STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, BOARD OF ) MEDICINE, )
)
Petitioner, )
)
vs. )
)
OSCAR RAMIREZ, M.D., )
)
Respondent. )
Case No. 12-0358PL
)
RECOMMENDED ORDER
This case came before Administrative Law Judge John G. Van Laningham for final hearing by video teleconference on March 27, 2012, at sites in Tallahassee and West Palm Beach, Florida.
APPEARANCES
For Petitioner: Jonathan R. Zachem, Esquire
Sharmin R. Hibbert, Esquire Department of Health
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
For Respondent: Anthony C. Vitale, Esquire
Anthony C. Vitale, P.A. Law Center at Brickell Bay
2333 Brickell Avenue, Suite A-1 Miami, Florida 33129
Sean Michael Ellsworth, Esquire Ellsworth Law Firm, P.A.
1501 Collins Avenue, Suite 208 Miami Beach, Florida 33139
STATEMENT OF THE ISSUES
The issues in this case are whether Respondent, whose license to practice medicine was revoked in Maryland on a malpractice charge, is guilty in Florida of the offense of being disciplined in another jurisdiction; and if so, whether Petitioner should impose discipline on Respondent's medical license within the applicable penalty guidelines or take some other action.
RELIMINARY STATEMENT
On November 18, 2011, Petitioner Department of Health issued an Administrative Complaint against Respondent Oscar Ramirez, M.D. The Department alleged that Dr. Ramirez's license to practice medicine in Maryland had been revoked by that state's licensing authority, the bare fact of which makes
Dr. Ramirez's Florida license subject to secondary discipline. Dr. Ramirez timely requested a formal hearing, and on
January 23, 2012, the Department filed the pleadings with the Division of Administrative Hearings ("DOAH"), where an Administrative Law Judge was assigned to preside in the matter.
The final hearing took place as scheduled on March 27, 2012, with both parties present. The parties having previously stipulated to the facts alleged in the Administrative Complaint, the Department offered Petitioner's Exhibits 1 though 4, which were received in evidence without objection, and rested its
case. Dr. Ramirez testified on his own behalf and presented four additional witnesses: Luis Vasconez, M.D., Vice Chairman of the Department of Surgery and professor of plastic surgery at the University of Alabama in Birmingham; Carl L. Hussling, a medical doctor and patient of Dr. Ramirez; Hilton Becker, M.D., plastic and reconstructive surgeon; and Lawrence Z. Arborella, a patient of Dr. Ramirez. Respondent's Exhibits 1 through 3 were admitted without objection.
The one-volume final hearing transcript was filed on April 17, 2012, and Proposed Recommended Orders were due on
May 8, 2012. The parties' respective submissions were carefully reviewed and fully considered.
Citations to the Florida Statutes and Florida Administrative Code refer to the provisions in effect at the time of the operative event under discussion.
FINDINGS OF FACT
Introduction
At all times relevant to this case, Respondent Oscar Ramirez, M.D., was licensed to practice medicine in the state of Florida, having been issued license number ME 76398.
Dr. Ramirez is certified in Plastic Surgery by the American Board of Plastic Surgery.
Petitioner Department of Health (the "Department") has regulatory jurisdiction over licensed physicians such as
Dr. Ramirez. In particular, the Department is authorized to file and prosecute an administrative complaint against a physician, as it has done in this instance, when a panel of the Board of Medicine has found that probable cause exists to suspect that the physician has committed a disciplinable offense.
Here, the Department alleges that Dr. Ramirez committed one such offense——namely, having disciplinary action taken against a license to practice medicine in a jurisdiction other than Florida, the mere fact of which constitutes a disciplinable offense in this state pursuant to section 458.331(1)(b), Florida Statutes. In other words, under section 458.331(1)(b), the Florida Board of Medicine is authorized to take penal action against a Florida medical license based not on the licensee's having committed a "substantive violation" in this state, but rather on his having been punished in a remote jurisdiction for violating that jurisdiction's law (the "Original Violation"). Because section 458.331(1)(b) involves no independent misconduct, the Florida offense being necessarily dependent on the Original Violation for which the remote sanction was imposed, the "wrongdoing" at issue here will be referred to as the "Derivative Violation."
Dr. Ramirez's Distinguished Medical Career
Dr. Ramirez, a physician and surgeon for more than 25 years, has been licensed in Florida since 1998. Prior to the revocation of his medical license in 2011 by the Maryland State Board of Physicians ("MD Board"), Dr. Ramirez had never been disciplined by any licensing authority, and he has not been disciplined since.
Dr. Ramirez has worked as an instructor in plastic surgery and is an Assistant Professor of Plastic and Reconstructive Surgery at Johns Hopkins University. He has served as an assistant professor in plastic surgery at the University of Maryland's medical school, and, in a voluntary capacity, on the faculty of the Cleveland Clinic Florida. In addition, Dr. Ramirez has worked as a visiting professor at more than twenty universities around the country and around the world, teaching plastic surgery techniques to medical residents.
Dr. Ramirez has made approximately 500 professional presentations worldwide. These have included presentations for the American Society of Plastic Surgery, the American Society of Aesthetic Plastic Surgery, the International Society of Aesthetic Plastic Surgery, the American College of Surgeons, and the Johns Hopkins Medical and Surgical Association.
Dr. Ramirez shares his skills with other practitioners and surgeons, allowing them to attend his surgeries and observe
from the gallery in live surgery demonstrations. He has hosted educational workshops around the world, where he has tutored more than 4,000 surgeons in plastic surgery techniques by working hands-on with cadavers. For those physicians unable personally to attend his workshops, or those who prefer to review techniques in a different setting, Dr. Ramirez has made numerous DVDs demonstrating surgical procedures and techniques.
Dr. Ramirez has written extensively on the procedures and techniques he has devised. A textbook written by
Dr. Ramirez, Endoscopic Plastic Surgery, is used in many plastic surgery residencies at universities nationally and internationally. This book explains how to apply minimally invasive surgical techniques to plastic surgery, a field which Dr. Ramirez helped create and in which he remains a pioneer.
Dr. Ramirez has authored chapters of textbooks, anatomy manuals, and scientific research papers——more than 150 publications in total. Twice, Dr. Ramirez has been nominated for the prestigious James Barrett Brown Award for the best scientific publications in plastic surgery.
Dr. Ramirez has invented or designed surgical instruments, primarily for the minimally invasive surgery techniques he has pioneered, which are used throughout the world. He has, as well, designed surgical implants, primarily for facial reconstructions.
Dr. Ramirez is responsible for developing numerous innovative surgical techniques. Among the most important are:
Dr. Ramirez's innovation of sliding the gluteus maximus flap to repair wounds to the anus (often caused by cancer), which allows for the repair of the wound without causing other disabilities. Before, muscles would be transferred from the thigh or the upper chest to repair the wound, often resulting in physical impairment to the regions from which the muscles were transferred. Dr. Ramirez's technique avoids this. According to Dr. Luis Vasconez, Dr. Ramirez's sliding gluteus maximus technique has reduced significantly the suffering of patients who have undergone treatment for cancer of the anus.
A technique to reattach the intestines of patients who have undergone colon cancer treatment, which improved upon earlier techniques and made the procedure safer.
A surgical technique called Component Separation, used to close large abdominal defects that occur during trauma, often following complications from abdominal surgery. This technique improves patient quality of life and reduces the mortality rate. According to Dr. Vasconez, Dr. Ramirez's compartment method of repair of incisional hernias is a technique that has helped reduce the recurrence rate for large hernias (those larger than 5 centimeters) from 65 percent to 20 percent or less. This technique is used in general surgery as well as in plastic surgery.
