STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF PROFESSIONAL REGULATION, ) BOARD OF OSTEOPATHIC MEDICAL ) EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1484

)

ALBERT J. BERG, D.O. )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on May 27, 1980, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Ronald C. LaFace, Esquire

Post Office Drawer 1838 Tallahassee, Florida 32302

For Respondent: Henry Rothblatt, Esquire

1747 Van Buren Street, Suite 700

Hollywood, Florida 33020

ISSUE

At issue herein is whether or not the Respondent has engaged in conduct violative of Section 459.14(2)(a), Florida Statutes. 1/

FINDINGS OF FACT

Based upon the testimony adduced at the hearing and the entire record compiled herein, the following relevant facts are found.

1. Pursuant to an Administrative Complaint filed herein dated July 8, 1978, the Florida State Board of Osteopathic Medical Examiners, herein sometimes referred to as the Board, seeks to discipline the Respondent/Licensee, Albert Jack Berg, based upon an Order of Summary Suspension entered against Respondent's Michigan Osteopathic license on February 16, 1977. The basis for the summary suspension in Michigan was a charge that Respondent had engaged in the unlawful sale and delivery of a controlled substance. Respondent was noticed of a hearing which was convened on May 9, 1978, to consider the allegations of the alleged unlawful delivery of the controlled substance. On July 10, 1978, a Final Order of Revocation was entered by the Board of

   Osteopathic Medicine and Surgery of Michigan, revoking Respondent's license to practice osteopathic medicine and surgery in Michigan. 2/

   
   

2. Respondent did not contest, at the hearing, the material allegations of the Administrative Complaint, but rather, offered mitigating evidence.

   
   

3. In this regard, the evidence reveals that the Respondent has been licensed in Michigan since approximately July of 1961 and has been licensed in Florida since approximately 1972 (License No. 3460).

   
   

4. In relating the circumstances surrounding his arrest in Michigan in February of 1977, Respondent avers that he was under tremendous emotional strain due to a divorce and that resultant pressures brought about from being a father of four children whose wife threatened suicide and being left with the task of rearing children alone. He related that he was undergoing parental pressure to remarry his wife and that he carried an excessive overload in his office practice.

   
   

5. Respondent delivered several thousand Amphetamine tablets to an undercover agent in Michigan. The Amphetamine tablets had been in Respondent's possession for more than seven years and a laboratory analysis revealed that they contained ten percent (10 percent) of the Amphetamine content found in a commercially sold Amphetamine tablet. For his conviction in the State of Michigan, Respondent was initially sentenced for a period of two years, which sentence was later reduced to six months in jail, and he was thereafter released during the day hours to serve in a community guidance center under the supervision of a Dr. Richard M. Brown of Michigan.

   
   

6. As evidence by the letter of recommendation from Doctor Brown, Respondent worked in ghetto areas of Detroit, Michigan, treating in excess of one hundred patients on a weekly basis for a period of approximately five months. Respondent has been under the care of a psychiatrist since approximately August of 1977, where he has been placed on a high protein diet with a reduced work load. Respondent presently attends "How To Control Your Life" seminars and is presently doing "pro bono publico" work for agricultural referral centers.

   
   

7. Respondent purchased a degree from a school in Louisiana that issued medical doctor (M.D.) degrees to persons such as himself. He was motivated to purchase the degree based on instructions from a publisher who was interested in contracting to publish a book that Respondent was then writing. Respondent wrote a letter to the American Cancer Society withdrawing the "M.D." designation from his title. (Respondent's Exhibit 1.)

   
   

8. If allowed to continue practice in Florida, Respondent intends to maintain a "ghetto" practice in order to provide medical services to the disadvantaged and those unable to pay the usual fee for such services.

   
   

9. Respondent related that he did what sick physicians normally do; that is, turn to (1) drugs, (2) alcohol or (3) suicide. Respondent referred to an article published by the American Medical Association entitled, "The Sick Physician", dated February 5, 1973. (Respondent's Exhibit 2.)

