STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JEFFREY J. GAIER. M.D., )
)
Petitioner, )
)
vs. ) CASE NO. 84-3438
)
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )
)
Respondent. )
)
RECOMMENDED ORDER
This cause came on for formal hearing before Ella Jane P. Davis, duly- appointed Hearing Officer of the Division of Administrative Hearings, on September 17, 1985, in Fort Lauderdale, Florida.
APPEARANCES
For Petitioner: Salvatore D. DeFelice, Esquire
515 Southeast Seventh Street Fort Lauderdale, Florida 33301
For Respondent: Susan Tully, Esquire
Assistant Attorney General Department of Legal Affairs Room LL-04, The Capitol Tallahassee, Florida 32301
ISSUE PRESENTED
Whether Petitioner is qualified to be licensed as a medical doctor in Florida by endorsement.
PRELIMINARY STATEMENT
Petitioner Jeffrey Jad Gaier applied for licensure as a medical doctor in Florida by endorsement. After a personal appearance before the Foreign Graduate Committee of the Board of Medical Examiners, that committee recommended his application be approved but his application for licensure by endorsement was denied by the full Board. He made a timely request for hearing and the matter was referred to the Division of Administrative Hearings.
Petitioner presented the oral testimony of Robert P. Katims, M.D., Neil Katz, M.D., and Petitioner, Jeffrey J. Gaier. Petitioner had eleven exhibits admitted in evidence. Respondent presented further testimony of Robert B. Katims, M.D.
Transcript of proceedings was filed by Respondent on October 15, 1985.
Thereafter, the parties filed proposed findings of fact and conclusions of law, by stipulation, within 15 days. Accordingly, the 30 day period for entry of this Recommended Order has been waived. The parties' proposals have been considered in preparation of this Recommended Order and are ruled upon in the Appendix hereto.
FINDINGS OF FACT
Petitioner Jeffrey Jad Gaier applied for licensure by endorsement in Florida by filing a written application in November of 1983 with the Board of Medical Examiners, which is within the Department of Professional Regulation.
He made a personal appearance before the Foreign Graduate Committee of the Board of Medical Examiners in April 1984.
After Petitioner's appearance before the Foreign Graduate Committee, the Foreign Graduate Committee made a favorable recommendation regarding Petitioner's application for licensure to the Board of Medical Examiners. However, the full Board of Medical Examiners voted to deny Petitioner's application for licensure.
On May 21, 1984, the Board of Medical Examiners rendered an Order denying Petitioner's application for licensure as a physician by endorsement, stating as the grounds:
Your application and supporting documentation does not provide sufficient information to demonstrate that you can practice medicine with reasonable skill and safety. See Section 458.331(3), F.S. More specifically, the clinical training you received while attending the American University of the Caribbean as disclosed within your documentation was determined to be insufficient insofar as the clinical training was not received at a hospital affiliated with a medical school approved by the Counsel [sic] on Medical Education of the American Medical Association.
The denial of Petitioner's application for licensure by endorsement was taken before the Board of Medical Examiners for reconsideration on February 3, 1985. Counsel for Petitioner was present at the hearing. At that hearing, the discussion by the Board of Medical Examiners of the request for reconsideration clarified the basis for the denial of the medical license as being the overall inadequacy of the clinical training and not specifically because the clinical training was not obtained at teaching hospitals. Except for the purposes of clarifying the issue(s) herein the collegial actions of the board are irrelevant to the instant de novo proceedings.
Petitioner received a B.S. degree from Clark University, Massachusetts and a Masters degree in science education from Florida Institute of Technology, August 1978.
Petitioner was granted a medical degree by the American University of the Caribbean after being enrolled at that school for less than three years.
During that time, Petitioner was on the campus of the American University in Montserrat, British West Indies for only eight months. There the class used prepared slides instead of gross tissue samples.
Before that, Petitioner studied at the campus in Cincinnati, Ohio, where the class used rubber cadavers instead of human cadavers.
All of the clinical training received by Petitioner as part of the requirements for the completion of the medical degree consisted of preceptorships at hospitals in south Florida which included Florida Medical Center, Plantation General Hospital, University Community Hospital, and Bennett Community Hospital.