The application of minimally invasive surgical techniques in the field of plastic and reconstructive surgery, which Dr. Ramirez spearheaded. These techniques are used primarily for surgery performed on the face, breasts, and abdomen. With regard to the first area, Dr. Ramirez pioneered the suborbicularis oculi fat pad (SOOF) lift, a mid-face lift that reduces the 20 percent complication rate that was experienced using older techniques; the tridimensional functional cheek lift; and techniques to correct ear defects and twisted noses. With regard to breast surgeries, Dr. Ramirez has innovated techniques for breast reductions and nipple reconstructions. He has also developed techniques to improve tummy tucks. According to Dr. Vasconez, these minimally invasive surgery techniques, particularly endoscopy in procedures around the face, are
among the most important of Dr. Ramirez's contributions to the field.
Dr. Ramirez's surgical innovations are used nationally and internationally, according to Dr. Vasconez, and they have become "part of the core knowledge of plastic surgery to the point that in any training program" Dr. Ramirez's techniques are "being taught to all trainees." According to Dr. Hilton Becker, who is a board-certified plastic surgeon licensed in the state of Florida, Dr. Ramirez is an "[i]ncredible innovator," an "incredible teacher," and "a recognized expert worldwide in this field [plastic surgery]."
Besides testifying to Dr. Ramirez's numerous professional contributions and international reputation for medical excellence, Drs. Vasconez and Becker testified credibly and convincingly about Dr. Ramirez's good character.
Dr. Vasconez testified that in the 30 years he has known him, he has found Dr. Ramirez "highly ethical" and a "good loyal friend, and more than anything highly honest in his presentations of scientific subjects." Dr. Becker testified that Dr. Ramirez is "very well respected in the community of plastic surgery."
In sum, the evidence establishes that Dr. Ramirez is a highly distinguished, world renowned plastic surgeon, prolific teacher, lecturer, and author in his field, inventor of numerous medical devices, and innovator of myriad important surgical
techniques. As a practitioner and academic, Dr. Ramirez has made significant contributions to the lives of his patients and to the field of plastic and reconstructive surgery as well as to the field of general surgery.
The Maryland Proceeding Against Dr. Ramirez
The MD Board is the licensing authority responsible for regulating the practice of medicine in the state of Maryland. On July 15, 2011, the MD Board issued a Final Decision and Order ("Final Decision") revoking Dr. Ramirez's Maryland license to practice medicine.
Employing a preponderance of the evidence standard——as opposed to the more stringent clear and convincing evidence standard required in Florida——the MD Board found that
Dr. Ramirez had violated a state statute requiring doctors "to meet appropriate standards as determined by appropriate peer review for the delivery of quality medical and surgical care."
The Maryland decision will be examined at length in the legal analysis below. In a nutshell, the MD Board revoked Dr. Ramirez's license based upon the determination that he had violated the standard of care on two separate occasions by performing a combination of plastic surgery procedures in a single operation in an office-based surgical setting instead of in a hospital or ambulatory surgical center.
Dr. Ramirez's Current Practice
Currently, Dr. Ramirez performs minor procedures under local anesthesia as an independent contractor at Elite Surgery Center in Weston, Florida. Dr. Ramirez has applied for hospital privileges in Florida, but has not yet received them. While he does not have hospital privileges himself, Dr. Ramirez now operates only with a co-surgeon who does hold hospital staff privileges. Moreover, the clinic where Dr. Ramirez works has a transfer agreement in place, and Dr. Ramirez performs surgery only with a co-surgeon who has a written transfer agreement.
After the Maryland discipline, Dr. Ramirez changed his approach to surgery. Dr. Ramirez now keeps surgeries as short as possible, always following the most conservative approach.
He stages multiple procedures into two or three surgical sessions or refers cases to hospital-based physicians, in full recognition of the safety advantages provided by a hospital as compared to a surgical clinic. While before the Maryland discipline he tried to keep surgeries from lasting more than eight hours, now Dr. Ramirez never exceeds six hours for a single operative session.
Outside of his Florida practice, Dr. Ramirez continues his longstanding commitment to voluntary service, primarily consisting of performing pro bono reconstructive surgeries on underprivileged children in this country (providing services to
uninsured children) and in Central and South America (repairing cleft lips and cleft palates).
Ultimate Factual Determination
Dr. Ramirez is guilty of having his license to practice medicine revoked in another jurisdiction, which is a disciplinable offense pursuant to section 458.331(1)(b), Florida
Statutes.
CONCLUSIONS OF LAW
DOAH has personal and subject matter jurisdiction in this proceeding pursuant to sections 120.569, and 120.57(1), Florida Statutes (2011).
A proceeding, such as this one, to suspend, revoke, or impose other discipline upon a license is penal in nature. State ex rel. Vining v. Florida Real Estate Comm'n, 281 So. 2d 487, 491 (Fla. 1973). Accordingly, to impose discipline, the Department must prove the charges against Dr. Ramirez by clear and convincing evidence. Dep't of Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern & Co., 670 So. 2d 932, 933-34 (Fla. 1996)(citing Ferris v. Turlington, 510 So. 2d 292, 294-95 (Fla. 1987)); Nair v. Dep't of Bus. & Prof'l Reg., Bd. of Med., 654 So. 2d 205, 207 (Fla. 1st DCA 1995).
Regarding the standard of proof, in Slomowitz v.
Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court developed a "workable definition of clear and convincing
evidence" and found that of necessity such a definition would need to contain "both qualitative and quantitative standards." The court held that:
clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
Id. The Florida Supreme Court later adopted the Slomowitz court's description of clear and convincing evidence. See In re
Davey, 645 So. 2d 398, 404 (Fla. 1994). The First District Court of Appeal also has followed the Slomowitz test, adding the interpretive comment that "[a]lthough this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Elec. Corp. v. Shuler Bros., Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev. denied, 599 So. 2d 1279 (Fla. 1992)(citation omitted).
Disciplinary statutes and rules "must be construed strictly, in favor of the one against whom the penalty would be imposed." Munch v. Dep't of Prof'l Reg., Div. of Real Estate,
592 So. 2d 1136, 1143 (Fla. 1st DCA 1992); see Camejo v. Dep't of Bus. & Prof'l Reg., 812 So. 2d 583, 583-84 (Fla. 3d DCA
2002); McClung v. Crim. Just. Stds. & Training Comm'n, 458 So. 2d 887, 888 (Fla. 5th DCA 1984)("[W]here a statute provides for revocation of a license the grounds must be strictly construed because the statute is penal in nature. No conduct is to be regarded as included within a penal statute that is not reasonably proscribed by it; if there are any ambiguities included, they must be construed in favor of the licensee."); see also, e.g., Griffis v. Fish & Wildlife Conserv. Comm'n, 57 So. 3d 929 (Fla. 1st DCA 2011)(statutes imposing a penalty must never be extended by construction).
Due process prohibits an agency from taking disciplinary action against a licensee based on matters not specifically alleged in the charging instrument. See § 120.60(5), Fla. Stat. ("No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the entry of a final order, the agency has served, by personal service or certified mail, an administrative complaint which affords reasonable notice to the licensee of facts or conduct which warrant the intended action . . . ."); see also Trevisani v. Dep't of Health, 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005)("A physician may not be disciplined for an offense not charged in the complaint."); Marcelin v. Dep't of Bus. & Prof'l Reg., 753 So. 2d 745, 746-747 (Fla. 3d DCA 2000); Delk v. Dep't of Prof'l Reg., 595 So. 2d 966, 967 (Fla. 5th DCA 1992)("[T]he conduct
proved must legally fall within the statute or rule claimed [in the administrative complaint] to have been violated.").
