STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on August 14, 1986, in Miami, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. On September 2, 1986, a transcript of the hearing was filed and thereafter the Petitioner and Respondent both filed Proposed Recommended Orders on October 3 and 6, respectively.

Careful consideration has been given to the parties' Proposed Recommended Orders in the preparation of this Recommended Order. A specific ruling on each proposed finding of fact is included in the Appendix which is attached to and incorporated into this Recommended Order.

APPEARANCES

For Petitioner: Michael J. Cohen, Esquire

Cohen & Mee, P.A

517 Southwest First Avenue

Fort Lauderdale, Florida 33301

For Respondent: Frank Diaz Silveira, Esquire

Diaz Silveira & Associates, P.A. 2153 Coral Way, Suite 607

Miami, Florida 33145

This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent for reasons which are alleged in a six-count Administrative Complaint signed on May 2, 1985. The essence of the allegations in the first five counts of the Administrative Complaint is that the Respondent has violated various specified provisions of Chapter

458, Florida Statutes, in that, it is alleged, Respondent, during the years of 1983, 1984 and 1985, knowingly aided, assisted, procured or advised unlicensed persons to practice medicine when said persons were not licensed to practice medicine in the State of Florida. The allegations of the sixth count of the Administrative Complaint are moot because at the commencement of the formal hearing, the Petitioner announced on the record that it had no evidence to offer in support of the sixth count and that it was, therefore, withdrawing the sixth count.

FINDINGS OF FACT

Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact.

1. Petitioner, Department of Professional Regulation, is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 458, Florida Statutes.

   
   

2. Respondent is, and has been at all times material hereto, a licensed physician in the state of Florida, having been issued license number ME 0036970.

   
   

3. Respondent worked at the Cruz Blanca Clinic from approximately February of 1984 through either October or November of 1985. During that time Respondent worked as a general practitioner and was also the medical director of the Cruz Blanca Clinic. As medical director, Respondent was responsible for the supervision and control of all medical practice at the clinic. Respondent's normal working hours at the Cruz Blanca Clinic were from approximately 8:00 or 8:30 in the morning until approximately 2:30 or 3:00 in the afternoon. During those working hours, Respondent was usually the only licensed medical doctor present on the premises of the Cruz Blanca Clinic.

   
   

4. The patients who attended the Cruz Blanca Clinic paid a fee for the privilege of attending the clinic and receiving medical services. The monthly fee was between ten and fifteen dollars per family. Patients requiring general medical services attended the clinic during Respondent's working hours. During the afternoon hours, from approximately 2:00 p.m. until 5:30 p.m., certain medical specialists would see clinic patients by appointment.

   
   

5. At all times material, Julio Diaz owned the Cruz Blanca Clinic. At all times material, Julio Diaz, Norma Rodriguez, and Magali Acosta were licensed to practice medicine in a foreign country, but they were not licensed to practice medicine in the

   state of Florida, nor were they licensed as physician's assistants in the state of Florida. Respondent knew that Diaz, Acosta, and Rodriguez were not licensed to practice medicine in the state of Florida.

   
   

6. During 1984 and 1985 while Respondent was the medical director at the Cruz Blanca Clinic, Julio Diaz, Norma Rodriguez, and Magali Acosta frequently and regularly held themselves out as, and acted as, medical doctors or physicians at the Cruz Blanca Clinic. Specifically, they regularly saw patients, took medical histories, checked blood pressure, drew blood samples, took urine and fecal samples, and performed physical examinations. Julio Diaz and Norma Rodriguez went far beyond the routine tasks described above and were in total charge of the medical treatment of some of their patients. Patients with gynecological problems were usually assigned to Norma Rodriguez, pediatric patients were usually assigned to Magali Acosta, and Julio Diaz usually saw the general practice patients. Respondent knew that Diaz, Acosta, and Rodriguez were examining, treating, diagnosing, and prescribing for patients at the Cruz Blanca Clinic. Respondent also knew that at least some of the examining, treating, diagnosing, and prescribing activities of Diaz, Acosta, and Rodriguez were being done without Respondent's supervision.

