STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLADYS SOLEDAD VALLADARES, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 86-4590

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on August 20, 1987, in Miami, Florida. The parties were afforded leave through November 17, 1987 to submit proposed Recommended Orders. Proposed Recommended Orders were submitted by counsel and were considered by me in preparation of this Recommended Order. Proposed findings which are not incorporated herein are the subject of specific rulings in an Appendix to the Recommended Order.

APPEARANCES

For Petitioner: Paul Watson Lambert, Esquire

Taylor, Brion, Buker and Greene Post Office Box 11189 Tallahassee, Florida 32302-3189

For Respondent: Allen R. Grossman, Esquire

Assistant Attorney General 1601, The Capitol

Tallahassee, Florida 32399-1050 ISSUE PRESENTED

The issue presented for decision herein is whether or not Petitioner's application for licensure as a physician by endorsement should be approved.

INTRODUCTION AND BACKGROUND

Gladys Soledad Valladares applied for a medical license by endorsement in the State of Florida. Her application was denied by the Board of Medicine and she filed a request for a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (Supp. 1986). The matter was referred to the Division of Administrative Hearings for assignment of a Hearing Officer. At the final hearing, Petitioner presented two witnesses: Dr. Norman Campos, who was received as an expert in psychiatry and Gladys Soledad Valladares. Respondent offered two witnesses, both experts in medical education and training: Dr.

Franklin Behrle and Dr. Sidney Levin. The parties offered 15 Joint Exhibits and Petitioner submitted 6 additional Exhibits which were received into evidence.

Respondent submitted 5 Exhibits which were received into evidence.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings.

Gladys Soledad Valladares (Petitioner) applied for licensure as a physician through endorsement by application dated September 23, 1985. (Joint Exhibit 1).

1. On page (4) of the application is the question:

   
   

   Are you now or have you ever been emotionally/mental ill? Have you ever received psychotherapy? (Joint Exhibit 1).

   
   

2. Petitioner filled both blanks with the word "No". (Joint Exhibit 1).

   
   

3. Also on page (4) of the application is the question:

   
   

   Have you ever had to discontinue practice for any reasons for a period of one month or

   longer? (Joint Exhibit 1).

   
   

4. Petitioner answered this question "yes." (Narrative Report attached to Joint Exhibit 1).

   
   

5. Petitioner provided an explanation for discontinuing practice in March, 1981, citing personal reasons and her parents' health problems.

   
   

6. In support of her application, Petitioner had Dr. Franklin Behrle, former director of the New Jersey residence program at the College of Medicine and Dentistry, submit an evaluation form on which he commented that "Petitioner did not complete her first year of pediatric residency; showed signs of inability to cope with the demands and pressures of residency and finally terminated April 26, 1981." (Joint Exhibit 3).

   
   

7. Specifically, the Board denied Petitioner's application based on the following grounds:

   
   

   1. You submitted false information on your application for licensure and your response to the question, "have you ever received psychotherapy?" See, Section 458.331(1)(a) and (2), Florida Statutes.

      
      

   2. The application and supporting documentation does not provide sufficient information to

      demonstrate that you can practice medicine with reasonable skills and safety. See Section 458.331(3), Florida Statutes. Specifically, the poor recommendations submitted in support of your application for licensure indicates your lack of ability to practice with skills and safety.

      
      

8. Dr. Valladares failed to make reference in her application to counseling received from Dr. Jorge Guerra in 1983 while she was in residency in Jacksonville. The Board of Medicine interprets that counseling as psychotherapy and takes the position that Dr. Valladares should have answered the application question about psychotherapy in the affirmative. Dr. Valladares did not consider those visits to be psychotherapy because to her, it seemed minor. Psychotherapy meant to her something more than what she received from Dr. Guerra.

   
   

9. Dr. Valladares attended medical school in Havana, Cuba, after which she immigrated to the United States. She continued her medical education in Seville, Spain, where she received her medical degree. Dr. Valladares took and passed the ECFMG examination in July, 1979. She twice took the FLEX examination, once in December, 1984, and again in June, 1985, when she finally passed it.

