STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-513

)

HUMBERTO MUNOZ, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Charles C. Adams, Hearing Officer with the Division of Administrative Hearings, commencing at 10:00 A.M. on October 13, 1982, in Miami, Florida. This Recommended Order is being entered following receipt and review of the transcript of proceedings which was filed with the Division of Administrative Hearings on November 4, 1982. 1/

APPEARANCES

For Petitioner: Joseph W. Lawrence, II, Esquire Chief Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Repondent: Tomas F. Gamba, Esquire

799 Brickell Avenue, Suite 706

Miami, Florida 33131 ISSUE

The issues presented here concern an Administrative Complaint brought by the Petitioner against the Respondent's license to practice medicine in Florida. In particular, it is alleged that Munoz participated in the efforts of one Maury Braga to gain licensure as a medical doctor in the State of Florida, in that Respondent reputedly made a false affidavit which assisted Braga in obtaining the license through fraudulent means. (The details of this complaint are further discussed in the conclusions of law.)

FINDINGS OF FACT

1. An Administrative Complaint was issued against Respondent on January 25, 1982, charging various violations of Chapter 458, Florida Statutes, which pertain to licensure of medical doctors in the State of Florida. The thrust of the complaint is as set forth in the statement of issues. Respondent did not

   agree with the allegations and requested a formal Subsection 120.57(1), Florida Statutes, hearing and that hearing was conducted on the aforementioned date.

   
   

2. Humberto Munoz, M.D., holds a medical license to practice medicine in the State of Florida, which license was issued by the Petitioner in the person of the Board of Medical Examiners, and he has held that license at all times pertinent to these matters.

   
   

3. By way of background, Dr. Munoz received his medical degree from Havana University, School of Medicine, Cuba, in October, 1943, and practiced in that country until 1952. He received postgraduate medical training in the United States and practiced in Georgia between the years of 1966 and 1971. His license to practice in the State of Florida was obtained in 1971 and he practiced in Miami Beach, Florida, between the years 1971 and 1975. He then undertook the practice of medicine in Georgia and remained there until February, 1976, at which time he returned to Miami, Florida.

   
   

4. In February, 1976, Respondent executed an affidavit on a form provided by the Board of Medical Examiners. The purpose of this affidavit was to assist Maury Braga in his attempt to become a licensed physician in the State of Florida. The affidavit may be found as Hearing Officer's Exhibit No. 1 and a copy of that exhibit may be found in Petitioner's Exhibit No. 2 which is a composite of the application for licensure which was submitted by Maury Braga to the Florida Board of Medical Examiners in 1976.

   
   

5. The Munoz affidavit, in its particulars, which entries were made by Munoz, states that Munoz, by personal knowledge, knew that Braga attended and graduated from Faculdade de Ciencias Medica de Santos, a medical school in Brazil, and lawfully practiced medicine in Brazil during the years 1967 through 1972, and that Munoz had also practiced medicine in Brazil. This affidavit was signed by Dr. Munoz and the matters reported in this paragraph were sworn to and subscribed before a licensed notary public in the State of Florida.

   
   

6. In fact, Munoz did not have personal knowledge that Maury Braga attended and graduated from the educational facility alluded to, nor did he have knowledge that Braga practiced medicine in Brazil during the years 1967 through 1972. Finally, Munoz had not practiced medicine in Brazil prior to the production of the affidavit.

   
   

7. Respondent's knowledge of Braga followed his introduction to Braga in the home of another physician and the presentation of certain documents by Braga about his past; Braga's facility in discussing medical science, and discussions which Munoz had with other acquaintances on the topics of Dr. Braga's life and that of Respondent and medical practice in general. This formed the basis of Munoz' information about Braga at the time Respondent signed the affidavit.

   
   

8. In addition to having no personal knowledge about Maury Braga on the subject of Braga's medical training and practice of medicine, facts upon which petitioner and Respondent agree and which are accepted, establish that Maury Braga did not attend and graduate from Faculdade de Ciencias Medica de Santos and that he did not practice medicine in Brazil during the years 1967 through 1972.