The Department charged Dr. Ramirez under section 458.331, Florida Statutes (2010), which provided in pertinent part as follows:
The following acts shall constitute grounds for . . . disciplinary action[:]
* * *
(b) 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.
The Two-Stage Penalty Analysis Explained
The Board of Medicine imposes penalties upon licensees in accordance with the disciplinary guidelines prescribed in Florida Administrative Code Rule 64B8-8.001 (2010). The range of penalties for a first offense involving section 458.331(1)(b) is set forth in rule 64B8-8.001(2)(b) as follows:
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.
The application of rule 64B8-8.001(2)(b) requires a two-stage penalty analysis. This is because the bottom end of the range of penalties for a Derivative Violation is: "discipline comparable to the discipline which would have been imposed if the substantive violation had occurred in Florida"—— hereafter, for convenience, a "Comparable Penalty." The penalty range for a first Derivative Violation thus can be restated as being from a Comparable Penalty to suspension or denial of licensure, plus a fine. The first step of the penalty analysis, then, is to ascertain the appropriate Comparable Penalty.
To determine the appropriate "Comparable Penalty," the decision maker initially must imagine that the events comprising the Original Violation——such events will be referred to, collectively, as the "Actual Incident"——occurred in Florida. Next, he must determine whether, in that counterfactual scenario, the licensee would have committed a disciplinable offense in this state. Any such notional offense will be called a hypothetical substantive Florida violation ("HSFV").
Whether the licensee is guilty of an HSFV (which latter is distinct from, and must not be conflated with, the Original Violation) is a question of ultimate fact which requires the application of Florida law to the historical facts.
For this analysis, the findings of historical fact made in the remote proceeding regarding the Actual Incident should be accepted, because the facts concerning the Actual Incident are irrelevant in establishing a Derivative Violation. The ultimate determinations from the other jurisdiction, however, should not be given weight, because the other state's ultimate determinations followed from an application of that state's law——not Florida law——to the facts concerning the Actual Incident. And Florida law, obviously, governs any HSFV.
If the licensee is determined, via this academic exercise, to be guilty of an HSFV, then the disciplinary guidelines applicable to such imaginary violation must be consulted, including the aggravating and mitigating factors, to ascertain the appropriate Comparable Penalty for the HSFV. The applicable guidelines are those found in the rule in effect at the time of the Actual Incident. See Orasan v. Ag. for Health
Care Admin., 668 So. 2d 1062, 1063 (Fla. 1st DCA 1996); Willner v. Dep't of Prof'l Reg., 563 So. 2d 805, 806 (Fla. 1st DCA 1990). The facts to be considered, as in determining the HSFV, are the ones found in the remote disciplinary proceeding. Once the Comparable Penalty for the HSFV is determined, the first stage of the penalty analysis is complete.
The second stage of the analysis involves the determination of the appropriate penalty for the Derivative
Violation, which latter is not to be confused with the HSFV or the Original Violation. Returning to rule 64B8-8.001(2)(b), and using the version in effect when action was taken in another jurisdiction against the licensee's medical license, the penalty range for a first Derivative Violation, as mentioned above, is from the Comparable Penalty to suspension or denial, plus a fine. In determining where within the prescribed range the penalty should fall, and whether to depart from the range based on mitigating and aggravating factors, the facts established in the Florida hearing are used, not the facts determined in the remote jurisdiction. This is because the penalty being determined——and ultimately to be imposed by the Florida Board of Medicine——is for the Derivative Violation. Meting out punishment for a Florida disciplinable offense is strictly a matter of Florida law and involves considerations unique to this state that could neither have been at issue nor decided in the remote jurisdiction.
In sum, the penalty analysis for a Derivative Violation requires two steps. First, the Comparable Penalty for any HSFV must be determined, for such penalty establishes the bottom end of the range of penalties for a Derivative Violation. Second, the penalty for the Derivative Violation must be determined. It is this penalty——which might be stricter or more lenient than, or equal to, the Comparable Penalty——that, in the
end, should be imposed in the instant proceeding, whose purpose is to discipline the licensee not for the Original Violation or any HSFV, but for the Derivative Violation.
The Comparable Penalty
The Maryland Decision
The MD Board's Final Decision adopted the findings of fact and——with one relatively minor exception——the legal analysis and conclusions of the Maryland administrative law judge ("MALJ") who tried the case and issued the Proposed Decision ("Pro").
The MALJ framed the substantive issue for determination as follows:
Whether [Dr. Ramirez] violated appropriate standards of care for the delivery of quality medical care to [Patient A, Patient B, or both] in violation of [a state statute] by conducting [the patient's] multiple plastic surgery procedures as a continuous operation lasting over nine hours in an outpatient office-based setting?
Pro at 2 (emphasis added). The gravamen of the Original Violation, therefore, was the allegation that Dr. Ramirez had breached the applicable standard of care by performing a lengthy operation on one or two patients in an office-based setting ("OBS"), rather than——as will be seen——in a hospital or ambulatory surgical facility ("ASF").
The MALJ found that Dr. Ramirez, who at all relevant times was a Maryland-licensed physician, owned and maintained an "outpatient surgical center for the practice of plastic surgery," which was located in Timonium, Maryland. This facility was called Esthetique Internationale ("EI"). Pro at 6.
Throughout the relevant time frame, Dr. Ramirez did not have staff privileges at any Maryland hospital. Id. Nor did EI have a written transfer agreement with any local hospital. Id. at 8. Instead, Dr. Ramirez had made a verbal agreement with another plastic surgeon with whom he once had practiced, pursuant to which, in the event of complications or postoperative difficulties, this other doctor would admit a patient of EI's into a nearby hospital and become that patient's attending physician. Id. at 6-7. This informal arrangement had worked in the past. Id. at 7.
EI never held a license from the state of Maryland to operate as an ASF. Id. at 9. At all relevant times, EI was, however, accredited as a Class C ASF by the American Association for Accreditation of Ambulatory Surgery Facilities, Inc. ("AAAASF"), a nongovernmental accrediting organization. Id. at
In AAAASF's nomenclature, a "Class C" ASF is a facility at which operations requiring general anesthesia may be performed. Id. at 8.
On September 30, 2004, Dr. Ramirez performed several plastic surgical procedures on "Patient B," a 55 year-old male. Id. at 14. Patient B had not disclosed to Dr. Ramirez any history of cardiac or pulmonary problems, or any other risk factors for surgery. Id. at 15. In fact, as Dr. Ramirez would learn much later, Patient B had a history of blood clots in his legs, which he treated by self-injecting heparin. Id. at 17.
The MALJ did not make a finding as to the planned duration of the surgical procedures for which Patient B was scheduled. He did find, however, that the operation took longer than expected, causing Dr. Ramirez to change his plan and omit one of the procedures that was to have been performed. Id. at
Patient B was in surgery for about 12 hours, from roughly 9:00 a.m. to 9:00 p.m. Id. Patient B had been scheduled for a 23-hour stay at EI. Id. at 16. Sadly, he died in the recovery room at approximately 11:40 p.m. Id. at 17.
An autopsy was performed, and blood clots were found in Patient B's legs and lungs. Id. The cause of death was determined to be "cardiac arrhythmia immediately following plastic surgery." Id. The MALJ found that Dr. Ramirez did not cause the death of Patient B. Id. at 46. The MD Board agreed, observing that "Dr. Ramirez's technical surgical skills, credentials and qualifications are not implicated . . . in this case." Final Decision at 12.
