vs. ) CASE NO. 84-2602
Respondent. )
For Petitioner: Joseph W. Lawrence II,
Robert E. Johnson, Esquires Tampa, Florida
The final hearing was held in this case in Clearwater on September 27, 1984. The issue is whether the Board of Medical Examiners should take disciplinary action against the license of respondent Michael Marian Maskaron (Maskaron) as a medical doctor. More specifically, the issues are framed by the six-count Administrative Complaint filed by petitioner Department of Professional Regulation (Department) in this case:
Maskaron demanded a formal administrative proceeding, and the issues were not narrowed or limited before the final hearing.
Respondent Michael Marian Maskaron (Maskaron) was born in Warsaw, Poland on February 17, 1938. In 1939, after the German and Soviet armies marched into Poland, Maskaron's family escaped from the German to the Russian part of the country. Later, the Soviets deported Maskaron's family from Poland to a concentration camp for political prisoners in the most northern part of European Russia. When Hitler terminated his treaty with the Soviet Union, Maskaron's family was allowed to leave the prison camp and spent several weeks to months traveling in a part of the Soviet Union near Iran. Maskaron was hospitalized with measles, pneumonia and bilateral middle ear infection during the journey. Three children hospitalized in the same room with Maskaron died, and the treating physician recommended that Maskaron's mother remove him from the hospital before he contracted typhoid fever. A short time later, Maskaron's maternal grandmother became ill from typhoid fever, died, and was buried in a mass grave.
When the journey of Maskaron's family in the south of the Soviet Union ended, Maskaron's father was drafted by the Soviet Army. Maskaron's mother managed to survive by becoming the local nurse in the small village where they lived. In either 1945 or the beginning of 1946, the family rejoined Maskaron's father who was stationed in Poland. Maskaron's father convinced his wife to escape to the west rather than to return to Warsaw. Using false documents and a rented truck, friends helped the Maskaron family escape to Berlin. They traveled to Bavaria where they stayed until 1948 in an American refugee camp.
In 1948, the family immigrated into Israel where Maskaron lived until 1958. He served in the Israeli Army from 1956 to 1958. 2/
In November 1958, Maskaron went to Vienna and registered with the Medical Faculty of the University of Vienna. He obtained his medical degree in February 1966.
While in medical school, Maskaron noticed a tendency to become depressed and consulted a psychiatrist who recommended psychoanalysis. Maskaron agreed and underwent treatment for several years.
In 1968, Maskaron came to the United States and began a residency in psychiatry at New York University Medical Center. He had just separated from his first wife, had no friends or family in New York and spoke poor English. Maskaron became extremely depressed and resumed psychoanalysis. The psychoanalysis brought more and more of Maskaron's traumatic early childhood into his conscious mind, and he became more and more depressed.
In August 1968, Maskaron took an overdose of a mixture of medications in an attempt at suicide. He was found comatose the next day, was treated at NYU and was later transferred to Mt. Sinai Hospital where he remained for several weeks. Shortly after his discharge from Mt. Sinai, Maskaron returned to his psychiatry residency at NYU.
Later, Maskaron decided to switch from psychiatry to internal medicine. He did an internship for one year at the Jewish Hospital of Brooklyn and did two years of residency in internal medicine at Maimonides Medical Center in Brooklyn, New York. Still undergoing psychoanalysis, Maskaron continued to suffer from depression. During his residency in 1972, Maskaron suffered another major depressive episode and injected himself with a lethal dose of morphine, a scheduled controlled substance, in another suicide attempt.
After the second suicide attempt, Maskaron was treated in the intensive care unit at Maimonides Medical Center. After his discharge from the hospital, he received outpatient treatment by a psychiatrist recommended by the hospital and within a few weeks returned to his residency. Maskaron continued to see his treating psychiatrist until 1975.
Maskaron entered private practice in Yonkers, New York, and remained in private practice there until the beginning of 1981.
