vs. ) CASE NO. 87-0511
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this cause on August 4, 1987 in Miami, Florida. The following appearances were entered:
FOR PETITIONER: Harold M. Braxton, Esquire
FOR RESPONDENT: Allen R. Grossman, Esquire
Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32399-1050
The Petitioner, Fernando Pino, M.D., applied for a medical license by examination in the State of Florida. By Order dated December 29, 1986, the Respondent, Board of Medical Examiners (hereinafter "the Board") granted Petitioner's application to take the examination of the Federation of State Medical Boards of the United States, Inc. (FLEX), but denied him licensure on the grounds that Petitioner had purportedly been practicing medicine without a license. On January 20, 1987 the Petitioner filed a request for a formal administrative hearing pursuant to Chapter 120, Florida Statutes.
At the final hearing, the Petitioner testified in his own behalf and presented the testimony of the following witnesses: Fred Seligman, M.D., Director of the Division of Child and Adolescent Psychiatry at the University of Miami School of Medicine and Chief of Child Mental Health Services at Jackson Memorial Hospital; Alba Abreu, Medical Director of the Child and Adolescent In- Patient Unit of the Department of Psychiatry at Jackson Memorial Hospital and adjunct Professor of Psychiatry at the University of Miami School of Medicine; and Barbara Bothwell, Secretary to Richard M. Steinbook, M.D., Director of Residency Training for the Department of Psychiatry, University of Miami School of Medicine/Jackson Memorial Hospital Residency program. Petitioner's Exhibits
A, B, C, D, E and 2 were duly offered and admitted into evidence. Ruling was reserved as to Petitioner's Exhibit 1, but after due consideration, Petitioner's Exhibit 1 is admitted into evidence. The Respondent presented no witnesses.
Ruling was reserved as to Respondent's Exhibit 1, and after due consideration, the objection to Respondent's Exhibit 1 is sustained. Joint Exhibit 1 was duly offered and admitted into evidence. The parties have filed post-hearing Proposed Findings of Fact. A ruling has been made on each finding of fact in the Appendix to this Recommended Order.
Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence submitted and the entire record compiled herein, I hereby make the following findings of fact:
The Petitioner, Fernando Pino, was born in Cardenas, Cuba, in 1949. Petitioner graduated from the University of Zaragoza Medical School, Spain, in 1978.
The Petitioner began training in 1981 in the residency program, Department of Psychiatry, University of Miami/Jackson Memorial Hospital. The Petitioner completed three (3) years of training in the general psychiatric residency program in June, 1984.
On July 1, 1984, Petitioner was selected to become a fellow in Child and Adolescent Psychiatry at the University of Miami/Jackson Memorial Hospital. For the 1985-86 academic year, Petitioner was elected by his peers to be Chief Fellow. Petitioner completed the two-year program on June 30, 1986.
The Petitioner took and failed the FLEX examination three times between June 1984 and December 1985. After the Petitioner failed the examination for the third time, he was advised by the Board that he would not be allowed to sit for another examination until he participated in an additional one (1) calendar year of a post-graduate training program. Under the then existing law, an applicant who had failed the FLEX three times was required to obtain an additional year of post-graduate training in a program approved by the Council on Medical Education of the American Medical Association prior to taking the examination for the fourth time. Section 458.311(3), Florida Statutes (1985), (Repealed eff. October 1, 1986 by s. 2, Ch. 81.318, Laws of Florida).
After Petitioner was advised that he would need another year of post- graduate training, he informed officials at the University of Miami School of Medicine of his predicament and requested additional training. Dr. Seligman, Director of the Division of Child and Adolescent Psychiatry at the University of Miami School of Medicine and Supervisor of the fellowship program in the Child and Adolescent Psychiatry Unit, Jackson Memorial Hospital, allowed the Petitioner to participate in a third year of training as a "Senior Fellow" beginning July 1, 1986. Although the Petitioner had completed the minimum two year requirement for admission to examination by the American Board of Psychiatry and Neurology for certification in both general and child psychiatry, Dr. Seligman believed that Petitioner could benefit from additional training in the area of child psychiatry. Dr. Seligman offered Petitioner a third year of additional training with emphasis on adolescent psychiatry and experience in in- patient care from an administrative prospective.