Patient A, a 58-year-old female, was scheduled for multiple surgical procedures at EI on February 23, 2005. Pro at
The MALJ did not make a finding as to the planned duration of this operation. The MD Board found, however, that
"Dr. Ramirez posted this case for 8 hours on the surgical posting sheet." Final Decision at 3. The plan, moreover, was for Patient A to stay at EI for 23 hours. Pro at 11. She arrived there sometime before 8:00 a.m. Id.
The operation, which proceeded as scheduled, took longer than Dr. Ramirez had expected, lasting approximately 9.6 hours. Id. at 12. Thereafter, Patient A was kept overnight and was discharged at around 1:00 p.m. on February 24, 2005, having spent about 29 hours at EI. Id. That evening, Patient A's husband reported to EI staff that his wife was not having any problems and was not taking any pain medications. Id. at 13.
Unfortunately, at 8:00 a.m. on February 26, the second day after Patient A had been discharged from EI, she died from cardiac arrhythmia, apparently caused by large accumulations of fluid in the lungs. Id. The MALJ found that Dr. Ramirez did not cause the death of Patient A, which occurred approximately two and one-half days after the surgeon had finished the operation—— and some 43 hours after the patient's discharge. Id. at 46.
The MALJ did not make any findings regarding the amount of blood products, if any, that were on hand at EI during the
respective operations of Patient A and Patient B.1 The MALJ made no findings regarding the quantities of blood components that, under the applicable standard of care, EI should have had available during the operations. Not a single finding was made suggesting (or providing a reasonable basis for inferring) that the course of treatment of Patient A or Patient B was in any way affected, adversely or otherwise, by the absence of blood products (assuming such absence, a fact that was not found).2
The MALJ did make a finding, however——seemingly apropos of nothing——that Dr. Ramirez had a blood-supply contract with the American Red Cross pursuant to which the latter would deliver blood supplies to EI within one and one-half hours after an order was placed. Id. at 6. As will be seen, the MALJ would tacitly infer from the existence of this contract that EI had no blood readily available during the operations at issue, and deem that to be a standard-of-care violation.
The state's expert witness testified, according to the MALJ, that the "lengthy operations" Dr. Ramirez had performed on Patients A and B violated the standard of care "because EI was an office-based surgery facility." Id. at 19. Although the MALJ repeatedly noted that each of the subject incidents involved "multiple procedures" performed in a "continuous operation" of "lengthy duration," as if to suggest that these facts, without more, were indicative of substandard treatment, the state's
expert was unable or unwilling to give an unequivocal opinion that these factors (multiple procedures, lengthy operation), per se, violated the standard of care. Id. at 36-38. This expert's opinion, rather, was that the standard of care had been violated due to the setting (in his view, an OBS) in which the lengthy operations involving multiple procedures had taken place. Id.
As the MALJ acknowledged, the state's expert "admitted during cross-examination that performing the multiple procedures that [Dr. Ramirez] performed on Patient A and Patient B in a free- standing ambulatory surgery facility might not be a breach of the standard of care." Id. at 19-20.
The defense expert testified that operations similar to those which Dr. Ramirez had performed on Patients A and B were routinely and safely done in ambulatory surgery centers such as EI, which at all times was (he correctly stated) an AAAASF- accredited, Class C ASF. Id. at 22. In his opinion, Dr. Ramirez had not violated the standard of care. Id.
In light of the expert testimony, the MALJ determined that the dispositive issue was whether EI "should be considered" an ASF or an OBS. Id. at 24. Over the course of the long, ensuing discussion in the Pro, it becomes apparent that the determinative question in the MALJ's mind boiled down to whether EI was either (a) a state-licensed ASF or (b) "entitled to be considered" an AAAASF-accredited ASF. (The MD Board would later
restate the second alternative as: "a properly certified AAAASF facility." Final Decision at 5.) If EI were found to meet either one or both of these conditions, then Dr. Ramirez would be exonerated; if both alternatives were rejected, however, then he would be found in violation of the standard of care. See Final Decision at 5 ("Because EI was neither a licensed ambulatory surgery facility nor a properly certified AAAASF facility,
Dr. Ramirez violated the standard of care by performing these extensive procedures there.").
With regard to the first condition, the MALJ had already found, as a matter of fact, that EI never held a Maryland license to operate as an ASF. Pro at 9. And, to be clear,
Dr. Ramirez had not been charged (as far as the record shows) with owning, operating, or practicing medicine in, an unlicensed facility. The MALJ explained that a Maryland statue, which he identified as section 19-3B-01(b) (the "MD ASF Licensing Statute"), required ASFs to be licensed to operate in that state. He determined, however, that EI did "not fit the definition" of an ASF under the MD ASF Licensing Statute. Id. at 29-30. Thus, the MALJ concluded that EI "was not required to be licensed under," nor was it "required to be in compliance with," the MD ASF Licensing Statute. Id. at 30. In sum, EI did not meet the first condition because it did not hold a license it was not required to have.
As for the second condition, the MALJ had already found that EI was, at all times relevant in 2004 and 2005, an AAAASF- accredited ASF. Id. at 7. Evidently this fact was insufficient to settle the matter; such accreditation, the MALJ believed (and the MD Board agreed), was essentially void unless EI was "entitled" to it. Consequently, the MALJ commenced an analysis which would lead, effectively, to the retroactive revocation of EI's accreditation. It should be noted that the MALJ never identified the source of the state's authority not only to strip EI of a credential it had been awarded by a nongovernmental accrediting body, but to deem the accreditation ineffective at times long since past; nor is there any hint in the record that either Dr. Ramirez or EI was ever notified that the disciplinary proceeding against Dr. Ramirez might entail the de facto revocation of EI's AAAASF accreditation.
The MALJ determined that EI would not be entitled to rely upon its status as an accredited ASF unless, in the state's estimation, EI had satisfied each and every AAAASF standard. One of those standards, according to the MALJ, was this: "If overnight stays are permitted, the facility [must be] in compliance with all pertinent local and state laws and regulations." Id. at 31. Plainly, because EI had permitted overnight stays, it needed to comply with all pertinent state laws to meet the AAAASF standard on overnight stays.
With the AAAASF standard in view, the MALJ turned his attention to the MD ASF Licensing Statute, which, he asserted, forbade Maryland-licensed ASFs (which EI was not) from keeping patients overnight. Id. at 31. (The MD Board agreed with this legal conclusion, stating that the MD ASF Licensing Statute "prohibits overnight stays." Final Decision at 10.) Despite having just found that EI was not required to comply with the MD ASF Licensing Statute, the MALJ concluded that EI had failed to meet the AAAASF standard requiring compliance with all pertinent state laws because EI had not complied with the MD ASF Licensing Statute. Pro at 31.
That the MALF reached this conclusion is a fact, but this conclusion of the MALJ is not a fact; it is, rather, the product of his reasoning and, as such, need not be accepted if the reasoning behind it is unsound——which it is. It was illogical to conclude that a practice (permitting overnight stays) which did not conform to a particular state law that the facility was not required to comply with was, nevertheless, not in compliance with that very law and, for that reason, violative of a nongovernmental standard requiring that all pertinent state laws be followed. Simply put, when a facility does not conform its operations to a state law it need not follow, the facility is not out of compliance with that state law.3 To determine whether EI had met the AAAASF standard requiring that the facility be in
compliance with all "pertinent" state laws governing overnight stays, the MALJ should have started by identifying any such "pertinent" laws. As a matter of logic, a necessary condition of such laws is that they be laws with which the facility was required to comply, for without that, the concept of "compliance" in this context is meaningless. The MALJ did not identify a single state or local law prohibiting overnight stays with which EI was required to comply.
