STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION (BOARD OF MEDICAL ) EXAMINERS), )
)
Petitioner, )
)
vs. ) Case No. 85-1724
)
JESUS ESCAR, M. D., )
)
Respondent. )
) DEPARTMENT OF PROFESSIONAL ) REGULATION (BOARD OF MEDICAL ) EXAMINERS), )
)
Petitioner, )
vs. ) Case No. 85-1726
)
LUIS J. MARTI, M. D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in these consolidated cases on October 8; 1985, at Miami, Florida, before Michael M. Parrish; a duly designated Hearing Officer of the Division of Administrative Hearings. At the hearing the parties were represented by the following counsel:
For Petitioner: Stephanie A. Daniel, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Jill Nexon, Esquire
Oscar Sanchez, Esquire
VADDES-FAUEI, COBB & PETRY, P.A.
1400 AmeriFirst Building One Southeast Third Avenue Miami, Florida 33131
ISSUE
The issue in these two consolidated cases is whether disciplinary action should be taken against Luis J. Marti, M. D., hereinafter referred to as "Respondent Marti," and/or Jesus Escar, M.D., hereinafter referred to as "Respondent Escar," based upon the alleged violations of Chapter 458, Florida Statutes, contained in the separate Administrative Complaints filed against each of the Respondents.
BACKGROUND
On May 2, 1985, the Petitioner filed an Administrative Complaint against Respondent Escar alleging that Respondent Escar had violated Section 458.331(1)(f), Florida Statutes, by failing to report to the Department any person whom the licensee knows to be in violation of Chapter 458, Florida Statutes, or of the rules of the Department or the Board; Section 458.331(1)(g), Florida Statutes, by aiding, assisting, procuring or advising any unlicensed person to practice medicine contrary to Chapter 458 or to a rule of the Department or the Board; Section 458.331(1)(h); Florida Statutes, by failing to perform any statutory or legal obligation placed upon a licensed physician, by failing to disclose violations of Chapter 458; Florida Statutes; contrary to Section 458.327(2)(a), Florida Statutes, and Section 458.331(l)(f), Florida Statutes, and by knowingly making a false statement in writing with the intent to mislead a public servant in the performance of his official duty; in violation of Section 837.06, Florida Statutes; Section 458.331(1)(i), Florida Statutes, by making or filing a report, in his capacity as a licensed physician, when he knew the report to be false; and Section 458.331(1)(x), Florida Statutes, by violating any provision of Chapter 458, Florida Statutes, a rule of the Board or the Department.
By an Administrative Complaint filed on May 2, 1985, the Petitioner alleged that Respondent Marti violated the same provisions of Chapter 458, Florida Statutes, as described above.
The alleged statutory violations were based on allegations that Respondent Escar and Respondent Marti signed Forms B-1 containing false information which were submitted to the Board of Medical Examiners as part of the application process for Jose A. Tudela to become licensed as a physician.
At the formal hearing; the Petitioner agreed to voluntarily dismiss charges that Respondents Escar and Marti had violated Section 458.331(1)(x), Florida Statutes, by violating any provision of Chapter 458; Florida Statutes, a rule of the Board or the Department and Section 458.331.(1)(h), Florida Statutes,
by failing to perform any statutory or legal obligation placed upon a licensed physician, by making a false statement in writing with the intent to mislead a public servant in the performance of his official duty, in violation of Section 837.06, Florida Statutes.
Subsequent to the hearing a transcript of the proceedings at hearing was filed with the Division of Administrative Hearings on November 12, 1985, and, by previous ruling, the parties were allowed ten days from that day within which to file any post- hearing submissions with the Hearing Officer. Due to the unfortunate circumstances wrought by Hurricane Kate, all parties were unable to file their post-hearing submissions until December 2, 1985. The Petitioner filed a proposed recommended order containing, inter alia; proposed findings of fact and Jconclusions of law. The Respondents filed proposed findings of fact and conclusions of law, as well as a memorandum of law in support of same.
Careful consideration has been given to the parties' post- hearing submissions in the preparation of this Recommended Order. Specific rulings on all proposed findings of fact submitted by all parties are contained in the appendix attached to this Recommended Order and incorporated herein.
