STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NICHOLAS BACHYNSKY, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 83-1318

)

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

)

Respondent. )

)

RECOMMENDED ORDER

Hearing was held in the above-captioned matter, after due notice, at Tallahassee, Florida, on November 21, 1983, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: Thomas G. Pelham, Esquire

Stephen A. Ecenia, Esquire Post Office Box 1794 Tallahassee, Florida 32302

For Respondent: John E. Griffin, Esquire

Assistant Attorney General Department of Legal Affairs 1601 The Capitol

Tallahassee, Florida 32301 ISSUE PRESENTED

Whether Petitioner's application for licensure by endorsement to practice medicine should be approved, pursuant to Chapter 458, Florida Statutes.

This proceeding arose as a result of the provisional denial of Petitioner's application to practice medicine by endorsement. The Board of Medical Examiners stated as grounds for the proposed denial that Petitioner had not demonstrated that he is capable of safely engaging in the practice of medicine with reasonable skill and safety to his patients based upon an evaluation report on his postgraduate training at Baylor University Medical Center in Dallas, Texas, and a misdemeanor conviction, as required by Sections 458.313 and 458.331(3), Florida Statutes.

At the hearing, Petitioner called Dorothy J. Faircloth, Executive Director, Board of Medical Examiners, and Dr. George S. Palmer, a medical consultant to Petitioner, as witnesses. In addition, he testified in his own behalf.

Respondent did not call any witnesses. Petitioner submitted eight exhibits in

evidence. The parties entered into a pre-hearing stipulation of facts and law (Joint Exhibit 1), which was accepted by the Hearing Officer.

Proposed recommended orders filed by the parties after the hearing have been fully considered, and those portions thereof not adopted herein are considered to be either unnecessary or irrelevant, or unsupported in law or fact, and are specifically rejected.

FINDINGS OF FACT

1. The following are facts set forth in the pre-hearing stipulation of the parties:

   
   

2. Petitioner, Dr. Bachynsky, has been a duly licensed Medical Doctor in good standing in the State of Texas since 1973, and currently practices medicine in Houston, Texas, under a valid license issued by that state. (Petitioner's Composite Exhibit 4)

   
   

3. Dr. Bachynsky received his Ph.D. in Chemistry from Baylor University in Dallas, Texas, in 1968 and his Degree of Doctor of Medicine from the University of Tennessee Medical School, Memphis, Tennessee, in 1971, where he was an honors student with a class ranking of 3/100. Dr. Bachynsky was a Resident in Medicine and Pathology at the Mayo Clinic Graduate School of Medicine in Rochester, Minnesota, from 1972-73 and completed his Residency in Pathology at the Baylor University Hospital and Medical Center in Dallas, Texas, from 1973-74. (Petitioner's Exhibit 7)

   
   

4. On September 27, 1982, Dr. Bachynsky executed an Endorsement Application, seeking medical licensure by endorsement in the State of Florida, under the provisions of Section 458.313, Florida Statutes, and submitted same to the Board. The Endorsement Application was received by Respondent on October 6, 1982. A true copy of the Endorsement Application is attached hereto as Exhibit "A".

   
   

5. During the processing of Dr. Bachynsky's application, the Board requested and received an evaluation form concerning Dr. Bachynsky completed by George J. Race, M.D., Ph.D., the pathologist-in-chief of Baylor University Medical Center, Dallas, Texas. The evaluation form was dated October 12, 1982, and received by the Respondent on October 25, 1982. Dr. Race served as the director of Dr. Bachynsky's postgraduate residency training at Baylor University Medical Center from July 1, 1973, to December 1, 1974. Dr. Race gave Dr. Bachynsky exclusively "good" and "superior" ratings on 12 of the 15 specific categories of the evaluation form. Dr. Race did not give a rating in three of the categories. However, his overall evaluation of Dr. Bachynsky was "with some reservation." A copy of Dr. Race's October 14, 1982, evaluation form is attached as Exhibit "B".

