STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE BOARD OF MEDICAL EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1701

) BRADY CHAMBERS HARTMAN, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this cause in Jacksonville, Florida, on December 9, 1975, pursuant to Florida Statutes 120.57. The State Board of Medical Examiners (hereinafter called the Petitioner) seeks to revoke the Respondent's license based on the allegation that he violated a lawful rule, regulation or order promulgated by the Board which had previously been entered by the Petitioner in a disciplinary hearing involving the Respondent which were initiated by alleged acts of Respondent which were violative of Chapter 458.1201(g) and the Board seeks to exercise its disciplinary authority contained in 458.1201(3)(b), F.S. which essentially states that the Board may vacate a probation order which it has previously entered based on conduct which, in its opinion, constitutes noncompliance with the related probation order.

APPEARANCES

For Petitioner: Michael I. Schwartz, Esquire

Kaplan, Schwartz & Slepin Suite 201, Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301

For Respondent: Julius Finegold, Esquire

1130 American Heritage Life Building Jacksonville, Florida 32202

The Board issued its administrative complaint and notice to show cause on July 23, 1975, requesting the Respondent to show cause why his license to practice medicine should not be revoked based on the history of his "acute alcoholic problem" and because of the alleged repeated violations of the terms and conditions of his probation. The issue posed is whether the alleged conduct of Respondent which will be specifically set forth in detail is conduct sufficient to warrant revocation of Respondent's license to practice medicine in this state. During the course of the hearing Respondent's counsel questioned the validity, conclusiveness and/or finality of prior administrative adjudications meted out to the Respondent during a course of approximately seven years prior to this hearing. While the undersigned indicated during the hearing that he was of the opinion that such an attack could not be made upon administrative and/or agency actions when the time period for appealing such actions has expired, the undersigned indicated that he would reserve judgement

on such notion and would make his recommendation in the recommended order. After careful consideration and examination of the law, it appears that administrative actions which had been entered against the licensee and which have not been attacked during the appeal period can not be done in a subsequent hearing in a collateral fashion absent some extraordinary circumstances. See for example Faulk and Colman v. Harper 62 So.2d 62 (Fla. 1952) and Linard Brothers Transfer and Storage Company v. Douglas, 32 So.2d 156 (Fla., 1947).

Inasmuch as no extraordinary circumstances were advanced by the Petitioner as to show or otherwise explain why the previously entered administrative orders of the Petitioner were not appealed, and since the state of the law indicates that once the appeal period has expired, such actions cannot be subsequently attacked. The undersigned hereby rules that the belated attack upon the prior agency's actions are untimely and such actions are final and binding upon the Respondent.

BACKGROUND AND FACTS

1. The Respondent has had a history of problems with the Board beginning in January, 1970 when he sat for the State Board of Medical Examiners exam for licensure. Based upon an investigation and inquiry by the Board bearing upon the Respondent's qualifications and fitness to practice medicine and surgery with reasonable skill and safety, it was determined that he was unqualified for license by reason of use of alcohol under 458.12(1)(e), Florida Statutes. Thereafter, a mental examination was required pursuant to a Board's order and that exam was conducted in June, 1970, at which time it was determined that the Respondent possessed the strength and conviction to prevent a further occurrence of his past difficulties and that he be permitted to practice medicine in the State. On July 18, 1970, the Respondent's exam papers were graded and the Board approved the recommendation granting him the privilege of practicing medicine within the State. Thereafter on October 26, 1970, a complaint was filed against the Respondent, alleging that for some time prior to the October date, the Respondent imbibed alcohol and used narcotics or other drug depressants which impaired his ability to such an extent that he was unable to practice medicine with reasonable skill and safety to patients. Based on this complaint, the Respondent's license was suspended effective midnight October 10, 1970, until such time as he was able to demonstrate that he could resume the practice of medicine with reasonable skill and safety to patients. This order was appealed by the Respondent and on January 15, 1971, a hearing was held on the emergency suspension order of October 10, 1970, and based upon facts presented at the appeal hearing, an order was entered against the Respondent, adjudicating him guilty of acute alcoholism and being unable to practice medicine with reasonable skill and safety to patients. The suspension period was for three years with imposition of judgement of suspension not imposed and the licensee was placed on probation under the condition that he submit to the care of a psychiatrist on a regular basis and that he submit prognosis reports at 60 day intervals; that he appear before the Board at regular semi-annual meetings; that he practice exemplary professional conduct at all times and that any reported breach of the above terms would result in a judgement of suspension which would be imposed immediately. This suspension order was dated January 29, 1971. Approximately six months later, another emergency suspension order was entered against the Respondent for violating the terms and conditions of his probation which was to run for a period of 60 days effective June, 1971. In mid June, 1971, the Board caused to be issued a petition for rule to show cause which was executed by one of the Board's investigators stating in part that the licensee had continued to imbibe in and use alcoholic beverage in conjunction with the use of other tranquilizing depressants i.e., valium and librium. The petition further alleged that the Respondent was admitted to the Avon Park Facility for the