   
   

9. The Munoz affidavit, together with other affidavits found in the 1976 application of Braga (Petitioner's Exhibit No. 2) were in keeping with the procedural requirements for licensure of foreign physicians in the years 1976 and 1977. The affidavits were to be utilized by the Board of Medical Examiners'

   staff in satisfying themselves that the applicant had graduated from a medical school recognized by the World Health Organization of the United Nations and that the applicant had practiced medicine in the other country for a period of five (5) years.

   
   

10. Braga was tardy in filing his 1976 application and it was necessary for him to resubmit an application for licensure in 1977. The details of that submittal may be found in Petitioner's Exhibit No. 3. On that occasion, the affidavits by physicians and the format of the Munoz deposition did not include his affidavit.

    
    

11. It is unclear which body of material was used in arriving at the decision to license Maury Braga as a medical practitioner in the State of Florida, i.e., the 1976 application materials or 1977 application materials or a combination of both; however, both application forms have been submitted to the Board of Medical Examiners in furtherance of Braga's license request and have remained on file with that agency.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. By Count I, Respondent has been accused of violating Subsection 458.1201(1)(b), Florida Statutes (1977), by practicing fraud or deceit in obtaining a license to practice medicine. It is further alleged that the prior provision is presently codified as Subsection 458.331(1)(a), Florida Statutes (1979).

    
    

14. Subsection 458.1201(1)(b), Florida Statutes (1977), which language was in effect at the time Munoz signed the affidavit, states:

    
    

    (b) Making misleading, deceptive, untrue, or fraudulent representations in the practice of medicine; employing a trick or scheme in the practice of medicine; practicing fraud or deceit in obtaining a license to practice medicine; or making a false or decep- tive annual registration with the board.

    
    

15. Subsection 458.331(1)(a), Florida Statutes (1979), which is the current statement of law, states:

    
    

    1. Attempting to obtain, obtaining, or renewing a license to practice medicine by bribery, by fraudulent misrepresen-

       tations, or through an error of the depart- ment or the board.

       
       

16. Subsection 458.1201(1)(b), Florida Statutes (1977), was repealed; however, it was substantially reenacted through the codification Subsection 458.331(1)(a), Florida Statutes (1979). Nonetheless, both the prior provision and the current provision dealing with fraud in obtaining a license to practice medicine call for disciplinary action to be taken against the practitioner or

    would-be practitioner who obtained a license by fraud and does not pertain to those individuals, such as Munoz, who have assisted in this acquisition. (The matter of aiding and assisting in the obtaining is spoken to through Count II of the Administrative Complaint and its attendant provisions.) Therefore, Petitioner has failed to prove the violation alleged in Count I.

    
    

17. By Count II, Respondent has been accused of violating Subsection 458.1201(1)(j), Florida Statutes (1977) by knowingly aiding, assisting, procuring or advising an unlicensed person to practice medicine contrary to the Medical Practice Act or to the rules and regulations of the Board of Medical Examiners. It is further alleged that the prior provision is presently codified as Subsection 458.331(1)(g) Florida Statutes (1979)

    
    

18. Subsection 458.1201(1)(j), Florida Statutes (1977), which language was in effect at the time Munoz signed the affidavit, states:

    
    

    (j) Knowingly maintaining a professional connection or association with any person who is in violation of this chapter or rules or regulations of the board or knowingly aiding, assisting, procuring, or advising any unlicensed person to practice medicine contrary to this chapter or to rules and regulations

    of the board.

    
    

19. Subsection 458.331(1)(g), Florida Statutes (1979), which is the current statement of law, states:

    
    

    (g) Aiding, assisting, procuring, or advising any unlicensed person to practice medicine contrary to this chapter or to

    a rule of the department or the board.