   
   

6. On October 27, 1982, the Board requested Dr. Bachynsky to provide additional information on Dr. Race's evaluation. On November 10, 1982, Dr. Bachynsky wrote to the Board that it was his understanding that Dr. Race's recommendation "with some reservation" related to two personal incidents that occurred during Dr. Bachynsky's residency. Dr. Bachynsky stated that he had discussed these matters with Dr. Race, and that Dr. Race, because he did not know the facts and details of Dr. Bachynsky's involvement in the criminal matter during his residency, felt compelled to give his recommendation "with some reservation." A copy of Dr. Bachynsky's November 10, 1982, letter to the Board is attached as Exhibit "C." (Petitioner's Exhibit 6)

7. The criminal matter about which Dr. Race was concerned was Dr. Bachynsky's plea of guilty to the federal misdemeanor charge of possessing stolen automobile parts of a value of less than $100.00 which Bachynsky knew in all probability had been stolen and transported in interstate commerce. A complaint was filed by the Federal Bureau of Investigation against Petitioner on August 13, 1974, charging him with transporting a stolen motor vehicle in interstate commerce. The complaint was subsequently dismissed and Dr. Bachynsky pled guilty to the misdemeanor offense on October 23, 1974, and received a two year unsupervised, probated sentence, which sentence was discharged at the end of eight months and the case was dismissed. A true copy of the Judgment and Commitment against Dr. Bachynsky is attached as Exhibit "D."

   
   

8. In his initial Endorsement Application Dr. Bachynsky had responded "no" when asked if he had ever been convicted of a misdemeanor. Dr. Bachynsky responded "no" after a discussion with a Texas attorney, Larry R. Johnson. The attorney states that he had erroneously assumed the application of Texas law rather than federal law when he advised Dr. Bachynsky to answer "no." The Board had received an affidavit from Larry Johnson prior to its notice of intent to deny Dr. Bachynsky's application. True copies of Larry R. Johnson's letter of February 11, 1983, to the Board and his affidavit of the same date are attached as composite Exhibit "E".

   
   

9. Subsequently, on December 7, 1982, Respondent notified Dr. Bachynsky that a copy of the misdemeanor charge and the disposition of the charge would be required before processing of his application could be completed. Dr. Bachynsky then provided the Board with this information. In addition to receiving the information provided by Dr. Bachynsky relative to the charge, the Board contacted the United States Attorney James A. Rolfe who, then as an Assistant United States Attorney, prosecuted Dr. Bachynsky on the misdemeanor charge in 1974. By letter dated January 7, 1983, U.S. Attorney Rolfe explained the disposition of the criminal charge against Dr. Bachynsky. A true copy of Rolfe's January 7, 1983, letter to the Board is attached as Exhibit "F."

   
   

10. Dr. Bachynsky personally appeared before the Board at a public meeting on February 13, 1983, to address the Board's concerns regarding his medical licensure application. At that time, Dr. Bachynsky further discussed with the Board the circumstances surrounding his 1974 misdemeanor conviction, as well as the circumstances surrounding Dr. Race's evaluation of Dr. Bachynsky.

    
    

11. On March 22, 1983, the Board issued its notice of intent to deny Dr. Bachynsky's application for Licensure by Endorsement. The notice suggested that Dr. Bachynsky secure more information with respect to his postgraduate training at Baylor University and his conviction and reappear before the Board. (Petitioner's Exhibit 1)

    
    

12. Prior to Dr. Bachynsky's second personal appearance before the Board on April 10, 1983, the Board received a tape recording of proceedings in the United States Magistrate Court on the 1974 misdemeanor charge. The tape recording reveals that Dr. Bachynsky knowingly and voluntarily pleaded guilty to the charge, which was described by the U.S. Magistrate as a "minor offense under the Federal Penal Law."

    
    

13. Also prior to Dr. Bachynsky's second personal appearance before the Board on April 10, 1983, the Board received a letter dated March 31, 1983, from Dr. Race asking that his evaluation of Dr. Bachynsky be upgraded from "Recommend with some reservation" to "Recommend as qualified and competent." In his

    letter, Dr. Race explained that the upgrading of the recommendation was based upon Dr. Race's reviewing additional information from U.S. Attorney Rolfe regarding Dr. Bachynsky's 1974 misdemeanor conviction. A true copy of Dr.

