STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 84-2536

)

ALI AZIMA, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard on January 17, 1985, by R. L. Caleen, Jr., hearing officer with the Division of Administrative Hearings, in Fort Myers, Florida. The parties were represented by counsel:

APPEARANCES

For Petitioner: J. Riley Davis, Esquire

225 South Adams Street, Suite 250 Tallahassee, Florida 32301

For Respondent: Bernard H. Dempsey, Jr., Esquire

Richard Lee Barrett, Esquire 605 East Robinson Street Orlando, Florida 32802

ISSUE

Whether Respondent's medical license should be revoked, suspended, or otherwise disciplined on charges that he was convicted or found guilty of a crime directly relating to the practice of medicine or his ability to practice medicine, in violation of Section 48.331(1)(c), Florida Statutes.

BACKGROUND

By administrative complaint dated June 18, 1984, the Department of Professional Regulation, Board of Medical Examiners (Department), charged Ali Azima, M.D. (Respondent), with violating Section 458.331(1)(c), Florida Statutes, by having been convicted or found guilty of a crime directly relating to the practice of medicine or his ability to practice medicine. Respondent disputed the charges and requested a hearing. The Department then forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer.

The parties filed a prehearing stipulation and, at hearing on January 17, 1985, moved Joint Exhibit Nos. 1 through 10 and relevant portions of No. 11 into evidence. No witnesses were called by either party.

The transcript of hearing was filed on January 31, 1985. The parties filed proposed findings of fact and conclusions of law, including reply briefs, by March 18, 1985. Each proposed finding has been ruled on either directly, or indirectly, in this recommended order, accept where such proposed findings have been rejected as subordinate, cumulative, immaterial, or necessary.

Based on the prehearing stipulation and the evidence adduced at hearing, the following facts are determined:

FINDINGS OF FACT

1. At all times material to the charge, Respondent was a licensed medical doctor in the State of Florida, having been issued license No. ME 0020485.

   
   

   I.

   Prior Disciplinary Action Against Respondent

   
   

2. The Respondent has been the subject of prior disciplinary proceedings instituted by the Department. On February 7 and 8, 1984, an administrative hearing was conducted by Diane Tremor, hearing officer with the Division of Administrative Hearings in Fort Myers, Florida. The issue for determination was whether his license as a medical doctor should be revoked, suspended, or otherwise disciplined for the medical treatment he provided to five named patients, one of whom was Holli Schmidt. On July 24, 1984, the hearing officer submitted her recommended order to the Board of Medical Examiners. With regard to patient Schmidt, the hearing officer found that Respondent inserted an intrauterine contraceptive device without taking adequate precautions to insure that the patient was not pregnant at the time of insertion, and concluded that his treatment of patient Schmidt fell below an acceptable standard of care, skill and treatment, in violation of Section 458.331(1)(t), Florida Statutes.

   
   

3. On January 9, 1985, the Board of Medical Examiners adopted the hearing officer's Findings of Fact and Conclusions of Law, but modified her recommended penalty of a one year suspension by providing that he could petition for reinstatement after serving six months of the suspension.

   
   

   II.

   Criminal Proceedings Against Respondent

   
   

4. In the meantime, Respondent was the subject of a criminal proceeding arising out of his treatment of patient Holli Schmidt. On October 28, 1981, the Assistant State Attorney of the Twentieth Judicial Circuit filed an information charging Respondent with Culpable Negligence, a misdemeanor violation of Section 784.05, Florida Statutes. The information alleged that between February 1, 1981 and March 30, 1981, Respondent "exposed Holli Schmidt to personal injury through culpable negligence." (Joint Exhibit 6).

   
   

5. On March 23, 1984, in the County Court of Lee County, Florida (Case No. 81MM6984), a jury found Respondent guilty as charged. (Joint Exhibit 4).

   
   

6. On June 18, 1984, County Judge Radford R. Sturgis, the presiding judge, entered an order (1) reciting that Respondent had been found guilty (by the verdict of a jury) of culpable negligence; (2) withholding adjudication of guilt; and (3) placing him on probation for a period of six months. The order also reflects that the Court was satisfied that Respondent was "not likely again

   to engage in a criminal course of conduct, and that the ends of justice and the welfare of society do not require that [he] should presently be adjudged guilty and suffer the penalty authorized by law." (Joint Exhibit 5). Respondent was ordered to serve 50 hours of Community Service, pay a $500 fine, and serve 59 days of jail time (49 days were suspended and 10 were to be served on weekends).

   
   

7. The crime, of which Respondent was found guilty, related to the practice of medicine.

   
   

8. In their prehearing stipulation, the parties agree that "[t]here is an identity of underlying facts supporting both [the] criminal conviction . . . and the current suspension of [Respondent's] license by the Board of Medical Examiners based upon the [prior hearing officer's] Recommended Order. . . .

   
   

9. Respondent timely appealed the jury's verdict (finding him guilty of Culpable Negligence) to the Circuit Court of the Twentieth Judicial Circuit of Florida, which appeal is still pending.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Fla. Stat. (1983).

    
    

11. Section 458.331(1)(c), Florida Statutes, authorizes the Board of Medical Examiners to discipline the license of a physician for, among other things:

    
    

    (c) Being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of medicine or to the ability to practice medicine. Any plea of nolo conten- dere shall be considered a conviction for purposes of this chapter.