7. During 1984 and 1985, Maria Rodriguez was a frequent patient at the Cruz Blanca Clinic during the time periods when Respondent was the only licensed medical doctor on the premises of the clinic. On only one occasion Maria Rodriguez was seen by Respondent. On all of her other visits the only doctors', she saw were Julio Diaz or Norma Rodriguez. When Maria Rodriguez was being seen by Julio Diaz or Norma Rodriguez, there was no one present supervising either of the "doctors." Maria Rodriguez believed that Julio Diaz was a medical doctor and he treated her for back problems. Thereafter, Maria Rodriguez was usually seen by Norma Rodriguez, who she also believed to be a doctor. In 1985 Norma Rodriguez injected Maria Rodriguez as part of the treatment of the latter's blood pressure problems. On several occasions Maria Rodriguez saw both Julio Diaz and Norma Rodriguez filling out prescriptions, and on several occasions they both diagnosed and treated her. The prescriptions filled out by Julio Diaz and Norma Rodriguez were signed by Respondent.

   
   

8. Barbara Socorro was another patient of the Cruz Blanca Clinic during 1984 and 1985. She was treated at the Clinic for such conditions as common colds, stomach flu, viruses, and gynecological problems. The only "doctor" who examined or treated Barbara Socorro at the Cruz Blanca Clinic was Norma Rodriguez. Norma Rodriguez performed at least one gynecological examination on Barbara Socorro at the Cruz Blanca Clinic. Norma

   Rodriguez wrote several prescriptions for Barbara Socorro. Barbara Socorro never saw Respondent at the Cruz Blanca clinic. Barbara Socorro believed that Norma Rodriguez was a medical doctor and was told by the receptionist at the Cruz Blanca Clinic that Norma Rodriguez was a gynecologist.

   
   

9. Marisol Vilato was another patient of the Cruz Blanca Clinic who during 1984 and 1985 was seen several times for gynecological problems. The only "doctor" seen by Marisol Vilato was Norma Rodriguez. Norma Rodriguez examined Marisol Vilato, including internal gynecological examination; diagnosed and treated her condition; and filled out prescriptions for her.

   
   

10. While employed as the medical director at the Cruz Blanca Clinic, Respondent frequently and regularly signed prescriptions filled out by Diaz, Acosta, and Rodriguez because as unlicensed doctors their signatures on prescriptions would not be honored by pharmacies. Without this aid and assistance by Respondent, it would not have been possible for Diaz, Acosta, and Rodriguez to prescribe for the patients at the Cruz Blanca Clinic.

    
    

    CONCLUSIONS OF LAW

    
    

11. Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law.

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57, Fla. Stat.

    
    

13. For purposes of Chapter 458, Florida Statutes, the term "practice of medicine.' is defined as follows at Section 458.305(3), Florida Statutes:

    
    

    (3) "Practice of medicine" means the diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical condition.

    
    

14. Section 458.327(1)(a), Florida Statutes, makes it a felony to practice medicine without an active license. Section 458.331(1)(g), Florida Statutes, provides that the following is an act for which disciplinary action may be taken:

    
    

    (g) 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.

    
    

15. It is clear from the persuasive competent substantial evidence that at least three unlicensed doctors (Diaz, Rodriguez, and Acosta) were engaged in the practice of medicine, as defined in Section 458.305(3), Florida Statutes, at the Cruz Blanca Clinic during 1984 and 1985 while Respondent was medical director of the clinic. It is also clear from the persuasive competent substantial evidence that Respondent knew Diaz, Rodriguez, and Acosta were unlicensed, that Respondent knew they were engaged in the practice of medicine, and that Respondent aided and assisted them to practice. Therefore, Respondent is guilty of violating Section 458.331(1)(g), Florida Statutes, as charged in Count One of the Administrative Complaint.

    
    

16. Count Two of the Administrative Complaint charges Respondent with a violation of Section 458.331(1)(h), Florida Statutes. The cited statutory provision authorizes disciplinary action for "Failing to perform any statutory or legal obligation placed upon a licensed physician." Count Two of the Administrative Complaint does not identify any specific statutory or legal obligation the Respondent is alleged to have failed to perform, nor is any such statutory or legal obligation identified in Petitioner's Proposed Recommended Order. No specific statutory or legal obligation having been identified, the Petitioner has failed to establish a violation of Section 458.331(1)(h), Florida Statutes, and Count Two of the Administrative Complaint should be dismissed.

