STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF HEALTH AND REHABILITATIVE ) SERVICES, )

)

Petitioner, )

)

vs. ) DOAH CASE NO. 86-2583

) Administrative Fine

DAVID J. SAMARA, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided, and on October 8, 1986, a formal Section 120.57(1), Florida Statutes, hearing was held in this cause. The location of the hearing was Jacksonville; Florida. Charles C. Adams, hearing officer of the Division of Administrative Hearings, conducted the proceedings. Both parties attended the hearing. This recommended order is entered after review of the transcript of proceedings filed with the Division of Administrative Hearings on December 2, 1986. The parties were afforded the opportunity to present proposed recommended orders. Such proposals have not been filed.

APPEARANCES

For Petitioner: Richard A. Patterson, Esquire

Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32301

For Respondent: David J. Samara

212 Blanding Boulevard Orange Park, Florida 32073

ISSUES

The issues in this case are promoted through an administrative complaint brought by the State of Florida, Department of Health and Rehabilitative Services (Petitioner) against David J. Samara, M.D. (Respondent) in which the agency seeks to impose a $250 fine under the authority of Section 468.3101, Florida Statutes. In particular, the Petitioner requests that the Respondent be fined based upon his allowing Beth Walton to perform radiographic procedures at a time when that individual did not hold a radiologic technologist certificate. This conduct on the part of the Respondent is said to be a violation of Section 468.3101(1)(i), Florida Statutes, and Rule 10D-74.58(1)(e), Florida Administrative Code.

FINDINGS OF FACT

1. Chapter 468, Florida Statutes, Part IV, empowers Petitioner to regulate persons seeking or holding certificates to use radiation on human beings as radiologic technologists. This regulation excludes licensed practitioners. One of the categories of licensed practitioners would be a practitioner licensed to practice medicine in the state of Florida. Respondent is licensed to practice medicine in the state of Florida. He practices urology and general medicine.

   
   

2. The administrative complaint which underlies this action was sent by certified mail on May 29, 1986, directed to the Respondent. It calls for the imposition of an administrative fine in the amount of $250 against Dunn Avenue Medical Center. See Petitioner's Exhibit 4 admitted into evidence, a copy of the administrative complaint. Dunn Avenue Medical Center is not a legal entity. This description characterizes the medical offices located at 1124 Dunn Avenue, Jacksonville, Florida. It does not describe a corporation or partnership, nor is it a fictitious name duly registered. From this information and the fact that the opportunity to request a hearing says "he" and not "it," it is presumed that the complaint concerns Respondent. He has acted in accordance with that impression by timely requesting a formal hearing.

   
   

3. Respondent practices medicine at the Dunn Avenue location on an average of two days a week. Other physicians work at that location during the work week. Those individuals are not employees of the Respondent. They are independent contractors who pay for the use of the facility at Dunn Avenue and to use employees who work at the Dunn Avenue location.

   
   

4. The real property at the Dunn Avenue office is rented by David J. Samara, M.D., P.A., a corporation in which the Respondent is a principal. This lease arrangement with the property owner of the Dunn Avenue location was signed by Respondent and another physician, Samir Najjar. Dr. Najjar is an employee of the Respondent. The other physicians who have been referred to in the previous paragraph as independent contractors are persons other than Dr. Najjar. Those individuals would include Doctors Wernow, Fuller and Tho Nguyen.

   
   

5. One of the employees hired by Respondent and paid by the David J. Samara, M.D., P.A. was one Laura Beth Walton. She was employed as a medical assistant. This employment occurred in the early part of 1986. When she was hired, the understanding between the Respondent and Ms. Walton was to the effect that on March 20, 1986, she was expected to stand examination to obtain a certificate as radiologic technologist. She took the job a couple of weeks before this examination was to be given. At the time that she was hired, Respondent explained that she could not do any x-ray procedures until she had obtained a license. She was told that Respondent would attempt to obtain a temporary license for her benefit; however, that license was never obtained. During the time frame countenanced by the administrative complaint, Respondent performed all x-ray procedures related to his patients that would have transpired at the Dunn Avenue location. Nonetheless, he allowed Ms. Walton to escort the patients into the x-ray room and assist them in changing their clothing in anticipation of those procedures. He also explained to Ms. Walton how the x-ray procedures were conducted and taught her about the positioning of patients who were being examined through the x-ray procedures. Respondent allowed Ms. Walton to position patients while in his presence and with his ability to make changes in their positioning if he felt that Ms. Walton's positioning was incorrect. Respondent positioned the x-ray tube and performed the study, to include the engagement of the x-ray device. Ms. Walton was allowed to process the x-ray films.

