vs. ) CASE NO. 86-1845
Respondent. )
For Petitioner: Mariam B. Bensinger, Esquire
For Respondent: Allen R. Grossman, Esquire
M. Catherine Lannon, Esquire Tallahassee, Florida
This matter was heard in Coral Gables, Florida, on October 15, 1986, by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings. Post hearing evidentiary filings were ordered to be made, which were filed by November 21, 1986. A transcript of the proceedings was filed on November 21, 1986, and the parties filed proposed findings of fact and conclusions of law on December 12, 1986. Rulings on proposed findings of fact are made in the Appendix to this Recommended Order.
The issue is whether Dr. Lujan is entitled to licensure by endorsement as a medical doctor in the State of Florida.
The Petitioner, J. Enrique Lujan, M.D., has applied for licensure by endorsement in the State of Florida. He is licensed to practice medicine in Georgia. He appeared before the Board of Medical Examiners Foreign Graduate Committee and the Board of Medical Examiners, which denied his application. He requested a hearing, and the matter was referred to the Division of Administrative Hearings.
The parties stipulated that Chapter 458, Florida Statutes, as revised and re-adopted effective October 1, 1986, applies to this application for licensure.
After the Foreign Medical Graduates Committee initially voted on October 15, 1985, to deny the application for licensure by endorsement, the full Board of Medical Examiners considered the matter on January 12, 1986, and stated these reasons for denial in an order entered March 28, 1986:
"Evidence and testimony indicate that the applicant may have practiced medicine in Florida while not licensed to do so either by a medical faculty certificate or any other license, certificate or permit, and
The less than favorable recommendation submitted during the application process raised questions as to the applicant's ability
to practice medicine with reasonable skill and safety." (Citations omitted).
Another ground for denial of licensure stated in the order was abandoned (Transcript 16).
Dr. Lujan graduated from the medical school of the Autonomous University of Chihuahua, Mexico. His medical credentials were evaluated by the Educational Commission for Foreign Medical Graduates and he was issued a certificate by the Commission and has passed the examination given by the Educational Commission for Foreign Medical Graduates.
Dr. Lujan has completed three years of AMA-approved residency training programs in pediatrics and has successfully taken the FLEX examination.
The Genetics Program Housed in the Mailman Center
Dr. Lujan entered a genetics Fellowship at the University of Miami in July of 1981 and remained in the program for four years. He was the first Fellow in the program. The Mailman Genetics Program operates in the Department of Pediatrics of the School of Medicine; it is housed at the Mailman Center for Child Development. The program currently provides genetics consultation and prenatal diagnosis to five to six thousand families a year in South Florida. The genetics program teaches M.D.'s who have already completed residency programs who wish to specialize in clinical genetics and acquire laboratory and research skills which will prepare them for positions in academic medicine, as well as Ph.D. candidates doing basic research, and master's level students
training in genetic counseling. The program's faculty consists of approximately twelve members and the program now includes nearly sixty people.
During the time Dr. Lujan was a Fellow in the genetics program, patient clinics were held two times a week. At those sessions medical school faculty members of the Department of Pediatrics saw individuals who had been referred to the clinic by their primary treating physicians. These individuals had or were at risk of having genetic disorders, metabolic defects and chromosome disorders.
The clinical activities which are a part of the genetics program at the Mailman Center are supervised by the following members of the genetics faculty of the Department of Pediatrics at the University of Miami School of Medicine: Doctors Lubs, Benke, Shear and Carlin. All are licensed M.D.s. As a general rule faculty members act as consultants to the referring physicians and do not provide primary care. At the genetics clinic, medications are not used and medical treatment is not rendered, for little treatment for genetic disorders is currently possible. Faculty are always on the clinic's premises and available when clinics are held. The faculty then report to the attending physicians, giving their findings and recommendation. There is an exception to the general rule that primary care is not provided. Some patient care is provided by faculty members in their areas of specialization. Dr. Benke treats patients with certain metabolic disorders; Dr. Shear treats patients with PKU disease and glycemia.
The genetics faculty are also called into consultations about patients at Jackson Memorial Hospital. These consultations result in reports and recommendations from the faculty of the genetics program addressed to attending physicians which may be accepted or rejected by them. Fellows participate in this consultation process by taking detailed histories of patients and their families, examining patients and preparing draft reports for review by the genetics faculty in connection with the faculty member's examination of the patient.
