STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID U. EWING-CHOW, )

)

Petitioner, )

)

vs. ) Case No. 85-0719

)

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on December 18, 1985 in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Francis A. C. Sevier, Esquire

3300 Ponce De Leon Boulevard Coral Gables, Florida 33134

For Respondent: John J. Rimes, III, Esquire

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

BACKGROUND

This matter arose when respondent, Department of Professional Regulation, Board of Medical Examiners, issued proposed agency action on January 17, 1985, denying the application of petitioner, David U. Ewing-Chow, for licensure as a medical doctor by examination. The agency order identified two grounds as bases for its action: (1) that petitioner had not demonstrated to the Board that he was capable of safely engaging in the practice of medicine with reasonable skill and safety as

required by Subsection 458.331(3), Florida Statutes (1985), (2) that petitioner had not graduated from a medical school or college as required by Subsection 458.311(1)(b), Florida Statutes (1985).

Petitioner disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1985). The matter was referred by respondent to the Division of Administrative Hearings on March 5, 1985, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated May 15, 1985, the final hearing was scheduled for July 18, 1985, in Fort Lauderdale, Florida. At petitioner's request the matter was rescheduled to December 18, 1985, at the same location.

At final hearing petitioner testified on his own behalf and presented the testimony of Drs. Dorothy Viola Straw, Madhri Sisodia, Thomas E. Crowder, and Lynn Carmichael. He also offered petitioner's exhibits 1-8. All were received in evidence.

The transcript of hearing was filed on January 20, 1986. Proposed findings of fact and conclusions of law were filed by respondent and petitioner on February 18 and March 19, 1986. 1/ A ruling on each proposed finding of fact has been made in the Appendix attached to this Recommended Order.

The issue is whether petitioner is entitled to licensure as a medical doctor by examination.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner, David U. Ewing-Chow, filed an application for licensure by examination as a medical doctor with respondent, Department of Professional Regulation, Board of Medical Examiners, on February 24, 1984. The application was reviewed and considered by respondent at a meeting on December 2, 1984, and proposed agency action denying the application was issued on January 9, 1985. As grounds for denying the application, the agency stated that:

   
   

   . . . the applicant has not demonstrated to the Board that he is capable of safely engaging in the practice of medicine with

   reasonable skill and safety. See Section

   458.311 (3), F.S. Further, the applicant has not graduated from medical school or college as required by Section 458.311(1)(b), F.S.

   
   

   The proposed agency action prompted this proceeding. In his request for a hearing, petitioner challenged the agency's signs, and contended he satisfied both objections raised by the agency.

   
   

2. Petitioner first enrolled as a regular medical student in October, 1969 at the University of the West Indies in Kingston, Jamaica. He remained in the school's medical program until he failed the preclinical examination a second time in 1972. Because successful completion of that examination was required to remain in medical school, he withdrew from school and moved to England. There he successfully completed the conjoint preclinical examination administered by the Conjoint Society of Apothecaries Preclinicals in London, England. Having passed that examination, Ewing-Chow was readmitted in October, 1972 to the University of the West Indies as a non-degree seeking student to pursue clinical medical courses to qualify him to take the licensure examination in England. Although he was a special student, Ewing-Chow's curriculum was identical to the coursework required of medical degree seeking students. He completed the program in 1975, but did not receive a medical degree from the university.