FINDINGS OF FACT
Based on the stipulations of the parties; on the testimony of the witnesses, and on the exhibits received in evidence at the hearing; I make the following findings of fact.
Respondent Escar is, and has been at all times material hereto, a licensed physician in the state of Florida, having been issued license number ME 0034247. Respondent Escar's last known address is 935 West 49th Street, Suite #107, Hialeah; Florida 33012.
Respondent Marti is, and has been at all times material hereto, a licensed physician in the state of Florida, having been issued license number ME 0034842. Respondent Marti's last known address is 24355 West Flagler Street, Miami, Florida 33125.
Respondent Marti went to medical school in Madrid, Spain. In approximately 1970, while Respondent Marti was in medical school in Madrid, Spain, Respondent Marti met Jose A. Tudela for the first time. At the time, Tudela had come to Madrid, Spain, for the purposes of starting medical school.
In approximately 1975, while Respondent Marti was working as a resident at Cedars of Lebanon Hospital, Respondent
Marti again saw Jose A. Tudela. At about the same time, Respondent Escar met Tudela for the first time. Tudela's father, Francisco Tudela, a physician, was an attending physician at Cedars of Lebanon Hospital. Respondents Marti and Escar saw Jose and Francisco Tudela in 1975 while on rounds at the hospital.
In 1979, while Respondents Marti and Escar were working at Palm Springs General Hospital, Jose A. Tudela came to the hospital to apply for a position as a house physician and saw Respondents Escar and Marti. When Tudela applied for the position of house physician at Palm Springs General Hospital, Respondents Marti and Escar were both residents at the hospital.
On the day that Jose A. Tudela came to apply for the position of house physician at Palm Springs General Hospital, Tudela came to the doctors' lounge at the hospital where he spoke with Respondents Escar and Marti. Tudela had with him a diploma which appeared to Respondents Escar and Marti to be authentic and which appeared to have been issued by the Universidad Central del Este. The diploma had on the back what appeared to be official stamps and seals and the signature of the Vice Consul of the United States. Additionally, a translation of the diploma was attached to the diploma.
On the date that Tudela came to apply for the position of house physician at Palm Springs General Hospital, Tudela also showed Respondents Escar and Marti what appeared to be a transcript of his grades from the Universidad Central del Este and a letter purportedly from one Victoria Marcial de Gomez. The transcript and letter appeared to Respondents Escar and Marti to be original and authentic. The letter from Gomez, who purportedly was the medical director for the health center of Trujillo Alto Health Department, in the associated Free State of Puerto Rico, appeared to verify the fact that Dr. Jose A. Tudela had worked in the Health Center of Trujillo Alto for seven months.
When Respondent Marti reviewed Tudela's documents, he knew it was important that foreign papers be certified because he had had the experience of having to leave Cuba and re-establish himself. Respondent Marti's own diplomas from Spain bear attestations of notarization of a foreign government. Respondent Escar believed that Tudela's documents were originals because of his experience in having seen similar original documents of other residents in the past.
On or about August 1, 1979, Jose A. Tudela completed an application for employment as a house physician at Palm Springs General Hospital. The application contained basic personal information about Tudela and listed some of Tudela's education
and work experience. According to the application, Tudela went to Belle Glade High School, in Belle Glade; Florida; Warwick High School, in Newport News, Virginia, where he graduated in 1965; and the University of Miami; in Coral Gables, Florida where he graduated in 1970. According to the application, Tudela worked in an unspecified capacity in the Centro de Salud, in Trujillo Alto, Puerto Rico, from 1978 to 1979. The application form does not contain any information about Tudela's medical education.
Specifically, it does not contain any mention of University of Santo Domingo, Universidad Central del Este, or U.C.E.
On or about August 8, 1979, Jose A. Tudela was employed by Palm Springs General Hospital as a house physician. Jose A. Tudela remained at Palm Springs General Hospital as a house physician until October 29, 1979. Tudela left Palm Springs General Hospital on that date to become a surgical assistant at Miami Children's Hospital. While employed a Miami Children's Hospital, Tudela received the highest score on every item on his employee evaluation form. That hospital never knew of any problem with Tudela's performance or credentials until this case occurred.