rehabilitation of alcoholics, and the Respondent's treating psychiatrist, Dr. Ronald Catanzaro recommended that the Respondent discontinue the practice of medicine for a period from 6 months to one year. Another hearing was held and a final order issued on/or about July 23, 1971, suspending the Respondent's license for a period of one year and to continue in the state of active suspension until such time as he could demonstrate by good and sufficient evidence that he could resume a competent practice of medicine and surgery.

During mid 1972, the Respondent requested a hearing before the Board's full membership seeking reinstatement of his privilege to practice medicine and surgery in the State and after a full hearing on his petition for reinstatement, the Board reinstated his license to practice medicine and surgery under the following terms and conditions:

1. That his license to practice medicine and surgery in the State was placed on a probationary status for a 2 year period.

   
   

2. That during the period of probation, the Respondent should make a personal appearance semiannually before the Board.

   
   

3. That during the probation period he should demonstrate the type of exemplary conduct required of a duly licensed physician.

   
   

4. That he shall be limited to practice at the Palm Beach County Health Department in the area of their comprehensive alcoholism programs and that during the probationary period, he should continue his medical treatment under the direction of Harry Schroer, M.D. and that it was his responsibility to insure that the Board receive periodic reports at 60 day intervals from Dr. Schroer.

   
   

5. The Respondent appeared at the next semiannual meeting of the Board and at that time he was found to be in compliance with the terms and conditions of his probation order. At that time the Board expanded his privilege to cover any institutional setting provided that the executive director of the Board was at all time notified as to where and how many hours he was working. Pursuant to notice, the Respondent made an appearance before the Board's full membership on June 29, 1973 and based on investigative reports and discussion at that meeting, the Board informed the Respondent that his probationary status was being extended for an additional three year period extending through July, 1977. At the next semiannual Board meeting the Respondent appeared and at that time no derogatory information was presented regarding the Respondent. Based on a letter submitted by W. D. Barrow, M.D., Medical Director at the Sunland Regional Center at Ft. Myers, Florida, the licensee made a semiannual appearance before the full Board and the letter indicated that the Respondent had taken excessive annual leave, sick days and days without pay and Dr. Barrow's personal observation was that the Respondent's present problem which led to his probationary status had not been resolved. The Respondent was warned of his continued violations of his probation and his request to modify his probationary status to permit him to work in a private practice setting with an approved medical group was denied and his probation was continued. On January 5, 1975, the Respondent again appeared before the Board's full membership and during that meeting, instances of his continued drinking in violation of the probation were raised. Discussion ensued concerning a routine probation investigative report which indicated that on several occasions subsequent to his last appearance before the Board, he had been under the influence of alcohol and/or drugs. It was noted at that meeting that W. D. Barrow, Medical Director of the Sunland Regional Center at Ft. Myers, requested the dismissal of the Respondent from the position of staff physician for just cause including conduct unbecoming a public

   employee. Also during this appearance, the Respondent explained an incident to the Board wherein he fired a pistol and was arrested by the Ft. Myers Police Department for allegedly carrying a concealed weapon and disorderly intoxication. The licensee explained that the charge was later reduced to firing a weapon in a public place to which he pled guilty and a misdemeanor charge of disorderly intoxication was still pending during his appearance at the Board at that time. The Defendant was also placed on probation for a period of

   6 months for the offense of discharging a firearm in a public place. Based on the continued violations of his probation, he was ordered to appear at the next Board meeting instead of the requested appearance in 6 month intervals. As requested the licensee appeared at the Board meeting on April 5, 1975, and considerable discussion was had concerning his continued violation of the terms of his probation since his last appearance before the Board. His probation status was continued.