Dr. Neil Katz, Petitioner's principal expert medical witness, supervised Petitioner for six weeks in a preceptorship in Family Practice.
Dr. Katz is a board-certified Family Physician and a fellow of the American Academy of Family Practice. He has been Chairman of the Emergency Room Department, a member of the Credentials and Qualifications Committee, and a member of the Intensive Care Unit Committee at University Hospital, Tamarac, Florida. He has taught both foreign medical students in a clinical setting and has briefly qualified as a preceptor for the University of Florida College of Medicine.
Dr. Katz actually supervised Petitioner only for the six-week period at the very beginning of Petitioner's rotations. After that six-week period of time, he only "touched base" with Petitioner, seeing him on an informal basis in the cafeteria or at meetings.
During the six weeks formal observation period, Petitioner accompanied Dr. Katz in his work in his office, during hospital rounds, at the emergency room, and for most other activities that Dr. Katz participated in, including committee meetings at the hospital. Petitioner took histories and did physicals on patients under direct supervision. Petitioner displayed enthusiasm and energy in his association with Dr. Katz and the rest of the program. Dr. Katz found Petitioner "barely acceptable" in three of the nine categories for which he was to evaluate Petitioner during the preceptorship. These categories were diagnostic acumen, therapeutics and management, and medical knowledge. In explaining that evaluation, Dr. Katz testified that although Petitioner was able to take a history and a physical examination, he was not able to make a diagnosis. In fact, Dr. Katz testified that Petitioner did not have truly acceptable knowledge at the time as to the various therapeutic modalities available to a physician. He encouraged Petitioner to do more reading.
During his preceptorship with the University of Florida Medical School students in their first clinical semester, Dr. Katz also saw problems similar to those exhibited by Petitioner, specifically that the University of Florida students were not "super ready," so to speak, on diagnosing and doing differential diagnoses and therapeutics at that particular stage in medical school because they were still learning.
I accept Dr. Katz' opinion that Petitioner had adequate exposure to the major diseases and injuries which are common to Family Medicine, sufficient for Petitioner to go into an internship, but in light of his lack of involvement with Respondent's other preceptorships in several different hospitals after the first six weeks, and in light of his specific testimony that in his professional opinion, American-trained students were far superior to the Caribbean-trained
students at the same level in terms of general knowledge (TR-65-66), Dr. Katz' opinion that Petitioner did "quite good" at the end of the year and a half period is without adequate predicate and is not persuasive.
Dr. Isidoro Dunn was the primary force in the arrangements for preceptorships. Dr. Dunn talked with each preceptor to work out areas which should be covered in their respective rotations. Each preceptor had a "fair amount of latitude" in deciding how to supervise the students.
Petitioner was assigned by his school to do his clinical rotations in Florida. He did 14 weeks in internal medicine, 14 weeks in surgery, 10 weeks in pediatrics, 10 weeks in obstetrics/gynecology, 4 weeks in psychiatry, and 10 weeks in electives. This totals 62 weeks, not even close to two years which is the norm in medical schools in the United States.
Petitioner was required to follow patients from admission to discharge in each specialty within each of these clinical rotations. Petitioner had didactic teaching on a daily basis, weekdays. Petitioner represents that he had specific didactic courses in hematology, EKG readings, pathology, orthopedics, cardiology, radiology, and gastrointestinal invasive procedures. In each subspecialty, he had a written examination after completion of the rotation, didactic teachings in each rotation, and was required to read medical journals.
On Saturdays, Petitioner was required to participate in case conferences, make case presentations, and complete assigned reading from current medical journals. The case presentations necessitated review of patient records, laboratory tests, x-rays, and pathology slides.
On "patient management reviews," the Petitioner was "exposed to" or "spent time in" the dialysis unit, pathology laboratory, intensive care unit, emergency room, gastrointestinal unit, blood lab, catherization department, radiology department, EKG unit, and cardiac surgery unit.