Instead, the MALJ in effect turned the AAAASF standard into a requirement that the facility must comply, not just with state laws applicable to overnight stays at the facility, but with all state laws respecting overnight stays——even laws that clearly do not apply to the facility. This is, to say the least, an objectively unreasonable interpretation of the AAAASF standard as quoted in the Pro.4
The other AAAASF standard which the MALJ concluded EI had not met provided as follows: The facility must have "a written transfer agreement with a local accredited or licensed acute care hospital which is approved by the [hospital's] medical staff or the surgeon [must have] privileges to admit patients to such a hospital after having surgery in the facility." Id. at
EI did not have a written transfer agreement with——and Dr. Ramirez did not have admission privileges at——a local
hospital. The MALJ found these facts to be apparently "at odds"
with EI's continued accreditation. Id. at 32. His "confusion vanishe[d]," however, when he realized that AAAASF's most recent on-site inspection prior to the subject incidents had occurred in December 2002, and that EI had submitted self-evaluations to AAAASF in 2004 and 2005. Id. This led the MALJ to the following determination:
Since the facts as found do not meet the relevant AAAASF standard, it is reasonable and permissible to infer that AAAASF was not made aware in [Dr. Ramirez's] self-evaluation submissions that (since 2003) he had no hospital privileges and that EI had no written transfer agreement with any acute care hospital.
Id.
Later in the Pro, the MALJ removed any doubt that he
was finding, via an inference, that Dr. Ramirez had defrauded AAAASF. See Pro at 46 (EI's "AAAASF certification was maintained through deception . . . ."). Elaborating on this inference, the MALJ wrote:
If [Dr. Ramirez's] judgment would allow him to continue to perform surgery without malpractice insurance, how little a stretch it would be to not disclose a change in information on a form in order to hold onto a certificate that labels EI as an ambulatory surgery facility and to continue his practice. I am left to conclude that [Dr.
Ramirez's] failure to disclose on the self- evaluations was intended to gain an "unconscionable advantage" by obtaining the benefits of AAAASF certification without the costs associated with obtaining that certification.
Id. at 48. As far as the MD Board was concerned, the MALJ's inference was sufficient to show that EI's accreditation had "been maintained under false pretences." Final Decision at 12.
The inference that Dr. Ramirez had defrauded AAAASF might have been permissible under Maryland law, but it was not a valid deduction under general principles of logic. To begin, the MALJ evidently did not have for review the self-evaluation forms that he supposed Dr. Ramirez had submitted to AAAASF (or else he would not have needed to resort to an inference of intentional nondisclosure), so he could only speculate as to what (a)
Dr. Ramirez had been asked to disclose and (b) what Dr. Ramirez had stated or not stated in response. There was also apparently no evidence——and certainly there were no findings of fact—— concerning what AAAASF knew, or believed the situation to be, with regard to the nonexistence of a written transfer agreement and Dr. Ramirez's lack of admission privileges. To infer, as the MALJ did, that because AAAASF did not revoke EI's certification, the accrediting organization must not have known the true situation, which could only have been the result of Dr. Ramirez's fraudulent nondisclosure on the self-evaluation forms, was to indulge in pure speculation and conjecture, facilitated by the piling of inference upon inference. Making matters worse, there
is no indication in the record that Dr. Ramirez had been charged with committing such a fraud.
Having determined, however tenuously, that EI had maintained its accreditation through deception, the MALJ made the following ultimate findings:
Regardless of the AAAASF issued certification for 2004 and 2005 . . . , [Dr. Ramirez's] claim that EI should be considered to be a free-standing ambulatory facility/center for the purposes of the standard of care analysis in this case is rejected. EI did not meet all of the AAAASF standards during 2004 and 2005. EI is not entitled to be considered as a free-standing ambulatory surgery facility/center because the facts as found are inconsistent with all of the AAAASF standards for a Class A/B/C ambulatory surgery facility.
Pro at 33. He concluded that "for the purposes of the standard of care analysis and Maryland law, [EI] was, at all times relevant, an office-based surgery facility." Id. at 35.
Once he had deemed EI an OBS rather than an ASF, the MALJ rejected the testimony of the defense expert on the standard of care because it was based on the "faulty assumption" that "EI should be considered to be an" ASF. Id. at 39. The MALJ instead credited the testimony of the state's expert because his opinions were in line with "the true picture of EI as an" OBS. Id. Based on the testimony of the state's expert witness, the MALJ found that Dr. Ramirez "violated the standard of care by performing multiple plastic surgery procedures as a continuous operation on
two patients in an office-based surgery facility rather than a freestanding ambulatory surgical center or hospital." Id. at 45.
The MALJ found one additional violation of the standard of care. Relying on an article relating to patient safety in office-based surgical settings, the MALJ found that the standard of care required adequate blood components to be "immediately available" during an operation. Id. Recalling that EI's blood- supply contract with the American Red Cross called for delivery within 90 minutes, the MALJ found that such a "delay" was too long to qualify as "immediately available." Id. at 41.
The MALJ's decision in this regard was obviously premised on the notion that EI's practice was not to order blood until it was needed during an operation. No finding of fact to this effect was made, however, and as an implicit inference this premise is difficult, if not impossible, to defend. After all, no allegation or finding was made suggesting that blood had been needed, but unavailable, during the operation of Patient A or Patient B. In the absence of proof to the contrary, the reasonable inference would be that EI ordered blood ahead of scheduled operations, so that a sufficient supply would always be on hand. The mere fact that delivery could take up to 90 minutes——which was the only relevant historical fact found by the MALJ in support of his ultimate determination——is simply not a rational basis for assuming, counterintuitively, that orders for
blood products were placed only during an operation, when a delay of one and one-half hours might indeed be dangerous.
The MALJ stated his ultimate finding of guilt as follows:
I conclude that [Dr. Ramirez] violated appropriate standards of care for the delivery of quality medical care to Patient A [and Patient B] in violation of section 14- 404(a)(22) of the Health Occupations Article of the Annotated Code of Maryland by conducting [each patient's] multiple plastic surgery procedures as a continuous operation lasting [9.6 and 12.1 hours, respectively,] in an office-based surgery facility.
Pro at 49.
The HSFV
Having reviewed the Maryland decision, it is necessary to determine, based on the historical facts found in that remote jurisdiction, whether the Actual Incident, if committed in Florida, would constitute an HSFV.
The parties agree, and the undersigned concurs, that the Maryland statute under which Dr. Ramirez was disciplined most closely resembles section 458.331(1)(t), Florida Statutes. At the time of the Actual Incident, the relevant Florida statute provided that discipline could be imposed against a physician's license on grounds including the following:
Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being
acceptable under similar conditions and circumstances. The board shall give great weight to the provisions of s.766.102 when enforcing this paragraph. As used in this paragraph, "repeated malpractice" includes, but is not limited to, three or more claims for medical malpractice within the previous 5-year period resulting in indemnities being paid in excess of $50,000 each to the claimant in a judgment or settlement and which incidents involved negligent conduct by the physician. As used in this paragraph, "gross malpractice" or "the failure to practice medicine with that level of care,
skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances," shall not be construed so as to require more than one instance, event, or act. Nothing in this paragraph shall be construed to require that a physician be incompetent to practice medicine in order to be disciplined pursuant to this paragraph. A recommended order by an administrative law judge or a final order of the board finding a violation under this paragraph shall specify whether the licensee was found to have committed "gross malpractice," "repeated malpractice," or "failure to practice medicine with that level of care, skill, and treatment which is recognized as being acceptable under similar conditions and circumstances," or any combination thereof, and any publication by the board must so specify.
§ 458.331(1)(t), Fla. Stat. (2004).