Dr. Lujan's Progression in the Genetics Fellowship
The Genetics Fellowship Program is a graduated series of experiences designed to prepare Fellows to perform research and to be employed in academic medicine. It also leads to eligibility for certification by the American Board of Medical Genetics. It involves a heavy degree of supervision in the early parts of the program, and less supervision as the Fellow progressively develops independent judgment. Fellows in the genetics program are paid a monthly stipend. They learn to perform genetic evaluations, to deal with families with genetic concerns by participating in counseling sessions with genetics faculty members, and eventually carry out counseling under the supervision of the faculty, who then complete the counseling. Dr. Lujan was involved in significant clinical research on X- linked mental retardation and has published based on his work. As the result of his study at the University of Miami genetics clinic, Dr. Lujan has written and presented research papers, and his skills progressed to the point that he was able to diagnose rare genetic disorders and order tests and genetic evaluations appropriately. This is the very purpose of the Fellowship program.
In the first year of the genetics Fellowship program, Dr. Lujan's studies involved an introduction to genetics. This included how to obtain a genetic history, how to investigate a problem and assess genetic diseases, how to conduct a physical examination, obtain a pedigree and counsel concerning single gene disorders. He had some patient contact under supervision. He was assigned readings, tested on those assignments, and was taught laboratory and research techniques.
In his second Fellowship year the program concentrated on techniques of medical writing and the publication of a paper. Dr. Lujan worked in the laboratory under supervised patient contact twice a week at scheduled clinics.
Dr. Lujan's fourth Fellowship year included research at the Mailman Center. He also oriented new Fellows. He reviewed with junior Fellows and residents' patients already seen and diagnosed by attending physicians to be sure they understood the points pertinent to the patient's genetic disease. He was also responsible for scheduling residents and gathering and presenting data.
Dr. Lujan participated in genetics faculty consultations at Jackson Memorial Hospital. See Finding of Fact 8, supra. In doing so, he took patient histories, performed examinations and left notes stating his opinion regarding diagnosis and appropriate testing. The patient was then examined by a faculty member who evaluated the patient and issued a report. Dr. Lujan's involvement in these consultations was for the purpose of his training and education. He wrote no prescriptions. His opinion as to testing (e.g., a study of chromosomes) was never carried out without the review and signature of a faculty member and by a licensed attending physician.
Dr. Lujan's involvement at Jackson Memorial Hospital during his fourth year was limited to genetics rounds, discussions of cases with first and second year Fellows or residents at Jackson assigned to those cases, assisting Fellows with their research, and pointing out to them physical features indicative of various genetic syndromes.
Dr. Lujan's teaching responsibilities were an essential part of the Fellowship program. The teaching included presentations of cases before, during and after clinical sessions, working with more junior Fellows, residents and medical students, pointing out genetics features to residents, nurses and other physicians.
Dr. Lujan's activities in the genetics program were properly supervised. He was in a training program within the School of Medicine. The nature of his educational experience was similar to that in any field of clinical education where the more senior students teach the more junior students, and as the student progresses the intensity of direct faculty supervision is reduced. In the beginning, Dr. Lujan observed the faculty members. Toward the end of the program he performed, he was observed by faculty members and his work was reviewed or checked by faculty members.
During Dr. Lujan's third year in the Fellowship Program, he worked part-time in a sickle cell program and continued his duties at the Mailman Center. He undertook this work at the request of the genetics faculty because they needed a pediatrician to work in that program which, though located in a different department in the Medical School, was one in which the faculty was interested because of its genetic nature. Dr. Lujan's work in the sickle cell program not only assisted the genetics program, but furthered his training and experience in genetics by exposing him to research on genetic blood disorders. While at the sickle cell center, he was supervised by Dr. Clugg and Dr. Jensen, who were the principal investigators for that research. They are both adult hematologists. While there Dr. Lujan did write prescriptions for medicines such as folic acid. Orders for tests such as electroforesis were reviewed by the hemotologists for budgeting reasons.