Between approximately 1979 and 1983, Respondents Escar and Marti practiced medicine together as partners.
In 1980, Jose A. Tudela approached Respondent Marti and asked Respondent Marti to sign an affidavit on behalf of Tudela. Therefore, on or about March 13, 1980, Respondent Marti signed a Form B-1 which was addressed to Rafael A. Penalver, M.D., Director, Office of International Medical Education, University of Miami School of Medicine; Miami; Florida. The form B-1 contained the following sworn statement:
This is to certify that Jose A. Tudela born in Cuba and a graduate from the University Santo Domingo on 1978 was legally engaged in the practice of medicine from ---- to in
Puerto Rico. I have known the applicant since 1975 and was acquainted with him/her during the time he practiced medicine. I was algo (sic) engaged in the practice of medicine in Miami U.S.A. during the years of 1975 and up.
At some time after Respondent Marti signed the Form B-1, the abbreviation "(U.C.E.)" was added to the above-referenced sworn statement after the school name, "University Santo Domingo." Respondent Marti did not place the quoted abbreviation on the Form B-1.
Prior to signing the subject Form B-1, Respondent Marti reviewed, for verification purposes, the employment application of Jose A. Tudela for Tudela's employment as a house physician at Palm Springs General Hospital. However, the employment application in question does not reflect any attendance by Tudela at any educational institution in the Dominican Republic or Santo Domingo. Furthermore, the employment application does not indicate the capacity in which Tudela worked in the Centro Salud in Trujillo Alto, Puerto Rico, and does not specifically indicate that Tudela practiced medicine in Puerto Rico.
In 1980, Jose A. Tudela also approached Respondent Escar and asked Respondent Escar to sign an affidavit for him. Therefore, on or about March 13, 1980, Respondent Escar signed a Form B-1 which contained the following sworn statement:
This is to certify that Jose A. Tudela born in Cuba and a graduate from the University of Santo Domingo on 1978 was legally engaged in the practice of medicine from ---- to in
Puerto Rico. I have known the applicant since 1970 and was acquainted with him/her during the time he practiced medicine. I was algo (sic) engaged in the practice of medicine in Miami, Fla during the years of 1977 and up.
The Form B-1 was addressed to Rafael A. Penalver, M.D., Director; Office of International Medical Education, University of Miami School of Medicine, Miami, Florida. At some time after Respondent Escar signed the Form B-1, the abbreviation "(U.C.E.)" was added to the above-referenced sworn statement after the school name, "University of Santo Domingo." Respondent Escar did not place the quoted abbreviation on the Form B-1.
Respondent Escar relied upon Respondent Marti's verification of Tudela's background information in signing the Form B-1 described in the immediately preceding paragraph. Respondent Escar did not personally review Tudela's application for employment at Palm Springs General Hospital but discussed the information contained in the employment application with Respondent Marti.
At the time Respondents Marti and Escar signed the Forms B-1, they did not know Tudela very well and did not know very much about his background. Although they both thought Tudela was probably a graduate of a medical school, they did not remember what school he had supposedly graduated from, as evidenced by the fact that they put the wrong school name on the Forms B- 1.
Both Respondent Escar and Respondent Marti lacked personal knowledge of the information contained in the Forms B-1 which they signed for Jose A. Tudela. Neither of the Respondents saw or taught Tudela at medical school in the Dominican Republic. Furthermore, neither Respondent Escar nor Respondent Marti was in Puerto Rico at the time Jose A. Tudela allegedly practiced medicine at the Centro Salud in Trujillo Alto, Puerto Rico. Neither of the Respondents had any source of information about Tudela's alleged medical education in the Dominican Republic or his alleged practice of medicine in Puerto Rico other than statements Tudela may have made to them, statements Tudela wrote on the application form at Palm Springs General Hospital, and whatever information could be gleaned from a casual review of Tudela's forged credentials.
Jose A. Tudela has never graduated from the Universidad Central del Este, which is located in the Dominican Republic, nor from any other medical school. Tudela enrolled in the Universidad Central del Este (U.C.E.) medical school in August, 1977. There is no evidence in the school records for U.C.E.
that Tudela passed any of his courses. In May of 1978 Tudela was no longer at the university. Tudela was given a special concession at U.C.E. so that upon presentation of a pre-medical certificate which Tudela claimed to possess, Tudela could receive credit for the pre-medical program training. However, Tudela never presented the required proof of his pre-medical program.