On or about February 27, 1980, Maskaron applied for a licensure as a medical physician with the Florida Board of Medical Examiners. In response to questions on the application, Maskaron swore, among other things:
That he was not then and had never
been addicted to or excessively used alco hol, narcotics, barbiturates, or any other medications;
That he was not then and had never
been emotionally or mentally ill and had never received psychotherapy;
That he had never voluntarily or otherwise been a patient in an institution for the treatment of mental or emotional illness, drug addiction or abuse, or exces sive use of alcohol;
That he had never been treated for
mental or emotional illness whether or not he was hospitalized.
By his oath, Maskaron swore that he had answered the questions completely and without reservations of any kind and that the answers were true and correct, and he acknowledged that false information "shall constitute cause for denial, suspension or revocation" of his license to practice medicine and surgery in Florida.
Maskaron knew at the time he swore to and submitted the application that he had been emotionally or mentally ill, that he had received psychotherapy and that he had been treated but not hospitalized for mental or emotional illness. He knew that the contrary answers on the application were false. He made the false statements out of fear that true answers ultimately would result in the denial of his application for licensure. He fully expected and intended to induce the Board of Medical Examiners to grant his application for licensure without having had complete knowledge of the facts concerning Maskaron's history of chronic depression, punctuated by episodes of major depressive episodes and suicide attempts. Maskaron rationalized that his false answers and subsequent licensure would cause no harm since he had not had a major depressive episode since 1972 and had been able to function as a competent physician since then.
He also rationalized that it would not be fair for his mental and emotional illness to prevent him from licensure in Florida, especially after the extremely difficult road he had to take on the way to his accomplishments (starting in 1938 in Poland). 3/
As is customary in application proceedings, the Board of Medical Examiners accepted Maskaron's answers to the questions on the application as true. The Board did not further investigate Maskaron's medical history and did not learn of his serious mental or emotional illness or his suicide attempts. Maskaron's application was routinely granted, and Maskaron was allowed to sit for the licensure examination. Maskaron passed the examination and was awarded license number ME 0037250 as a medical physician in Florida on September 2, 1980. Maskaron's license remained in effect through the date of the final hearing.
After his Florida licensure, Maskaron moved to Bradenton, Florida in March 1981. He entered into a partnership of physicians which terminated in June 1981 due to unsatisfactory financial arrangements. He moved to New Port Richey in November of 1981 and began a new practice.
When he arrived at new Port Richey, Maskaron was financially strapped. His wife was sick with progressive rheumatoid arthritis and was pregnant at the same time. Maskaron had a 2-year-old boy and a 12-year-old step-daughter to support. He became very depressed, experienced another major depressive episode, and attempted suicide by injecting himself with Demerol, a scheduled controlled substance, 25Omg. intravenously and 25Omg. intramuscularly. Maskaron was treated in the emergency room of Mease Hospital and was hospitalized for two weeks.
In January 1982, Maskaron resumed his practice. He has been under the care of a psychiatrist since the December 1981 suicide attempt.
Maskaron continues to suffer from chronic mild depression which he has been able to keep from deepening into a major depressive episode since December 1981 with the help of appropriate psychiatric care. Maskaron does not require medication at all times and was off medication during the first part of 1983. During times of extraordinary stress (such as when Maskaron received notice of the Department's administrative complaint in June 1983), Maskaron's psychiatrist prescribes medication. The medication Maskaron has been taking to help control his depression does not impair his ability as a physician. Except when he is suffering the type of major depressive episode which has led to suicide attempts in the past, Maskaron is able to practice medicine with reasonable skill and safety to his patients. Maskaron has enjoyed a good reputation among his peer medical professionals since he resumed practice in January 1982.
Historically, it has taken Maskaron approximately one month to regain his abilities to practice medicine after the type of major depressive episode which has resulted in a suicide attempt.
Maskaron's current diagnosis is chronic depression with a possibility of recurring major depressive episodes and even suicide or suicide attempts without proper psychiatric care. With proper psychiatric care, including appropriate medication as necessary, Maskaron's mental and emotional illness can be controlled and the prognosis would be good that a major depressive episode would not recur.
CONCLUSIONS OF LAW
Count One.
Count One of the Administrative Complaint alleges that Maskaron injected himself with drugs in 1968, 1972 and 1981 in violation of Section 458.331(1)(q), Florida Statutes (1983), in attempts to commit suicide.