   
   

10. In November and December, 1983, Dr. Valladares saw Dr. Jorge Guerra, a psychiatrist, five times. She saw Dr. Guerra because of difficulty in dealing with stress she underwent while enrolled in a residency program at University Hospital in Jacksonville, Florida. Dr. Guerra prescribed dexyrel and xanax for Dr. Valladares to be taken over a six week period. Dr. Valladares took voluntary leave from her residency during part of this time. The leave was taken because the prescribed medication made her drowsy and too sleepy to satisfactorily perform her residency duties.

    
    

11. After returning from leave, she satisfactorily completed one year of residency for which she was awarded a certificate. (TR 85-88; Exhibit 9).

    
    

12. Due to the brief duration of Dr. Guerra's treatment, Dr. Valladares did not consider his treatment of her to be psychotherapy as she considered that psychotherapy related to "more serious conditions which she did not have." She did not consider her stress to be serious because of her observation of other residents who also experienced stress and were not labeled psychic.

    
    

13. Dr. Guerra, who testified by deposition, related that Dr. Valladares did not have an emotional or mental condition that would preclude her from safely practicing medicine. He initially treated her and diagnosed her condition as manic-depression however, near the end of his treatment the diagnosis was changed to a dysthymic disorder. (Depo. p. 13).

    
    

14. Dr. Guerra came to treat Dr. Valladares based on a referral from Dr. Gladys P. Soler, Chief, Ambulatory Pediatrics at the Jacksonville Health Education Program. In making the referral, Dr. Soler advised Dr. Guerra that Petitioner thought that she was not coping at the time because she was too demanding of herself and had placed unrealistically high expectations upon herself. Upon checking with Dr. Soler as well as the chief resident at University Hospital, Dr. Guerra found that Petitioner was in fact performing

    satisfactorily but basically had a "tendency to be a perfectionist and she wanted to do a perfect job, even though there was not (sic) complaint of her performance, she was demanding too much of [herself]" (Depo. p. 10).

    
    

15. Dr. Valladares received a number of favorable recommendations in support of her application from doctors who worked with her during her residency. These recommendations are from Dr. Julia F. Pons; Dr. Tajvar Joudarzi, Assistant Professor in the Pediatric Ambulatory Department, University Hospital, Jacksonville; Dr. Sidney Levin, Professor and Chairman of the Department of Pediatrics, University Hospital, Jacksonville and Dr. Gladys P. Soler. The letter from Dr. Soler is particularly favorable. Dr. Soler writes:

    
    

    I have always found her to be extremely reliable regarding her responsibilities and duties and able to manage both staff and patients very well.

    
    

    During this time I have had the pleasure to observe her fast development, competent all-round pediatrician with deep medical knowledge, high ethical standards and devoted to her patients...

    Dr. Valladares has a very likeable and pleasant personality, she is positive, mature and is able to accept constructive criticism well. Her clinical judgments and abilities, her insight and observations about issues surrounding the patient as well as her concern and sensitivity to the needs of the children and parents is remarkable.

    
    

16. The Board of Medicine asked the Director of Medical Education at University Hospital for a routine residency evaluation. That evaluation was completed by Dr. Levin, the Chairman of Pediatrics. Dr. Levin wrote one of the four letters of recommendation referred to above. On the evaluation form, he scored her residency as mostly "good" with one "fair" and two as "don't know." (TR 227).