The number of positions or "slots" available in the child psychiatry fellowship program is variable and is determined by the amount of funds
available to the Department of Child and Adolescent Psychiatry. There have been as few as three slots and as many as eight. Although the Petitioner was the first Senior Fellow in child and adolescent psychiatry, at the time of the hearing there was one Senior Fellow in psychopharmacology and one in the adult in-patient unit within the Department of Psychiatry.
In July 1986, the Petitioner was advised by counsel to the Board that pursuant to an amendment to the Medical Practices Act effective October 1, 1986, completion of an additional year of training had been eliminated as a prerequisite for an applicant taking the FLEX examination for a fourth time. See, Section 458.311(2), Florida Statutes. Thereafter, on October 8, 1986 Petitioner applied to take the December 1986 licensure examination. Pursuant to the Board's policy of having the Foreign Medical Graduate Committee (FMGC) conduct personal interviews of foreign medical graduates, Petitioner was notified that he was required to appear before the FMGC on November 21, 1986 and that the Board would review the FMGC recommendation at its meeting on the following day, November 22, 1986.
On November 21, 1986, the Petitioner, along with legal counsel, Gina Valdes, appeared before the FMGC. Based on several of Petitioner's Responses to Committee members' questions and a letter of recommendation from Dr. Steinbook, the Director of Residency Training, which characterized Petitioner as an "attending physician", the Committee members expressed concern over whether the Petitioner was practicing medicine without a license during the course of his Senior Fellowship with the University of Miami/Jackson Memorial Hospital.
On November 22, 1986, the Petitioner and his attorney appeared before a full meeting of the Board. Dr. Katims, Chairman of the FGMC, indicated to the Board that the Petitioner was qualified to take the licensure examination in every other respect except for the questionable practice period. At the conclusion of the meeting, the Board voted to grant Petitioner permission to take the licensure examination, but to require Petitioner to come before the Board with his supervising physician and explain his practice setting "to the satisfaction of the Board" prior to the issuance of a license. The Board's ruling was put in writing by an Order filed on December 29, 1986 which stated in part that the "...record reveals that the applicant has been practicing medicine without a license." On January 20, 1987, the Petitioner filed a request for a formal administrative hearing concerning the December 29, 1986 Order of the Board.
The Petitioner took the FLEX examination in December of 1986. By letter dated March 6, 1987, Petitioner was advised by the Department of Professional Regulation that he had obtained a passing score on the examination but that he was ineligible for licensure at that time.
PETITIONERS PERFORMANCE AS A FELLOW 1986-87
The fellowship program of the Division of Child and Adolescent Psychiatry of the University of Miami is approved by the Council on Medical Education of the American Medical Association. Although referred to as "fellows," trainees are in fact in a residency program. The child psychiatry fellowship program normally lasts two (2) years and qualifies the successful participant for admission to examination by the American Board of Psychiatry and Neurology for certification in child psychiatry. The child psychiatry fellowship program is more advanced and specialized than the general psychiatric residency program. The general psychiatric residents have a six (6) month block
of time in which they rotate through the child psychiatry program, but receive little specialized training in child psychiatry.
During the course of Petitioner's senior fellowship position in child and adolescent psychiatry, he rendered services under supervision and received training in a 25-bed in-patient adolescent psychiatric unit at Jackson Memorial Hospital. During the entire period of time that Petitioner was a
resident and fellow at Jackson Memorial Hospital, he was registered as a house physician.
The Petitioner's duties as a senior fellow required him to perform tasks similar to those performed by licensed physicians. One of his duties was to look after patients as a first line or junior physician. Other tasks performed by Petitioner were taking patient histories, participating in diagnosis, providing input for the formulation of treatment plans, writing progress notes, orders and prescriptions, participation in different modalities of therapy and teaching junior fellows and medical students. In addition, Petitioner was administratively responsible for the management and direction of the mental health workers (e.g. psychologists, social workers, nurses) that were brought together as a team to care for patients.
Dr. Fred Seligman, Director of the Division of Child and Adolescent Psychiatry, University of Miami School of Medicine, and the Chief of Child Mental Health Services at Jackson Memorial Hospital is the senior person responsible for all activities of fellows in child and adolescent psychiatry. Dr. Alba Abreu is an attending physician in the Division of Child and Adolescent Psychiatry, University of Miami School of Medicine and Medical Director of the Child and Adolescent In-patient Unit, Jackson Memorial Hospital. In each of the duties or tasks performed by Petitioner, he was supervised by Dr. Seligman or
D.r. Abreu, the attending physicians. If Dr. Seligman or Dr. Abreu were not on the premises while Petitioner performed his duties, another licensed physician would be deputized to act as attending physician and substitute for them. In addition, both Dr. Seligman and Dr. Abreu carried beepers when away from the ward. Either Dr. Seligman, Dr. Abreu or another attending physician were always immediately available to Petitioner.