For internal administrative purposes within the Medical School, Dr. Lujan was released from his Fellowship during that third year. I accept the testimony of Dr. Lubs that Dr. Lujan was nonetheless in training in the genetics program while he worked two days a week at the sickle cell project. During that year Dr. Lujan continued to work at the Mailman Center three days a week attending conferences, exchanging information in which genetics faculty
regarding the sickle cell program, doing genetics research and publishing articles. The work at the sickle cell project qualified Dr. Lujan as a co- investigator at a multi-research center funded by the National Health Institute regarding the national history of sickle cell disease, including tracking of the patient population, the population's growth, morbidity, mortality, and how well patients follow their medication.
The Medical School obtained a medical faculty certificate for Dr. Lujan for his work during his third year. Dr. Lujan received that certificate on or about August 15, 1983. Although he attended the sickle cell clinic about two weeks prior to that for orientation, he saw no patients until he had received that certificate.
Dr. Lujan's Ability to Practice Medicine With Reasonable Skill and Safety
Four witnesses, all of whom were persuasive, testified that Dr. Lujan is capable of practicing medicine with reasonable skill and safety. These included the following: (1) the Director of the Genetics Program at the Department of Pediatrics University of Miami School of Medicine, Dr. Herbert Lubs; (2) the Director of Clinical Genetics and Professor of Pediatrics at the University of Miami School of Medicine, Dr. Paul Benke; (3) the Medical Director of the Dade County Child Development Center, Dr. Carol Shear; (4) the Chief of the Division of Genetic Medicine and Professor of Medicine and Biochemistry at the University of Miami School of Medicine, Dr. Karl Muench; (5) a practicing pediatrician, and Associate Clinical Professor of Pediatrics at the University of Miami School of Medicine, Dr. Joseph Allison. Doctors Lubs, Benke, Shear and Muench worked with Dr. Lujan during his fellowship period at the University of Miami. Drs. Lubs, Benke and Shear had adequate opportunity to evaluate his medical skills while he worked under their direction. Dr. Muench worked with him at the genetics clinic so that he had the opportunity to evaluate the quality of his medical skill. Dr. Allison extensively interviewed Dr. Lujan and reviewed his background and offered employment to Dr. Lujan in Dr. Allison's medical practice.
Against these strong opinions of Dr. Lujan's competence, formed after the opportunity to observe or evaluate his work, are two facts. First, Dr. Lujan passed the FLEX examination on his fourth attempt. Having passed the examination, the number of times he sat for it lacks significance. Second, a letter in his file from a Dr. Scragg states that while a first year resident in pediatrics from 1977- 1978 at Texas Tech University, Dr. Lujan was "counseled from time to time regarding completion of his charts" and "the faculty in pediatrics did not consider Dr. Lujan suitable for promotion to a PGY-II level".
Respondent's exhibit 8. The letter itself goes on to state
"in spite of this, he was a personable and reliable house officer who got along well with his colleagues and other members of the hospital community. It was the opinion of the Pediatric faculty that Dr. Lujan would progress satisfactorily in the appropriate setting and proper guidance in his training program".
At most, the Scragg letter indicates Dr. Lujan had some difficulty with some unnamed member(s) of the faculty at that residency program. I accept Dr.
Lujan's contrary testimony that he was, in fact, offered the opportunity to continue his training at Texas Tech University; this testimony was corroborated by a letter from the associate dean of Texas Tech that Dr. Lujan's contract would be renewed (Petitioner's Exhibit 8). It is also significant that Dr.
Scragg indicates a belief that in an appropriate program Dr. Lujan would do adequately. That prediction has proven correct. Since leaving Texas Tech, Dr. Lujan has performed more than adequately, according to the doctors with whom he has trained. Moreover, another letter from a professor in the Department of Pediatrics at the same Texas program (Respondent's Exhibit 7) stated that Dr.
Lujan:
Was considered reliable, had excellent relations with people, personnel and faculty.
Dr. Lujan decided to continue his training at a different institution as a second year resident. At that time he had some adjustment problems with the system, that I know he overcame, and we were all happy to see him go to a more structured setting.
The author of this letter, Dr. Handal, says nothing negative about Dr. Lujan's abilities as a physician, does not say Dr. Lujan was dismissed from the Texas Tech program, and the tenor of the letter is positive.
