STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-1322

)

MARIO AVILLES, JR., )

)

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 case on 12 October 1982 at Miami, Florida.

APPEARANCES

For Petitioner: Charlie L. Adams, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Respondent was not present or represented.

By Administrative Complaint filed February 15, 1982, the Department of Professional Regulation, Petitioner, seeks to revoke, suspend or otherwise discipline the license of Mario Aviles, Jr., Respondent, as a medical doctor. As grounds there for it is alleged that during the period January 1980 through December 1981 Respondent accepted and assumed the prenatal care of obstetrical patients without having hospital privileges, without advising his patients he did not have hospital privileges, and without advising them that he would be unable to deliver their babies at a hospital.

This hearing was originally scheduled to commence at 9:00 a.m. but this time was extended to 10:00 a.m. by notice entered 29 September 1982. At the scheduled time for the hearing Respondent was not present. After waiting for more than 30 minutes past the scheduled time for the commencement of the hearing, the hearing was opened and conducted in Respondent's absence. The record reflects that this case was scheduled to be heard on 12 October 1982 by Notice of Hearing dated June 15, 1982. A copy of that Notice of Hearing was forwarded to Respondent's attorney of record, Amelio C. Pastor, Esquire, and that on 26 August 1982 Pastor filed a Motion to Withdraw as counsel for Respondent on grounds that Respondent would not cooperate in the defense of the case or compensate his attorney. Leave to withdraw was granted by Order entered

9 September 1982.

At the hearing Petitioner called eight witnesses and four exhibits were, admitted into evidence.

FINDINGS OF FACT

1. At all times here relevant Mario Aviles, Jr., was licensed by the Florida Board of Medical Examiners and held license No. ME 0020482.

   
   

2. Clara Julio Yanes was a prenatal patient of Respondent in 1980. In 1979 Respondent had delivered Yanes' first child at Mount Sinai Hospital and Mrs. Yanes expected this second child to be delivered in a hospital. Respondent did not tell the Yaneses that he did not have hospital privileges and until the last minute they expected Respondent to deliver the baby. On 4 October 1980 Yanes called Respondent to advise him that Mrs. Yanes was in labor.

   Respondent's answering service said Respondent was on vacation and Dr. Pina was taking care of Respondent's patients. Pina called Yanes shortly thereafter and said he would meet them at the hospital. Shortly after the baby was born at Hialeah Hospital, Pina arrived and apologized for being late.

   
   

3. Grisel Carbajol was a prenatal patient of Respondent in 1980. Aviles said he would take care of hospital admission at either North Shore, Hialeah, Baptist, or Mercy hospitals and that he was trying to get privileges at all of these hospitals. On October 31, 1980, Mrs. Carbajol visited Respondent's office because she was bleeding and thought she was in labor. He examined her and told her it would be a week before the baby would come. The next day, Sunday, she called his office and Respondent answered the telephone. When she described her symptoms, Respondent told her to take medication and to call him in four hours. When she called back she reached his answering service who told her they had passed her message to him, but she received no call from Respondent. Later that day when her labor pains became more frequent, Mrs. Carbajol went to the emergency room at Hialeah Hospital and her baby was delivered at Hialeah Hospital. She had been given Dr. Pina's telephone number two days before the delivery but did not call Pina.

   
   

4. Mrs. Mario Mancebo was a prenatal patient of Respondent between January and August 1981. During her seventh month she started bleeding and attempted to contact Respondent, without success. Respondent had told her the baby could be delivered at Baptist Hospital so the Mancebos vent to Baptist Hospital where they learned Respondent did not have hospital privileges and could not have her admitted.

   
   

5. Isabel Sierra was a prenatal patient of Respondent in March 1980. Respondent never told Mrs. Sierra which hospital to go to, nor did he tell her he did not have hospital privileges. When she started labor, the last of October 1980, she called Respondent's office but he never returned her call. After trying several times to contact him, she went to the emergency room at Jackson Memorial Hospital where her baby was born.