Identifying the analogous Florida disciplinary offense is relatively easy; determining a comparable HSFV, in contrast, is somewhat difficult owing to the differences between the Maryland and Florida regulatory regimes. To review, Dr. Ramirez lost his medical license in Maryland because he performed lengthy
cosmetic surgeries in an OBS rather than an ASF or a hospital. The critical determination in the Maryland disciplinary proceeding was that EI was actually an OBS notwithstanding its accreditation by AAAASF as an ASF. This determination——which drove the outcome——ultimately rested not on an application of Maryland law to the particular facts concerning EI's capabilities, e.g., equipment, supplies, personnel, etc.; it rested, rather, on the conclusion that EI failed to meet two AAAASF conditions of accreditation: first, a directive that facilities permitting overnight stays must be in compliance with all pertinent state laws and, second, a requirement that the surgeon have hospital privileges or, alternatively, that the facility have in place a written transfer agreement. Because EI was found not to have satisfied these two accreditation standards, it was held to be unentitled to the status of accredited ASF, which in turn meant that it must be an OBS (since it clearly was not a hospital). Because in the opinion of the state's expert (which the MALJ accepted) it was a violation of the standard of care to perform the operations at issue in an OBS, and because EI was determined to be an OBS, Dr. Ramirez was found to have breached the standard of care.5
Unlike Maryland, Florida has a rule which prescribes specific standards of care for office surgery, namely Florida Administrative Code Rule 64B8-9.009. Under this rule, "office
surgery" is defined as "surgery[6] which is performed outside of any facility licensed under Chapter 390 or 395, F.S." Fla.
Admin. Code R. 64B8-9.009(1)(d)(2002).7 Just as in Maryland, EI was not required to be licensed as an ASF, so too in Florida, were EI located in this state, would EI be outside the definition of "ambulatory surgical center"8 and thus under no legal compulsion to be licensed pursuant to chapter 390 or 395.9 Thus, had Dr. Ramirez performed the subject operations in Florida at a facility such as EI, which was not licensed (or required to be licensed) as an ASF or hospital, each of the surgeries would have constituted "office surgery"10 and been subject to the standard-of-care provisions of rule 64B8-9.009.
This rule clearly permits lengthy elective cosmetic and surgical procedures, singly and in combination, to be performed in a physician's office instead of a hospital or ASF. See Fla. Admin. Code R. 64B8-9.009(2)(f). Thus, the ratio decidendi of the Maryland disciplinary case——i.e., that Dr. Ramirez violated the standard of care because he performed lengthy operations at a facility that was in reality an OBS (despite its accreditation as an ASF), rather than in a properly accredited ASF or hospital——would not support a finding of guilt on a charge brought under section 458.331(1)(t) had the Actual Incident occurred in Florida.
For the Actual incident to constitute an HSFV, therefore, a different theory or theories of the case must be employed. There are no findings in the Maryland case——none would be expected——from which the undersigned can determine the standards of care concerning cosmetic and plastic surgeries performed in a physician's office that prevailed in Florida at the time of the Actual Incident. The only source of such standards available to the undersigned is the aforementioned rule 64B8-9.009.
Rule 64B8-9.009(2)(f) provides as follows:
For elective cosmetic and plastic surgery procedures performed in a physician's office, the maximum planned duration of all surgical procedures combined must not exceed
8 hours. . . . For elective cosmetic and plastic surgical procedures, the patient must be discharged within 24 hours of presenting to the office for surgery; an overnight stay is permitted in the office provided the total time the patient is at the office does not exceed 23 hours and 59 minutes including the surgery time. An overnight stay in a physician's office for elective cosmetic and plastic surgery shall be strictly limited to the physician's office. If the patient has not recovered sufficiently to be safely discharged within the timeframes set forth, the patient must be transferred to a hospital for continued post-operative care.
(Emphasis added).
The findings from Maryland establish that the respective operations performed on Patients A and B exceeded
eight hours. The foregoing rule, however, does not restrict the actual duration of an operation to eight hours, but the planned
duration, which is different. The term "planned duration" clearly refers to the length of time the operation is scheduled (or intended) to take. (Had the Board meant to limit all operations falling under paragraph (2)(f) to eight hours, regardless of the circumstances, it obviously would not have used the participial adjective "planned" to modify "duration.") Here, no finding was made in Maryland regarding the planned duration of the surgical procedures for which Patient B was scheduled, and regarding Patient A it was found that her surgeries were "posted
. . . on the surgical posting sheet" for eight hours. Thus, the undersigned cannot conclude that the planned duration of the surgeries comprising the Actual Incident violated rule 64B8- 9.009(2)(f).
Paragraph (2)(f) permits overnight stays in the physician's office, provided the total time that the patient spends in the office is no more than 23 hours and 59 minutes. The Maryland findings establish that Patients A and B were each scheduled to stay at EI for 23 hours. Patient B died during the night following his operation, less than 24 hours after checking in. Patient A spent approximately 29 hours at EI. The duration of her overnight stay therefore would have violated the standard of care set forth in paragraph (2)(f) had the Actual Incident
occurred in Florida. This would have constituted a technical violation of rule 64B8-9.009(2)(f)——"technical" because, based on the Maryland findings, the fact that Patient A remained at EI for several hours beyond Florida's 24-hour limit neither caused any harm nor placed the patient in any danger.
Further, there is an inherent unfairness in comparing the "apple" of Patient A's overnight stay at EI in Maryland to the "orange" of the imagined situation in which she stays for the same duration at a hypothetical EI located in Florida. The difference, of course, is that in Maryland there was no 24-hour limit on overnight stays in a physician's office analogous to that prescribed in rule 64B8-9.009(2)(f).11 Therefore, to say that keeping a patient for 29 hours at EI in Maryland is conduct which, had it occurred in Florida, would have violated paragraph (2)(f) is like saying that traveling 100 miles per hour on a German autobahn where there is no general speed limit is conduct which, if engaged in on I-95 in Palm Beach County, Florida, would be a punishable offense. Just as it would be illogical to assume that the German driver (whose speed was legal on the autobahn) would not conform his behavior to Florida law if he found himself on I-95, so too does it beg the question to conclude that
Dr. Ramirez would have violated rule 64B8-9.009(2)(f) if Patient A's office stay (whose duration was legal in Maryland) had occurred in Florida because the conclusion assumes, without
proof, that Dr. Ramirez would not conform his behavior to Florida law. Thus, while rule 64B8-8.001(1)(b), which specifies the applicable penalty range for a first offense under section 458.331(1)(b), requires the undersigned to determine what discipline would have been imposed if the Actual Incident had occurred in Florida, in this instance that is a big "if" indeed.
The operations that gave rise to the Maryland proceeding required the use of general anesthesia and thus fall under the category of "Level III Office Surgery" as defined in rule 64B8-9.009(6)(a). Paragraph (6)(b) of this rule provides in pertinent part as follows:
(b) Standards for Level III Office Surgery. In addition to the standards for Level II Office Surgery, the surgeon must comply with the following:
1. Training Required.
a. The surgeon must have staff privileges at a licensed hospital to perform the same procedure in that hospital as that being performed in the office setting or must be able to document satisfactory completion of training such as Board certification or Board qualification by a Board approved by the American Board of Medical Specialties or any other board approved by the Board of Medicine or must be able to demonstrate to the accrediting organization or to the Department comparable background, training and experience. Such Board certification or comparable background, training and experience must also be directly related to and include the procedure(s) being performed by the physician in the office surgery facility. In addition, the surgeon must have knowledge of the principles of general anesthesia.