   
   

6. The Respondent's most recent difficulty occurred on the morning of June 24, at which time he was found weaving and driving across the center line on the service road adjacent to the Arlington Expressway in Jacksonville, Florida. He was stopped by Dale T. Lowe, an officer of the Jacksonville Police Department. The licensee was administered a field sobriety test which he failed. He was thereafter transported by officer Lowe to the Police Station where he was given a breathalizer test which registered a .18 percent blood alcohol level. The next meeting of the Board was held on July 6, and at that time the Respondent was accompanied by legal counsel. Prior to any questioning of the Respondent he stated that he desired to relocate to the State of California in the hopes of avoiding any continued alleged harassment and that he would voluntarily surrender his license to practice medicine in the State and would not under any circumstances engage in the practice on medicine in this State unless he filed a petition for reinstatement of his license and demonstrated to the Board grounds satisfactory therefor. The Board considered the request and a motion to accept his license which was defeated by a vote of 5 to 4. The Board then voted that "probable cause existed that the licensee had violated the terms and conditions of his probation and that the instant complaint should be filed." Based on the above history of the Respondent's problems, the Board charged the Respondent with violating the terms of his probation and request that his license to practice medicine in the state be revoked.

   
   

7. Officer Dale T. Lowe, a patrolman with the Jacksonville Sheriff's Office testified that he observed the Respondent driving northbound on Arlington Road in Jacksonville at approximately 1:45 A.M. on June 24, 1975. He testified that the Respondent was weaving across the center line and that he trailed the Respondent for a few blocks. He testified that after stopping the Respondent he requested that he present his drivers license whereupon the Respondent began to "fumble through his wallet" and it was only after a Mr. Willingham, who at that time was a deputy sheriff in Colorado who was riding with officer Lowe as an observer, looked over the Respondent's shoulder and pointed out to him his drivers license, did Respondent find said license. Lowe further testified as to the field sobriety test and the fact that he smelled alcohol in the Respondent's breath. He testified that after the Respondent failed to pass the field sobriety test he transported him to the County Jail at which time he was administered the breathalizer test and the results as he later saw them revealed that the Respondent's blood content contained approximately .18 percent alcohol. The arrest and booking report is attached hereto and is made a part hereof and marked for identification as Board's Exhibit 1. On cross-examination, officer Lowe testified that at the time of the arrest, the Respondent was alone and that no patients were being treated by Dr. Hartman to his knowledge. Mark Allen Willingham's testimony was essentially the same as officer Lowe, who he was

   riding with at the time of the Respondent's arrest. Donald Blincoe was called and testified that he is employed as a correction's officer with the City of Jacksonville and that he is the person who administered the breathalizer test to the Respondent. He testified as to the procedure utilized and generally about his educational background which was essentially that he had attended a 40 hour breathalizer school; that he was trained by Sergeant Zeigler who was the department's chief toximeter operator. Board's Exhibit 2 is a copy of the chemical test report by the Florida Highway Patrol Division which was received and is made a part hereof. Board's Exhibit 3 is a copy of the judgement and sentence regarding the incident in which the Respondent was charged with driving while intoxicated in violation of Chapter 316.028, Florida Statutes. The report reveals that the Defendant paid a fine of $150.00 and his drivers license was revoked for a period of 90 days. As stated, counsel for the Respondent made a collateral attack upon the administrative proceedings which had heretofore taken place regarding the Respondent and in which the appeal period had expired.

   Based on the undersigned's ruling herein that such procedures are not subject to attack after expiration of the appeal period, those proceedings are regarded as final agency actions. Counsel for Respondent also urged that the medical practice act under 458.1201(n) in pertinent part refers to practitioners who are unable to practice medicine with reasonable skill and safety to patients by reason of illness, drunkenness, excessive use of drugs and narcotics, etc. He therefore urges that the statutory language itself reveals that it was designed to protect the public from practitioners who are unable to practice medicine with reasonable skill and safety to patients due to impaired ability based on the use and/or consumption of alcoholic beverages or drugs. He urged further that a doctor does not have to refrain from the use of alcoholic beverages unless it involves danger to a patient during his professional hours or that it may somehow involve a situation wherein he might come under the contact of patients whereas in this case the Respondent was at times relevant engaging in a group type practice and at no time was he on call. Accordingly he urged that the charges be dismissed on the grounds that the Board had failed to carry its burden of proving any violations by the Respondent based upon the testimony in evidence before the undersigned or that he was violating a lawful Board order or had violated the terms of his probation order.

