STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-1024

)

RICARDO J. SABATES, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in this case on September 13, 1983, in Fort Lauderdale, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Spiro T. Kypreos, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Karen Coolman Amlong, Esquire

HOLMES & AMLONG, P.A.

417 Northeast Second Street Fort Lauderdale, Florida 33301

The issue for determination at the final hearing was whether the Respondent Ricardo J. Sabates, violated Section 458.331(1)(d), Florida Statutes, and Rule 21M-24.01, Florida Administrative Code, by advertising in newspapers and other publications that he was a "Diplomate, American Academy of Medical Preventics."

At the final hearing, Frank King, an Investigator for the Department of Professional Regulation, Linda Cox, a Law Clerk for Karen Coolman Amlong, Warren Schwartz, Administrator of the Lauderdale Medical Center, Ricardo Sabates, and Jerry Hendry, Administrative Assistant to the Executive Director of the Florida Board of Medical Examiners, testified for the Respondent Sabates. Petitioner's Exhibits 1-4 and Respondent's Exhibits 1-7 were offered and admitted into evidence. Ruling was reserved on Petitioner's Exhibit No. 5 which is hereby admitted and made a part of the record.

Proposed Recommended Orders containing findings of fact have been submitted by the parties and considered in the preparation of this Recommended Order.

When the parties' findings of fact were consistent with the weight of the credible evidence introduced at final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not

consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted.

FINDINGS OF FACT

1. Respondent, Ricardo J. Sabates, is a medical doctor licensed by the State of Florida. He practices medicine at the Lauderdale Medical Center located in Fort Lauderdale, Florida. The administrative activities of the Lauderdale Medical Center, including its advertising, were and are managed by the Lauderdale Medical Center Management Corporation. All advertisements for the Center are prepared by its Administrator, Warren Schwartz, who also has responsibility for dealing with the press and disseminating information about the Center. The ads in Petitioner's Exhibit No. 5 were placed at the direction of Warren Schwartz.

   
   

2. This proceeding was initiated by a letter from W. G. Stafford, Executive Vice President of the Broward County Medical Association, sent to the Department. Stafford's letter contained copies of newspaper advertisements. The ads read in pertinent part:

   
   

   REVOLUTIONARY NEW TREATMENT FOR ACNE ACUTE OR CHRONIC CONDITIONS

   RICHARD J. SABATES, M.D.

   Diplomate, American Academy of Medical Preventics FREE CONSULTATION

   
   

   HERPES IS A HORROR!

   PAIN, DISCOMFORT, ITCHING, BURNING, EMBARRASSMENT

   Newly developed treatment for rapid, effective, relief and control of symptoms and flare-ups

   RICHARD J. SABATES, M.D.

   Diplomate, American Academy of Medical Preventics

   FREE CONSULTATION

   
   

   Stafford's letter questioned, "What newly developed treatment?" and "What revolutionary new treatment?" and suggested that the advertisements were false, deceptive or misleading and thus violated Section 458.331(d), Florida Statutes.

   
   

3. Stafford's letter bears a stamp showing it was received by the Department on July 22, 1981. In response to the letter, on or about July 27, 1981, the Department commenced an investigation of Sabates by the filing of a uniform complaint form. On October 27, 1981, the Department notified Sabates of the investigation. There was no evidence presented that any earlier contact with Sabates was either attempted or made. The Department informed Sabates of the investigation in a letter to Sabates' attorney requesting an interview with Sabates "regarding his advertisements for Acne, Herpes and the Revolutionary New Diet Plan." Accompanying the letter were copies of the three ads, each different from those included with Stafford's letter. These three additional ads state:

   
   

   REVOLUTIONARY NEW TREATMENT FOR ACNE ACUTE OR CHRONIC CONDITIONS

   RICHARD J. SABATES, M.D.

   Diplomate, American Academy of Medical Preventics

   HERPES HOTLINE

   PAIN, DISCOMFORT, ITCHING, BURNING, EMBARRASSMENT

   Newly developed treatment for rapid, effective, relief and control of symptoms and flare-ups

   RICHARD J SABATES, M.D.