Petitioner testified, and Dr. Katz confirmed, that there was an entity called the "Doctors' Club," which had a considerable amount of audiovisual equipment available for use 7 days a week, 24 hours each day. Practicing physicians used this media to obtain continuing medical education approved for credit by the American Medical Association. Petitioner represented that "on several days" he signed out equipment or reading material. There is no precise language in his testimony that he used the equipment or that he read the reading material, but drawing any other inference is straining the clear meaning of Petitioner's unrebutted testimony. Petitioner and the other students were required to use various materials from this service, but there is no evidence that Petitioner or other students were objectively checked by Dr. Dunn or their preceptors to verify that they had actually read or viewed the material assigned. Petitioner specifically testified that there was not necessarily any follow-up by the preceptors. Dr. Katz did talk with Petitioner about the reading assignments he gave.
Petitioner was required to pass a competency examination for each rotation.
Petitioner's clinical studies evaluation forms in his school records indicate no overall evaluation grades below "Good."
Petitioner was required to attend and pass both a written and practical examination for a two-day Advanced Cardiac Life Support Course. This
course is required even of board certified emergency room (ER) physicians. In Petitioner's opinion, this course was imperative for medical doctors who might work in an emergency room because they need to be very familiar with how to handle a patient presenting with a cardiac arrest, including the administration of drugs, "cardioversion" and "intubation."
To the best of Petitioner's knowledge, Dr. Dunn was to report the students' progress to the dean of the American University of the Caribbean. However, the predicate for that testimony is hearsay, uncorroborated by any direct, credible evidence. As for the relationship with the university, Dr. Katz had no knowledge as to any arrangement between Dr. Dunn and the American University of the Caribbean or any counterpart-sponsoring organization in the United States. He did not know if there was any arrangement whatsoever.
Dr. Katims was accepted as an expert physician witness, as an expert teaching fellow witness, and as an expert witness in medical applications and licensure. He testified that in the normal course of medical education in the United States, part of a student's medical education is clinical training, and that experience consists of bedside outpatient treatment and supervised training under the supervision of a faculty selected particularly for their knowledge, background, and interest in education and teaching.
Dr. Katz testified unequivocally that a preceptorship is very different from a clinical rotation or a clerkship. A clerkship takes place in a teaching hospital, which is a very structured environment, wherein students make rounds in a very large hospital and are given instruction in an approved clinical structure. In contrast, a preceptorship gives students more knowledge about what private practice is like and it gives students a view of direct patient care, but does not replace a formal teaching setting in clinical medicine. As recognized above, in Dr. Katz' opinion, American-trained students were far superior to the Caribbean-trained students at the same level in terms of general knowledge.
In Dr. Katims' opinion, Petitioner's clinical studies consisting of only four semesters were not sufficient for him to practice medicine with reasonable skill and safety.
Dr. Katims testified concerning the importance of clinical training in medical education, commenting that clinical training is the sine qua non of the practice of medicine. In the usual clinical rotation, medical students are assigned to a particular area of a hospital and perform under the full-time supervision of attending physicians. In teaching hospitals, faculties are selected for their ability, interest, and dedication to education, as well as to the practice of medicine. The attending staff at a teaching hospital include house physicians, interns, and residents. Dr. Katims himself has served as a preceptor and testified that a preceptorship is one method of obtaining a minor portion of clinical training, but is very unstructured and unsupervised. Dr. Katims testified that preceptorship training is an inferior method of training because the quality of training depends totally on the quality of the physician to whom the student is assigned and the program is unstructured.
There was no testimony that any of the preceptors that supervised, or purportedly supervised, Petitioner were faculty members of any medical school, let alone the American University of the Caribbean.
Upon the Requests for Admissions and the Joint Pre-Trial Stipulation of the parties, it is found that: the State of Florida Board of Medical
Examiners has granted a medical license to a Dr. Flugsrud-Breckenridge and a Dr. Cobb, both having non-teaching clerkships. Three doctors, Adela Fernandez, Andrew Gonzalez, and Manuel E Garcia, did their clerkships principally at the International Hospital (Miami), a non-teaching/non-medical school-associated hospital, and obtained Florida medical licenses. At least 25 foreign graduates received Florida medical licenses within the years 1981-1984 and did their clerkships principally in non-teaching/non-medical school associated hospitals.
No further information appears of record by which the undersigned may determine any other similarities or dissimilarities of these licensees to each other and/or to Petitioner. Nor does the record divulge what, if any, other facts may have been considered in these cases.