6. Gary L. Tomaszewski, Public Health Physicist Manager involved in the Petitioner's Radiologic Technology program, testified that the positioning of a patient is a part of the process of radiologic technology. Mr. Tomaszewski is qualified to give this opinion, and his opinion concerning the positioning of patients is accepted.

   
   

7. Ms. Walton, during her employment at the Dunn Avenue location, conducted x-ray procedures for Drs. Wernow and Fuller without the benefit of their supervision. Respondent had not condoned this conduct on the part of Ms. Walton. Again, these procedures done at the behest of Drs. Wernow and Fuller were procedures for independent contractors who were utilizing the Dunn Avenue medical facilities.

   
   

8. Ms. Walton, during her employment at the Dunn Avenue location, was never the holder of a certificate as radiologic technologist issued pursuant to Chapter 468, Florida Statutes.

   
   

9. It is suggested by the witness Walton that one x-ray procedure was done for the benefit of Respondent's patient Virginia Reinhart without the Respondent's being present and supervising Walton and upon his instigation. Respondent denies this set of events, and his denial is found to be more compelling than the testimony offered by Ms. Walton.

   
   

10. Neither the Respondent nor the arrangement for independent physicians to use employees paid by David J. Samara, M.D., P.A. and equipment in the office contemplated an arrangement in which an unqualified person, such as Ms. Walton, could perform x-ray procedures. That is to say that neither the Respondent in his individual capacity as a physician nor as a principal within the Samara P.A. contemplated this extra-legal activity by Ms. Walton.

    
    

11. Equipment at Dunn Avenue, to include the x-ray machine, was owned by the David J. Samara, M.D., P.A.

    
    

12. The initial awareness which the Petitioner had of the activities of Ms. Walton related to patient x-rays occurred based upon an inspection of the Dunn Avenue medical office performed on April 8, 1986. At that time, the Petitioner was under the impression that the name of the facility was Dunn Avenue Medical Center. That impression continued at the point of granting an opportunity for the problem to be redressed on April 22, 1986, when correspondence addressed to Dunn Avenue Medical Center purported to allow the "center" to explain why administrative action should not be taken against it for the use of Ms. Walton as an uncertified operator performing radiographic procedures. Response to that overture was delayed based upon the lack of knowledge of that correspondence on the part of Respondent. Subsequently, the Respondent did offer explanation by correspondence of May 16, 1986.

    Petitioner's Exhibits 1 through 3, respectively, are items pertaining to the inspection, notice to show cause and response to that notice. These items were received into evidence. The case was not resolved by the Respondent's explanation and there ensued the administrative complaint and request for hearing.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter and the Petitioner as contemplated by Chapters 120 and 468, Florida Statutes. There is no jurisdiction over the Respondent or the entity described as Dunn Avenue Medical Center.

    
    

14. Dunn Avenue Medical Center is not a legal entity and action taken against it is without force and effect.

    
    

