its agencies or subdivisions. The licensing authority's acceptance of a physician's relinquishment of a license, stipulation, consent order, or other settlement, offered in response to or in anticipation of the filing of administrative charges against the physician's license, shall be construed as action against the physician's license.

    
    

22. Count Two accuses Respondent of violating Section 458.331(1)(kk), Florida Statutes (2005), by:

    Failing to report to the board, in writing, within 30 days if action as defined in paragraph (b) has been taken against one's license to practice medicine in another state, territory, or country.

    
    

23. This is a disciplinary case, and for that reason Petitioner bears the burden of proof. That proof must be sufficient to sustain the allegations in the Amended Administrative Complaint by clear and convincing evidence. See Department of Banking and Finance, Division of Securities and

    Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The term clear and convincing evidence is explained in the case In re: Davey, 645 So. 2d 398 (Fla. 1994), quoting, with approval from Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983).

24. Given the penal nature of this case, Section 458.331(1)(b) and (kk), Florida Statutes (2005), has been strictly constructed. Any ambiguity favors the Respondent. See State v. Pattishall, 99 Fla. 296 and 126 So. 147 (Fla. 1930), and Lester v. Department of Professional and Occupational Regulation, State Board of Medical Examiners, 348 So. 2d 923 (Fla. 1st DCA 1977).

25. Any violation of Section 458.331, Florida Statutes (2005), must be based upon specific allegations within the Amended Administrative Complaint. See Trevisani v. Department of Health, 908 So. 2d 1108 (Fla. 1st DCA 2005); Cottrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996) and Hunter v. Department of Professional Regulation, 458 So. 2d 842 (Fla. 2nd DCA 1984).

26. Clear and convincing evidence was presented to show that the January 4, 2006, Order entered by the IDFPR, which indefinitely suspended Respondent's license to practice as a Physician and Surgeon in the State of Illinois, constituted

    disciplinary action against Respondent's Illinois medical license as the term is contemplated by Section 458.331(1)(b), Florida Statutes (2005).

27. Clear and convincing evidence was presented to show that Respondent failed to report the January 4, 2006, Order entered by the IDFPR, which indefinitely suspended Respondent's license to practice as a Physician and Surgeon in the State of Illinois, to the Board within 30 days of the action of the IDFPR in violation of Section 458.331(1)(kk), Florida Statutes (2005). While it is difficult to determine when Respondent became aware of the actual indefinite suspension of her license by IDFPR, it is inferred that she knew of the suspension Order prior to March 27, 2006, when Respondent executed a Petition for Restoration in front of a Notary Public in Illinois seeking to have her Illinois license to practice medicine reinstated.

28. Clear and convincing evidence was presented to show that the October 18, 2006, Order entered by the IDFPR adopting the Stipulation and Recommendation for Settlement, subject to the terms therein, including an indefinite probation, constitutes disciplinary action against the Respondent's Illinois medical license, as the term is contemplated by Section 458.331(1)(b), Florida Statutes (2005).

29. Clear and convincing evidence was presented to show that Respondent failed to report the October 18, 2006, Order

    entered by the IDFPR adopting the Stipulation and Recommendation for Settlement, subject to the terms therein, including the indefinite probation, against the Respondent's license to practice as a Physician and Surgeon in the State of Illinois, to the Department of Health, Board of Medicine, within 30 days of the action of the IDFPR, in violation of Section 458.331(1)(kk), Florida Statutes (2005). The fact that Respondent did not report the October 18, 2006, Order of stipulated indefinite probation of her medical license by the IDFPR to the Florida Board of Medicine until February 12, 2007, constitutes a violation of Section 458.331(1)(kk), Florida Statutes (2005).

30. Florida Administrative Code Rule 64B8-8.001 sets forth disciplinary guidelines for a license violation associated with Section 458.331(1)(b) and (kk), Florida Statutes (2005).

31. For a first offense for violation of Section 458.331(1)(b), Florida Statutes (2005), the suggested range of punishment is from imposition of discipline comparable to the discipline which would have been imposed if the substantive violation had occurred in Florida to suspension or denial of the license until the license is unencumbered in the jurisdiction in which disciplinary action was originally taken, and an administrative fine ranging from $1,000.00 to $5,000.00.

32. For a first offense for violation of Section 458.311(1)(kk), Florida Statutes (2005), the suggested range of

    punishment is from an administrative fine of $2,000.00 to a fine of $5,000.00 and a reprimand to denial or revocation of license with ability to reapply upon payment of $1,000.00 fine to denial or revocation of license without ability to reapply.

33. Florida Administrative Code Rule 64B8-8.001(3) addresses aggravating and mitigating circumstances in determining an appropriate punishment, where it states:

    1. 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 may deviate from the penalties recommended above. The Board shall consider as aggravating or mitigating factors the following:

       
       

       1. Exposure of patient or the 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 or applicant;

          
          

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

          
          

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

       7. The involvement in any violation of Section 458.331, F.S., of the provision of controlled substances for trade, barter or sale, by a licensee. In such cases, the Board will deviate from the penalties recommended above and impose suspension or revocation of licensure;

          
          

       8. Any other relevant mitigating factors.

          
          

34. Aggravating circumstances apply to this case. There are multiple violations in the present case. Respondent has previously committed the same offense failure to repay student loans, as Respondent's disciplinary history in Illinois reflects. These aggravating circumstances were considered when recommending the penalty in this case.

RECOMMENDATION

Based upon the findings of facts found and the conclusions,

it is

RECOMMENDED:

That a final order be entered reprimanding Respondent's

medical license, imposing an administrative fine of $4,000.00, and placing Respondent's license on probation until she presents evidence to the Florida Board of Medicine that her Illinois medical license is free and unencumbered.

DONE AND ENTERED this 19th day of June, 2008, in Tallahassee, Leon County, Florida.

S

CHARLES C. ADAMS

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 19th day of June, 2008.

ENDNOTE

1/ The Amended Administrative Complaint has two paragraphs numbered nine.

COPIES FURNISHED:

Diane K. Kiesling, Esquire Department of Health

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

Gina M. Dieudonne, M.D.

48 Goldfield Cove Jackson, Tennessee 38305

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: 08-001147PL

Orders for Case No: 08-001147PL