Petitioner is licensed to practice medicine in Georgia and is a resident of Florida.
Petitioner passed the first time his Educational Commission for Foreign Medical Graduates' (ECFMG) examination was given in June, 1981. The examination is a prerequisite to acceptance in a medical residency program.
The Federation of State Medical Boards of the United States, Inc.'s (FLEX) examination is recognized by all 50 states, including Florida. Petitioner took this examination after completing his rotations in Florida. Petitioner passed the June 1982 FLEX examination with an 84 percentile ranking. Fifty percent of this test is on patient management. This clinical competence examination was taken before Petitioner started his first year of residency.
Petitioner had passed the FLEX examination, completed one year of residency, and obtained a medical license in another state, Georgia, by the time of the April 1984 application hearing.
In Dr. Katims' opinion, Petitioner's successful passage of the FLEX examination in the 84 percentile does not show Petitioner to have had good clinical rotations, even though the FLEX test consisted of 50 percent on patient management. Dr. Katims did not feel that by the time Petitioner was in his fourth year of residency, this would be curative of deficiencies in the clinical semesters at a non-teaching hospital, but expressed the opinion that if Petitioner passes his internal medicine board examination and becomes board certified, his clinical deficiencies would be cured and Petitioner should then be granted a Florida medical license by endorsement.
Dr. Katz opined that Petitioner presently possesses the medical knowledge, judgment and competency to act with reasonable skill and safety in the practice of medicine in Florida.
Affidavits of Ira Spiler, M.D. and John R. Middleton, M.D. support similar opinions of these New Jersey medical physicians.
Petitioner has completed three years (July 1, 1982 to June 30, 1985) of Internal Medicine residency at Raritan Bay Medical Center, Perth Amboy General Hospital, New Jersey.
Petitioner is presently enrolled in a Nephrology Fellowship program, Medical College of Georgia, a teaching hospital located at, and affiliated with, the University of Georgia Medical School.
Petitioner is currently eligible for board certification in internal medicine and will be certified in the event he passes the board examination taken September 10-11, 1985.
Petitioner has submitted letters of Ira Spiler, M.D. and Salvatore Chiaramida, M.D., both of New Jersey attesting to Petitioner's good moral character, and no contrary evidence was turned up by the Board's investigation.
The parties have stipulated that Rule 21M-22.18, Florida Administrative Code, is not applicable to Petitioner's situation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause.
The parties have stipulated that Rule 21M-22.18, Florida Administrative Code, effective November 28, 1984, is not applicable to Petitioner's situation. Therefore, although that Rule as amended effective March 13, 1985 has recently survived a rule challenge in Jack I. Newcomer et al
v. Board of Medical Examiners, DOAH Cases 85-2468R and 85-2647R (consolidated), Final Order of Hearing Officer Donald D. Conn entered October 28, 1985, neither the rule nor its amendment need be addressed here.
The granting of a number of medical licenses (25-30) over the 1981- 1984 period as set out in Finding of Fact Paragraphs 19 a-b is not necessarily indicative of an inconsistent rule or of inconsistent application of a rule to Petitioner versus other applicants for licensure by endorsement. The board ruling on Petitioner's application was a ruling on Petitioner's individual qualifications without any specific rule being applied.
To the extent that Rule 21M-22.18, Florida Administrative Code, was in the process of being formulated based upon rulings as to individual applicants, this is authorized by incipient policy making. See McDonald V. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977)
There is insufficient evidence to show either that the Board established "categorical requirements" of this Petitioner so that an analogy may be drawn between his situation and that of the applicant in McCarthy V. Department of Insurance and Treasurer, Case No. 84-2353 (Fla. 2d DCA 1985), 10 FLW 2344, or that there were not other individual qualifications considered with respect to each of the other successful licensees beyond those similarities pointed up in the Requests for Admissions and Joint Stipulation in this case. See Findings of Fact Paragraphs 19 a-b. There are also differences between clinical training through hospital rounds, through clerkships, and through preceptorships which have been brought out in the instant case and which render impossible any valid comparison of Petitioner with the 25-30 successful licensees referenced in the Requests for Admissions and Joint Stipulation.