Section 453.331(1)(q), Florida Statutes (1983), authorizes the Board of Medical Examiners to take disciplinary action for:
Prescribing, dispensing, admini stering, mixing, or otherwise preparing a legend drug, including any controlled sub stance, other than in the course of the physician's professional practice. For the purposes of this paragraph, it shall be legally presumed that prescribing, dispens ing, administering, mixing or otherwise preparing legend drugs, including all con trolled substances, inappropriately or in
excessive or inappropriate quantities is. not in the best interest of the patient and is not in the course of the physician's profes sional practice, without regard to his in tent.
Paragraph (q) of Section 458.331(1) was not enacted until 1979. Chapter 79-3021, Laws of Florida (1979). Therefore, the 1968 and 1972 suicide attempts cannot sustain this charge. See Walker & LaBerge, Inc. v. Halligan,
344 So.2d 239 (Fla. 1977). It is not necessary to consider the question whether a licensee can be disciplined under Section 458.331, Florida Statutes (1983), for conduct before licensure.
As for the 1981 incident, Maskaron injected himself with 5O0mg. of Demerol 250 intravenously and 250 intramuscularly, for purposes of committing suicide. In so doing, he administered a legend drug "other than in the course of the physicians professional practice." Accordingly, it was established that Maskaron violated Section 458.331(1)(q) as a result of the means he used to attempt to commit suicide. This violation is technical and is a relatively insignificant by-product of the more serious act, the attempt to commit suicide. But it is a statutory violation nonetheless.
Count Two.
Count Two of the Administrative Complaint alleges that the same conduct alleged in Count One establishes a violation of Section 458.331(1)(14), Florida Statutes (1983).
Section 458.331(1)(r) authorizes the Board to take disciplinary action
for:
Prescribing, dispensing, or admini stering any medicinal drug appearing on any schedule set forth in chapter 893 by the physician to himself, except one prescribed,
dispensed, or administered to the physician by another practitioner authorized to prescribe, dispense, or administer medicinal drugs.
The conclusions of law as to paragraph (q) of Section 458.331(1) apply
equally to paragraph (r). Accordingly, the evidence established a technical violation of Section 458.331(1)(r) as well.
Count Three.
Count Three of the Administrative Complaint alleges that the same conduct alleged in Count One establishes a violation of Section 458.331(1)(s), Florida Statutes (1983).
Section 458.331(1)(s), Florida Statutes (1983), authorizes the Board to take disciplinary action for:
Being 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. In enforcing this paragraph, the department shall have, upon probable cause, authority to compel a physi cian to submit to a mental or physical exami nation by physicians designated by the de partment. Failure of a physician to submit to such examination when so directed shall constitute an admission of the allegations against him, unless the failure was due to circumstances beyond his control, consequent upon which a default and final order may be entered without the taking of testimony or presentation of evidence. A physician af fected under this paragraph shall at reasona ble intervals be afforded an opportunity to demonstrate that he can resume the competent practice of medicine with reasonable skill and safety to patients. In any proceeding under this paragraph, neither the record of proceedings nor the orders entered by the board shall be used against a physician in any other proceeding.
It was proved that Maskaron was physically and mentally incapacitated in 1968, 1972, and 1981 when his chronic depression deepened into such a major depressive episode that he attempted suicide. This incapacity began at the time of each suicide attempt and ended two weeks to a month later. It was not proved that Maskaron currently is unable to practice medicine with reasonable skill and safety to patients; on the contrary, the evidence is that he is very skilled and very good as a physician.
Nor does the evidence prove it likely that a future suicide attempt would expose Maskaron's patients to unskilled care or safety risk. First, another major depressive episode and suicide attempt will be less likely if Maskaron uses appropriate professional help. Second, there was no proof that his patients suffered in 1972 or 1981 (other than from the temporary suspension of his practice of medicine). Nor was there any proof that Maskaron would be likely to treat patients with less than reasonable skill and safety even if he does attempt suicide again. On the contrary, the evidence was that Maskaron's suicide attempts have not been preceded by declining professional skill and judgment or followed by a reduced level of professional skill and judgment. Rather, another suicide attempt would affect Maskaron's patients as any other unexpected illness or even a spontaneous, unplanned vacation or leave of absence. There was no evidence that this would expose the patients to a safety risk.