Neither of the authors of the letters from Texas Tech University Health Science Center, Dr. Scragg or Dr. Handal, were produced at final hearing, nor were their depositions offered in evidence. Whatever problem Dr. Lujan might have had at Texas Tech University, if there was one, was not adequately explained on this record. Taken as a whole, the testimony by Drs. Lubs, Benke, Shear, Muench and Allison are overwhelmingly positive, more recent, were subject to cross-examination, and are entirely persuasive of Dr. Lujan's ability to practice with reasonable skill and safety.
Dr. Lujan has not Practiced Medicine Without a License
No Improper Practice of Medicine Occurred While Dr. Lujan was a Fellow in the Genetics Program.
While at the Genetics Program, Dr. Lujan did not engage in the unlicensed practice of medicine. A Fellow in genetics is not a resident. A resident would have been employed by Jackson Memorial Hospital (the Public Health Trust), not by the University. A resident has direct responsibility for patient care; for example, as an attending pediatrician. A Fellow functions as a consultant, along with the genetics faculty, to attending physicians. A report by a Fellow concerning diagnosis or tests to be performed is reviewed and signed by genetics faculty members before being forwarded to an attending physician, who may then accept or reject the recommendations. A resident is in training to become a practitioner. Fellows are preparing for academic life by learning to perform clinical or laboratory research and to teach; within the
Fellowship program, learning to teach is one of the important components of the Fellowship training. Residents are not ordinarily Board eligible when they begin their residency. A Fellowship is a four year program for which completion of a residency in a specialty, such as pediatrics or obstetrics, is a prerequisite.
The letters of recommendation for Dr. Lujan written by members of the genetics faculty to the Board of Medical Examiners should not be interpreted as indicating the unlicensed practice of medicine. The testimony of Drs. Lubs, Benke and Shear adequately explain that those letters were somewhat poorly drafted. Dr. Lubs, in an April 4, 1985, letter stated that Dr. Lujan "can independently carry a regular patient load in both our genetic clinic and pre- natal diagnosis program" and that he "has been seeing nearly all of our clinical genetic consultations at Jackson Memorial Hospital independently" meant to emphasize Dr. Lujan's professional growth and ability to act independently. While in his four years of training at the Fellowship Program (one which included part-time work at the sickle cell clinic which will be discussed below) he functioned as a consultant to attending physicians, and even those consultations were reviewed by members of the genetics program faculty before transmission to attending physicians.
Dr. Shear's letter to the Board dated April 27, 1985, like that of Dr. Lubs, emphasized the ability to function independently which Dr. Lujan developed in the course of the Fellowship when she said:
His position has allowed him a great deal of independence, and he has carried a major patient load within the Mailman Center out- patient program and genetic consultive services provided for our affiliate hospital, Jackson Memorial Hospital. . . In his transition from the position of Clinical Fellow to Adjunct Instructor in the Department of Pediatrics, he assumed additional responsibility for the supervision of a large number of pediatric and obstetrical residents during their main rotation through the Mailman Center as well as the post-doctoral Fellows.
The supervision of residents had to do with the scheduling of the residents and preparing them for their assignments at the genetic clinic, a duty which Dr.
Lujan took over under the direction of Dr. Lubs. This does not constitute the unlicensed practice of medicine.
No Improper Practice Occurred at the Sickle Cell Clinic
Dr. Lujan did receive a medical faculty certificate for the period during his third year of training when he worked at the sickle cell clinic. Because there was no pediatrician on staff, but rather two hemotologists, Dr. Lubs thought it best that Dr. Lujan have a certificate while doing that work. The Medical School procured that certificate for him. While he did not, at that
time, have teaching duties in the sense that he was teaching an assigned class, learning to teach and -teaching more junior Fellows at the genetics clinic was one of the essential components of the Fellowship Program. Dr. Lujan was properly certificated during the third year for the work he did at the sickle cell clinic. For the reasons stated above, extension of that certificate when he returned full time to the Fellowship Program during his fourth year was unnecessary.
Illinois Medical Practice
The Department states in its Proposed Recommended Order, from paragraph 15:
Two further issues were raised at the hearing: one concerning [Dr. Lujan's] truth and veracity and a second regarding [Dr. Lujan's] present practice of medicine in Illinois without an Illinois medical license.