Respondent's assertion that Section 458.331(3), Florida Statutes, applies to initial licensures and to situations other than those where specific statutory violations are found is rejected upon authority of Bachynsky V. Department of Professional Regulation, Board of Medical Examiners, 471 So.2d 1305 (Fla. 1st DCA 1985). Even if applicable, it would not be a bar to licensure under the facts of this case.
Therefore, certain pertinent subsections of Sections 458.311 and 458.313, Florida Statutes, are to be interpreted and applied together as necessary. The undersigned has applied the statutes in effect at the time of Petitioner's application.
Section 458.313, Florida Statutes (1983), provides in pertinent part:
The department shall issue a license by endorsement to any applicant who, upon applying to the department and remitting a fee not to exceed $250 set by the board, demonstrates to the board that he has met the qualifications for licensure in Section 458.311 and:
Is more than 18 years of age;
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 Section 458.331;
Is a graduate of a medical school or college maintaining a standard and reputation approved by the board pursuant to Section
458.311 and
Has been certified by licensure examination of the Federation of State Medical Boards of the United States, Inc.(FLEX) or is certified by the National Board of Medical Examiners as having completed its examination;
provided that said examination required shall have been so certified within the 10 years immediately preceding the filing of his application for licensure under this section. (Emphasis supplied)
Section 458.311, Florida Statutes, (1983) provides in pertinent part:
Any person desiring to be licensed as a physician shall apply to the department to take the licensure examination. The depart- ment shall examine each applicant who the board certifies has:
Completed the application form and remitted an approved examination fee not to exceed $250 as set by the board.
Graduated from a medical school or college recognized and approved by an accrediting agency recognized by the United States Office of Education.
Completed an approved internship of at least 1 year or at least 5 years of licensed practice.
Notwithstanding the provisions of paragraph (1)(b), 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 (ECFMG) examination may be accepted for the examinations in Florida.
However, a graduate of a foreign medical school need not present the certificate by said educational commission or pass the Educational Commission for Foreign Medical Graduates examination if:
He is licensed through written examination in at least one state of the United States whose examination require- ments shall have been approved by the board as substantially equivalent to or more stringent than the Florida examination; and
His license is in good standing in said state; and
He has continuously and actively engaged in the practice of medicine in said state for any 4 of the preceding
5 years immediately prior to application; and
He has been examined and certified as a specialist by one of the appropriate American specialty boards accredited by the Council on Medical Education of the American Medical Association.
Notwithstanding the provisions of para- graph (1)(b), a graduate of a foreign medical school need not present the certificate issued by the Educational Commission for Foreign Med- ical Graduates or pass the Educational Commis- sion for Foreign Medical Graduates examination if he:
Has completed undergraduate work in an accredited United States college or university.
Has studied at a medical school which is recognized by the World Health Organization.
Has completed all of the formal require- ments of the foreign medical school, except the internship or social service requirements, and has passed part I of the National Board of Medical Examiners examination or the Educational Commission for Foreign Medical Graduates examination equivalent.
Has completed an academic year of supervised clinical training in a hospital affiliated with a medical school approved by the Council on Medical Education of the Ameri- can Medical Association and upon completion has passed part II of the National Board of Medical Examiners examination or the Educational Commission for Foreign Medical Graduates examination equivalent. (Emphasis supplied)
Relating these sections presents certain problems. Standing alone, all of Section 458.311(1),(2), and (3), Florida Statutes, sets out methods to be applied seriatim by which applicants may qualify to take the Florida medical
license examinations, but Petitioner's argument that only Section 458.311(2), Florida Statutes, applies in this case because he had the ECFMG certificate is not persuasive. The similar subject matter, context, language and syntax employed by the legislative drafters within Section 458.313(1)(c) clearly contemplates that they intended Section 458.313(1)(c) to be read in conjunction with all of Section 458.311 and not in conjunction with only a single subsection thereof. However, in the instant case, since only subsections 458.311(2) and
(3) cover "graduates of foreign medical schools," it is both of these subsections which apply to Petitioner. If Subsection 458.311(2) does not adequately inform us what "otherwise qualified" means, we may look to (3). Note also that (3)(d) requires part of the NBE examination or an equivalent of the ECFMG examination certificate in addition to certain specific requirements in (3)(a through c), just as (2) requires that the foreign graduate be "otherwise qualified" in addition to passing the ECFMG. See also footnote 1 infra.