Although Petitioner had duties similar to those of an attending physician, his responsibilities differed. The Petitioner participated in the formation and implementation of patient treatment plans, but the ultimate responsibility for those tasks rested with the attending physician. The Petitioner had no authority to make ultimate decisions regarding patients. If Petitioner wrote an order for medication, his order would be counter-signed by an attending physician. Likewise, all of Petitioner's progress notes would be co-signed by an attending physician.
In performing his duties on the in-patient unit, the Petitioner was allowed to write orders for medication which were then put on the respective patients' chart. Pursuant to policy established by the Department of Psychiatry, all orders for medication placed by fellows were required to be counter-signed by an attending physician. The order would then be taken off of the chart by a nurse and sent to the pharmacy. While a Senior Fellow, the Petitioner wrote orders for medication with the understanding that they would be counter-signed by an attending physician.
The hospital did not bill for any of Petitioner's services.
During his final year as a Senior Fellow, the Petitioner followed all of the rules and regulations of the Division of Child and Adolescent Psychiatry within the University of Miami. Although Petitioner was given increased responsibility as a Senior Fellow, his activities and duties were monitored and supervised by Dr. Seligman or Dr. Abreu. The Petitioner was responsible for carrying out the attending physician's orders and had no ultimate authority or responsibility over patients.
Although the Petitioner stated to the FMGC that as a Senior Fellow he was a "primary care physician", "directly responsible for the care of patients" and "acting in the role of an attending physician", he had previously qualified his statements by indicating that his duties were performed "with supervision." Dr. Seligman considered Petitioner a "primary care physician" from the standpoint that Petitioner's training assignment required him to have direct, daily contact with patients.
In August of 1986, Dr. Steinbook, Director of Residency Training, in the Department of Psychiatry, at the University of Miami School of Medicine, directed his secretary, Barbara Bothwell, to prepare a standardized letter of recommendation for submission to the Board of Medical Examiners on Petitioners behalf. Ms. Bothwell wrote the letter as requested, signed Dr. Steinbook's name and mailed it. In the letter dated August 13, 1986, the Petitioner was described as an "attending physician."
Ms. Bothwell had known Petitioner throughout his participation in the fellowship program, was impressed by him and was aware of his difficulties in becoming licensed. Ms. Bothwell added the words "attending physician" as embellishment without realizing their impact. Ms. Bothwell believed that she was doing Petitioner a favor by making his letter of recommendation stand out from all of the rest. Ms. Bothwell had no actual knowledge of Petitioner's duties and responsibilities as a Senior Fellow. Dr. Steinbook did not see the August 13, 1986 letter prior to it being mailed.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. See Section 120.57(1), Florida Statutes.
The practice of medicine and the licensing of physicians is governed by Chapter 458, Florida Statutes. Any person desiring to be licensed as a physician must apply to the Department of Professional Regulation to take the licensure examination. See Section 458.311(1), Florida Statutes. Each applicant who successfully passes the examination and otherwise meets all of the requirements of Section 458.311, Florida Statutes is entitled to licensure as a physician.
Respondent maintains that the Petitioner is not eligible for licensure because, contrary to Section 458.311(d), Florida Statutes, Petitioner has committed an act or offense which would constitute the basis for disciplining a physician pursuant to Section 458.331, Florida Statutes. In particular, the Board of Medical Examiners maintain that Petitioner has been guilty of practicing medicine without an active license in violation of Sections 458.327 and 458.331(1) and (2), Florida Statutes.
The burden of showing eligibility for licensure is on the applicant. Rule 28-6.008(3), Florida Administrative Code; J.W.C. Company, Inc. v.