Tudela did not complete any of the twelve semesters at U.C.E. which make up the medical degree program including pre-medical training.
Although Respondent Marti first met Tudela in 1970 and Respondent Escar met him in 1975, the Form B-1 signed by Respondent Marti states that he met Tudela in 1975, and the one signed by Respondent Escar states that he met Tudela in 1970.
The reason for this error is that both of the forms were prepared by Respondent Marti and the forms were inadvertently switched at the time they were signed.
The Forms B-1 signed by Respondents Marti and Escar were submitted to the Board of Medical Examiners by Jose A. Tudela as attachments to an Application for Continuing Medical Education Program, which was submitted as part of Tudela's application for licensure as a physician in Florida.
Tudela applied for licensure in Florida under the provisions of a special law which provided that the Board of Medical Examiners would establish continuing education courses designed to qualify for licensure those individuals who were resident nationals of the Republic of Cuba and were residents of Florida on July 1, 1977.
In order to qualify for the continuing education program set up by the Board of Medical Examiners for Cuban nationals, an applicant had to demonstrate that he was a graduate from a medical school with a medical degree and that he was a resident national of the Republic of Cuba and a resident of Florida on July 1, 1977. Upon approval of the applicant to participate in the continuing education program set up by the Board of Medical Examiners, the applicant would have to complete the continuing education program. Upon completion of the continuing education program, the applicant would be qualified to take the licensing examination.
In or about March of 1980, Tudela submitted an Application for Examination, an Application for Florida State Board of Medical Examiners Continuing Education Program, and the necessary attachments, which included the Forms B-1 signed by Respondents Escar and Marti and copies of what purported to be his diploma and transcript of grades. After successfully completing the continuing medical education program and the licensure examination, Tudela became certified to practice medicine and surgery by the Board of Medical Examiners on August 23, 1982.
At the time of Tudela's application for medical license, the staff of the Board of Medical Examiners conducted the initial review and made the initial determination as to whether an individual was qualified to take the continuing education course and to take the licensure examination for certification to practice medicine and surgery in Florida. In making such determinations, consideration is given to all of the information contained in an applicant's file, which includes such things as the applicant's degree or diploma, transcript of grades, and the Forms B-1. At the time Tudela applied for licensure, the staff of the Board of Medical Examiners did not verify the medical education of applicants and conducted no investigation into the school or the graduation of applicants for licensure. Prior to approving Tudela's application, neither the Board members nor the staff independently contacted the Universidad Central del Este to verify whether Tudela actually graduated from medical school. The Board members did not personally review Tudela's application. The staff reviewed the papers and presented the Board with a list of applicants who appeared to be eligible for the continuing education course and the licensure examination.
The diploma and the transcript of grades which Tudela showed to the Respondents and filed with the Board of Medical Examiners are forgeries. They are very good forgeries and bear a remarkable resemblance to genuine diplomas and transcripts issued
by the Universidad Central del Este. The false documents provided by Tudela to the Board as part of his application, along with the Forms B-1 signed by Respondents Marti and Escar, deceived the staff into recommending Tudela for the continuing education course, the licensure exam, and ultimately for certification to practice medicine. Tudela's application to the Board also contains several letters of recommendation from other physicians who were convinced of Tudela's competence. The Educational Commission for Foreign Medical Graduates granted Tudela a certificate despite his forged documents.
In November 1984, an Administrative Complaint was filed against Jose A. Tudela which alleged that Tudela did not graduate from or obtain a degree of Doctor of Medicine from U.C.E., contrary to what Tudela had indicated in his application for licensure examination described above. In March 1985, the Board of Medical Examiners entered an order accepting the surrender for revocation of Jose A. Tudela's license to practice medicine in lieu of further prosecution of the charges contained in the Administrative Complaint which had been filed in November 1984. Tudela is not currently licensed as a physician in the state of Florida. No further action was taken against him for his having fraudulently obtained a medical license in Florida.