   
   

10. An examination of the pre-sentence memoranda submitted by Respondent to the Michigan authorities reveals that he has accounted for the mistakes and problems that he encountered in the State of Michigan during early 1977 and based on such memoranda, it is obvious that he recognized that a mistake was

    made and curative efforts have been taken (by Respondent) to rehabilitate himself. (Respondent's Composite Exhibit 3.)

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

    
    

12. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

13. The authority of the Board is derived from Chapter 459, Florida Statutes.

    
    

14. Competent and substantial evidence was offered to establish that the Respondent engaged in the unlawful delivery of a controlled substance in the State of Michigan, which conduct amounts to a violation of Section 459.008(1)(c), Florida Statutes (1979). 3/ Competent and substantial evidence was offered to establish that the Respondent held himself out as a Doctor of Medicine and as an M.D. when he was not a licensed Doctor of Medicine, in violation of Section 459.14(2)(3), Florida Statutes (1977). 4/

    
    

15. Based on the foregoing, it is concluded that the Respondent demonstrated an inability to practice osteopathic medicine with reasonable skill and safety in violation of Section 459.14(2)(c), Florida Statutes (1977), presently codified as Sections 459.15(1)(t), Florida Statutes (1979).

    
    

16. (However, in making these conclusions, the evidence reveals that such conclusions are valid conclusions during the period of time in which Respondent was undergoing a stressful period in his life. When the law enforcement authorities arrested Respondent, he acknowledged his mistakes and immediately embarked upon a course of setting his life straight. As noted in the facts stated above, Respondent is providing a service to those needy patients who would not be able to receive such professional service were it not for individuals such as Respondent. For all of these reasons, it is concluded that Respondent has demonstrated, without contradiction, that he has rehabilitated himself. It thus appears that no useful purpose would be served by revoking his license to practice Osteopathy, and I shall, therefore, recommend that he be placed on probation with directions that he spend the period of probation performing community services for nominal fees.)

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED:

1. That the Respondent be placed on probation in the State of Florida for a period of two (2) years.

   
   

2. During the above two-year period of probation, it is RECOMMENDED that the Respondent be directed to engage only in the performance of medical services in a community service organization, with semi-monthly reporting requirements in a manner prescribed by the Board to its agents.

RECOMMENDED this 21st day of July, 1980, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1980.

ENDNOTES

1/ Presently codified as Section 459.008(1)(c), Florida Statutes (1979).

2/ The Administrative Complaint filed herein was amended on three occasions to add Counts II, III, IV and V. At the hearing, Counts III and IV were withdrawn. Count II alleges that Respondent has held himself out to the public as a doctor of medicine, osteopathy, psychology, hypnosis and as an M.D., when in fact he was not a licensed doctor of medicine, psychology, hypnosis or an M.D., but was in fact a licensed Doctor of Osteopathy. As such, the County concludes that Respondent thusly violated Section 459.14(2)(e), Florida Statutes (presently renumbered as Section 459.015(1)(d), Florida Statutes (1979). Count III alleges that Respondent is unable to practice osteopathic medicine with reasonable skill and safety, in violation of Section 459.14(2)(c), Florida Statutes (presently codified as Section 459.015(1)(s), Florida Statutes (1979).

3/ As charged, the relevant section is Section 459.14(2)(a) Florida Statutes (1977).

4/ Presently codified as Section 459.015(1)(d), Florida Statutes (1979).

COPIES FURNISHED:

Ronald C. LaFace, Esquire Post Office Drawer 1038 Tallahassee, Florida 32302

Henry Rothblatt, Esquire

1747 Van Buren Street, Suite 700

Hollywood, Florida 33020

Nancy Kelley Wittenberg, Secretary Department of Professional Regulation 2009 Apalachee Parkway

The Oakland Building Tallahassee, Florida 32301

Docket for Case No: 78-001484

Orders for Case No: 78-001484