(Emphasis added.) Dr. Ramirez is a board certified plastic surgeon, so if the Actual Incident had occurred in Florida, he would have met the training requirements set forth in rule 64B8- 9.009(6)(b)1.a., despite not having staff privileges at a nearby hospital.
Rule 64B8-9.009(4)(b) provides in relevant part as follows:
(b) Standards for Level II Office Surgery.
1. Transfer Agreement Required. The physician must have a transfer agreement with a licensed hospital within reasonable proximity if the physician does not have staff privileges to perform the same procedure as that being performed in the out-patient setting at a licensed hospital within reasonable proximity. "Reasonable proximity" is defined as not to exceed thirty (30) minutes transport time to the hospital.
Dr. Ramirez did not have a written transfer agreement in Maryland. Thus, had the Actual Incident occurred in Florida, Dr. Ramirez would have committed a technical violation of rule
64B8-9.009(4)(b)——a violation that had no effect on the treatment of Patients A and B. However, as with the hypothetical violation of rule 64B8-9.009(2)(f), which prescribes a 24-hour limit on overnight stays in a physician's office, the hypothetical violation of rule 64B8-9.009(4)(b) rests on the fallacious assumption that Dr. Ramirez, who was not subject to a legal requirement in Maryland to have a transfer agreement12, likewise
would not have had such an agreement if he were operating in Florida, where a transfer agreement is legally required (in the absence of staff privileges).
In sum, had the Actual Incident occurred in Florida, Dr. Ramirez would not have been guilty of an offense under section 458.331(1)(t) for conducting multiple plastic surgery procedures as a continuous, lengthy operation in an office-based surgery facility, which was the conduct for which Maryland disciplined him. This is because in Florida (unlike Maryland), it is not a per se violation of the standard of care for a board- certified surgeon such as Dr. Ramirez to perform multiple plastic surgery procedures as a continuous, lengthy operation in the physician's office, provided the requirements of rule 64B8-9.009 are met. If the Actual Incident had taken place in Florida,
Dr. Ramirez would have violated two standards of care set forth in rule 64B8-9.009, by keeping a patient in the office for more than 24 hours and failing to have a transfer agreement with a licensed hospital. The conduct comprising the hypothetical Florida violations, however, was not shown or found to have been in breach of the standard of care in Maryland.13 The anomalous upshot is that Dr. Ramirez's HSFV of section 458.331(1)(t) rests on conduct that did not violate the standard of care in Maryland, whereas the Original Violation was bottomed on conduct that would not have violated the standard of care in this state.
The Disciplinary Guidelines As Applied to the HSFV
The applicable penalty range for a first offense involving a violation of the standard of care is as follows:
From one (1) year probation to revocation or denial and an administrative fine from
$1,000.00 to $10,000.00.
Fla. Admin. Code R. 64B8-8.001(2)(t)(2004).
In 2004 and 2005, rule 64B8-8.001(3) provided that, in applying the penalty guidelines, the following aggravating and mitigating circumstances are to be taken into account:
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:
Exposure of patient or public to injury or potential injury, physical or otherwise: none, slight, severe, or death;
Legal status at the time of the offense: no restraints, or legal constraints;
The number of counts or separate offenses established;
The number of times the same offense or offenses have previously been committed by the licensee or applicant;
The disciplinary history of the applicant or licensee in any jurisdiction and the length of practice;
Pecuniary benefit or self-gain inuring to the applicant or licensee;
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.
Any other relevant mitigating factors.
Subparagraph (g) of the foregoing rule is inapplicable, and the factors set forth in subparagraphs (c) and (f) are neutral, i.e., neither aggravating nor mitigating. As for subparagraph (a), none of the Maryland findings suggests that either Patient A or Patient B was endangered by the absence of a written transfer agreement, and in view of Dr. Ramirez's informal but efficacious arrangement for admitting patients to the hospital if necessary, the undersigned concludes that EI's patients were not exposed to a discernable risk of injury in this regard. Patient A was not injured or exposed to injury by staying at EI for 29 hours instead of just 23 hours and 59 minutes. The factors described in subparagraph (a), therefore, are——if not slightly mitigative——a wash.
The factors in subparagraphs (b), (d), and (e) are mitigating circumstances in this case, given that Dr. Ramirez had a spotless disciplinary record before the Actual Incident.
Finally, as an "other relevant mitigating factor," the undersigned concludes that consideration must be given to the reality that in this instance, to find the HSFV requires an assumption that Dr. Ramirez (metaphorically speaking) would not have obeyed the posted speed limit in Florida merely because in another jurisdiction, where such speed was not prohibited, he
drove faster than the Florida limit and was ticketed for something else, which latter would have been permissible in
Florida. There is an inherent unfairness in this assumption which requires that the penalty be discounted.
Considering the mitigating circumstances, an appropriate penalty for the HSFV would be a reprimand and 6 months' probation, plus a $1,000 fine. This is the Comparable Penalty, which constitutes the bottom end of the penalty range for the Derivative Violation.
The Penalty for the Derivative Violation
To complete the penalty analysis, it is necessary finally to determine a sanction for the Derivative Violation. Having determined the Comparable Penalty, the range of penalties (as set forth in rule 64B8-8.001(2)(b)) for Dr. Ramirez's first offense involving section 458.331(1)(b) can be restated as follows:
From [a reprimand and 6 months' probation, plus a $1,000 fine] to suspension or denial of the license . . . , and an administrative fine ranging from $1,000.00 to $5,000.00.
The aggravating and mitigating circumstances, spelled out in rule 64B8-8.001(3), are as stated in paragraph 77 above, except that subparagraph (h) of the rule presently provides as
follows:
(h) Where a licensee has been charged with violating the standard of care pursuant to
Section 458.331(1)(t), F.S., but the licensee, who is also the records owner pursuant to Section 456.057(1), F.S., fails to keep and/or produce the medical records.
Subparagraph (i) is the catch-all provision encompassing "[a]ny other relevant mitigating factors."
A Derivative Offense arising under section 458.331(1)(b) does not involve any new or independent wrongdoing in this state, so neither Dr. Ramirez's patients nor the public were injured or exposed to danger by the "commission" of this offense. Therefore, rule 64B8-8.001(3)(a) states a mitigating factor is this case. On the other hand, the gravaman of a Derivative Offense is the licensee's disciplinary history, so subparagraph (e) of this rule could be viewed as prescribing an aggravating circumstance here. Taken together, subparagraphs
(a) and (e) cancel each other out.
Of the remaining specific factors, none is applicable or, if applicable, persuasively mitigating or aggravating. The undersigned, however, believes that there are several unique mitigating circumstances that properly can be considered under subparagraph (i). These are set forth below.
The first is Dr. Ramirez's distinguished career. As a preeminent and innovative plastic surgeon, Dr. Ramirez has contributed much to the field, benefitting not only his patients
but the patients of other surgeons who use the techniques he has discovered and disseminated.
The second is that the Maryland decision underlying the revocation for which Dr. Ramirez is now being punished in Florida is (for reasons explained previously) poorly reasoned and ultimately unpersuasive. Section 459.331(1)(b) requires that Florida accept at face value the legitimacy and authority of another jurisdiction's disciplinary order for the purpose of finding the licensee guilty of a Derivative Offense, but in determining the appropriate penalty to be imposed for a Derivative Offense Florida is not required to treat all foreign discipline as well-founded, correct, and just——nor should it. If Florida finds the foreign decision wanting, that is an appropriate basis for mitigation of the Florida penalty.
Dr. Ramirez is entitled to such mitigation in this instance.