Clearly, Petitioner has affirmatively established that he meets endorsement criteria (a), (b), and (d) of Section 458.313(1): He is more than
18 years old; he is of good moral character; he not only passed the ECFMG examination and met that agency's requirements but he passed the FLEX examination with an 84 percentile. As related in the findings of fact, he has many additional significant achievements.
However, it is with regard to subsection 458.313(1)(c) that the controversy arises.
Section 458.313(1)(c) provides he must be:
. . . a graduate of a medical school or college maintaining a standard and reputation approved by the board pursuant to Section 458.311 . . .
Past case opinions most frequently only discuss Section 458.311(3)(b) as relating back to Section 458.313(1)(c) for endorsement. That is apparently because only Section 458.311(3)(b) directly pertains to foreign medical schools instead of to foreign medical school graduates. Section 458.311(3)(b) provides a foreign medical school graduate must have:
. . . studied at a medical school which is recognized by the World Health Organization."
In the instant case, Respondent advances the proposition that if read together the broad purpose of the Medical Practices Act as expressed in Section
458.301 and the specific language contained in Subsection 458.311(2), Florida Statutes, permitting the Board to determine if graduates of foreign schools are "otherwise qualified," allow the Board, i.e. the Hearing Officer, to look behind the "mere piece of paper" constituting an applicant's degree so as to determine not only whether or not he is a graduate of a medical school or college maintaining a standard or a reputation approved by the Board pursuant to Section
458.311 but also to determine if the applicant in fact received the claimed medical education. The Respondent's point is well taken. Also, in light of the provision of Section 458.313(1), emphasized supra, which requires that the applicant for endorsement "demonstrates to the board that he has met the qualifications for licensure in Section 458.311 and:" the criteria of 458.313(1)(a through d), an approach considering only Subsection 458.311(3)(b) as relating back would be too narrow.
Section 458.311(2) allows Respondent to determine if graduates of foreign medical schools are "otherwise qualified." Section 458.311(3)(b),
although stating only "studied at" surely contemplates "graduation from" a medical school recognized by the World Health Organization under the circumstances of this case. 1/ Section 458.311(3)(d) specifies a "medical school approved by the Council on Medical Education of the American Medical Association."
Petitioner bears the burden of proof in these de novo proceedings. There has been no affirmative showing that the American University of the Caribbean is a medical school or college maintaining a standard and reputation approved by the board pursuant to any portion of Section 458.311. There has been no affirmative showing that it is recognized by the World Health Organization. There has been no affirmative showing that the American University of the Caribbean is approved by the Council on Medical Education of the American Medical Association. Further, it is doubtful that it can be said that the loose arrangement between the American University of the Caribbean and the various south Florida hospitals utilizing Dr. Dunn as some sort of conduit can be termed a "hospital affiliated with a medical school." Looking at the Petitioner's situation, he spent 62 weeks (more than a year) in clinical training but the degree of supervision was, to put it mildly, "informal." There is no evidence that the medical school structured or supervised the preceptorships or even that Dr. Dunn or any of the supervising precepters were faculty members of the American University of the Caribbean.
Since the burden of proof has not been met in the instant case, it is recommended,
That the Florida Board of Medical Examiners enter a final order denying Petitioner a medical license by endorsement.
DONE and ORDERED this 16th day of January, 1986, in Tallahassee Florida.
ELLA JANE P. DAVIS
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 1986.
ENDNOTE
1/ If Subsection 458.311(3)(b) is read literally as "studied at" it is inconsistent with Section 458.311 which literally states "a graduate of a foreign medical school." The undersigned acknowledges Petitioner's argument that Subsections 458.311(3)(b) and (3)(c) have, in the past, been read together to provide for admissions by endorsement for "Fifth Pathway" applicants for licensure who have not technically "graduated" from a foreign medical school due to internship or social service requirements but this past application to those
types of applicants is not sufficient reason to go further and hold that only Subsection 458.311(2) may be applied to this Petitioner for endorsement just because he has successfully completed the ECFMG examination.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-3438
The following constitutes my specific rulings pursuant to Section 120.59(2) Florida Statutes. Where the parties have not already provided internal numbering, the numbering system below has been achieved by the Hearing Officer numbering sentences within the paragraphs already numbered by the parties.