    
    

17. Count Three of the Administrative Complaint charges Respondent with a violation of Section 458.327(2)(b), Florida Statutes. As counsel for Petitioner candidly and correctly notes in Petitioner's Proposed Recommended Order, "No evidence was submitted directly pertinent to this Count . . . ." Not only is there no evidence sufficient to establish a violation of Section 458.327(2)(b), Florida Statutes, but it should also be noted that a violation of Section 458.327(2)(b), Florida Statutes, is not a statutory ground for the imposition of disciplinary action.

    While facts tending to prove a violation of Section 458.327(2)(b), Florida Statutes, might also constitute a violation of one or more of the provisions of Section 458.331(1)(a)-(ee), Florida Statutes, proof of a violation of Section 458.327(2)(b), Florida Statutes, does not per se constitute a basis for imposition of disciplinary action.

    Accordingly, Count Three of the Administrative Complaint should be dismissed.

    
    

18. Count Four of the Administrative Complaint charges Respondent with a violation of Section 45&.3:1(1)(t), Florida

    Statutes. Pursuant to the cited statutory provision, disciplinary action may be imposed for:

    
    

    (t) Gross or repeated malpractice oz the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.

    
    

    Respondent violated the statutory provision quoted immediately above by unlawfully delegating the functions of a physician to unlicensed persons. with regard to Norma Rodriguez, the evidence shows that she acted as a gynecologist, including the performance of internal examinations, for at least patients, Barbara Socorro and Marisol Vilato. With regard to Julio Diaz, he acted as a doctor to Maria Rodriguez and, among other things, ordered x-rays for her which were later reviewed by Respondent. All three of the unlicensed doctors (Diaz, Acosta, and Rodriguez) at the Cruz Blanca Clinic saw and examined various patients by specialty, and they did so while purportedly acting under the supervision of Respondent in the treatment of the patients. In at least the cases of Maria Rodriguez, Barbara Socorro, and Marisol Vilato, it is clear that no supervision in fact existed except for the requirement that Respondent execute the prescriptions filled out by the unlicensed doctors. As medical director of the clinic, Respondent was responsible for providing medical services to the patients of the clinic, and he unlawfully delegated his responsibility to unlicensed doctors in clear violation of the prohibition of Section 458.327(1)(a), Florida Statutes. The practice of medicine by means which are unlawful is clearly a failure to practice medicine in a manner which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Therefore, Respondent is guilty of violating Section 458.331(1)(t), Florida Statutes, as charged in Count Four of the Administrative Complaint.

19. Count Five of the Administrative Complaint charges Respondent with violation of Section 458.331(1)(w), Florida Statutes. Section 458.331(1)(w) authorizes disciplinary action for:

    
    

    (w) Delegating professional responsibilities to a person when the licensee delegating such responsibilities knows or has reason to know that such person is not qualified by training, experience, or licensure to perform them.

    As already noted in previous paragraphs, Respondent knew that Julio Diaz, Magali Acosta, and Norma Rodriguez were not licensed to practice medicine in Florida, and yet he permitted them to see and treat patients at the Cruz Blanca Clinic. Such conduct by Respondent was clearly a delegation of professional responsibilities to persons Respondent knew were not qualified by licensure. Therefore, Respondent has violated Section 458.331(1)(w), Florida Statutes, as charged in Count Five of the Administrative Complaint.

    
    

20. The charges in Count Six of the Administrative Complaint were withdrawn by Petitioner at the commencement of the hearing. Accordingly, Count Six of the Administrative Complaint should be dismissed.