    Race's March 31, 1983, letter to the Board is attached as Exhibit "G." (Petitioner's Exhibit 2)

    
    

14. Dr. Bachynsky personally appeared a second time before the Board on April 10, 1983, contending that he had fully satisfied the two concerns expressed in the Board's March 22, 1983, notice of intent to deny. After hearing from Dr. Bachynsky and his attorney, Respondent voted to affirm its March 22, 1983, notice of intent to deny Dr. Bachynsky's application.

    
    

15. The following are additional facts adduced at the hearing:

    
    

16. Dr. George S. Palmer, a medical consultant to the Board of Medical Examiners, reviewed Petitioner's application file in November 1982, and found that Petitioner met all of the requirements for licensure by endorsement. He noted, however, that before final approval of the application, "the episode concerning the 'stolen' car be cleared up." Although he had no knowledge of the details of that incident, he felt that it could have a bearing on a determination of Petitioner's moral character. Inquiry by the Board's staff to the medical boards of Tennessee and California, where Petitioner held active licenses, failed to reveal that he had ever been subject to disciplinary action in those states. It was further determined that Texas medical authorities had taken no action with regard to Petitioner's license as a result of his misdemeanor conviction. Inquiries to various hospitals at which Petitioner practiced failed to reveal any derogatory information. (Testimony of Palmer, Faircloth; Petitioner's Exhibit 5)

    
    

17. Petitioner testified that he had been in continuous practice since 1972. He is a family practitioner with emphasis on internal medicine. He is a member of the Harris County Medical Society and Texas Medical Association. He testified that although he regretted the incident in 1974, it did not involve patients nor affect his ability to practice medicine. However, he acknowledged that the conviction had "followed me and done much damage." A number of Houston physicians submitted letters in Petitioner's behalf which attested to his superior medical qualifications, active practice, and ethical conduct. (Testimony of Petitioner; Petitioner's Exhibits 3, 8)

    
    

    CONCLUSIONS OF LAW

    
    

18. The parties stipulated to the following issues of law:

    
    

    1. Whether Dr. Bachynsky meets the qualifications of Sections 458.313 and 458.331, Florida Statutes, in view of his 1974 misdemeanor conviction for possession of stolen automobile parts of a value of less than $100.00 which were being transported in interstate commerce.

    2. Whether Dr. Race's evaluation report on Dr. Bachynsky's postgraduate residency training which gave Dr. Bachynsky "good" and "superior" ratings on all specific

       categories and a general recommendation of "qualified and competent", is a ground for denying Dr. Bachynsky's application under the

       provisions of Sections 458.313 and 458.331, Florida Statutes?

       
       

19. Section 458.313, Florida Statutes, sets forth the required qualifications for licensure by endorsement. It is undisputed that Petitioner meets all such qualifications other than Subsection 458.313(1)(b), which states, as follows:

    
    

    (b) Is of good moral character and has not committed any act or offense within or without the state which would constitute the basis for disciplining a physician pursuant to s. 458.331

    . . . .

    
    

    It is conceded by Respondent that Petitioner's 1974 misdemeanor conviction does not provide grounds for disciplinary action under Section 458.331, Florida Statutes. Respondent seeks to deny Petitioner's licensure under the theory that Petitioner lacks good moral character as a result of that conviction. Although this proposed ground for denial was not specifically stated in Respondent's letter of intent to deny the application, the statutory provision was cited, and Petitioner did not seek to clarify the matter prior to hearing.

    
    

20. The mere fact that an applicant was convicted of a criminal offense in the past does not necessarily mean that he is not presently of "good moral character." 1/ In the instant situation, a period of over nine years has elapsed since the misdemeanor conviction, and it has not been shown that Petitioner's ability to practice medicine was ever adversely affected by reason thereof. On the contrary, Petitioner has established by the weight of the evidence that, over the years, he has maintained a thriving, successful medical practice, and that he is held in high regard by his peers. Indeed, even the United States Attorney who had prosecuted the case against the Petitioner recommends that his application be approved. Further, the original qualified recommendation of Dr. George J. Race was changed to a full recommendation after he became acquainted with the facts surrounding Petitioner's conviction. Accordingly, it is concluded that Petitioner has shown that he is of good moral character and should be licensed.