Petitioner's proposed findings of fact:
Adopted; see FOF paragraph 20.
Accepted but amplified with additional details to conform to the evidence as a whole, see FOF paragraph 26.
Adopted; see FOF paragraph 27.
Accepted in substance, with clarification and correction of various timeframe expressions to conform to the evidence in the record as a whole; see FOF paragraph 28.
Adopted; see FOF paragraph 5.
Rejected as not supported by the competent substantial evidence in the record as a whole.
7 A-H. Accepted in substance with clarification for context and understanding. See FOF paragraph 10 and 11a-c.
7 I-J. Accepted in substance but modified to conform to the competent substantial evidence in the record as a whole. See FOF paragraphs 11a-c.
7K. Rejected as stated because as stated it is contrary to the competent substantial evidence in the record as a whole. The subject matter is covered in FOF paragraph 12.
7L. Rejected as stated as contrary to the competent substantial evidence in the record as a whole. The subject matter is covered in FOF paragraph 15.
7M. Accepted in substance but modified for context and understanding; see FOF paragraph 11a-c.
Adopted; see FOF paragraph 14.
Accepted with clarification for context and understanding; see FOF paragraph 21.
10-1. Adopted; see FOF paragraph 22.
10-2. Rejected because the use of the word "clerkships" does not comport with the competent substantial evidence in the record as a whole.
Adopted with correction of date to conform with the evidence as a whole. See FOF paragraph 22.
Rejected as subordinate, irrelevant, immaterial, and unnecessary.
Rejected as stated as irrelevant, immaterial, subordinate, and unnecessary but similar information is contained in FOF paragraph 23.
Rejected as giving a misleading impression of the disapproval order of the Board and because the Order itself is the best evidence; further rejected because it is phrased as a perception of the state of mind, or a conclusion of the Petitioner which is irrelevant. A finding on the precise language of the order is made in FOF paragraph 3.
15A-E and G-J. Rejected as a summary of testimony and not a proposed finding of fact. It involves expert testimony which is merely paraphrased. A-E and H-J are also irrelevant, immaterial, unnecessary, and subordinate. I is also misleading as out of context and contrary to the record at TR 155-157. F and K are adopted with the exception of unnecessary detail as expressing the
expert opinion testimony of Dr. Katims. J is also cumulative in light of the adoption of F and K. See FOF paragraph 24.
16A-D. Adopted with certain minor modifications to conform to the record as a whole. See FOF paragraphs 8a-f.
16E. Rejected as contrary to the evidence in the record as a whole.
16F-G. The portions rejected are rejected as contrary to the evidence in the record as a whole and as misleading as to the whole of Dr. Katz' opinion testimony in parts and in parts rejected as irrelevant and immaterial. However, the subject matter of the second sentence of 16-G has been accepted and modified to conform to the evidence in the record as a whole. See FOF paragraphs 8d-a.
16-H. Rejected as contrary to the evidence in the record as a whole. 16-I. Adopted with clarification in FOF paragraph 8f.
16-J. Adopted with modifications for syntax; see FOF paragraph 25.
Respondent's proposed findings of fact:
Adopted; see FOF paragraph 1
Adopted; see FOF paragraph 2
Adopted; see FOF paragraph 3
Adopted; see FOF paragraph 4
Rejected as irrelevant and immaterial and not dispositive of any issue at bar in these de novo proceedings.
Adopted except for unnecessary detail; relevant detail added see FOF paragraphs 6a-b.
7-1. Adopted with additional necessary detail; see FOF paragraph 7.
7-2 through end of paragraph: Adopted with clarification for context and understanding; see FOF paragraphs 17a and b.
8-1. Adopted; see FOF paragraph 8a.
8-2. Adopted with clarification for context and understanding; see FOF paragraph 8d.
8-3. Rejected as stated because it contains unnecessary detail and gives an incorrect, incomplete and misleading impression of Dr. Katz' factual and opinion testimony as a whole. As stated, it is contrary to the greater weight of the persuasive testimony of Dr. Katz in its entirety. Similar subject matter is addressed in FOF paragraphs 8d-8f and 17b.