   
   

6. During the period January 1980 to December 1981, Respondent did not have hospital privileges at any hospital in Miami yet he had numerous pregnant patients to whom he provided prenatal care. The practice of these patients turning up at the emergency rooms of several hospitals in the Miami area in a terminal labor state became so prevalent that Baptist Hospital wrote Respondent at least three letters (Exhibit 2) asking him to stop directing his patients to the emergency room at Baptist Hospital near the termination of their pregnancies, reminding him that he did not have privileges at Baptist Hospital, and requesting that he inform his patients that he could not deliver them at

   Baptist Hospital. Mercy Hospital wrote Respondent that his application for hospital privileges had been denied (Exhibit 3) and sent a complaint to the Dade County Medical Association about Respondent sending his patients in active labor to the emergency room at Mercy Hospital despite the written and oral requests that he desist from this practice

   
   

7. The Chief, Emergency Room Service, at Mercy Hospital lodged an ethical complaint with Petitioner as a result of Respondent sending patients to the emergency room at Mercy Hospital near the termination of their pregnancies (Exhibit 4).

   
   

8. Prenatal obstetric patients generally expect their obstetrician to deliver their babies. It is both fraudulent and unethical to take a patient for prenatal care when the obstetrician does not have privileges at a hospital and cannot provide hospital delivery for the baby. Furthermore, it is unethical to provide prenatal care up to termination of pregnancy and then send the patient to the emergency room of the nearest hospital for a strange doctor to deliver the baby. This is especially so when no record accompanies the patient, and any history obtained must come from the woman in labor or her accompanying relative.

   
   

9. Most of these prenatal patients of Respondent had paid Respondent in full for his services, including delivery. At the termination of their pregnancies when Respondent could not be reached, their babies were delivered by a doctor strange to them when they went to a hospital emergency room. Several of these witnesses testified they could get no refund from Respondent after this happened, but one witness testified her husband had recovered those payments from Respondent after her baby had been delivered by another doctor.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

11. Section 458.331, Florida Statutes (1981) , provides in pertinent part:

    
    

    1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

       * * *

       (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.

       * * *

       (o) Exercising influence on the patient or client in such a manner as to exploit the patient or client for financial gain of the licensee . . . .

       * * *

       (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. . . .

       * * *

    2. When the board finds any person guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:

       1. Refusal to certify to the department an application for licensure.

       2. Revocation or suspension of a license.

       3. Restriction of practice.

       4. Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.

       5. Issuance of a reprimand.

       6. Placement of the physician on probation for a period of time and subject to such conditions as the board

          may specify, including, but not limited to, requiring the physician to submit

          to treatment, to attend continuing education courses, to submit to reexamination, or to work under the supervision of another physician.

          
          

12. By failing to advise his patients that he did not have hospital privileges and could not deliver their babies, Respondent deceived and defrauded his patients. By telling them he would arrange for their hospitalization when he did not have hospital privileges, Respondent knowingly misled and misinformed his patients, made false statements to them, and failed to conform to the prevailing standards in the community. By collecting for the full prenatal care, including delivery, when he knew he did not have hospital privileges and could not admit his obstetric patients to a hospital, Respondent was guilty of exploiting his patients for financial gain.

    
    

13. By taking prenatal patients, inducing them to believe that he would be with them throughout their pregnancies to delivery, and, as the termination of the pregnancies arrived, making himself unavailable, Respondent, as so aptly expressed by an expert medical witness, "abandoned" his patients. Abandoning a patient at such a critical time constitutes gross malpractice.

    
    

14. From the foregoing it is concluded that Respondent is guilty of making deceptive and untrue statements to his patients, of exercising influence on those patients to induce them to pay for services he knew he could not perform, and gross and repeated malpractice in his treatment of prenatal patients at the termination of their pregnancies. It is

RECOMMENDED that the license of Mario Aviles, Jr., to practice medicine in Florida be revoked.

ENTERED this 2nd day of November, 1982, at Tallahassee, 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 2nd day of November, 1982.

COPIES FURNISHED:

Charlie L. Adams, Esquire Samuel R. Shorstein, Secretary Department of Professional Department of Professional

Regulation Regulation

130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32301 Tallahassee, Florida 32301

Mario Aviles, Jr.

2251 Southwest 27th Avenue Miami, Florida 33145

Dorothy Faircloth, Executive Director Board of Medical Examiners

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-001322

Orders for Case No: 82-001322