Dr. Lujan's truthness is always an issue in a case such as this but there is no issue whether he is presently practicing medicine in Illinois without an Illinois license independent of the question of whether he testified truthfully. As stated in Finding of Fact 2, above, the question framed by the Board of Medical Examiners in its March 28, 1986 order denying licensure was whether Dr. Lujan "may have practiced medicine in Florida while not licensed to do so . . ." (Emphasis implied).
The matter of Illinois licensure came about because Dr. Lujan testified "I hold a license from Illinois to practice [medicine]" (Transcript 228, line 22) which he believed had been granted six days before the hearing (Transcript 229). The Department produced at the hearing on October 15, 1986, documents from the State of Illinois, certified as of October 14, 1986, that Dr. Lujan was not licensed in the State of Illinois. Counsel specifically argued that that Illinois certification was offered as impeachment (Transcript 287, line 7). On redirect examination, Dr. Lujan testified that he had personally appeared before the Illinois Board and that they voted to grant him licensure (Transcript 307) although he had not physically received that license yet. To clear up the issue, the Hearing Officer ordered that the Illinois Board be contacted to determine whether or not Dr. Lujan had been licensed. Pursuant to that order, on November 21, 1986, Dr. Lujan filed his Notice of Compliance with Order Regarding Post-hearing Submissions and Notice of Filing Transcript. Attached to it was a letter from the State of Illinois Department of Registration and Education stating that:
At the October 8, 1986, meeting of the Illinois Medical Practice Examining Committee, the Members recommended that Dr. Lujan be approved for licensure to practice medicine in all of its branches on the basis of endorsement of the FLEX examination. However, upon review of the committee's recommendation, Director Gary L. Clayton deferred action, referred
the application to the Department's Enforcement Division and directed that records be requested from the State of Florida.
It is apparent that Dr. Lujan is not presently licensed to practice medicine in Illinois, but his belief that he had been licensed six days before he testified at the final hearing in this matter was entirely reasonable. The letter from the State of Illinois does not indicate the date upon which the Committee's Director deferred action (which I take to mean deferred the issuance of the license) or what authority he had to do so in the face of approval of licensure by the Examining Committee's members. I assume that Illinois law permits such a practice, but having attended the meeting of the Board and heard the motion by which licensure was apparently granted, Dr. Lujan's testimony at the hearing is not indicative of any intention to deceive with respect to his status in Illinois. His testimony reflected what any reasonable person in his circumstance would have concluded about his status, i.e. that he had been licensed.
The Department's contention that Dr. Lujan is somehow in violation of Illinois law due to his current employment as chief resident at Rush- Presbyterian St. Lukes Medical Center in Illinois is rejected as irrelevant. This is not an issue framed by the Board's order of licensure denial. Even if it had been an issue, no expert testified with respect to the conditions under which one must be licensed to practice medicine in the State of Illinois, or whether any statutes or rules in the State of Illinois might permit one to practice as a resident without full licensure, if he has been licensed in another state and the practice were limited to an Illinois hospital. The record on the collateral issue of Illinois licensure is simply insufficient to make any determination as to whether Dr. Lujan may have been in violation of Illinois law. The fact that the Illinois Medical Practice Examining Committee voted to grant an Illinois license on October 8, 1986, does, however, constitute important evidence that the State of Illinois has had no problem with what Dr. Lujan has done in Illinois. Deferral of the issuance of the license by the committee's director was based upon a perceived need to request records from the State of Florida concerning this proceeding. Nothing proven to have happened in Illinois forms a basis for concluding that Dr. Lujan testified untruthfully at the final hearing in this matter, or that he should be denied licensure in Florida due to anything he has done in the State of Illinois.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this matter pursuant to Section 120.57(1), Florida Statutes.
The evidence is convincing that Dr. Lujan is capable of practicing medicine safely in the State of Florida. Section 458.331(3), Florida Statutes, is no bar to his licensure.
Neither is there evidence that Dr. Lujan practiced medicine in Florida without a license. During his Fellowship Dr. Lujan was always in a program in which his work was consultative, reviewed by senior faculty members before consultation reports were submitted, and those reports in turn were sent to an attending physician for determination of whether to follow the advice rendered. Dr. Lujan's work during his third year at the sickle cell clinic was related to teaching duties at an accredited medical school, the University of Miami. One of the purposes of the Fellowship program is to teach Fellows how to teach so