Respondents Escar and Marti were both aware of the fact that the Forms B-1 which they signed were to be submitted as part of the application for the continuing medical education program which had been established by the Board of Medical Examiners for Cuban nationals as a prerequisite to take the licensure examination. In fact; Respondent Marti became eligible to take the medical licensure examination in Florida by completing the same continuing medical education program.
When the Respondents Escar and Marti signed the subject Forms B-1, neither of them had any personal knowledge as to the truth or falsity of the statements therein regarding Tudela's medical education and experience; yet they deliberately certified, under oath, to the truthfulness of matters about which they were distinctly uninformed. When the Respondents Escar and Marti signed the subject Forms B-1, both of them knew the purpose of the forms and both knew that the Board of Medical Examiners would rely on the information in the forms.
CONCLUSIONS OF LAW
Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law.
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. See Section 120.57(1), Florida Statutes, and Section 455.225(4), Florida Statutes.
The Board of Medical Examiners is empowered to revoke or suspend the license of, or otherwise discipline, any physician who violates any of the following provisions of Section 458.331(1), Florida Statutes:
Failing to report to the department any person who the licensee knows is in violation of this chapter or of the rules of the department or the board. However, if the licensee verifies that the person is actively participating in a board-approved program for the treatment of physical or mental condition, he is required only to report such person to an impaired professional consultant;
Aiding, assisting, procuring; or advising any unlicensed person to practice medicine contrary to this chapter or to a rule of the department or the board;
Failing to perform any statutory or legal obligation placed upon a licensed physician; and
Making or filing a report which the licensee knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing or inducing any other person to do so. Such reports or records shall include only those which are signed in the capacity as a licensed physician.
Petitioner has the burden of proof in this license discipline case and must prove clearly and convincingly that the alleged violations of the above-cited statutory provisions occurred. Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981): Robinson v. Florida Board of Dentistry, 447 So.2d 930 (Fla. 3d DCA 1984) and Sneij v. Department of Professional Regulation, 454 So.2d 795 (Fla. 3d DCA 1984).
Conclusions regarding Count One
Count One of each Administrative Complaint charges each of the Respondents, respectively, with a violation of Section 458.331(1)(f), Florida Statutes,
by failing to report to the Department any person who the licensee knows is in violation of Chapter 458, Florida Statutes, or of the rules of the Department or the Board.
The referenced statutory provision by its express terms applies only to violations of which a licensee has knowledge. The evidence in this record is insufficient to establish that either of these Respondents actually knew that Tudela was in violation of any part of Chapter 458, or of the rules of the Department or Board, or that either of them failed to report any such violation. Without question, it is often difficult to prove a negative--to affirmatively prove that something did not happen but it can be done, and without such proof, the violation alleged in Count One must be dismissed.
Conclusions regarding Count Two
Count Two of each Administrative Complaint charges each of the Respondents, respectively, with a violation of Section 458.331(1)(g); Florida Statutes;
by aiding, assisting, procuring or advising any unlicensed person to practice medicine contrary to this Chapter or to a rule of the department or the board.
There is sufficient competent substantial evidence to establish that both Respondents violated Section 458.331(1)(g), Florida Statutes, by aiding and assisting Jose A. Tudela to practice medicine as charged in Count Two.
Both Respondents signed affidavits, which were sworn to and subscribed before a notary public, in which both Respondents certified certain facts regarding the medical education and medical practice experience of Jose A. Tudela to be true. Some of the material facts in the affidavits were false and, in any event, neither of the Respondents had any personal knowledge of the facts they purported to certify regarding Tudela's medical education and experience. At the time they signed the affidavits, both Respondents knew the purpose for which the affidavits would be used. Both Respondents intended to assist Tudela in obtaining licensure at a time when they had no personal knowledge that Tudela was entitled to licensure pursuant to the
Medical Practice Act or the rules of the Board of Medical Examiners. Since Respondents Escar and Marti, by their own admissions, intended to aid and assist Tudela in obtaining a license to practice medicine, Respondents have both violated Section 458.331(1)(g), Florida statutes.
