STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES MCDONALD, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0811

) BOARD OF MEDICAL EXAMINERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on September 15, 1986, in Tallahassee, Florida.

APPEARANCES

For Petitioner: James McDonald, Pro Se

Box 400 Leduc T9E2Y2

Alberta, Canada

For Respondent: M. Catherine Lannon

Assistant General Counsel Administrative Law Section Department of Legal Affairs Room LL04 - The Capitol

Tallahassee, Florida 32399-1050 PROCEDURAL STATEMENT

The Petitioner, James McDonald, M.D., filed an application for a medical license with the Respondent. The application was denied and the Petitioner timely filed a request for a formal administrative hearing. The Petitioner's request for administrative hearing was forwarded to the Division of Administrative Hearings and was assigned case number 86-0811. This case was originally assigned to William C. Sherrill, Jr. It was subsequently transferred to the undersigned.

At the final hearing the Petitioner testified on his own behalf and was called as a witness by the Respondent. The Petitioner offered 3 exhibits.

Petitioner's exhibit 1 was accepted into evidence. Petitioner's exhibit 2 was rejected. A ruling was reserved on Petitioner's exhibit 3. That exhibit is rejected as irrelevant. The Respondent offered 5 exhibits all of which were accepted into evidence without objection.

The parties have timely filed proposed recommended orders which contain proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order. Additionally,

attached to this Recommended Order is an Appendix which indicates where proposed findings of fact which have been accepted have been made in this Recommended Order and why proposed findings of fact which have not been accepted have been rejected.

ISSUE

Whether the Petitioner meets the requirements for licensure as a medical doctor set forth in Section 458.311(1)(c), Florida Statutes (1985), as required by Section 458.313(1), Florida Statutes (1985)?

FINDINGS OF FACT

1. In July of 1984, the Petitioner applied for licensure as a medical doctor by endorsement.

   
   

2. The Petitioner's application was denied by the predecessor of the Respondent on June 17, 1985, for the following reason:

   
   

   The applicant has not completed an approved internship of at least one year or at least five years of licensed practice as required by Section 458.311(1)(c), Florida Statutes and Section 458.313(1), Florida Statutes.

   
   

3. The Petitioner began postgraduate training at the University of Alberta on August 1, 1960, as a "Straight Intern - Division of Internal Medicine."

   
   

4. The training program the Petitioner participated in was part of a four year program at the University of Alberta. The portion of the program which the Petitioner began started on July 1, 1960 and ended on June 30, 1961. Most of the students in the program began on July 1, 1960. The Petitioner was not able to begin on July 1, 1960 because of visa problems.

   
   

5. Based upon a form filed with the Respondent by Dr. L. M. Anholt, Assistant Dean, Director, Division of Postgraduate Medical Education, at the University of Alberta, the Petitioner began the program on August 1, 1980, and ". . . continued in that program until 30 June 1981 at which time he did further two months (until 31 August 1981 in Paediatrics) at his request." [Emphasis added]. According to Dr Anholt, the Petitioner requested pediatrics training "because he was leaving the Department of Medicine and desired the additional experience prior to returning to the United Kingdom and continuing training."

   
   

6. Based upon a letter from the Petitioner to the Respondent, dated November 13, 1984, the Petitioner took the two months of pediatrics training in order to obtain a license to practice medicine in Canada where he had passed the licensing exam. The Petitioner gave the following explanation for why he took the two months of pediatrics training:

   
   

   For an unrestricted license to practice medicine here in Alberta I had taken to complete a second post graduation year to include at least 2 months paediatrics, 2 months surgery and

   2 months obstetrics.

   Dr. Anholt's predecessor as Director

   of Post Graduate Training assisted in arranging for me 2 months paediatrics but was unable to arrange the surgery or obstetrics.

   
   

7. The University of Alberta subsequently issued a certificate to the Petitioner indicating that the Petitioner had satisfactorily performed the duties of "Straight Intern - Division of Internal Medicine" from August 1, 1980 until July 31, 1981.