Accordingly, no violation of Section 458.331(1)(s), Florida Statutes (1983), was proved.
Count Four.
Count Four of the Administrative Complaint alleges that Maskaron violated Section 458.331(1)(a), Florida Statutes (1983), by submitting false or misleading information on his application for licensure on the general subject of his depression and suicide attempts.
Section 458.331(1)(a), Florida Statutes (1983), authorizes the Board to take disciplinary action for:
(a) Attempting to obtain, obtaining, or renewing a license to practice medicine by bribery, by fraudulent misrepresentations, or through an error of the department or the board.
The allegation in this case is that Maskaron obtained his Florida license by fraudulent misrepresentations.
A fraudulent misrepresentation is a false statement of fact, known to be false and made to induce action or inaction in reliance on it. (To sustain a common law action in deceit or an equitable action in fraud, the fraudulent misrepresentation must also induce the desired action or inaction and result in damage to the plaintiff.) Cf. Vance v. Indian Hammock Hunt & Riding Club, 403 So.2d 1367 (Fla. 4th DCA 1981).
In this case Maskaron made fraudulent misrepresentations on his application for licensure and therefore violated Section 1458.331(1)(a), Florida Statutes (1983).
Mitigating factors explain why Maskaron did this and should be taken into account in any further proceedings. But the misrepresentations nonetheless misled the Board and allowed Maskaron to avoid his obligation to prove his qualification for licensure notwithstanding his mental and emotional illness and suicide attempts. Revocation of Maskaron's license and his re-application would return the burden of proof to its proper place--on Maskaron, not the Board. (Of course, the parties could--and, in this case, probably should--agree to an appropriate resolution of Maskaron's re-application short of formal administrative proceedings.)
Count Five.
Count Five of the Administrative Complaint repeats the allegations of Count Four and alleges that the alleged conduct also establishes a violation of Section 455.227(1)(e) and 458.331(1)(h), Florida Statutes (1983).
Section 455.227(1)(e), Florida Statutes (1983), provides:
(1) The board shall have the power to revoke, suspend, or deny the renewal of the license, or to reprimand, censure, or other wise discipline a licensee, if the board finds that: ....
(e) The license has been obtained by fraud or material misrepresentation of a material fact....
As discussed in relation to Count Four, Maskaron did obtain his Florida license by fraud. Since "material misrepresentation of a material fact" is one of the elements of fraud (albeit redundantly worded), it follows that Maskaron also obtained his Florida license by "material misrepresentation of a material fact." For both reasons, the violation of Section 455.227(1)(e) was established.
Section 458.331(1)(h), Florida Statutes (1983), authorizes the Board to take disciplinary action for:
(h) Failing to perform any statutory or legal obligation placed upon a licensed physician.
Count Five alleges that Maskaron's violation of Section 455.227(1)(e) in itself constitutes a violation of Section 458.331(1)(h). but all of the conduct alleged in support of the violation of 455.227(1)(e) took place before Maskaron became licensed. It therefore cannot form the basis of a charge that Maskaron failed to perform "any statutory or legal obligation placed upon a licensed physician." (Emphasis supplied.) Accordingly, no violation of Section 458.331(1)(h), Florida Statutes (1983), was established.
Count Six.
Count Six of the Administrative Complaint alleges that Maskaron's 1968, 1972 and 1981 suicide attempts resulted in violations of Section 893.05(1), and therefore 458.331(1)(h), Florida Statutes (1983).
Section 893.05(1), Florida Statutes (1983), provides, in pertinent part:
A practitioner, in good faith and in the course of his professional practice only, may prescribe, administer, dispense, mix, or otherwise prepare a controlled substance, or he may cause the same to be administered by a licensed nurse or an intern practitioner under his direction and supervision only.
Section 893.05(1) actually is an exception to the general prohibition in Section 893.13, Florida Statutes (1983).
