STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRUCE KRAMMER, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 84-3199

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

MEDICAL EXAMINERS, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on to be heard on January 17, 1985 in Orlando, Florida before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing by:

For Petitioner: Robert W. Smith, Esquire

20 North Orange Avenue, Suite 1400 Orlando, Florida 32801

For Respondent: M. Catherine Lannon, Esquire

Department of Legal Affairs Room LL04, The Capitol Tallahassee, Florida 32301

At the hearing, two exhibits were received from Bruce Kramer, M.D., Petitioner, and one from the Board of Medical Examiners, Respondent. Petitioner testified on his own behalf and there were no other witnesses. No transcript of the hearing was filed.

The parties were allowed to submit proposed findings of fact and conclusions of law. In making the following findings of fact Respondent's proposed findings of fact one through four have been considered and substantially approved. To the extent they are not specifically incorporated in the following findings of fact all other proposed findings are rejected as subordinate, cumulative, immaterial, unnecessary or not based on competent, substantial evidence.

Before testimony and the introduction of evidence began, Respondent moved to limit all evidence to that which was available at the time Respondent acted on Petitioner's application. The motion was denied since consideration of current circumstances external to the application is proper in a Section 120.57 proceeding which is intended to formulate final agency action and not simply review action taken earlier and preliminarily. McDonald v. Department of Banking and Finance, 346 So.2d 569,584 (Fla. 1st DCA 1977).

FINDINGS OF FACT

1. In February, 1984 Petitioner applied to Respondent for licensure by examination under Section 458.311(2), F.S., but after review of said application at a meeting held on June 10, 1984, Respondent issued an Order dated July 21, 1984 denying said application.

   
   

2. Petitioner received a degree which is designated Doctor of Medicine on May 2, 1983 from the Universidad Techologica de Santiago, (UTESA), Santo Domingo, Dominican Republic. He has been in residency at Orlando Regional Medical Center since June 28, 1983.

   
   

3. Various required clerkships were performed by Petitioner between August 2, 1982 and February 28, 1983 in hematology, obstetrics and gynecology, pediatrics, dermatology and ENT/0phth., and were performed completely, or partially at osteopathic hospitals, or under the supervision of osteopathic physicians. An additional one month elective clerkship was also performed in April 1983 at Southeastern College of Osteopathy.

   
   

4. Petitioner passed the exam given by the Educational Commission for Foreign Medical Graduates (ECFMG) on March 15, 1983, but has not been certified due to the need for additional institutional verification.

   
   

5. Respondent informed Petitioner of the decision of ECFMG to withhold verification of certification and also informed Petitioner of its duty to approve or deny an application for licensure within ninety (90) days, unless waived by the applicant. Petitioner declined to consent to a waiver and requested Respondent to act on his application without verification of an ECFMG certificate.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction in this matter. Section 120.57, F.S. The Respondent has the responsibility to certify applicants for examination for licensure to practice medicine. Section 458.311, F.S.

   
   

7. Section 458.311(2), F.S., sets forth requirements for licensure by examination of graduates of foreign medical schools, and provides:

   
   

   . . . graduates of foreign medical schools, except approved schools in Canada, who are otherwise qualified, whose medical credentials have been evaluated by the Educational Commission for Foreign Medical Graduates, and who have passed the Educational Commission

   for Foreign Medical Graduates examination may be accepted for the examinations in Florida.

   
   

   A foreign medical graduate need not present a certificate issued by ECFMG or pass the ECFMG exam if he is licensed in at least one other state whose examination requirements have been approved by the Respondent as substantially equivalent to, or more stringent than, the Florida exam, and he has been examined and certified as a specialist by an appropriate specialty board accredited by the Council on Medical Education of the American Medical Association. Section 458.311(2)(a) and (b), F.S. No evidence was presented to show that either of these two conditions exist which would relieve Petitioner of

   the requirement that he pass the ECFMG exam and be certified following evaluation of his medical credentials by ECFMG. Although he has passed the ECFMG exam, Petitioner was not certified at the time the Respondent acted in June, 1984, and the evidence presented indicates Petitioner has still not been certified by ECFMG. Such certification is essential since it evidences the satisfactory evaluation of a person's medical credentials.

   
   

8. Respondent also contends that petitioner's foreign educational background, which included several clerkships in osteopathic hospitals or under the supervision of osteopathic physicians, was not a foreign medical education as referred to in Section 458.311(2), F.S. Clearly, the "practice of osteopathic medicine" differs from the "practice of medicine". See Sections 459.003(3) and 458.305(3), F.S. These are two separate professions, regulated by separate licensing boards pursuant to separate statutory requirements. Chapters 458 and 459, F.S. Since a significant part of Petitioner's education consisted of clerkships in osteopathic hospitals or supervised by osteopathic physicians, it is reasonable for Respondent to conclude that Petitioner's education was not "medical" and that he has not established that he can practice medicine, as defined in Chapter 458, with reasonable skill and safety. Agencies are given wide discretion in the interpretation of a statute which they administer and such interpretation will not be overturned unless clearly erroneous. Natelson v. Department of Insurance, 454 So.2d 31 (Fla. 1st DCA 1984).

   
   

9. Finally, Respondent has defined the terms "foreign medical graduates" and "foreign medical degree" in Rule 21M 22.01, F.A.C., as follows:

   
   

   Foreign Medical Graduates: Foreign Medical Degree; Definition of. A foreign medical graduate is a person holding a medical degree awarded by a college or school located outside the United States or Canada. A medical degree, as described herein, is deemed to be that paper or document which would permit the holder the unrestricted practice of medicine in the country or state wherein the college

   or school attended is located and wherein the degree is bestowed.

   
   

   Accordingly, if a person receives a degree from a school outside the United States which permits the unrestricted practice of medicine in the country where the school is located, the person is a foreign medical graduate for whom the provisions of Section 458.311(2), F.S., would be available.

   
   

10. There is no competent substantial evidence in the record that would establish whether the degree received by Petitioner from the Universidad Techologia de Santiago (UTESA) would permit Petitioner the unrestricted practice of medicine in the Dominican Republic such that he would meet the definition of "foreign medical graduate" in Rule 21M-22.01, F.A.C., and thereby be eligible for licensure by examination in Florida under Section 458.311(2), F.S. Petitioner has the burden of establishing that he is a foreign medical graduate as defined in Rule 21M-22.01 in order for Section 458.311(2), F.S., to be applicable to him. By failing to establish that he received a foreign medical degree as defined in Rule 21M-22.01, he has failed to establish that he is a foreign medical graduate who can rely on Section 458.311(2), F.S. for licensure by examination.

RECOMMENDED ORDER

Based upon the foregoing, Petitioner has not met the requirements for licensure by examination since he is not certified by the Educational Commission for Foreign Medical Graduates, has not received a foreign medical education, and has not established that he is a foreign medical graduate, as defined in Rule 21M-22.01, F.A.C., for purposes of licensure by examination under Section 458.311(2), F.S. Accordingly, it is recommended that Petitioner's application for licensure by examination be DENIED.

DONE and ORDERED this 26th day of February, 1985 at Tallahassee, Florida.

DONALD D. CONN, 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 26th day of February, 1985.

COPIES FURNISHED:

Robert W. Smith, Esquire

20 North Orange Avenue Suite 1400

Orlando, Florida 32801

M. Catherine Lannon, Esquire Department of Legal Affairs Room LL04, The& Capitol Tallahassee, Florida 32301

Fred Roche, Secretary

Dept. of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore Carpino, Esquire

Dept. of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 84-003199

Orders for Case No: 84-003199