Respondents argue that no violation of Section 458.331(1)(g) has been proved because there is no proof that Tudela actually practiced medicine in Florida after he received his license. Proof of actual practice is not necessary; it is sufficient to prove aid and assistance to obtain a license to practice. See Maniglia V. Department of Professional Regulation,
446 So.2d 186 (Fla. 3d DCA 1984); and the underlying administrative orders published at 5 FALR 1988-A through 1993-A.
Respondents next argue that there is no violation because the affidavits do not specifically state that they are on the basis of personal knowledge and the Respondents had "good reason" to believe that Tudela was a graduate of the Universidad Central del Este. These arguments fail both factually and legally. The facts show that both Respondents knew so little about Tudela that they decided they had better check up on him before signing any affidavits on his behalf. When they finished checking up on him (by reviewing his job application at Palm Springs General Hospital), they still knew nothing more about Tudela's medical education and experience because that job application contained no information on those subjects. Their investigation a failure, the Respondents had nothing more to go on than whatever they happened to remember about what Tudela had told them and what they had seen of Tudela's documents. They obviously had poor memories of what they had heard or seen because they both guessed wrong about what school Tudela pretended to be a graduate of. Under the circumstances, they hardly had good reason to believe that Tudela had graduated from any particular medical school.
With regard to the contention that these Respondents have not purported to have made statements on the basis of "personal knowledge," the settled law appears to be otherwise. Unless an affidavit contains a disclaimer stating that it is on "information and belief," it is presumed to be on personal knowledge. See United Bonding Insurance Company v. Dura-Stress, 243 So.2d 244 (Fla. 2d DCA 1971): 1 Fla. Jur. 2d, Acknowledgements, Sec. 37; 3 Am. Jur. 2d; Affidavits; Sec. 3. See also 27 Fla. Jur. 2d, Fraud and Deceit, Sec. 47, which includes the following analogous language:
In both actions at law for deceit and suits in equity based on fraud scienter will be deemed to exist where a party implies, by
virtue of the positive character of his assertion, that he has knowledge of a matter of which he is in fact ignorant. In such a situation a negligent misrepresentation may be equated with, or regarded as tantamount to, actual fraud. Thus, one may be liable for deceit where he recommends another person for extension of credit when it appears that he has in fact no opinion about the character or financial condition of the person recommended.
Respondents also argue that the proof is insufficient to establish that the Board or the Board's staff relied on the affidavits signed by these Respondents. Contrary to the argument, I am of the view that the evidence is sufficient to show such reliance, but, in any event, such reliance is not an essential element of a violation of the subject statutory provision. It is enough to prove the purpose of the affidavits which purpose is admitted, as well as admittedly understood by both Respondents at the time they signed the affidavits.
Conclusions regarding Count Three
Count Three of each Administrative Complaint charges each of the Respondents; respectively; with a violation of Section 459.331.(1)(h), Florida Statutes,
by failing to perform any statutory or legal obligation placed upon a licensed physician. The specific statutory duty which Respondent is alleged to have failed to perform is the duty to disclose violations of Chapter 458, Florida Statutes, as set forth in Section 458.327(2)(a), Florida Statutes, and Section 458.331(1)(f), Florida Statutes.
This count is to a large extent a repackaging of the charges in Count One, and it suffers from the same defect. The proof is insufficient to establish that either of these Respondents had knowledge of the violation alluded to or that they failed to report any such violation. Further, there is no proof in this record that Tudela ever violated Section 458.327(2)(a), Florida Statutes, or that either of those Petitioners knew of any such violation by Tudela. Accordingly, the violation alleged in Count Three must be dismissed.
Conclusions regarding Count Four
Count Four of each Administrative Complaint charges each of the Respondents, respectively, with a violation of Section 458.331(1)(i), Florida Statutes,
by making or filing a report which the licensee knows to be false. Such reports or records shall include only those which are signed in the capacity as a licensed physician. . . ..
Both of these Respondents implied, by virtue of the positive character of their assertions, that they had personal knowledge of matters of which they were in fact ignorant. To the extent the affidavits implied personal knowledge they were false, and the Respondents had knowledge that any such implication was false. Their knowledge that they were in fact ignorant of the facts asserted in the affidavits is sufficient to establish a violation where, as here, the affidavits were signed in their capacities as licensed physicians. Accordingly, the evidence is sufficient to establish that both Respondents also violated Section 458.331(1)(i), Florida Statutes.