A review of Section 893.13 discloses that it does not apply to the use of a controlled substance by a physician in an attempt to commit suicide. Since Maskaron was a physician in 1972 and 1981, the suicide attempts in those years cannot establish a violation of the statute. As to the 1968 and 1972 suicide attempts: (1) the events took place in New York; and (2) the statute had not yet been enacted. See Chapter 73-331, Laws of Florida (1973). As to the 1968 suicide attempt, it also was not proved that controlled substances were involved. Accordingly, no violation of Section 893.05(1) [or 893.13 or 458.331(1)(h), Florida Statutes (1983), was established. (Again, there is no need to consider the question whether a licensee can be disciplined under Section 458.331, Florida Statutes (1983), for conduct before licensure.)
Based on the foregoing Finding Of Fact and Conclusions Of Law, it is RECOMMENDED that:
RECOMMENDED this 12th day of December, 1984, at Tallahassee, Florida.
J. LAWRENCE JOHNSTON Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1984.
1/ Both parties submitted proposed findings of fact. The proposed findings of fact were reviewed, and the following findings of fact attempt to rule, either directly or indirectly, on each proposed finding of fact. Proposed findings of fact which were approved and adopted were reflected in the following Findings Of Fact. Where proposed findings of fact are not reflected in the following Findings Of Fact and no direct ruling rejecting the proposed findings of fact are apparent in the following Findings Of Fact, the proposed findings of fact have been rejected as either being not proved by competent substantial evidence, being cumulative, being subordinate or being irrelevant.
2/ Paragraphs 1 and 2 of these Findings Of Fact are not based on Maskaron's testimony--he did not testify. Nor are they based upon the testimony of Maskaron's psychiatrists--their testimony constituted hearsay which alone could not support a findings of fact under Section 120.58(1)(a), Florida Statutes (1983). Rather, they are based upon Respondent's Exhibit 4. At the final hearing, the Department adopted Respondent's Exhibit 4 as its own and co-offered it in evidence. This converted Respon dent's Exhibit 4 from what otherwise would have been inadmissible hearsay on which no findings of fact could be based into an admissible party admission, under Section 90.803(18), Florida Statutes (1983).
3/ The psychiatrists' testimony to the effect that Maskaron did not know his answers were false and did not intend to deceive the Board of Medical Examiners was not persuasive, particularly in light of Maskaron's own admissions to the contrary, and is rejected. Even disregarding Maskaron's testimony, both psychiatrists' testimony hinged on the fact that Maskaron listed David Grob, M.D., Maimonides Medical Center, on his application as a physician who could recommend Maskaron. Both psychiatrists presumed that Grob knew enough detail about the seriousness of Maskaron's 1968 and 1972 suicide attempts to expose Maskaron if he had been lying in his answers to the questions in the application. However, when Grob responded to the Board's March 14, 1980 inquiry about Maskaron, he stated only: "Dr. Maskaron had some emotional problems during his residency here (1969). I have no information subsequent to 1969.
His problems related to his own mood, and did not affect his relationship with others."
At the final hearing, respondent objected to the admission of Petitioner's Exhibits 3 and 4 to the extent that they attempted to introduce statements made by Maskaron's previous counsel as admissions by Maskaron. The objection is sustained as to Petitioner's Exhibit 4, the transcript of a hearing Maskaron did not attend. The objection is overruled as to Petitioner's Exhibit 3, the transcript of a hearing Maskaron did attend and at which he testified, and Petitioner's Exhibit 3, including the statements by Maskaron's counsel, is received in evidence under Section 90.8O3(18),(22) Florida Statutes (1983).
However, it should be noted that the Hearing Officer placed no particular reliance upon the statements by Maskaron's prior counsel contained in Petitioner's Exhibit 3. They did little more than corroborate Maskaron's own former testimony.
Joseph W. Lawrence, II, Esquire Cecilia Bradley, Esquire Department of Professional
Paul B. Johnson, Esquire Robert E. Johnson, Esquire Post Office Box 3416 Tampa, Florida 33601
Fred M. Roche, Secretary
