STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-1903

)

RENE A. MUNECAS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on February 10, 1984, in Miami, Florida.

Petitioner Department of Professional Regulation, Board of Medical Examiners, was represented by Joseph W. Lawrence, II, Esquire, Tallahassee, Florida; and Respondent Rene A. Munecas was represented by Luis Fernandez, Esquire, Miami, Florida.

Petitioner filed an Administrative Complaint seeking to suspend, revoke, or take other disciplinary action against Respondent as licensee and against his license to practice medicine under the laws of the State of Florida. Respondent timely requested a formal hearing on the allegations contained within that Administrative Complaint. Accordingly, the issues for determination are whether Respondent is guilty of the charges contained in that Administrative Complaint and, if so, what disciplinary action should be taken, if any.

Petitioner presented the testimony of Luis Fernandez-Rocha, M.D.; Delores

1. Morgan, M.D.; Roger Walker, M.D.; and Jose Carballo, M.D. Additionally, Petitioner's Exhibits numbered 1-3 were admitted in evidence. Respondent testified on his own behalf and presented the testimony of Paul Daruna, M.D. Additionally, Respondent's Exhibits numbered 1-2 were admitted in evidence.

   
   

   Both parties submitted posthearing proposed findings of fact in the form of a proposed recommended order. To the extent that any proposed findings have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.

   
   

   FINDINGS OF FACT

   
   

   1. At all times material hereto, Respondent has been licensed by the State of Florida to practice medicine and surgery, having been issued license number NE 14637.

   2. Respondent was born in Cuba and is a Catholic. He specializes in gynecology and obstetrics and, until March 1983, had hospital privileges at Mercy Hospital in Miami, Florida. Respondent is married and has seven children, most of whom are adults. He is supporting all of them, including grandchildren, and at the time of the formal hearing in this cause there were 12 people living in Respondent's home whom he was supporting. Respondent has not had a vacation since 1970.

      
      

   3. In approximately the late summer of 1982, Dr. Jose Carballo was walking from his office at the Mercy Hospital complex to the hospital when he encountered Respondent. Respondent grabbed Carballo's arm and appeared extremely agitated. Respondent advised Carballo that the administration at Mercy Hospital was anti-Catholic or anti-Christian, since several of the stained glass windows in the chapel in the hospital had been covered with plywood. Respondent further advised Carballo that Respondent had asked the priest in the chapel why that had been done, and the priest had advised Respondent the windows on that side of the chapel had been covered as a precaution and would remain covered until the end of the hurricane season. The windows on the side of the chapel opposite the direction of potential hurricane winds had not been covered. Although the priest had given that explanation to Respondent, Respondent still insisted that the real reason was a conspiracy on the part of the hospital administration to prevent Catholics from looking at the windows. Since Carballo had known Respondent for a number of years, he noted on that occasion that Respondent acted and appeared to be a different person. At the time, Carballo believed that Respondent was on the verge of a breakdown.

      
      

   4. During late 1982 and early 1983, both the chief of obstetrics at Mercy Hospital and the chief of the department of anesthesiology at Mercy Hospital noted a number of occasions when Respondent appeared to be engaged in bizarre behavior. They observed incidents of violent behavior and heard much talk of Communists, Zionists, and conspiracy on different occasions when they encountered Respondent. Respondent was seen in the hospital on occasions when he appeared to be very heavily medicated, and observations were made of the changes in Respondent's demeanor, in his coordination, and in his speech. Respondent appeared depressed and introverted, and even his manner of walking had slowed. Respondent's violent behavior was triggered by small incidents, and he would accuse someone of being a Communist simply if that person wore a red tie. On one occasion, Respondent accused one of the labor room nurses of poisoning his cup of tea. By late 1982, both the chief of obstetrics and the chief of the department of anesthesiology had formed the opinion that Respondent was unable to practice medicine with reasonable skill and safety.

      
      

   5. In January 1983, Respondent performed an emergency cesarean section at Mercy Hospital. During the course of that delivery, he cut the baby's ear and the area of the baby's head behind his ear. Dr. Roger Walker saw Respondent when he entered the operating room and saw him again when he left the operating room. Respondent appeared depressed, introverted, and slowed.

      
      

   6. On March 18, 1983, Respondent's hospital privileges at Mercy Hospital were suspended.

      
      

   7. During late 1982 and early 1983, Respondent realized that he was depressed and started treatment with Dr. Carlos Diaz Silvia. Diaz-Silvia believed at the time that Respondent might present a danger to himself and to others and placed him on anti psychotic drugs.

   8. Subsequent to Mercy Hospital's suspension of Respondent's staff privileges, the Department of Professional Regulation ordered Respondent to undergo a three-day evaluation at South Miami Hospital's addiction treatment program under Dr. Delores Morgan. As a result of the mental and physical examinations conducted during that three-day evaluation, it was determined that Respondent had no chemical dependency on alcohol or drugs but rather that Respondent was suffering from a major depression episode. It was further determined that the medication given to Respondent by Dr. Diaz-Silvia had been one of the major causes of the determination by the administration at Mercy Hospital that Respondent was incompetent to practice medicine. Instead, Respondent was placed on Elavil, an antidepressant drug which affects the mood centers of the brain and removes depression and allows a person to function. It was also determined that Respondent must, in addition to taking the Elavil, remove the stressors which had caused his depression by reducing his medical practice, by requiring some of his grown children and their families to begin supporting themselves so Respondent would not have to work continuously with no vacations in order to support all of the adult members of his family, and by Respondent undergoing regular therapy with a psychiatrist who could help Respondent resolve some of his problems and monitor Respondent's need for an antidepressant drug. Respondent was released from South Miami Hospital's program to the care of psychiatrist Paul Daruna.