Conclusions regarding Counts Five and six
Counts Five and Six of each Administrative Complaint charge each of the Respondents, respectively, with violation of Section 458.331(~)(x), Florida Statutes, and with an additional violation of Section 458.331(1)(h), Florida Statutes. At the commencement of the hearing, counsel for the Department announced that the Department was abandoning Counts Five and Six of the Administrative Complaints in both cases. Accordingly, Counts Five and Six should be dismissed.
Conclusions regarding the appropriate penalty
In its proposed recommended order the Department argues that the appropriate penalty should be as follows:
As punishment therefore, Respondents' licenses to practice medicine and surgery should be suspended for a period of thirty
(30) days. Following the suspension, Respondents' licenses to practice medicine and surgery should be placed on probation for a period of one (1) year, with conditions and restrictions to be established by ,the Board of Medical Examiners. During that one year probationary period, Respondents shall give
twelve lectures to local medical associations on the subject of the dangers of providing false affidavits in support of medical licensure, and each Respondent shall provide one hundred fifty (150) hours of free medical care in a practice setting outside of the Doctor's Office. Finally, each Respondent shall pay a fine in the amount of $500.00.
The foregoing is somewhat more severe than the penalty imposed by the Board of Medical Examiners in the similar cases involving Dr. Jorge Macedo and Dr. Antonio J. Maniglia. (See Department of Professional Regulation v; Macedo, 5 FALR 1988-A, 1989-A (1983); Department of Professional Regulation v. Maniglia,
5 FALR 1990-A, 1991-A (1983); Maniglia V. Department of Professional Regulation, 446 So.2d 186 (Fla. 3d DCA 1984).
The Respondents argue that no penalty should be imposed because they contend there has been no violation. Alternatively they argue that if they are found to have committed any violation, any penalty should be nominal (they suggest a $250.00 fine) because their conduct is less egregious than that of Dr. Macedo and Dr. Maniglia. Upon comparison of the facts in these cases with those in the cases involving Dr. Macedo and Dr. Maniglia, I have concluded that the nature and quality of the violations are substantially identical. Accordingly, it is my recommendation that the penalty imposed on the Respondents in this case be identical to that imposed on Dr. Macedo and Dr. Maniglia.
Consistent with all of the foregoing, it is recommended that the Board of Medical Examiners issue a Final Order in each of these cases to the following effect:
Finding each of the Respondents guilty of a violation of Section 458.331(1)(g) and Section 458.331(1)(i), Florida Statutes, as charged in Counts Two and Four of the respective Administrative Complaints;
Dismissing all other counts of the Administrative Complaints;
Reprimanding and placing each of the Respondents on probation for a period of one
(1) year, which probation is subject to the condition that each Respondent shall perform community service in the form of addressing foreign medical graduates and the medical community regarding the importance and significance of affidavits executed by Florida licensed physicians which are to be
relied upon by the Board in licensing foreign graduates;
Providing that each of the Respondents will consult with a designated member of the Board of Medical Examiners for guidance as to the appropriate setting for his addresses; and
Providing that each of the Respondents shall, during his one year probation, make semi-annual appearances before the Board at which time he will report on his compliance with the community service requirement of the order.
DONE AND ORDERED this 4th day of March, 1986, at Tallahassee, Florida.
MICHAEL M. PARRISH, 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 4th day of March, 1986.
COPIES FURNISHED:
Jill Nexon, Esquire Oscar Sanchez, Esquire
VALDES-FAULI, COBB & PETREY, P.A.
1400 AmeriFirst Building lOne Southeast Third Avenue
|Miami, Florida 33131
Stephanie A. Daniel, Esquire Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Dorothy Faircloth, Executive Director Board of Medical Examiners
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Fred Roche, Secretary
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Salvatore A. Carpino, Esquire General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
APPENDIX
The following are my specific rulings on each of the proposed findings of fact submitted by the parties to these consolidated cases.
RULINGS ON FINDINGS PROPOSED BY THE DEPARTMENT OF PROFESSIONAL REGULATION
The proposed findings of fact submitted by the Department of Professional Regulation are well organized, succinct, and with but rare exception relevant and fully supported by competent substantial evidence. Accordingly, with but the few specific exceptions noted below, all of the findings proposed by the Department have been accepted and incorporated into the findings of fact in this Recommended Order. (Some minor editorial changes have been made to some of the Department's proposed findings in the interest of clarity and accuracy, as well as when necessary to incorporate additional findings proposed by the Respondents.) The following findings proposed by the Department have been rejected for the reasons stated.