   Diplomate, American Academy of Medical Preventics

   
   

   MEDICAL BREAKTHROUGH NO CALORIES

   Revolutionary New Diet Plan. Eat Many Fattening Foods...Absorb zero calories! The Answer

   To Permanent Loss!

   Call For Free Diet Plan Description

   R. J. SABATES, M.D.

   
   

   The "Diet Plan" advertisement makes no mention of Sabates' diplomate status or of the American Academy of Medical Preventics. The copies of the ads do not reveal the date of their publication.

   
   

4. The Department's investigator did not discover what the "revolutionary acne treatment" was. The Department did not subpoena any of Sabates' patient records in connection with the treatments referred to in Stafford's letter. No patients complained about the treatments and the Department's investigator talked to neither Sabates nor any patient about the treatments. Consequently, there was no information relating to the substance of Stafford's accusations included in the Department's investigative report. There was, however, included in the investigative report a copy of Health Magazine, dated November 4, 1981. That magazine contains no advertisements for treatments for either herpes or acne and makes no mention of the "revolutionary new diet plan." It does carry a feature story about Sabates entitled "Preventive Medicine and Your Good Health." The story mentions Sabates' use in his practice of such treatment modalities as chelation therapy, DMSO and metabolic cancer therapy and the magazine carries a full-page advertisement inviting the public to a lecture by Sabates covering:

   
   

   Slowing the Aging Process Nutrition and Diet

   Chelation Therapy - A Non Surgical Treatment For Hardening of the Arteries

   
   

   DMSO Therapy - The Painkiller of the 80's Chiropractic - How It Can Help You Podiatry

   Health Hints, Tips on Keeping Medical Costs Down, Etc.

   
   

5. After the investigation was underway, the Department decided to check Sabates' credentials, including his designation as a "Diplomate" of the American Academy of Medical Preventics. To do so, King asked Stafford, the original complainant, where he could contact the American Academy of Medical Preventics. Stafford provided King with information about the Academy, including information about chelation therapy. Acting on the information provided by Stafford, on November 13, 1981, King contacted Steve Baker, Administrator of the American

   Academy of Medical Preventics. Baker told King that Sabates was a Diplomate of the American Academy of Medical Preventics. On November 15, 1981, a letter from the Department was sent to the Academy seeking clarification of Sabates' "exact standing" with the Academy. In response, the Department received a letter, marked "Received, Fort Lauderdale Office - Dec 7 1981" from Dr. Ross Gordon, head of the Ethics Committee of the Academy on the letterhead of American Academy of Medical Preventics. That letter states in part, "Dr. Ricardo Sabates

   . . . is a member in good standing of this academy. He has taken all examinations needed for Diplomate status," but neither confirms nor denies Sabates' entitlement to hold himself out as a "Diplomate." Subsequently, King spoke with Dr. Gordon, who then advised King that Sabates was not a Diplomate of the "Board." Further, on November 19, 1981, Sabates' attorney advised the Department in writing that Sabates was a "diplomate with the American Academy of Medical Preventics."

   
   

6. These conflicting reports concerning Sabates' diplomate status were part of the investigative report sent to the Probable Cause Panel of the Board of Medical Examiners. Accompanying the investigative report was a memorandum from legal counsel that states:

   
   

   The investigation has now (sic) revealed the "revolutionary new treatment for acne" or the "newly developed treatment for rapid, effective relief and control of symptoms and flare-ups" of herpes. It must be assumed that there are thousands of revolutionary treatments for each disease, and, as such insufficient probable cause

   exists that a violation of Chapter 458, F.S., has occurred in this advertisement. However, in light of the fact that the subject is not a "diplomate of the American Academy of Medical Preventics," sufficient cause exists to believe a violation of Section 458.331(1) (d), F.S. and Rule 21M-24, F.A.C. (Emphasis added.)(Petitioner's Exhibit 1)

   
   