8-4, 5, 6, 7, 8. Accepted; see FOF paragraph 8d.
8-9. The main clause of the proposal after the word "actually" has been adopted in substance in FOF paragraph 8c. The material that goes before the word "actually" is not necessarily inaccurate but in the context placed gives an incorrect and misleading impression of Dr. Katz' testimony in its entirety and is rejected as stated.
8-10. Accepted but with clarification and contextual changes to accord with the greater weight of the evidence as a whole. See FOF paragraph 8c.
8-11. Constitutes argument on the persuasiveness and weight of certain testimony and does not require a ruling. To the extent it may constitute a conclusion of law, it also does not require a ruling. The subject matter is discussed in FOF paragraph 8f.
Further clarifying rulings on Respondent's proposed paragraph 8: While individual sentences may have been accepted in substance, as with all written material, much is gained or lost from the context thereof, and the findings of fact made by a Hearing Officer more accurately reflect the persuasive evidence in the record in its entirety.
9. The small portion of this proposal which could be accepted has been adopted in FOF paragraphs 9 and 16 with clarifying modifications. The lengthy remainder is either argument on the state of the record, an analysis of the necessity for hearsay to be corroborated, or on expression that some of Dr.
Katz' testimony was without obvious predicate, none of which has either resulted in a finding of fact nor which requires a ruling.
10-1,2. Accepted; see FOF paragraph 10.
10-3. Accepted in substance with amplification for greater clarification.
See FOF paragraph 11a.
10-4. Accepted with amplification for clarity and cohesiveness; see FOF paragraph 11c.
Rejected in part as contrary to the evidence in the record as a whole and in part as not supported by the greater weight of the persuasive evidence. The subject matter is covered in FOF paragraph 12.
The factual matters are accepted in substance in FOF paragraph 16 but modified to conform to the greater weight of the persuasive direct, credible evidence. The remainder of this proposal is either an argument on the necessity for hearsay to be corroborated or for direct evidence to have a reasonable predicate. Argument is not a proposed finding of fact and does not require a ruling.
Rejected as mere commentary on a witness' status and as unnecessary and subordinate.
The last sentence is adopted with a modification to indicate it is expert opinion testimony and the terms within which that expert testimony was given. See FOF paragraph 17c. The remainder is rejected as unnecessary and not dispositive of any issue at bar in this de novo proceeding.
Rejected as unnecessary and not dispositive of any issue at bar in this de move proceeding.
The first paragraph is adopted, with the omission of some unnecessary language in FOF paragraph 18a. The second paragraph is rejected as subordinate and unnecessary.
This is more particularly a conclusion of law but is adopted as a stipulation of the parties in FOF paragraph 30.
This combines a summary of Dr. Katims' opinion testimony on the effect of events at previous Board meetings concerning Petitioner and/or other applicants together with legal argument on the significance of that opinion and/or events, neither of which requires a ruling. To the extent it may constitute a proposal of fact it is unnecessary as not dispositive of any issue at bar in this de novo proceeding. To the extent it may constitute a proposed conclusion of law its subject matter has been addressed under that portion of the Recommended Order.
Whatever this is, it is not a proposed finding of fact and requires no ruling.
COPIES FURNISHED:
Salvatore D. DeFelice, Esquire
515 Southeast Seventh Street Fort Lauderdale, Florida 33301
Susan Tully Esquire and
M. Catherine Lannon, Esquire, Assistants Attorney General Department of Legal Affairs Room LL-04, The Capitol Tallahassee, Florida 32301
Honorable Jim Smith Attorney General The Capitol
Tallahassee, Florida 32301
Fred Roche Secretary
130 North Monroe Street Tallahassee, Florida 32301
Salvatore A. Carpino General Counsel
130 North Monroe Street Tallahassee, Florida 32301
Dorothy Faircloth Executive Director
130 North Monroe Street Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Jan. 16, 1986 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 16, 1986 | Recommended Order | Petitioner sought medical license by endorsement. Denied for inadequate clinical training, not because Petitioner trained at a foreign, non-teaching hospital. |