      
      

   9. Respondent started treatment with Daruna on a weekly basis on June 1, 1983. During the next 11 sessions, Respondent showed marked improvement with the Elavil prescribed for him: his sleep pattern improved, and his mood visibly improved. It was determined that Respondent had become able to make rational decisions and presented no danger to himself or to others. By October 13, 1983, Respondent's prognosis was excellent, and Daruna believed that Respondent would be able to practice medicine with reasonable skill and safety so long as he continued his treatment regimen, including both therapy and the antidepressant drug, and so long as Respondent took whatever steps were necessary to remove the stressors in his life caused by his heavy practice and the burdensome demands of his family. Daruna has not seen Respondent since October 13, 1983, and Respondent has not been under the care of any other psychiatrist.

      
      

   10. Dr. Delores Morgan saw Respondent on February 8, 1984, two days before the formal hearing in this cause. Respondent was still taking his Elavil but was not treating with a psychiatrist. Respondent had voluntarily reduced his office practice and had relocated his office so that he was now practicing with a general practitioner, Dr. Harry Rosado, who was voluntarily monitoring Respondent's practice. Although Respondent's privileges were still under suspension at Mercy Hospital, Respondent was practicing at Baptist Hospital and had performed approximately 54 deliveries during 1983 while practicing only three days a week. Dr. Morgan noted Respondent's marked improvement and Respondent's continued cooperation. However, she determined that Respondent was still in need of psychiatric follow-up so long as he was on medication in order that he could be monitored for change. She further believed that Respondent's practice of medicine should remain restricted to the level it is at this time until his treating psychiatrist had determined that it was appropriate for him to again engage in the full-time practice of medicine. She further recommended that monitoring of Respondent's practice continue, and believed most strongly that it was still imperative that Respondent's family, comprised primarily of grown children, start to assume some responsibility for their own lives and not continue to place the total burden on their father.

       
       

   11. Although Respondent admitted at the formal hearing that he agrees with Dr. Morgan's assessment of his prognosis and that he has voluntarily restricted

       his practice and is voluntarily taking his medication, Respondent still does not believe that he was impaired during the approximate six-month period in question, does not believe he was "slowed down" during that time period, and does not believe that he was irrational or paranoid concerning the stained glass window episode. Accordingly, although Respondent has voluntarily imposed on himself some of the restrictions recommended in order that he continue to function well, it appears that Respondent still does not fully appreciate the extent to which his mental state had deteriorated during the time before he was involved in any treatment regimen.

       
       

   12. During late 1982 and early 1983, Respondent was mentally incompetent due to a severe depressive state and inappropriate treatment which made him more incompetent to the extent that he was unable to practice medicine with reasonable skill and safety to patients.

       
       

       CONCLUSIONS OF LAW

       
       

   13. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes (1981).

       
       

   14. The Administrative Complaint filed herein charges Respondent with being in violation of Section 458.331(1)(s) Florida Statutes, which provides that it is grounds for disciplinary action if a physician is determined to be ".

       . . unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition." The evidence in this cause clearly demonstrates that Respondent was, at least in late 1982 and early 1983, unable to practice medicine with reasonable skill and safety to patients by reason of his mental condition and the inappropriate medication prescribed for it. All the medical professionals who testified in this cause were of the opinion that Respondent was suffering from a major depressive episode which impaired his ability to practice with reasonable skill and safety. Both Dr. Daruna and Dr. Morgan opined that due to the removal of the inappropriate medication, together with Respondent's submission to psychotherapy and appropriate medication, and the voluntary restriction on his practice assumed by Respondent, Respondent has markedly improved and is at this time able to practice medicine with reasonable skill and safety to his patients. Because Respondent has at this time overcome the condition from which he was suffering, it is not appropriate to suspend or revoke his license to practice medicine or to otherwise discipline him due to the fact that it appears that Respondent has recovered-from his former emotional problem.

       
       

   15. However, the issue in this cause is not "discipline" per se, but rather the issue involves adequate safeguards to the continued practice of medicine by the Respondent which should be imposed through a Final Order of the Board of Medical Examiners rather than through Respondent's voluntary restrictions, particularly in light of the fact that Respondent still does not appear to understand the extent of his bizarre behavior during the time period that he was suffering from the major depression episode. Although the undersigned commends the efforts of Respondent in attempting to help himself, the reason for the treatment of Respondent which began in May 1983 was that Petitioner entered an Order Compelling Mental and Physical Examination which compelled him to seek the evaluation of Dr. Delores Morgan and, ultimately, enabled him to receive the appropriate psychotherapy and medication which has aided him in his return to competency. However, the experts are of one voice that the psychiatric care, medication, restriction in medical practice, and

removal of personal and family stressors must be continued under the care of a competent psychiatrist, with the prognosis good for alleviation of these restrictions in the future--dependent upon the continued recovery of the Respondent. In order to avoid the possibility of Respondent's voluntary restrictions being lifted too soon, it is necessary that the restrictions be made mandatory.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the

allegations contained in the Administrative Complaint filed against him and placing Respondent's license to practice medicine on probation under such terms and conditions as may be considered necessary by the Board of Medical Examiners, including continued psychiatric care and reporting to the Board of the status of the health of Respondent, with restrictions upon his medical practice as may be recommended in the future by his treating physicians in light of his mental and physical status.

DONE and RECOMMENDED this 22nd day of May, 1984, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT, 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 22nd day of May, 1984.

COPIES FURNISHED:

Joseph W. Lawrence, II, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Luis Fernandez, Esquire 2600 SW Third Avenue,

Suite 203

Miami, Florida 33129

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Dorothy Faircloth, Executive Director

Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-001903

Orders for Case No: 83-001903