7. The Probable Cause Panel met on January 18, 1982, to consider the Sabates investigation. At the meeting, general comments were made about newspaper ads mentioning Sabates. The Chairman noted, "I guess the only thing we can get him on is fraud. He's using -- he's claiming he's a diplomate of a certain board and he's not." Another member noted, "That board if (sic) composed of at least one famous abhorrent physician, Dr. Halstead, who is, I think, a leading laetrile advocate." The same member suggested, "I think the investigation will reveal other things." (Petitioner's Exhibit 2)

   
   

8. Sabates took an exam to qualify as a Diplomate in the American Academy of Medical Preventics in May, 1981. Shortly thereafter, Schwartz called the Academy and inquired whether Sabates had passed the written exam and was told that he had. Schwartz congratulated Sabates and then, without Sabates' specific prior approval, but with Sabates' eventual general knowledge, Schwartz instructed the newspapers running ads using Sabates' name to include the words, "Diplomate, American Academy of Medical Preventics." Soon after the first of the ads introduced into evidence, Petitioner's Exhibit 5 appeared, Sabates received a letter dated July 23, 1981, confirming that he had passed the written examination.

9. At the time Sabates took and passed the written exam, the "Diplomate" designation was awarded by the American Academy of Medical Preventics. Subsequently, however, and prior to Sabates' learning from the Department that his use of that designation was being questioned, a separate organization was formed from among the members of the Academy. The physician members of the Academy automatically became members of this new organization, the American Board of Chelation Therapy. The Board separated from the Academy, which included lay members, in an attempt to be recognized as a specialty board by the American Medical Association. 1/ To further this same objective, additional requirements for diplomate status were added by the American Board of Chelation Therapy to those previously required by the Academy.

   
   

10. Upon being advised that his status as a "Diplomate" was in question, Sabates called the Academy and was advised of the additional requirement for the oral exam that had been added after the groups had separated 2/ and instructed Schwartz to discontinue use of the word "Diplomate" in all future advertisements.

11.. In November 1981, Sabates successfully completed the Academy's examination. Sabates formally became a Diplomate of the American Board of Chelation Therapy in 1982. "Diplomate" status is no longer offered by the American Academy of Medical Preventics.

1. During the time the ads ran, Sabates believed that he was a Diplomate of the American Academy of Medical Preventics. Significantly, the Department did not assert at final hearing that Sabates intended to falsely advertise that he was a Diplomate of the American Academy of Medical Preventics.

   
   

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(I), Florida Statutes.

   
   

3. By Administrative Complaint filed February 12, 1982, the Respondent Sabates was charged with violating Section 458.331(d), Florida Statutes, which empowers the Board of Medical Examiners to take disciplinary action against a physician who is found guilty of false, deceptive, or misleading advertising.

   
   

4. In Gentry v. Department of Professional Regulation, Board of Medical Examiners, 293 So.2d 95 (Fla. 1st DCA 1974), the Court held that Section 45.1201(1) 3/ which prohibited misleading, deceptive, untrue representation in the practice of medicine was not intended by the Legislature to apply to representations which were honestly made, but subsequently found to be untrue. Rather, it was stated that in order for a misleading, deceptive, or untrue representation to be prohibited, it must be made willfully or intentionally.

   
   

5. In the instant case, the Petitioner failed to demonstrate by clear and convincing evidence that the Respondent Sabates authorized Schwartz to place the subject ad, knowing that it was untrue, in an attempt to intentionally mislead the public concerning his qualifications. The evidence instead demonstrated no intent on the part of the Respondent to falsely or deceptively mislead the public.

   
   

6. Rule 21M-24.01, Florida Administrative Code 4/ , when read in conjunction with Section 458.331(1)(d), Florida Statutes, which it implements, must be construed consistent with the decision in Gentry, as requiring proof

   that an advertisement placed by a physician was intended to be deceptive, misleading, or known to be false by the physician before disciplinary action can be imposed pursuant to statute.

   
   

   Based on the Petitioner's failure to prove by clear and convincing evidence a violation of Section 458.331(1)(d), Florida Statutes, it is unnecessary to determine whether this case should be dismissed due to Petitioner's alleged failure to follow Section 455.225, Florida Statutes.

   
   

   RECOMMENDATION

   
   

   Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

   That a Final Order be entered by the Board of Medical Examiners dismissing the Administrative Complaint filed against the Respondent Ricardo J. Sabates.