    
    

21. Respondent's reference to Section 458.331(3) is considered inapplicable to a determination of qualifications upon original licensure, and concerns only those situations where a final order of license denial has been previously issued by the Board. Even if applicable, it would not be a bar to licensure under the facts established in this proceeding.

RECOMMENDATION

It is RECOMMENDED that the Board of Medical Examiners approve the application of Petitioner, Nicholas Bachynsky, for licensure by endorsement to practice medicine.

DONE and ORDERED this 10th day of January, 1984, in Tallahassee, Florida.

THOMAS C. OLDHAM

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 10th day of January, 1984.

ENDNOTE

1/ See, Zemour, Inc. v. State of Florida, Division of Beverage, 347 So.2d 1102 (Fla 1st DCA 1977); Wash and Dry Vending Co. v. State, Dept. of Business of Regulation, etc., (Fla 3rd DCA 1983) 8 FLW 1032.

COPIES FURNISHED:

Thomas G. Pelham, Esquire Stephen A. Ecenia, Esquire Post Office Box 1794 Tallahassee, Florida 32302

John E. Griffin, Esquire Assistant Attorney General Department of Legal Affairs 1601 The Capitol

Tallahassee, Florida 32301

Ms. Dorothy J. Faircloth Executive Director

Board of Medical Examiners Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICAL EXAMINERS

NICHOLAS BACHYNSKY, M.D.,

Petitioner,

vs. CASE NO. 83-1318

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS,

Respondent.

/

FINAL ORDER OF

THE BOARD OF MEDICAL EXAMINERS

THIS MATTER came before the Board of Medical Examiners (Board hereinafter) pursuant to Section 120.57(1)(b)9., Florida Statutes, on February 12, 1984, in Tampa, Florida, for the purpose of considering the hearing officer's Recommended Order a copy of which is attached hereto) in the above-styled matter. The Petitioner was represented by Thomas G. Pelham, Esquire. The Respondent was represented by John E. Griffin, Esquire. After review of the Recommended Order and the complete record in this matter, the Board makes the following findings 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 in the record to support the Board's findings of fact.

CONCLUSIONS OF LAW

1. The hearing officer's conclusions of law contained in paragraph 1 are approved and adopted in toto and are incorporated herein by reference. Paragraphs 2 and 3 of the hearing officer's conclusions of law are rejected as being without merit.

   
   

2. The Board concludes that the evidence presented by Petitioner does not establish "good moral character" as required for licensure by Section 458.313(1)(b), Florida Statutes. The Florida Supreme Court in Florida Board of

   Bar Examiners, Re: G.W.L,, 364 So.2d. 454 (Fla. 1978) defined good moral character as:

   
   

   ". . . acts and conduct which would cause a reasonable man to have substantial doubts about an individual's honesty, fairness,

   and respect for the rights of others and for the laws of the state and nation."

   363 So.2d at pg. 458.

   
   

3. The record reveals that at the time Petitioner committed the unlawful conduct he was 29 years of age, possessed a B.S, M. S., Ph. D., and M. D. degrees, and had served as a Post-Doctoral Fellow. The credentials and professional experience of the Petitioner do not suggest an individual lacking in maturity, intelligence or the ability to understand the consequences of his conduct. The evidence demonstrates that Petitioner knew he was in possession of a stolen automobile and that he took no steps to see that it was returned to the lawful owner. In light of Petitioner's age, education and credentials at the time he committed the act, and his admission that at some point he knew the vehicle was stolen, the Board concludes that Petitioner's conviction, even though it took place over nine years go, causes a reasonable man to have substantial doubts about Petitioner's honesty, respect for the rights of others and for the law.

   
   

4. As such, the Petitioner has failed to demonstrate he meets the requirements for licensure as a physician in the State of Florida.

WHEREFORE, it is ORDERED AND ADJUDGED that Petitioner's Application for Licensure as a Physician `by Endorsement be and hereby is DENIED.

This Order becomes effective upon filing.

DONE and ORDERED this 21st day of March, 1984.

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

Docket for Case No: 83-001318

Orders for Case No: 83-001318