Finally, there is the fact that in Maryland
Dr. Ramirez was found guilty of a disciplinable offense based on a mere preponderance of the evidence, which is a less demanding standard than that applicable in a Florida disciplinary proceeding, namely that the evidence of guilt be clear and convincing. This is significant because, while it is undisputed that Dr. Ramirez was disciplined in Maryland, which clearly makes him guilty of an offense under section 459.331(1)(b), the reality is that the Derivative Offense rests on findings of fact
made elsewhere on evidence that might well have been insufficient to sustain such findings if presented in a Florida proceeding.
In Rife v. Department of Professional Regulation, 638 So. 2d 542 (Fla. 2d DCA 1994), the court rejected the argument of a psychiatrist, whose medical license had been revoked in Vermont for sexually molesting teenage patients, that the out- of-state sanction could not provide the basis for discipline under section 458.331(1)(b) because Vermont had used the preponderance standard of proof. The court held that the more rigorous clear and convincing standard "is not essential to satisfy due process under the United States Constitution." Id. at 543.
Dr. Ramirez makes a compelling argument that Rife was incorrectly decided and should be disregarded as bad law. Nevertheless, the undersigned is bound to follow Rife, albeit somewhat reluctantly, and thus he must conclude that Dr. Ramirez is guilty of a Derivative offense even though the Maryland decision is based upon a lesser standard of proof. Nothing in Rife, however, precludes the undersigned from deeming the fact that Maryland used an undemanding standard of proof to be a mitigating circumstance in determining an appropriate penalty. That, therefore, is how the problematic standard-of-proof situation will be dealt with here: as a mitigating factor.
Considering the mitigating circumstances, an appropriate penalty for the Derivative Offense is a reprimand,
plus a $1,000 fine.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Dr. Ramirez guilty of the charge set forth in the Administrative Complaint and imposing as discipline a reprimand and a fine in the amount of $1,000.
DONE AND ENTERED this 10th day of July, 2012, in Tallahassee, Leon County, Florida.
S
JOHN G. VAN LANINGHAM
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 2012.
ENDNOTES
1/ The MALJ mentioned that the defense expert, on cross- examination, had "indicated that he did not know if EI had blood products immediately available." Pro at 41. This is the closest the MALJ came to making a "finding" in this regard, and the observation tells nothing about the amount of blood EI had in its supplies during the operations in question.
2/ The MALJ made a finding regarding Patient A's expected blood loss, Pro at 14, but did not find that Dr. Ramirez had failed——or been unable——timely to replenish or otherwise appropriately manage such loss.
3/ It might be noncompliant with some other state law, but not that one.
4/ It is, further, extremely doubtful that AAAASF would presume to direct a facility to comply with an otherwise inapplicable state law, because such a directive would be unnecessary, given that AAAASF is free to set accreditation standards of its own that are more or less stringent, or entirely different from, a particular state's legal requirements. That AAAASF directed facilities to comply with all "pertinent" state laws reveals clearly the organization's intent to respect, not to override, a state's statutory scheme with regard to overnight stays.
5/ It is worth noting that the standard-of-care violation was not based on a finding that EI's capabilities failed to conform to standards necessary for the delivery, to either patient at issue, of a level of care recognized as reasonably prudent.
There was no finding, and none of the findings implies, that either the scheduling of Patients A and B for overnight stays at EI, or the lack of a formal transfer agreement, compromised the care of the subject patients or, more broadly, that the treatment they received was substandard in any way. Based on the rationale of the Maryland decision, it is reasonable to suppose that, had there been a written transfer agreement instead of the informal transfer arrangement that Dr. Ramirez had made with a colleague, then EI's accreditation might have been deemed "proper," and the standard of care not been violated in Maryland.
6/ "For the purpose of this rule, surgery is defined as any manual or operative procedure, including the use of lasers, performed upon the body of a living human being for the purposes of . . . correcting deformity or defects, . . . or any elective
procedure for aesthetic, reconstructive or cosmetic purposes . . . ." Fla. Admin. Code R. 64B8-9.009(1)(a).
7/ The term does not include "surgical procedures . . . of a type that generally result in blood loss of more than ten percent of estimated blood volume in a patient with a normal hemoglobin; require major or prolonged intracranial, intrathoracic, abdominal, or major joint replacement procedures, except for laparoscopic procedures; directly involve major blood vessels; or are generally emergent or life threatening in nature." Id.
8/ The term "ambulatory surgical center" means "a facility the primary purpose of which is to provide elective surgical care, in which the patient is admitted to and discharged from such facility within the same working day and is not permitted to stay overnight, and which is not part of a hospital. However,
. . . an office maintained by a physician for the practice of medicine . . . shall not be construed to be an ambulatory surgical center . . . ." § 395.002(3), Fla. Stat. (2004).
9/ Chapter 390 covers the licensure of abortion clinics, see § 390.014, Fla. Stat. (2004), while hospitals, ambulatory surgical centers, and mobile surgical facilities must licensed under chapter 395, see § 395.003. EI was clearly not an abortion clinic, hospital, or mobile surgical facility. See §§ 390.011(2); 395.002(13), (22).
10/ Had EI been located in Florida at the relevant time,
Dr. Ramirez would have been required to register this office- based surgical setting with the Department in accordance with § 459.005(2), Florida Statutes (2004). Because Dr. Ramirez was not charged in Maryland with violating a comparable registration requirement, however, no findings from the remote proceeding support a determination that Dr. Ramirez would have failed to register his office had it been located in Florida; the undersigned assumes, in the absence of any factual basis for finding otherwise, that Dr. Ramirez likely would have obeyed the Florida statute.
11/ The MD ASF Licensing Statute prohibited overnight stays in an ASF, but EI was not subject to that particular law.
12/ The MALJ found that Dr. Ramirez failed to satisfy an accreditation standard requiring that the surgeon have hospital privileges or the facility a transfer agreement. Neither the
MALJ nor the MD Board, however, ruled that Maryland law (or the applicable standard of care, for that matter) imposed the same requirement; rather, the finding regarding the accreditation standard was relevant only to the conclusion that EI was not really an ASF despite its accreditation as such, but was in actuality an OBS.
13/ Not to belabor the point, but to be clear, in Maryland the absence of a transfer agreement and the practice of keeping patients overnight were relevant not as violations of the standard of care, but only as evidence in support of the separate and distinct conclusion that EI was out of compliance with AAAASF accreditation standards and thus (it was held) not entitled to claim ASF status.
COPIES FURNISHED:
Jonathan R. Zachem, Esquire Sharmin R. Hibbert, Esquire Department of Health
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
Anthony C. Vitale, Esquire Anthony C. Vitale, P.A. Law Center at Brickell Bay
2333 Brickell Avenue, Suite A-1 Miami, Florida 33129
Sean Michael Ellsworth, Esquire Ellsworth Law Firm, P.A.
1501 Collins Avenue, Suite 208 Miami Beach, Florida 33139
Joy Tootle, Executive Director Board of Medicine
Department of Health 4052 Bald Cypress Way
Tallahassee, Florida 32399-3265
Jennifer A. Tschetter, General Counsel 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.
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 17, 2012 | Agency Final Order | |
| Jul. 10, 2012 | Recommended Order | Respondent, whose license to practice medicine was revoked in Maryland on a malpractice charge, is guilty in Florida of the offense of being disciplined in another jurisdiction, but the penalty should be reduced based on mitigating circumstances. |
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs JERRY C. LINGLE, M.D., 12-000358PL (2012)
DEPARTMENT OF STATE, DIVISION OF LICENSING vs GILBERTO CORREA, 12-000358PL (2012)
BOARD OF MEDICAL EXAMINERS vs. JORGE SUAREZ-MENENDEZ, 12-000358PL (2012)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs ERNESTO SINDA COLINA, M.D., 12-000358PL (2012)