   
   

   DONE and ENTERED this 25th day of October, 1983, in Tallahassee, Florida.

   
   

   SHARYN L. SMITH, 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 25th day of October, 1983.

   
   

   ENDNOTES

   
   

   1/ Neither the American Academy of Medical Preventics nor the American Board of Chelation Therapy is a specialty board recognized by the American Medical Association. (Respondent's Exhibit 7, as amended by the Affidavit of Jerry W. Hendry dated September 19, 1981.)

   
   

   2/ Sabates was advised that he was entitled to use the apparently intermediate designation "Fellow" until he had passed the oral test as well.

   
   

   3/ See Section 458.331(1)(1), Florida Statutes.

   
   

   4/ (2) No physician shall disseminate or cause the dissemination of any advertisement or advertising which is in any way false, deceptive, or misleading. Any advertisement or advertising shall be deemed by the Board to be false, deceptive, or misleading if it:

   1. Contains a misrepresentation of facts; or

   2. Makes only a partial disclosure of relevant facts; or

   3. Creates false or unjustified expectations of beneficial assistance; or

* * *

1. Contains any other representation, statement, or claim which misleads or deceives; or

2. States or implies that the physician has received formal recognition as a specialist in any aspect of the practice of medicine unless he has in fact received such recognition and such recognizing agency is approved by the Board. For purposes of this rule, the Board approves the specialty boards of the American Medical Association as a recognizing agency, and such other recognizing agencies as may receive future approval

by the Board. However, a physician may indicate the services offered and may state that practice is limited to one or more types of services when this is in fact the case.

COPIES FURNISHED:

Spiro T. Kypreos, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Karen Coolman Amlong, Esquire HOLMES & AMLONG, P.A.

417 Northeast Second Street Fort Lauderdale, Florida 33301

Dorothy Faircloth, Executive Director Florida Board of Medical Examiners Old Courthouse Square Building

130 North Monroe Street Tallahassee, Florida 32301

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

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

DEPARTMENT OF PROFESSIONAL REGULATION

Petitioner,

vs. Case No. 82-1024

RICARDO J. SABATES, M.D.,

License No. 33389

Respondent.

/

FINAL ORDER OF

THE BOARD OF MEDICAL EXAMINERS

This matter came before the Board of Medical Examiners (Board hereinafter), pursuant to Section 12O.57(1)(b)9., Florida Statutes, on December 2, 1983, in Miami, Florida, for the purpose of considering the hearing officer's Recommended Order (a copy of which is attached here to) in the above-styled matter and the exceptions filed thereto by the Petitioner. The Petitioner was represented by Spiro T. Kypreos , Esquire. The Respondent was represented by Karen Coolman Amlong, Esquire. After review of the Recommended Order, Petitioner's exceptions, the argument of the parties, and after a review of the complete record in this matter, the Board makes the following finding's and conclusions.

FINDINGS OF FACT

1. The hearing officer's findings of fact are approved and adopted in toto and are incorporated herein by reference.

2. There is competent, substantial evidence to support the Board's findings of fact.

CONCLUSIONS OF LAW

1. The hearing officer's conclusions of law are approved and adopted in toto and are incorporated herein by reference.

   
   

2. Petitioner's Exceptions to Recommended Order which challenge portions of the hearing officer's Conclusions of law as being legally incorrect are rejected as being without merit.

   
   

3. There is competent, substantial evidence to support the Board's conclusions of law.

   
   

4. The hearing officer's recommendation that the Administrative Complaint filed against the Respondent be dismissed is approved and adopted.

WHEREFORE, it is ORDERED AND ADJUDGED that the Administrative Complaint filed against the Respondent in the matter of Department of Professional Regulation vs. Ricardo J Sabates, M.D., Case No. 82-1024, be and hereby is DISMISSED.

DONE AND ORDERED this 13th day of December, 1983.

BOARD OF MEDICAL EXAMINERS

Richard J. Feinstein, M.D. Chairman, Board of Medical Examiners

Docket for Case No: 82-001024

Orders for Case No: 82-001024