   
   

8. Based upon the foregoing the Petitioner completed 11 months of a program as a Straight Intern in the Division of Internal Medicine and two months of training in pediatrics as part of a second year of post graduate training.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1985).

   
   

10. Section 458.313(1), Florida Statutes (1985), provides certain conditions for the licensure by endorsement of persons desiring to be licensed as a physician in the State of Florida. Among those conditions is the requirement that the qualifications of Section 458.311, Florida Statutes (1985), be met.

    
    

11. In pertinent part, Section 458.311(1)(c), Florida Statutes (1985), requires that an applicant must have:

    
    

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

    
    

12. Based upon the facts of this case, it is clear that the Petitioner has completed more than 1 year of medical training at the University of Alberta. What is less clear is whether the Petitioner's 13 months of medical training constituted an "approved internship."

    
    

13. The terms "approved internship" have been defined in Rule 21M-22.04, Florida Administrative Code, as follows:

    
    

    An approved internship program of at least one (1) year constitutes a course of study and training by a person holding a degree as a medical doctor in a hospital which has been approved for the training and teaching of physicians by the Council of Medical Education and Hospitals of the American Medical Association for a period of not less than twelve (12) calendar months in a rotating program or one specialty area. [Emphasis added].

    
    

14. The terms "course of study" are not defined in the Respondent's rules. These terms have, however, been defined as "a set of courses constituting an area of specialization." Webster's Ninth New Collegiate Dictionary 1984. Based

    upon this definition and the fact that the Petitioner's training was not in a rotating program or one specialty area, the Petitioner has not completed a course of study of not less than 12 calendar months.

    
    

15. The Petitioner completed 11 months as a Strict Intern in the Division of Internal Medicine at the University of Alberta. The 11 months attended by the Petitioner were part of a 12 month course of study which began one month before the Petitioner entered the program. The Petitioner then decided to leave the Department of Medicine and return to the United Kingdom. Before returning to the United Kingdom the Petitioner entered a second year of post graduate training in order to obtain an unrestricted license to practice medicine in Canada. As a part of that second year of training, the Petitioner completed 2 months of training in pediatrics. Although the 2 months of training in pediatrics was a part of the Department of Medicine's training, the Petitioner has failed to prove that his pediatrics training was a part of the Division of Internal Medicine. Therefore, the Petitioner has failed to prove that he completed 12 calendar months of training in a set of courses constituting the same area of specialization--internal medicine.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medical Examiners enter an order denying the

application of James McDonald for licensure by endorsement.

DONE and ORDERED this 29th day of October, 1986, in Tallahassee, Florida.

LARRY J. SARTIN

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 29th day of October, 1986.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0811

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they were accepted. Those proposed findings of fact which have been rejected and the reasons for their rejection have also been noted. Paragraph numbers in the Recommended Order are referred to as "RO

Petitioner's Proposed Findings of Fact First Sentence:

First Sentence: The first sentence of the Petitioner's

proposed recommended order is a final recommendation and not a finding of fact.

Second Sentence: The second sentence is accepted in RO 7.

Third Sentence: The alleged steps followed before issuing

"Statements of Training" are not supported by the record of the hearing in this case and are therefore rejected.

Fourth Sentence: The fourth sentence is not supported by

the record of the hearing in this case and is therefore rejected.

Fifth Sentence: The fifth sentence is not a finding of

fact and is therefore rejected.

Sixth Sentence: The sixth sentence is not a finding of

fact and is therefore rejected.

Respondent's Proposed Findings of Fact Paragraph Number:

1. Accepted in RO 1 and 2.

2. Accepted in RO 3 and 4.

3. Accepted in RO 5 and 6.

4. Accepted in RO 7.

5. Accepted in RO 8.

COPIES FURNISHED:

M. Catherine Lannon, Esquire Assistant General Counsel Administrative Law Section Department of Legal Affairs Room LL-04 - The Capitol

Tallahassee, Florida 32399-1050

James McDonald Box 400

Leduc T9E2Y2 Alberta, Canada

Ms. Dorothy Faircloth, Executive Director

Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 86-000811

Orders for Case No: 86-000811