    
    

17. Dr. Levin recommended her with some reservation. His comments are that Dr. Valladares had "some emotional problems which impaired function." Although he mentioned Dr. Valladares as having two episodes of severe depression and had trouble handling stress, in fact, she only had one episode of depression which was not severe. Dr. Levin also wrote that Dr. Valladares was not allowed to stay beyond the first year of residency, a fact contradicted at hearing. Dr. Levin testified at hearing that Dr. Valladares satisfactorily completed the first year of residency and that he signed her certificate. He also wrote a letter of recommendation for Dr. Valladares dated August 22, 1984, stating that during her residency she was known to be a person of good moral character. (Exhibit D, TR 218.) Notwithstanding his letter of recommendation, Dr. Levin recommended that the Board evaluate her present psychiatric status. (Exhibit 4) Pursuant to Dr. Levin's recommendation, the Board asked Dr. Valladares to submit to a psychiatric evaluation. This was done and the evaluation was completed by

    Dr. Norma M. Campos. Dr. Campos is a Board certified psychiatrist who attended the University of Madrid, Madrid, Spain. Dr. Campos completed a three year residency at Vanderbilt University and is licensed in the State of North Carolina, Tennessee and Florida. She is Board certified and was tendered and received as an expert in psychiatry.

    
    

18. Dr. Campos examined Dr. Valladares during March 1986. Dr. Valladares underwent the formal psychiatric evaluation at the Board's request. Dr. Campos' report and evaluation related to the problems of depression that Dr. Valladares suffered during March, 1983. Dr. Campos found, at the time of her treatment of Dr. Valladares, no psychological problems, no showing of any inability to practice medicine at the time and related that the dysthymic disorder that Dr. Valladares, suffered was merely a state of depression, without psychotic features, which stemmed from exposure to stressful situations. Dr. Campos found it common for everyone to suffer depression at times and this was especially so with residents due to the demanding training programs that they must undergo and endure, coupled with the long hours of duty that they serve. Concluding, Dr. Campos highly recommended Dr. Valladares without reservation. She found her to be totally competent to practice medicine with reasonable skill and safety. Dr. Campos' evaluation was filed with the Board during March, 1986. (Exhibit 5). Despite her recommendation, the Board denied Dr. Valladares' application.

    
    

19. Lest there be any doubt as to her ability to satisfactorily function as a medical doctor, Dr. Valladares voluntarily sought evaluations from Dr. Charles Kram, Ph.D., a psychologist at the University of Miami and David G. Pinosky, M.D., a psychiatrist. Both were recommended by the Board's staff. Dr. Valladares asked the Board's staff to recommend someone to evaluate her as she wanted the Board to have complete confidence in their reports. Both professionals submitted reports to the Board. Dr. Kram's report concludes:

    
    

    There is no indication present in these test data to suggest the presence of mental nor of emotional pathology.

    
    

20. Dr. Pinosky's report concludes as follows:

    
    

    I found no evidence of a significant emotional or mental disorder that would preclude Dr. Valladares from safely practicing medicine. (Exhibits 6 and 7).

    
    

21. Dr. Pinosky also commented about the negative answer on Dr. Valladeres' application and concluded as follows:

    
    

    Dr. Valladares' application was denied because of the Board's concern regarding her emotional status and also because she answered "No" to the' question regarding previous "psychotherapy." Dr. Valladares had misinterpreted this question to mean more prolonged psychiatric intervention for more chronic and severe psychiatric disorders. She

    considered brief psychiatrist intervention to be outside the scope of that question. She denies any fraudulent attempt at deception and is now painfully aware of her confusion regarding this matter.

    
    

22. Prior to performing her residency at University Hospital in Jacksonville, Dr. Valladares served in a residency program in New Jersey. A routine evaluation request was sent to the head of the New Jersey residency program. Dr. Franklin Behrle wrote that Dr. Valladares left her residency for an inability to cope with the demands and stresses, was terminated after nine months, and would not have been accepted back into the program. However, Dr. Behrle's testimony respecting this point was contradicted at the hearing. During hearing, Dr. Behrle testified that he had no first hand observation of Dr. Valladares' residency; that she was given an executed copy of the second year residency contract; that there was never issued a written document to Dr. Valladares that her second year contract was cancelled; that she satisfactorily completed nine months of the residency program for which she received a certificate; and, that he wrote and signed a letter of recommendation for Dr. Valladares dated May 13, 1981, saying that she withdrew from residency for personal reasons and that he recommends her for "any future residency program she will enroll in the future." (Exhibit 10).