   
   

3. After completing his medical coursework, EwingChow returned to England where, based upon his medical education, he qualified to take the examination for a License in Medicine and Surgery administered by the Society of Apothecaries of London (Society). To qualify for this examination, one need not graduated from a medical school. The Society is not a school or university, and offers no instruction. Rather, it conducts examinations for a License in Medicine and Surgery, and is described in The World Directory of Medical Schools as a "nonuniversity licensing bod(y)." After passing the examination EwingChow received a "Diploma of Licentiate in Medicine and Surgery" from the Society. The Diploma of Licentiate is not a degree in medicine, but is a title or qualification which allows the individual to "temporarily" register for an internship. A one-year internship is required before one can be issued a certificate of registration by the General Medical Council (Council), a statutory body responsible for registering all medical practitioners in Great Britain. Like the Society, the Council grants no degrees, but merely issues a certificate of

   registration to qualified physicians. In the case at bar, Ewing-Chow completed a one-year internship program in both Trinidad and the University of West Indies. Thereafter, he was certified in full registration by the Council and was accordingly authorized to practice medicine in the United Kingdom. Full registration is the British equivalent to a license to practice medicine in the United States. He also received a license to practice in the European Economic Community. In addition, he is licensed to

   practice in Trinidad, Jamaica and Tobago.

   
   

4. After spending some thirty months in Trinidad as a government physician, Ewing-Chow moved to Miami, Florida in September, 1980, and enrolled in the three-year residency program in the Department of Family Medicine at Jackson Memorial Hospital. He successfully completed this program in June. 1985 and is now chief resident in the family practice residency program. As such, he is in charge of supervising thirty-six other residents in the program. He is eligible to take the examination for board certification in the family practice specialty, but must first be licensed by the State of Florida in order to take the examination. Ewing-Chow has also submitted his credentials to the Educational Commission for Foreign Medical Graduates (ECFMG), and has passed the examination administered by that body.

   
   

5. The evidence clearly demonstrates that Ewing-Chow is capable of safely engaging in the practice of medicine with reasonable skill and safety. This was attested to by the chief of family practice at the University of Miami School of Medicine at Jackson Memorial Hospital and is evident from Ewing-Chow's present responsibilities as chief resident in that program.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1985).

   
   

7. Section 458.311, Florida Statutes (1985), prescribes the criteria for eligibility to take the examination for licensure as a physician. Subsection (l)(a)-(c) provides that an applicant must have:

   
   

   1. Completed the application form and remitted an approved examination fee not to exceed $400 as set by the board.

      
      

   2. Graduated from an allopathic medical school or allopathic college recognized and approved by an accrediting agency recognized by the United States Office of Education.

      
      

   3. Completed an approved internship of at least 1 year or at least 5 years of licensed practice. (Emphasis

      added)

      
      

      It is the requirement in paragraph (b) that underpins the agency's decision to deny Ewing-Chow's request to take the examination.

      
      

8. The question here is not whether Ewing-Chow is competent to safely practice medicine in the State of Florida. Indeed, the evidence reveals that he is a competent and skilled physician with considerable responsibilities at Jackson Memorial Hospital. Instead, the only issue is whether Ewing-Chow has"(g)raduated from an allopathic medical school or allopathic college recognized and approved by an accrediting agency" as required by law.

   
   

9. Petitioner contends he is entitled to licensure because "he is a graduate of a foreign medical school" and because of his eminent qualifications both here and abroad. He points out that he received a "diploma" and title from the Society, which evidence successful completion of all medical studies and work, that his medical credentials have been evaluated by the Educational Commission for Foreign Medical Graduates and that he passed that examination, and that completion of the required medical work together with the title of "licentiate" constitutes graduation from a foreign medical school.

   
   

10. There are two requirements in Subsection 458.311(1)(b) that Ewing-Chow must meet in order to be eligible to take the state examination. First, he must have "graduated" from an educational institution, and secondly, the educational institution from which a degree or diploma is received must be "an allopathic medical school or allopathic college recognized and approved by an accrediting agency recognized by the United States Office of Education." Unfortunately, Ewing-Chow does not pass muster on either criteria.