At paragraph 5: The second sentence of paragraph 5 is rejected as irrelevant and as not supported by competent substantial evidence.
At paragraph 12: The first line is rejected as an unnecessary commentary about the state of the record.)
At paragraph 14: The first four words are rejected as unnecessary editorial comment.
At paragraph 15: The last sentence of this paragraph is rejected as irrelevant in light of other findings about the inadvertent mix-up in documents at the time the Forms B-1 were signed.
At paragraph 17: The first sentence of this paragraph is accepted. The remainder of this paragraph is rejected. There is conflicting evidence about who filled out the Forms B-1 at issue in this case. On the basis of Dr. Marti's testimony and upon comparison of the handwriting on several documents in the exhibits, I have resolved the conflict by finding that Dr. Marti filled out both forms.
At paragraph 26: The findings proposed in this paragraph are rejected in part as inaccurate. The findings made on this subject are similar to the proposed findings.
RULINGS ON FINDINGS PROPOSED BY THE RESPONDENTS
My specific rulings on the findings of fact proposed by the Respondents are as follows:
Paragraphs 1, 2, and 3: The substance of all of the findings proposed in these paragraphs has been accepted and incorporated into the findings of fact.
Paragraph 4: Accepted in part and rejected in part. The portion addressing what Mr. Tudela said about the purpose of the forms is rejected as irrelevant in light of the Respondent's knowledge of the purpose and also rejected as not being consistent with the persuasive evidence.
Paragraph 5: Accepted in substance with the exception of the phrase "on the basis of this application" in the last sentence. There is no competent substantial evidence regarding what information was relied upon by whoever made the decision to hire Mr. Tudela.
Paragraphs 6, 7, 8, and 9: The substance of all of the findings proposed in these paragraphs has been accepted and incorporated into the findings of fact.
Paragraph 10: The findings proposed in this paragraph are rejected for several reasons: because they are irrelevant in part, because in part they constitute conclusions of law rather than proposed findings, and because regardless of their intent, both Respondents performed actions which were instrumental to Mr. Tudela's certification to practice medicine in the state of Florida.
Paragraph 11: Rejected as unnecessary and cumulative in view of the fact that the relevant portions of the text of the Forms B-1 are included elsewhere in the findings of fact.
Paragraphs 12, 13, and 14: The substance of all of the findings proposed in these paragraphs has been accepted and incorporated into the findings of fact.
Paragraph 15: This entire paragraph is rejected for several reasons. First, it is all an irrelevant commentary upon the nature of certain testimony rather than a proposed finding about a relevant matter. Second, the implications of the second sentence are contrary to the greater weight of the evidence.
Paragraphs 16, 17, and 18: The substance of all of the findings proposed in these paragraphs has been accepted and incorporated into the findings of fact with the exception of some unnecessary details.
Paragraph 19: This entire paragraph is rejected as irrelevant.
Paragraph 20: Accepted in substance.
Paragraph 21: Rejected as irrelevant in view of the fact that both Respondents knew the purpose for which the Forms B-1 were being signed.
Paragraph 22: Rejected in part as irrelevant and in part because it is contrary to the greater weight of the evidence.
Paragraphs 23, 24, 25, and 26: The substance of all of the findings proposed in these paragraphs has been accepted and incorporated into the findings of fact with the exception of some unnecessary details.
Paragraph 27: Rejected as irrelevant and unnecessary. Paragraph 28: The essence of the proposed finding that
Tudela's academic documents were good forgeries is accepted, but the majority of this paragraph is rejected as constituting unnecessary commentary about the testimony rather than proposed findings or as constituting totally irrelevant details.
| Issue Date | Proceedings |
|---|---|
| Mar. 04, 1986 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 07, 1986 | Agency Final Order | |
| Mar. 04, 1986 | Recommended Order | Medical doctors who signed false affidavits for candidate for licensure as medical doctor placed on probation for one year plus community service. |