    
    

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes. (Supp. 1986).

    
    

24. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

25. The authority of the Respondent is derived from Chapter 458, Florida Statutes.

    
    

26. Section 458.313(1), Florida Statutes, requires the following to qualify for licensure by endorsement as a medical physician:

    
    

    1. Eighteen years or more of age;

    2. Good moral character;

    3. Graduation from an approved medical school; and

    4. Passage of the FLEX examination within the past ten years.

       
       

27. Dr. Valladares is (a) over eighteen years of age, (b) of good moral character, (c) graduated from an approved medical school and (d) passed both the FLEX and the ECFMG examinations.

    
    

28. By answering "No" to the application question regarding psychotherapy, Dr. Valladares did not intend to give false information on her application. As stated heretofore noted, when Dr. Valladares completed the application, she was at the opinion that the five visits with Dr. Guerra did not constitute psychotherapy. In retrospect, she now realizes that she should have answered the question affirmatively, but still does not consider the reason she sought Dr. Guerra's counsel to be serious. Both Dr. Guerra and Dr. Campos concur that

    her condition was not serious. Accordingly, it is found that Dr. Valladares' negative answer to the application question was not intended to mislead the Board but, rather, was premised on a misapprehension of the question with no intent to mislead or otherwise deceive the Board of Medicine. Finally, Dr.

    Valladares' negative answer on the application did not cause material harm in processing her application because all information about the issue has been aired, and she fully disclosed the specifics of the brief treatment she received from Dr. Guerra.

    
    

29. Dr. Valladares' recommendations submitted with the application were not poor as stated in the Board's Order of denial. The recommendation at exhibit 11, the evaluations at exhibit 9, and the letters of recommendation from Dr. Behrle and Dr. Levin, are excellent and meet the requirement of "satisfactory recommendations."

    
    

30. Competent and substantial evidence was offered herein to establish that Dr. Valladares' can practice medicine with reasonable skill and safety. Noteworthy is the report of Dr. Campos (Exhibit 5 and Recommendation), Exhibit 4, and Dr. Levin's evaluation (Exhibit 5), which amply support a conclusion that Dr. Valladares can reasonably practice medicine with reasonable skill and safety. At hearing, both Dr. Campos and Dr. Guerra confirmed their evaluations and reports. While there was some basis for the Board to be initially concerned with the emotional or psychiatric state of Dr. Valladares, she has since had two psychiatric and one psychological test to resolve any concern the Board may have had about her emotional state. Those evaluations are favorable and conclude that there is no evidence of emotional or mental pathology that precludes her from practicing medicine safely. Based thereon, it is concluded that Dr. Valladares has adduced competent and substantial evidence and has met her burden of proving that she is presently capable of practicing medicine with reasonable skill and safety.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:

Respondent issue a license to practice medicine to Dr. Valladares based on her showing, during the hearing herein, that she meets all qualifications for licensure by endorsement pursuant to Subsection 458.313(1), Florida Statutes, provided she satisfy any other necessary criteria for licensure.

RECOMMENDED this 1st day of March, 1988, in Tallahassee, Florida.

JAMES E. BRADWELL

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 1st day of March, 1988.

COPIES FURNISHED:

Paul Watson Lambert, Esquire Taylor, Brion, Buker & Greene Post Office Box 11189 Tallahassee, Florida 32302-3189

Allen R. Grossman, Esquire Assistant Attorney General 1601, The Capitol

Tallahassee, Florida 32399-1050

Tom Gallagher, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

William O'Neil General Counsel

130 North Monroe Street Tallahassee, Florida 32399-0750

Dorothy Faircloth, Executive Director Department of Professional Regulation Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 86-004590

Orders for Case No: 86-004590