    
    

20. Subsection 458.1201(1)(j) , Florida Statutes (1977), was repealed; however, it was substantially reenacted through the codification Subsection 458.331(1)(g), Florida Statutes (1979). The efforts Respondent made in furtherance of Braga's attempt to obtain a Florida license to practice medicine were designed to aid and assist Braga in the endeavor. Braga was at the time unlicensed and Respondent's participation was part of a process which resulted in Braga practicing medicine contrary to Chapter 458, in its previous format and present state. Consequently, Respondent is guilty of the alleged violation found in Count II and is subject to those penalties announced in Subsection 458.331(2), Florida Statutes (1981), with the exception of the ability to impose a fine, a penalty unavailable to Petitioner at the time of the commission of the offense. The present fine provision is not a restatement of the past law. To the contrary, it affords new breadth to the body of sanctions and it may not be utilized in dealing with offenses which predate that enforcement mechanism.

    
    

21. By Count III, Respondent has been accused of violating Subsection 458.1201(1)(m), Florida Statutes (1977), by being guilty of an immoral or unprofessional conduct, incompetence, negligence or willful misconduct. It was further alleged pre tenus that the prior provision is presently codified at Subsections 458.331(1)(i), (l) and (t), Florida Statutes (1931).

    
    

22. Subsection 458.1201(1)(m), Florida Statutes (1977), which language was in effect at the time Munoz signed the affidavit, states:

    (m) Being guilty of immoral or unprofes- sional conduct, incompetence, negligence, or willful misconduct. Unprofessional conduct shall include any departure from, or the failure to conform to, the standards of acceptable and prevailing medical practice in his area of expertise as determined by the board, in which pro- ceeding actual injury to a patient need

    not be established when the same is com- mitted in the course of his practice, whether committed within or without this state.

    
    

23. Subsections 458.331(1)(i), (l) and (t), Florida Statutes (1981), state:

(i) Making or filing a report which the licensee knows to be false, inten-

tionally or negligently failing to file a report or record required by state or federal law, willfully impeding or

obstructing such filing or inducing another person to do so. Such reports or records shall include only those which are signed in the capacity as a licensed physician.

(l) Making deceptive, untrue, or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine when such scheme

or trick fails to conform to the generally prevailing standards of treatment in the medical community.

(t) 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. 768.45 when enforcing this paragraph.

1. For purposes of this hearing, a portion of Subsection 458.331(1)(t), Florida Statutes (1981), is a substantial reenactment of Subsection 458.1201(1)(m), Florida Statutes (1977), and Subsections 458.331(1)(i) and (l), Florida Statutes (1981), are not a substantial reenactment of the prior provision. It is that aspect of the former and current provisions dealing with the conduct of the practitioner in treating patients when measured against community standards which is found to be similar. In keeping with the finding in Lester v. Department of Professional and Occupational Regulation, 348 So.2d 923 (1st DCA Fla. 1977), the acts by Respondent in this instance are not found to be in violation of either Subsection 458.1201(1)(m), Florida Statutes (1977), or Subsection 458.331(1)(t), Florida Statutes (1981). Respondent's activities

   do not deal, in the immediate sense of the term, with the treatment of patients. The laws in question proscribe poor medical practice when measured by the prevailing standards related to acceptable medical practice. Therefore, Petitioner has failed to prove the violation alleged in Count III.

   
   

2. By Count IV, Respondent has been accused of violating Subsection 458.1201(1)(h), Florida Statutes (1977), by engaging in unethical, deceptive or deleterious conduct or practice harmful to the public. It is further alleged that the prior provision is presently codified as Subsections 458.331(1)(i), (l) and (t), Florida Statutes (1981).

   
   

3. Subsection 458.1201(1)(h), Florida Statutes (1977), which language was in effect at the time Munoz signed the affidavit, states:

   
   

   (h) Engaging in any unethical, deceptive, or deleterious conduct or practice harmful to the public, in which proceedings proof of actual injury need not be established.

