Judges: K. N. AYERS
Agency: Department of Health
Latest Update: Apr. 22, 1981
Summary: Respondent`s license should be suspended one year. It is inactive and this will have little affect on Respondent.
77-1181.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL REGULATION, BOARD OF ) OSTEOPATHIC MEDICAL EXAMINERS, )
)
Petitioner, )
)
vs. ) CASE NOS. 77-1181
) 77-1846
THEODORE S. BRANDWEIN, D. O., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled cases consolidated for hearing with Case No. 77-2181R on March 23, 1981 at Tallahassee, Florida.
APPEARANCES
For Petitioner: Robert Newell, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Neil Chonin, Esquire
500 Roberts Building
28 West Flagler Street Miami, Florida 33130
By Administrative Complaints dated October 20, 1977 and October 4, 1977 the Board of Osteopathic Medical Examiners seeks to revoke, suspend, or otherwise discipline the license of Theodore S. Brandwein, D.O., and the licensee's right to practice thereunder. As grounds there for it is alleged in Case No. 77-1181 that Respondent listed himself in the yellow pages of the 1977 Miami telephone directory under Physicians and Surgeons - MD while not licensed as a medical doctor; and, in Case No. 77-1846, that the sign at the entrance of Respondent's office did not comply with the Board's requirements. These are alleged to constitute violations of Section 459.14, Florida Statutes, and Rules 21R-3.07, 21R-3.08, 21R-3.09, 21R-3.12 and 21R-3.15, Florida Administrative Code.
In his answers to the complaints, Respondent, who is also an attorney, acknowledged he holds License 3259 and that the correct address of his office is 18055 Franjo Road, Perrine, Florida.
These cases by Notice of Hearing dated November 7, 1977 were initially scheduled to be heard on December 14, 1977 and were continued, by Order dated November 17, 1977, to give the parties additional time to complete discovery. Following a pre-hearing conference on December 7, 1977 Respondent filed a
Petition to challenge certain rules of the Board of Osteopathic Medical Examiners and by Order entered December 19, 1977 these cases were consolidated for hearing. By Notice of Consolidated Hearing dated January 31, 1978, these cases were scheduled to be heard March 22, 1978.
On March 16, 1978 Respondent, by and through his attorney, requested a continuance of the hearing scheduled to commence on March 22 on grounds that Respondent, as co-counsel, did not receive notice of that hearing from the Hearing Officer. Inasmuch as only Respondent's attorney had been provided with the Notice of Hearing this Motion for Continuance was granted and the hearing was rescheduled to commence April 21, 1978, a date agreeable to Respondent's co- counsel. It subsequently appeared that the April 21 hearing date was the day prior to Passover and the hearing would interfere with travel plans earlier made by Respondent. Accordingly, these cases were rescheduled to commence May 31, 1978.
On May 23, 1978 the U.S. District Court for the Southern District of Florida, pursuant to a complaint filed by Brandwein, entered an Order granting a preliminary injunction restraining the Florida State Board of Osteopathic Medical Examiners from enforcing or implementing any administrative penalties against Brandwein pending resolution of the complaint filed by Brandwein in Federal Court to challenge the constitutionality of portions of Chapter 459, Florida Statutes. By Motion for Continuance dated May 25, 1978 Respondent requested these proceedings be continued until the constitutional challenge was determined by the Federal Court. Petitioner concurred in this request at that time. Pursuant to this motion the hearing scheduled for May 31, 1978 was continued and nothing further was heard from either party until after the Notice of Consolidated Hearing was entered January 12, 1981 rescheduling these cases for hearing on March 23, 1981. On February 19, 1981 Respondent, by and through his attorney, submitted a Motion for Stay of Administrative Proceedings in which it is alleged, in addition to the allegations regarding the Federal Court proceedings, that Respondent has sold the corporate stock and assets of Brandwein Medical Practice, P.A., and has moved to California. Petitioner, in response to Respondent's Motion for Continuance, on March 4, 1981 opposed any further continuance. By Order entered March 10, 1981 Respondent's Motion for Continuance was denied.
The history of these proceedings has been presented to properly focus Respondent's Motion for Dismissal of these proceedings which was made at the commencement of this consolidated hearing. As grounds for dismissal Respondent alleged laches and failure on the part of Petitioner to timely prosecute these cases. Since all continuances had been granted at the behest of Respondent, the Motion to Dismiss was denied. Thereafter Petitioner presented one witness and eleven exhibits were admitted into evidence including Exhibit 11 as a late-filed exhibit. Exhibit 11 is the trademark issued to Respondent for his sign.
Respondent's objection to Exhibit 2, a letter dated August 10, 1977 from Brandwein to the Board and Exhibit 3, a letter dated August 20, 1977 from Brandwein to Dr. Abel, on grounds this constituted attorney's work product while Brandwein was acting as his own attorney, were overruled. Respondent's objection to Exhibit 4, the deposition of Dr. Abel taken by Respondent's attorney on May 10, 1978, on grounds that Dr. Abel was a member of the Board of Osteopathic Medical Examiners at the time the deposition was taken, was overruled. Ruling was reserved on Respondent's objection to Exhibit 5 on grounds of relevancy. That exhibit is now admitted.
Proposed findings submitted by the parties and not included herein were not supported by competent evidence or were deemed unnecessary to the results reached.
FINDINGS OF FACT
At all times here relevant Theodore S. Brandwein, D.O., held License No. 3259 issued by the Board of Osteopathic Medical Examiners.
During the calendar year 1977 and for some period subsequent thereto Respondent maintained his office and practice at 18055 Franjo Road, Perrine, Florida under the name of Brandwein Medical Practice, P.A.
