STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE No. 81-0402

) WILLIAM ROBERT RUNDLES, M. D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal hearing in this case on June 12, 1986, in Tallahassee, Florida. The transcript was filed on July 17, 1986, and the parties were given 30 days thereafter to submit proposed findings of fact and conclusions of law. These have been received, and they have been considered. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.

APPEARANCES

For Petitioner: Robert D. Newell, Jr., Esquire

Phillip Miller, Esquire

200 South Monroe Street, Suite B Tallahassee, Florida 32301

For Respondent: Paul Watson Lambert, Esquire

Post Office Box 11189 Tallahassee, Florida 32302-3189

Larry Kent Butler, Esquire

230 Peachtree Street, Northwest Suite 1000, Peachtree Center Atlanta, Georgia 30303

By Administrative Complaint dated June 3, 1980, the Respondent was charged in two counts with violating the Medical Practices Act, in that his license to practice medicine was suspended by the State of California in violation of Section 458.331(1)(b), Florida Statutes (1979), and by gross or repeated malpractice in violation of Section 458.331(1)(t), Florida Statutes (1979).

FINDINGS OF FACT

1. The Respondent, William Robert Rundles, M.D., is licensed to practice medicine in the State of Florida, holding license number 5512. He is also licensed as a physician in the states of California and Georgia.

2. The Respondent was disciplined by the California Board of Medical Quality Assurance by a Decision which became effective on July 6, 1979. The California Board suspended the Respondent's license to practice medicine for 90 days, and placed him on probation for five years.

   
   

3. The California Board's Decision was based on its finding that the Respondent's performance of an abdominal lipectomy, an elective procedure, on patient Ann Wright was "an extreme departure from the standard of practice of medicine." Patient Wright was an obese 40-year-old woman suffering from diabetes with a history of drug addiction. The Respondent was aware of these conditions prior to performing surgery on this patient.

   
   

4. The California Board also based its Decision on findings of unprofessional conduct in that the Respondent knowingly permitted an unlicensed doctor to practice cosmetic surgery, and knowingly permitted an operating room technician to place stitches in patients.

   
   

5. The California Board also found unprofessional conduct in that the Respondent was associated with a number of organizations which employed consultants who interviewed, advised and consulted with prospective cosmetic surgery patients. These patients were referred to various cosmetic surgeons, including the Respondent, for surgery, and the consultants were paid a commission on the number and cost of surgeries performed.

   
   

6. The California Court of Appeals, First Appellate District, affirmed a judgment of the Superior Court denying the Respondent's Petition to Set Aside the Decision of the California Board of Medical Quality Assurance, by its Opinion filed August 12, 1986.

   
   

7. The Georgia Composite State Board of Medical Examiners placed the Respondent on probation for a period of three years based on a statutory provision allowing disciplinary action against a physician when another state disciplines that physician's license. The Georgia Board's Decision was entered on July 26, 1984. This suspension will terminate in July of 1987.

   
   

8. The Respondent, age 61, now practices in Port Orange, Florida, as a sole practitioner. He obtained his undergraduate degree and his medical degree from the University of Cincinnati, and performed his internship and residence in general surgery at Chelsea, Massachusetts, and at the New England Deaconess Hospital in Boston. Dr. Rundles served in the U.S. Navy during the Korean war as a surgeon aboard the battleship U.S.S. Missouri for four years, after which he continued his surgical training at the University of Colorado Medical Center by completing a five year program in general surgery, chest surgery, vascular surgery, and by obtaining a masters degree in surgery. Dr. Rundles also served as an instructor in the Department of Surgery at the University of Colorado Medical Center, where he performed research in surgical approaches to the treatment of diabetes, and research on aortic and vascular grafts. For one year, Dr. Rundles was Chief Resident at Denver General Hospital, after which he established a private practice in Pensacola, Florida, working at Baptist Hospital, Escambia General Hospital, and Sacred Heart Hospital, where he was appointed Director of Medical Education for the three hospitals. Dr. Rundles is Board certified as a surgeon by the American Board of Surgery, and he is a member of the AMA, the Florida Medical Association, and the International College of Surgeons. He is also a flight examiner for the FAA. Dr. Rundles left Pensacola to practice in California for a period of one and a half years. Thereafter, he served for two years as a surgeon in the Navy at Regional Medical Center in Jacksonville, including two periods of service on the U.S.S. Forrestal

   Aircraft Carrier as a Captain, after which he was honorably discharged. Dr. Rundles has never encountered a problem with alcohol or substance abuse, and he is current in his continuing medical education requirements, with enough CME credits for another year.

   
   

9. Since his troubles in California, Dr. Rundles declared bankruptcy in 1977, suffered a loss of prestige, and lost all his assets. Dr. Rundles has restricted his practice to general practice, some office surgery, and FAA examinations, but would like to apply for staff privileges in hospitals. Dr. Rundles has been licensed to practice in Florida since 1958, and he desires to continue the practice of surgery in Florida. Through his financial troubles, Dr. Rundles has depended upon his wife's assets to support them and their five children.