   
   

4. The full text of Subsections 458.331(1)(i), (l) and (t), Florida Statutes (1981), is found supra.

   
   

5. Subsection 458.1201(1)(h), Florida Statutes (1977), was repealed and was not substantially reenacted through Subsections 458.331(1)(i), (l) and (t), Florida Statutes (1981). Therefore, Petitioner has failed to prove the violation alleged in Count IV.

   
   

6. Upon consideration of the facts found, the conclusions of law reached and in the absence of any prior disciplinary action taken against Respondent, it is

RECOMMENDED:

That a final order be entered which dismisses Counts I, III and IV, and suspends Respondent's license to practice medicine in the State of Florida for six (6) months for the violation found in Count II; however, the suspension should be withheld pending satisfactory completion of a one (1) year probationary period during which time Respondent shall commit no acts of violation of the disciplinary provisions of Chapter 458, Florida Statutes.

Compliance with this proviso voids the suspension. Failure to comply with that probationary instruction would cause the imposition of the suspension.

DONE and ENTERED this 3rd day of December, 1982, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 3rd day of December, 1982.

ENDNOTE

1/ Counsel for the parties have submitted proposed recommended orders and those proposals have been reviewed prior to the entry of the Recommended Order. To the extent that the proposals are consistent with the Recommended Order they have been utilized. To the extent that the proposals are not consistent with the Recommended Order they are rejected.

COPIES FURNISHED:

Joseph W. Lawrence, II, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Tomas F. Gamba, Esquire 799 Brickell Avenue

Suite 706

Miami, Florida 33131

Samuel R. Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Dorothy Faircloth, Executive Director Board of Medical Examiners

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

================================================================= BEFORE THE BOARD OF MEDICAL EXAMINERS

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

Petitioner,

vs. CASE NO. 18313

DOAH CASE NO. 82-513

HUMBERTO MUNOZ, M.D.,

License No. 18293,

505 Heritage Drive, Hinesville, GA 31313,

Respondent.

/

FINAL ORDER OF

THE BOARD OF MEDICAL EXAMINERS

This matter came on for final action by the Board of Medical Examiners pursuant to Section 120.57(1)(b)9, F.S., at a public meeting on February 12, 1983, in Tampa, Florida, for review of the recommended order of the hearing officer entered herein. A transcript of the proceedings is available, if necessary.

FINDINGS OF FACT

1. Following a review of the complete record the Board of Medical Examiners hereby rejects the hearing officer's findings of fact whereby he states that the Respondent signed or executed the affidavit in question, as these findings were not based on substantial competent evidence.

   
   

2. Following a review of the complete record, the Board finds that the Respondent did not sign or execute the affidavit in question.

   
   

3. The Board hereby adopts and incorporates by reference the remaining findings of fact of the hearing officer not inconsistent with the above.

CONCLUSIONS OF LAW

1. Following a review of the complete record, the Board of Medical Examiners hereby rejects the hearing officer's conclusion of law Number 3 in the Recommended Order that the Respondent violated Section 458.1201(1)(j), F.S., (1977), as substantially reenacted through the codification of Section 458.331(1)(g), F.S., (1979).

   
   

2. The Board concludes that based on the findings of fact as found above that the Respondent did not violate Section 458.1201(1)(j), F.S. (1977), as substantially reenacted through the codification of Section 458.331(1)(g), F.S., (1979).

   
   

3. The Board does, however, adopt and incorporate by reference the remaining conclusions of law of the hearing officer contained in the Recommended Order.

   
   

4. Accordingly, based upon the modified findings of fact and conclusions of law, the hearing officer's recommendation is rejected. IT IS THEREFORE

ORDERED AND ADJUDGED that the complaint filed against the license to practice medicine in the State of Florida of Humberto Munoz, M.D., be and the same is hereby dismissed.

This Order shall take effect on the date of the filing.

DONE AND ORDERED this 28th day of February, 1983.

BOARD OF MEDICAL EXAMINERS

By DOROTHY FAIRCLOTH

cc: All Counsel of Record.

Humberto Munoz, M.D.

Docket for Case No: 82-000513

Orders for Case No: 82-000513