    
    

    RECOMMENDATION

    
    

    Based on all of the foregoing, it is recommended that the Board of Medical Examiners enter a Final Order to the following effect:

    
    

    1. Dismissing the charges alleged in Counts, 2, 3, and 6 of the Administrative Complaint:

       
       

    2. Finding Respondent guilty of violations of Section 458.331(1)(g), (t), and (w)' Florida Statutes, as alleged in Counts 1, 4, and 5 of the Administrative Complaint, and

       
       

    3. Imposing on Respondent appropriate penalties authorized by Section 458.331(2), Florida Statutes.

In determining the appropriate penalty to recommend, I have given particular consideration to the nature of the violations; to the fact that although unlicensed practice of medicine was permitted, there was no evidence of harm to any patient; and to the fact that Respondent appears to be an elderly man who is not in the best of health. With those considerations in mind, it is recommended that the Board's Final Order include the following specific penalties:

(a) A So-day suspension of Respondent's license to practice medicine; |(b) A one-year period of probation to follow the suspension, with a condition of probation that Respondent work under the supervision of another licensed physician and that he attend continuing education courses specified by the

Board with an emphasis on the legal duties and responsibilities of physicians; and

(c) An administrative fine in the total amount of S. 00

DONE AND ORDERED this 28th day of October, 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 28th day of October, 1986

COPIES FURNISHED:

Michael J Cohen, Esquire CO BN & MEE, P A

517 Southwest First Avenue Fort Lauderdale, Florida 33301

Frank Diaz Silveira, Esquire DIAZ SILVEIRA 6 ASSOCIATES, P A

2153 Coral Way, Suite 607

Miami, Florida 33145

Dorothy Faircloth, Executive Director Board of Medical Examiners

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Wings Slocum Benton, Esquire General Counsel

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

APPENDIX

The following are my specific rulings on each of the proposed findings of fact submitted by both of the parties.

Proposed findings submitted by Petitioner

Paragraphs 1, 2, 3, 4, and 5: These paragraphs are accepted.

Paragraph 6: The first sentence of this paragraph is rejected as constituting commentary about conflicts in the evidence rather than a proposed finding of fact. The remainder of this paragraph is accepted in substance.

Paragraph 7: This paragraph is accepted in substance.

Paragraph 8: The first eight sentences of this paragraph are accepted in substance. The last sentence is rejected as argument rather than a proposed finding of fact. (The argument is a correct argument, but it is not a proposed finding.)

Paragraphs 9 and 10: These paragraphs are accepted.

Paragraph 11 and the five unnumbered paragraphs following paragraph 11: These paragraphs are rejected as primarily constituting arguments rather than proposed findings of fact. (These arguments are essentially correct, but are nevertheless arguments and do not belong in the findings of fact.)

Paragraph 12: This paragraph is also rejected as constituting argument rather than proposed findings.

Proposed findings submitted by Respondent

1. This paragraph is rejected as constituting a proposed conclusion of law rather than a proposed finding of fact

   
   

2. This paragraph is rejected as constituting summaries of testimony (some of which is conflicting) rather than proposed findings of fact. Counsel for all parties are reminded that summaries of testimony may be a useful technique to support an argument in favor of a particular proposed finding, but such summaries do not constitute proposed findings, especially when

   the summaries include conflicting testimony. The findings of fact in this Recommended Order contain specific findings regarding the activities engaged in by unlicensed physicians, which findings are based on competent substantial evidence and are consistent with the greater weight of the evidence.

   
   

3. The first sentence of this paragraph is rejected as constituting a summary of a portion of the testimony rather than proposed finding of fact. The second sentence of this paragraph is rejected as constituting a summary of a portion of the evidence rather than a proposed finding of fact. Further, the details summarized for the most part relate to subordinate details that are irrelevant or unnecessary to the disposition of this case.

   
   

4. This paragraph is rejected as constituting a summary of a portion of the evidence, or as constituting argument about the evidence, rather than a proposed finding of fact. Further, the factual assumptions implicit in this paragraph are contrary to the greater weight of the evidence.

   
   

5. This paragraph is rejected as constituting argument instead of proposed findings of fact.

   
   

6. This paragraph is rejected as constituting a summary of testimony rather than proposed findings of fact. Further the details summarized are subordinate and irrelevant or unnecessary details.