   
   

8. Several witnesses were called to testify who had worked with the Respondent in various medical programs and they all testified that he was punctual; that he was not absent from work excessively and that his proficiency and skills with regard to the practice of medicine was above average. Documentary evidence was also submitted which was complimentary of the Respondent's medical skills. While some of these documents referred to the fact that the Respondent at times imbibed in alcohol, essentially they all reflect that as a physician, he is very capable.

   
   

   ANALYSIS

   
   

9. The record in this case establishes that the Respondent has indeed encountered an ongoing series of problems with the Board. The nature of this problem certainly is one which is of great importance and concern to the medical profession. During this period in which the general public is undergoing rising costs in the area of medical care, the profession is trying to render better medical care while at the same time endeavoring to render such services with reasonable costs without sacrificing the quality of services rendered. To achieve this, the Board must not only search for better practical means to render medical care with the degree of safety which the general public needs and demands, it must also be certain that those whom it licenses to provide such medical care are capable of doing so both physically and mentally. In keeping

with this responsibility, the Board, when presented with a complaint involving one of its member professionals or when otherwise alerted that one of its professionals may be engaging in conduct which either causes or may tend to cause an impairment of that professionals's ability to practice medicine with reasonable skill and safety, it must proceed to investigate the matter with utter dispatch and take whatever action it deems appropriate in light of the circumstances. To sit idly by when faced with charges of conduct unbecoming one of its practitioners would subject the public to uncalled for risks and dangers to the most precious and sought after right - the right to live. Turning to the facts of this case, the record is replete with instances of conduct involving the Respondent which are unbecoming to a medical practitioner and leaves much to be desired in terms of the standard of conduct which is expected of him. The record also demonstrates that the Board has continuously strived to provide the Respondent with ample opportunity to correct and/or remedy his maladies such that he could provide that degree of skill and safety in his medical practice to patients which they deserve. As previously stated, the Board sought to accomplish this by restricting the Respondent's medical practice to a group-type practice such that he could rehabilitate himself while at the same time permitting him to continue to engage in his chosen profession. However the record reveals that the Respondent repeatedly violated the terms of his probation by inter alia, continuously imbibing alcoholic beverages and using or consuming other depressants. When the Board was alerted to such violations, it was left with no alternative other than to place more onerous restrictions on his probation order or extend the probationary period under the same conditions. Again this has caused an ongoing series of appearances by the Respondent before the Board with the inception of his problems arising almost simultaneously with the period in which he was granted a license to practice medicine. The practice of medicine is a very demanding profession as it involves the lives of patients and one error in judgement may prove fatal. The Respondent's defense that his last encounter which prompted the Board to seek revocation of his license did not occur during a time in which he was treating patients or otherwise providing medical care to patients is not persuasive. The fact is that the incident, i.e., driving while intoxicated, was a violation of his probation order and the Board could properly move to vacate the probation order and seek imposition of a harsher penalty. The Board need not wait until the Respondent commits a fatal act while treating patients to seek revocation of his license. Based on the above facts the undersigned is of the opinion that the facts herein are sufficient to warrant vacating the Respondent's probation and that the acts are of sufficient gravity to justify revocation of the Respondent's license. The undersigned concludes as a matter of law that based on the above conduct, the Respondent has engaged in conduct violative of 458.1201(g) and 458.1203(b), Florida Statutes.

Accordingly it is hereby recommended that:

1. The Respondent's probation order be vacated.

   
   

2. The Respondent's license to practice medicine in this state be revoked.

DONE and ENTERED this 17th day of February, 1976, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

Michael I. Schwartz, Esquire Suite 201 Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301

Julius Finegold, Esquire

1130 American Heritage Life Bldg. Jacksonville, Florida 32202

Brady Chambers Hartman, M.D. Life Drug Abuse Center

15 South Lee Street Jacksonville, Florida

George S. Palmer, M.D. Executive Director

Board of Medical Examiners

108 West Pensacola Street Tallahassee, Florida 32304

Docket for Case No: 75-001701

Orders for Case No: 75-001701