The sign marking Respondent's office in 1977, when these charges were preferred, is the same sign depicted in Exhibit 6 which is a photograph taken in 1979. It is the sign for which Respondent registered with the Florida Secretary of State as a service mark. In his application (Exhibit 11) for this registration Respondent described this mark as "a stethoscope, binaural in design, lying horizontally on the paper, sign, building, item, or object on which it is emblazoned, the earpieces and connecting piece forming in script the letter 'D' and the tubing and chest piece convoluted to form the 'O'. Taken together, the stethoscope forms the letters 'D. O.'" The application further provided "applicant is the owner of the mark and no other person except a related company has the right to use such mark in Florida, whether in identical form thereof, or in such resemblance thereto as might be, calculated to deceive or confuse".
The sign on Respondent's office in 1977 consisted of this mark depicting a convoluted stethoscope which forms the letters "D.O." only after the exercise of a vivid imagination and an appreciation of surrealistic art.
In the yellow pages of the 1977 Miami telephone directory Respondent is listed under Physicians and Surgeons MD. (Exhibit 9). He is not listed under Physicians and "Surgeons - DO. (Exhibit 10). Brandwein Medical Practice, P.A., is the Theodore S. Brandwein who is Respondent in these proceedings.
Respondent's Florida license is presently inactive.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.
Section 459.14, Florida Statutes (1977) in establishing grounds for disciplinary action against a licensee include in Subsection (2):
(e) Advertising by means of knowingly false and deceptive statements.
(h) Violation of the code of ethics of osteopathic physicians and
surgeons promulgated under the rules and regulations of the Board of Osteopathic Medical Examiners.
(k) Violation of the rules and regulations of the Board of
Osteopathic Medical Examiners filed with the Department of State.
(n) Violation of any statute or law of this State or any other state and territory of the United States or of any foreign country, which statute or law relates to the practice of medicine.
These are the statutory provisions of which Respondent is charged with violating.
While Respondent may be guilty of a technical violation of Subsection 2(e) above quoted the misleading advertising here engaged in by Respondent is not the type intended in Subsection 2 (e). Respondent made no false statements but only created the false impression that he was licensed as a medical doctor rather than an osteopath. Since a requirement to identify the branch of the healing arts to which the practitioner belongs is elsewhere prescribed, it is not necessary to be concerned with the technical violation of Subsection 2(e).
Subsection 2(n), if technically followed, would create an additional violation if Subsections 2(h) or 2(k) are violated. This was not the intent of this provision of the statute and such a construction will not be adopted.
The Code of Ethics for osteopathic physicians that
were in effect in 1977 are contained in Chapter 21R-3 of the Florida Administrative Code repromulgated December 19, 1974 (Supplement No. 96). These are also the rules of the Board.
Rules 21R-3.05, 3.07, 3.08, 3.12 and 3.15 are the specific rules alleged to have been violated by Respondent in his yellow page advertisements and in the lettering on the entrance sign at his office.
Rule 21R-3.05 provides in pertinent part that any advertisement [by an osteopath] shall be deemed false, fraudulent, deceptive or misleading if it has the capacity or tendency to mislead or deceive because in its content it makes only partial disclosure of relevant facts. By listing himself under Physicians and Surgeons - MD rather than Physicians and Surgeons - DO, Respondent violated
-Rule 21R-3.05. By failure to contain a clear "DO" Respondent's office sign also was deceiving and constituted a violation of Rule 21R-3.05.
Rule 21R-3.07 makes it a violation of the Code of Ethics for an osteopathic physician to not hold forth or indicate possession of his degree recognized as the basis for his licensure. By failing to have D.O. on his sign and by listing himself in the yellow pages under MD's Respondent also violated this Rule.
Rule 21R-3.09 requires the osteopathic physician, when actively engaged in the practice of his profession, to maintain a sign in a conspicuous place near the entrance to his office in which the branch of the healing arts in which he is licensed is clearly indicated. The convoluted stethoscope does not constitute intelligible lettering of the letters DO which Rule 21R-3.09 demands on such a sign. Furthermore by attempting in Exhibit 11 to reserve this mark exclusively to himself Respondent also recognizes that this sign does not
clearly form the letters D.O. which letters are required to be placed on the entrance sign of every osteopathic physician in Florida.
Rule 21R-3.12 merely requires the physician to cooperate fully in complying with all laws and regulations pertaining to the osteopathic physician profession. Any violation of this Rule would be a violation of another specific statute or rule and therefore is duplicitous and will not be considered in recommending punishment.
Rule 21R-3.15 specifically requires an osteopathic physician, who lists his name in the yellow pages of the telephone directory, to list under Physicians and Surgeons DO and that the physician's name must be followed by the letters "DO". Respondent's advertising violated this Rule.
From the foregoing it is concluded that Respondent violated the statutes and rules as alleged. It is further concluded that these violations consisted of only two acts, one relating to the inappropriate sign; the other to improper advertising in the yellow pages; and that Respondent's license may be disciplined for each act only once. It is, therefore
RECOMMENDED that Respondent's license be suspended for a period of one year. This recommendation is partially based upon the fact that Respondent's license is inactive at this time and a suspension will have little effect upon Respondent at this time.
ENTERED this 22nd day of April, 1981 in Tallahassee, Leon County, Florida.
K. N. AYERS Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1981.
COPIES FURNISHED:
Robert Newell, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Neil Chonin, Esquire
500 Roberts Building
28 West Flagler Street Miami, Florida 33130
Docket for Case No: 77-001181
Orders for Case No: 77-001181
| Issue Date |
Document |
Summary |
|
Apr. 22, 1981 |
Recommended Order
|
Respondent`s license should be suspended one year. It is inactive and this will have little affect on Respondent.
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