    
    

12. Respondent was not "convicted" within meaning of this statute, since a judgment of guilt was not entered by the court. See, Delta Truck Brokers, Inc. v. King, 142 So.2d 273, 275 (Fla. 1962):

    
    

    The term "conviction" has an accepted meaning in applying statutes of this nature. It simply means a determination of guilt and a judgment of guilt by a court of competent jurisdiction in a criminal proceeding. [Citations omitted].

    
    

    Also, 9 Fla. Jur., Sec. 11, p. 34.

    
    

13. It is evident, however, that he was found guilty by a jury of committing a crime directly relating to the practice of medicine. Respondent argues that the statute should be construed to require, as a prerequisite, that the conviction or finding of guilt be final and that any appellate remedy pursued must first be exhausted. Such a construction would engraft a new

    requirement on the statute, one not expressed or necessarily implied. In Delta Truck Brokers, Inc., supra, the Court's definition of "conviction," as used in licensing statutes, made no mention of finality or the need for appellate remedies to be exhausted.

    
    

14. In Page v. State Board of Medical Examiners, 193 So. 82, 83 (Fla. 1940), the Court addressed the meaning of a similar provision in the statute regulating physicians:

    
    

    The cancellation of a certificate on the ground that a practitioner had been convicted of a felony contemplated that the morally unfit, or those wanting an integrity, or those having lost sight of the high standards required or demands of practitioners of medicine by violating criminal standards, should not be permitted to continue in the practice. The Legislature, in protecting the health and general welfare of the people, has a right to prescribe reasonable rules and regulations that shall control the practice of medicine. In the medical profession are found men of the highest character, integri- ty and those who are well educated in medi- cine and skilled in surgery, and to permit or allow men convicted of a crime to hold them- selves out to the public as equally qualified with the leaders of the medical profession was never contemplated by this Act.

    
    

15. When an accused is convicted or found guilty of a crime in a trial court, the "robe of innocence" is stripped from him. See, State ex. Inf. Peach

    v. Goins, 576 S.W. 2d 175 (Mo. 1978). Section 458.331(1)(c) proscribes the fact of a conviction, or the fact of a finding of guilt, regardless of its ultimate veracity. Such fact is not negated or annulled by an appeal, taken either directly or collaterally. Cf., 3 Fla. Jur. 2d, Sec. 129, p. 179. The enforcement of the statute would be frustrated if Respondent's argument is given its logical effect: The Department would be prevented from disciplining a licensee during the years it may take to exhaust all available direct and collateral appeals. It is concluded, therefore, that Respondent violated Section 458.331(1)(c), Florida Statutes, in that he was found guilty of a crime directly relating to the practice of medicine.

    
    

16. Respondent next argues that he may not be penalized for the jury's verdict because the Department, by prior order of the Board of Medical Examiners, has already penalized him for the same conduct. Cf., Department of Corrections v. Duncan, 382 So.2d 135 (Fla. 1st DCA, 1980); Department of Transportation v. Career Service Commission, 366 So.2d 473 (Fla. 1st DCA 1979). But the earlier disciplinary action against him was based on a violation of Section 458.331(1)(t), Florida Statutes, where the hearing officer and, subsequently, the Board found that his treatment of patient Schmidt failed to meet an acceptable level of care, skill, and treatment. That violation, statutorily defined is separate and distinct from that created by Section 458.331(1)(c), which has a fundamentally different element: a conviction, or finding of guilt, of a crime directly relating to the practice of medicine. Hence, contrary to Respondent's argument, he is not now being prosecuted for the same violation.

17. As already mentioned, Respondent has previously been disciplined by the Board of Medical Examiners for his substandard treatment of patient Schmidt, which treatment also formed the basis of the criminal proceeding. Moreover, the criminal court, in its order withholding adjudication of guilt, was satisfied that Respondent was not likely again to engage in a criminal course of conduct. The parties have also agreed that the patient was not seriously or permanently harmed by Respondent's actions. No evidence of aggravating circumstances has been presented. Accordingly, it is concluded that the appropriate penalty for Respondent's violation of Section 458.331(1)(c), Florida Statutes, is the suspension of his medical license for six months, which suspension should run concurrently with the suspension already imposed by the Board of Medical Examiners for his treatment of the patient.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That Respondent's medical license be suspended for a period of six months, such suspension to run concurrently with the suspension previously imposed by the Board of Medical Examiners for his treatment of patient Holli Schmidt.

DONE and ORDERED this 15th day of April, 1985, in Tallahassee, Florida.

R. L. CALEEN, JR. 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 15th day of April, 1985.

ENDNOTE

1/ In their prehearing stipulation, the parties stipulated that, to their knowledge, "patient Holli Schmidt has never suffered any serious or permanent harm as a result of her treatment by [Respondent]."

COPIES FURNISHED:

Dorothy Faircloth, Executive Director

Department of Professional Regulation Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

J. Riley Davis, Esquire

225 S. Adams St., Suite 250 Tallahassee, Florida 32301

Bernard H. Dempsey, Jr., Esquire and Richard Lee Barrett, Esquire

605 E. Robinson St. Post Office Box 1980 Orlando, Florida 32802

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, General Counsel Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 84-002536

Orders for Case No: 84-002536