   
   

7. This paragraph is rejected as constituting argument instead of proposed findings of fact.

================================================================= AGENCY FINAL ORDER

================================================================= BEFORE THE BOARD OF MEDICINE

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

PEDRO F. BERNAL, M.D., DPR CASE NOS. 0055322 DOAH CASE NO. 85-1758

Respondent. LICENSE NO. ME 0036970

/

FINAL ORDER

This cause came before the Board of Medicine Board pursuant to Section 120.57(1)(b)9., Florida Statutes on February 7, 1987, in Jacksonville, Florida, for the purpose of considering the hearing officer's Recommended Order (a copy of which is attached hereto as Exhibit A) in the above-styled cause. Petitioner, Department of Professional Regulation, was represented by Stephanie A. Daniel, Esquire. Respondent was present and represented by Frank Diaz Silveira, Esquire. Both Respondent and Petitioner filed Exceptions to the Recommended Order (attached hereto as Exhibits B and C respectively) and Petitioner filed a Response to Respondent's Exceptions (attached hereto as Exhibit D). A specific ruling on each Exception is included in the Appendix which is attached to and incorporated into this Final Order. A Motion for Increased Penalty had been filed by Petitioner, but was withdrawn at the final hearing.

Upon review of the Recommended Order, the argument of the parties, the Exceptions, the response thereto, and after a review of the complete record in this case, the Board makes the following findings and conclusions.

FINDINGS OF FACT

1. The findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein.

   
   

2. There is competent substantial evidence to support the findings of fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.

   
   

2. The conclusions of law set forth in the Recommended Order are approved and adopted and incorporated herein.

   
   

3. There is competent substantial evidence to support the conclusions of law.

Upon a complete review of the record in this case, the Board determines that the penalty recommended by the Hearing Officer be REJECTED as being too lenient under the circumstances for the reasons set forth in the Exceptions filed by the Petitioner, Department of Professional Regulation. Specifically, the Respondent was less than candid in his testimony before the Hearing Officer as found by the Hearing Officer. Patients were endangered by the fact that unlicensed persons, persons who had not established their ability to practice medicine with skill and safety, were practicing medicine, which is a felony. See Section 458.327, Florida Statutes.

IT IS HEREBY ORDERED AND ADJUDGED that Respondent's license to practice medicine in the State of Florida is REVOKED.

This Order takes effect upon filing.

Pursuant to Section 120.59, Florida Statutes the parties are hereby notified that they may appeal this final order by filing one copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of Appeal within thirty days of the date this order is filed, as provided in Chapter 120, Florida Statutes, and the Florida Rules of Appellate Procedure.

DONE AND ORDERED this 24 day of February, 1987.

BOARD OF MEDICINE

JAMES N. BURT, M.D.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing FINAL ORDER has been provided by certified mail to

Pedro F Bernal, M.D., 336 Southwest 9 Avenue, Apartment 21, Miami, Florida 33130, and Frank Diaz Silveira, Esquire, 2153 Coral Way, Suite 607, Miami, Florida 33145; by U. S. Mail to Michael M. Parrish, Hearing Officer, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida 32302, and by hand delivery to Stephanie A. Daniel, Esquire, Department of Professional Regulation, 130 North Monroe Street, Tallahassee, Florida 32301 at or before 5:00 p.m. this 24th day of February , 1987.

Dorothy J. Falrcloth Executive Director

APPENDIX

The following are specific rulings on Exceptions filed by Respondent to the findings of fact n the Recommenced Order.

1. Denied; there is competent, substantial evidence .n the record to support the finding at issue.

   
   

2. Denied; there is competent, substantial evidence in the record to support the finding at issue. The reasons stated by the Department in its Responses to Exceptions to Recommended Order of October 28, 1986 (a copy of-which is attached hereto) are adopted herein.

   
   

3. Denied; there is competent, substantial evidence in the record to support the finding at issue.

   
   

4. Denied; there is competent, substantial evidence in the record to support the finding at issue. The reasons stated by the Department in its Responses to Exceptions to Recommended Order of October 28, 1986 (a copy of which is attached hereto) are adopted herein.

   
   

5. Denied; there is competent, substantial evidence in the record to support the finding at issue.

Docket for Case No: 85-001758

Orders for Case No: 85-001758