    
    

11. To begin with, Ewing-Chow has not "graduated" from an educational institution within the meaning of that word. It is

    true that the word "graduated" is not defined in Chapter 458 or by agency rule, but in such a case the common and ordinary meaning of the word must be used. Webster's Dictionary defines the word as "honored with a degree or diploma from some school or college." Webster's New Twentieth Century Dictionary Unabridged, Second Edition (1979). Similarly, a diploma is defined as the "document given by (an) educational institution on graduation and awarding of degree." Black's Law Dictionary, Fifth Edition 1979). When both words are considered together, it is evident that in order to comply with the statute; one must receive a diploma or degree from an educational institution after completing that school's educational curriculum. The evidence reveals that while Ewing-Chow completed all pertinent medical coursework in medical school, he did not receive a degree or diploma from the institution. By the same token, even though he received a "diploma" from the Society of Apothecaries of London, the Society is not an "allopathic medical school or college" as required by Subsection 458.311(1)(b). Therefore, it is concluded that Ewing-Chow has not satisfied these criteria.

    2/

    
    

12. Petitioner also contends that the review and acceptance of his credentials by the Educational Commission for Foreign Medical Graduates, and passage of the examination administered by that body; equate to graduation from a foreign medical school. But the law, as now written, does not allow these qualifications to be substituted for having graduated from an allopathic medical school or college. Moreover, such an argument, if accepted, would allow the ECFMG to evaluate and approve candidates for licensure in Florida, rather than the duly constituted Board of Medical Examiners. Therefore, this contention is rejected.

    
    

13. Petitioner appears to be a competent and skilled physician who has taken all coursework required for a degree. All he lacks is a degree from a medical school. While the result herein may seem unduly harsh, petitioner's only recourse is to seek a change in the law, or to have a degree conferred upon him by a recognized educational institution. Whether the Board possesses the authority to waive the statutory requirement, and if so, is inclined to do so, was not raised by the parties, and need not be addressed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the application of David U. Ewing-Chow for licensure as a medical doctor by examination be DENIED.

DONE and ORDERED this 26th day of March, 1986, in Tallahassee, Florida.

DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1986.

ENDNOTES

1/ Petitioner requested and was granted leave to file his proposed order no later than March 14, 1986. It was received by the undersigned on March 19, 1986.

2/ The case of Motes v. Department of Professional Regulation, Board of Medical Examiners, DOAH Case No. 85-0238, Final Order rendered November 1, 1985, is somewhat analagous to the factual situation herein. In Montes, the applicant withdrew from undergraduate school needing 15 additional hours to earn a degree. Because he failed to receive an undergraduate degree, the Board denied his application for licensure as a medical doctor by endorsement even though the applicant later received a medical degree from La Universidad Autonoma de Guadalajara, Mexico.

COPIES FURNISHED:

Francis A. C. Sevier, Esquire 3300 Ponce de Leon Blvd.

Coral Gables, Florida 33134

John J. Rimes, III, Esquire Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301

Dorothy J. Faircloth Executive Director Florida Board of Medical

Examiners

130 North Monroe Street Tallahassee, Florida 32301

APPENDIX

PETITIONER:

1. Covered in background and findings of fact 1 and 2. 2(a). Covered in finding of fact 3.

2(b). Covered in finding of fact 3. 2(c). Covered in finding of fact 3. 2(d). Covered in finding of fact 3.

2(e). Covered in finding of fact 3. That portion not covered is

considered irrelevant.

2(f). Covered in findings of fact 2 and 3.

2(x). Covered in findings of fact 3, 4 and 5. 2(y). Partially covered in finding of fact 2. 2(z). Covered in finding of fact 3.

2(aa). Rejected as being unnecessary to resolve the issues.

2(bb). Rejected as being unnecessary to resolve the issues. 2(cc). Rejected as being unnecessary to resolve the issues. 2(dd). Rejected as being unnecessary to resolve the issues. 2(ee). Rejected as being unnecessary to resolve the issues. 2(ff). Rejected as being unnecessary to resolve the issues.

RESPONDENT:

1. Covered in background and findings of fact 1 and 2.

2. Covered in finding of fact 3.

3. Covered in finding of fact 4.

Docket for Case No: 85-000719

Orders for Case No: 85-000719