   
   

10. The Respondent presented John D. Grace, M.D., a retired physician, to testify as to his professional competency, honesty and ability to safely practice medicine. The Respondent was Dr. Grace's Chief of Surgery from 1957 to 1958 while Dr. Grace was completing his junior and senior year of medical school. Dr. Grace was closely associated with the Respondent from 1962 to 1976 while both practiced medicine in Florida, and in 1985 he assisted the Respondent to catch up on a backlog of surgery patients in Port Orange, Florida. Dr. Grace testified that the Respondent is probably the best surgeon he has ever seen operate, and that the Respondent is capable of safely engaging in the practice of medicine.

    
    

11. The Respondent also presented William Francis Hogan, M.D., a Georgia physician, to testify as to the Respondent's honesty and ability to practice medicine. Dr. Hogan testified that the Respondent was able to practice medicine safely while he practiced in Georgia.

    
    

12. A letter from Florida Representative Sam Mitchell was also received in evidence, which characterizes the Respondent as a very good doctor and recommends that he be permitted to practice in the State of Florida.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. Section 458.331(1)(b), Florida Statutes (1979), authorizes the Board to discipline a physician licensed in Florida for having a license to practice medicine revoked, suspended or otherwise acted against by the licensing authority of another state. This statute became effective on July 3, 1979. The Respondent's license to practice medicine in California was suspended by the licensing authority of that state pursuant to a Decision which became effective July 6, 1979, a date subsequent to the effective date of the statute with which the Respondent is charged. Therefore, there is no retroactive application of the statute in this case.

    
    

15. The Respondent contends that the actions of the Respondent which were the basis for the California disciplinary action occurred prior to the effective date of Section 458.331(1)(b), Florida Statutes (1979). However, this statute does not proscribe the conduct which results in disciplinary action by another state, but authorizes discipline in Florida for "having a license revoked, suspended or otherwise acted against." The event which creates a violation of Section 458.331(1)(b), Florida Statutes (1979), is the disciplinary action, not

    the underlying conduct. Consequently, the Respondent may be disciplined pursuant to Section 458.331(1)(b), Florida Statutes, as charged.

    
    

16. Section 458.331(1)(t), Florida Statutes (1979), authorizes the Board to discipline a physician licensed in Florida for:

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 . . .

This statute was created by Chapter 79-302, Laws of Florida, effective July 3, 1979, a date subsequent to the occurrences on which the charge of violating this statute took place. A similar Statute, Section 458.1201(1)(m), Florida Statutes, was in effect until July 3, 1979, but the Respondent is not charged with violating this statute, but with violating the subsequent statute. In addition, the Department did not present any expert testimony or any other evidence addressing the charge of 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. Accordingly, there is not competent, substantial evidence to support the charge that the Respondent violated Section 458.331(1)(t), Florida Statutes, as measured by the standard established by Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981).

Consequently, the Respondent is found not guilty of this charge.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent, William Robert Rundles, M.D., be placed on

probation for a period of three years, subject to such conditions as the Board

may impose.

THIS RECOMMENDED ORDER entered this 17th day of September, 1986, in Tallahassee, Florida.

WILLIAM B. THOMAS

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 17th day of September, 1986.

APPENDIX TO RECOMMENDED ORDER IN CASE NO.81-0402 PETITIONER'S PROPOSED FINDINGS OF FACT:

1. Accepted.

2. Accepted.

3. Accepted.

4. Accepted.

5. Accepted.

6. Accepted.

7. Accepted.

8. Accepted.

9. Accepted.

10. Accepted.

11. Accepted.

RESPONDENT'S PROPOSED FINDINGS OF FACT:

1. Accepted, but the entire Decision was received in evidence and considered.

2. Accepted.

3. Accepted, but the entire Decision was received in evidence, and considered.

4. Accepted.

5. Accepted.

6. Accepted.

7. Accepted.

8. Accepted.

9. Accepted.

10. Rejected, for the reason that the invalidity of a Florida Statute on constitutional grounds is outside the jurisdiction of this Division, and this constitutes argument and not a proposed finding of fact. The last two sentences are accepted.

COPIES FURNISHED:

Wings S. Benton, Esquire General Counsel

Department of Professional Regulation

130 N. Monroe Street Tallahassee, Florida 32301

Robert D. Newell, Jr., Esquire Phillip Miller, Esquire

200 South Monroe St., Ste. B Tallahassee, Florida 32301

Paul Watson Lambert, Esquire

230 Peachtree St., N.W. Suite 1000, Peachtree Center Atlanta, GA 30303

Ms. Dorothy Faircloth Executive Director Department of Professional

Regulation

130 N. Monroe St. Tallahassee, Florida 32301

Larry Kent Butler, Esquire

230 Peachtree Streete, Northwest Suite 1000, Peachtree Center Atlanta, GA 30303

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-000402

Orders for Case No: 81-000402