15. Likewise, action may not be taken against the other ostensible respondent in this action, David J. Samara, M.D. The focus of Chapter 468, Florida Statutes, Part IV, related to matters of administrative law, pertains to the process of certification and regulation of radiological technologists. It does not contemplate the licensure of, nor the administrative discipline of persons described as "licensed practitioners" to include those persons who practice medicine. Respondent falls into that category. Therefore, Petitioner is not entitled to take disciplinary action against the Respondent under the purported authority set forth in Section 468.3101(1)(i) , Florida Statutes. Similarly, the prosecution of the Respondent under the authority set forth in Rule 10D-74.58(1)(e), Florida Administrative Code, is not available. That provision, as described in the preamble, contemplates disciplinary action against certificate holders. Licensed practitioners within the meaning of Chapter 468, Florida Statutes, Part IV, are not required to obtain a certificate before using radiation on a human being. Stated another way, a "licensed practitioner," such as the Respondent, is not a certificate holder. This clear statement within the rule of the application of disciplinary guidelines to a certificate holder only is further evidence of the fact that the disciplinary provision set forth in Section 468.3101, Florida Statutes, is related to a certificate holder and unrelated to a licensed practitioner. The sole reference to the ability to take action against the Respondent identified in Chapter 468, Florida Statutes, Part iv, is announced at Section 468.311(8), Florida Statutes, pertaining to the criminal law prosecution of persons who have employed another for applying ionizing radiation to any human being, in a circumstance in which that person employed is not certified under the provisions of the chapter. That prosecution is independent of the administrative law disciplinary action.

In summary, while the action of allowing Ms. Walton to position patients is a facet of the performance of radiographic procedures, in the circumstance in which Ms. Walton was not the holder of a certificate, neither Section 468.3101(1)(i) nor Rule 10C-74.58(1)(e), Florida Administrative Code, allows disciplinary action to be taken against the Respondent

Based upon the consideration of the facts found and the conclusions of law reached, it is,

RECOMMENDED: That a final order be entered which dismisses the action against the Respondent and any claimed entity known as Dunn Avenue Medical Center.

DONE AND ENTERED this 8th day of January, 1987, at Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1987.

COPIES FURNISHED:

Richard A. Patterson, Esquire Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee Florida 32301

David J. Samara, M.D.

212 Blanding Boulevard Orange Park, Florida 32073

David J. Samara, M.D.

Dunn Avenue Medical Center 1124 Dunn Avenue

Jacksonville, Florida 32218

William Page, Jr., Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Petitioner,

vs. CASE NO. 86-2583

DAVID J. SAMARA, M.D.,

Respondent.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.

FINDINGS OF FACT

The Department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The Hearing Officer's Conclusion of Law are rejected where inconsistent with the following conclusions:

1. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties as contemplated by Chapters 120 and 468, Florida Statutes (F.S.). There is jurisdiction over Respondent, David J. Samara as an employer of any individual who applies ionizing radiation to any human being and who is not certified under Chapter 468, F. S., Part IV.

   
   

2. Action may not be taken against Respondent, David J. Samara, M.D., as a licensed practitioner. Chapter 463, F.S., Part IV, does not contemplate the licensure of, nor the administrative discipline of, persons described as "licensed practitioners." Respondent practices medicine and is a licensed practitioner. However, action may be taken against Respondent as employer of an uncertified individual who performs procedures without the direct supervision of a licensed practitioner. To prohibit administrative sanctions against an employer, whether the employer is a licensed practitioner or not, whose uncertified employee applies ionizing radiation on a human being without direct supervision of a licensed practitioner would be contrary to Chapter 468, F.S., Part IV and would result in great danger to the public. The language contained

in Sections 468.3101(1)(i) and 468.311(8), F.S., is identical. Respondent is not exempted from his responsibility under these provisions as an employer simply because he is a licensed practitioner.

The Hearing Officer found that Ms. Walton did not perform radiographic procedures for Dr. Samara without his direct supervision. Therefore, Dr. Samara is not guilty of the violations alleged in the administrative complaint.

Based upon the foregoing, it is

ADJUDGED, that this proceeding be dismissed.

DONE and ORDERED this 5th day of March 1987, in Tallahassee, Florida.

GREGORY L. COLER

Secretary

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Copies furnished to:

David J. Samara, M. D.

212 Blanding Boulevard Orange Park, Florida 32073

David J. Samara, M. D. Dunn Avenue Medical Center 1124 Dunn Avenue

Jacksonville, Florida 32218

Richard A. Patterson, Esquire Assistant General Counsel Department of Health and Rehabilitative Services

1323 Winewood Blvd. Building One, Room 407

Tallahassee, Florida 32399-0700

Charles C. Adams Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U.S. Mail this 9th day of March, 1987.

R. S. Power Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700 904/488-2381

Docket for Case No: 86-002583

Orders for Case No: 86-002583