Department of Transportation, 396 So.2d 778 (Fla. App. 1 Dist. 1981). Thus, the burden of establishing that Petitioner was not practicing medicine without a license would appear to rest upon the Petitioner, although an equally persuasive argument could be made that it is patently unfair to require an applicant to prove himself innocent of allegations of misconduct made by a state agency. See generally Associated Home Health Agency Inc. v. Department of Health and Rehabilitative Services, 453 So.2d 104 (Fla. App. 1 Dist. 1984). Nevertheless, under either concept of which party bears the burden of proof, the result in the instant case would be the same. The evidence presented at the formal hearing clearly and convincingly established that Petitioner has not been guilty of practicing medicine without a license.
Section 458.305(3), Florida Statutes provides as follows: "Practice of medicine" means the diagnosis,
treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical or mental condition.
The term "fellow" as used by the University of Miami/Jackson Memorial Hospital child psychiatry fellowship program is synonymous with the term "resident physician" as used in Rule 21M-23.004, Florida Administrative Code. A fellowship differs from a residency only because the training provided is more specialized, advanced and intense.
Rule 21M-23.004, Florida Administrative Code provides as follows:
A resident physician is one who has completed an internship and is en- gaged in a program of training designed
to increase his knowledge of the clinical disciplines of medicine, surgery or any of the other special fields which pro- vide advanced training in preparation
for the practice of a specialty.
The duties of a resident physician are delineated by Rule 21M-23.005, F.A.C.:
A resident physician participates in an organized educational program in which he has daily contact with patients and assumes increasing responsibility for their care under the supervision of the attending
staff of the hospital. The assumption of responsibility is a most important aspect of residency training. As
each resident physician demonstrates increasing knowledge and ability,
an increasing amount of reliance should be placed in his judgment in the diagnosis and in treatment of patients. He may also participate in the teaching of interns and medical students to an increasing extent.
The Petitioner's duties as a Senior Fellow included "hands on" training in most of the acts which constitute the practice of medicine as defined in Section 458.305(3), Florida Statutes and Petitioner was given increasing responsibility as he progressed through the program. However, consistent with the requirements of Rule 21M-23.005, Florida Administrative Code, Petitioner worked under the supervision of the attending staff physicians who bore responsibility for, and ultimately controlled the course of medical treatment provided to the patients.
Rule 21M-23.010, Florida Administrative Code, provides that residents in approved programs may, in the course of their employment, prescribe medicinal drugs other than those appearing in the schedules set out in Chapter 893, Florida Statutes. The University of Miami Medical School/Jackson Memorial Hospital child psychiatry fellowship program was an "approved program" as contemplated by Section 458.311(3), Florida Statutes, and Rule 21M-23.010, Florida Administrative Code. In addition, pursuant to the University of Miami Medical School policy, all of Petitioner's prescriptions or "orders" were required to be counter-signed by an attending physician.
In Watson v. Centro Espanol de Tampa, 30 So.2d 288 (Fla. 1947), a case strikingly similar to the instant case, the Supreme Court of Florida held that a nonlicensed hospital intern who worked under the direction of licensed physicians and merely carried out the orders of such physicians, charged no fees, was not responsible for the policies of the hospital or the manner in which patients were diagnosed or treated, and who was in the hospital only to acquire practical experience under the direction of the medical staff could not be considered practicing medicine without a license.
The Petitioner was directly supervised by a licensed attending physician in the performance of all of his duties as a Senior Fellow in the University of Miami/Jackson Memorial Hospital fellowship program. The Petitioner is not guilty of having practiced medicine without a license.
The Respondent presents the additional argument that Petitioner's application for licensure should be denied because of alleged "misrepresentations" to the Board in violation of Section 458.331(1)(a), Florida Statutes. The Respondent argues that Petitioner's failure to list service as a house physician from June 1984 to June 1985 at Coral Gables Hospital on his application for licensure examination under "past employment" was a misrepresentation.
Respondent's argument must fail for two reasons. First, it is clear from the transcripts of the meetings of the FMGC, the full Board and the Board's December 29, 1986 Order that the Board's only basis for denial related to Petitioner's performance as a Senior Fellow beginning in June 1986. For that reason, Respondent's Exhibit I, an application by Petitioner ford registration as an unlicensed physician filed on September 9, 1985 was not received into evidence on the ground that it dealt with a time period (1985) which was immaterial to the matters in issue at the formal hearing. A state agency, upon issuing or denying a license, must "...state with particularity the grounds or basis for the issuance or denial of the license." See Section 120.60, Florida Statutes. Secondly, even if those grounds could be considered, the Petitioner presented a credible explanation for failing to list service as a house physician at Coral Gables Hospital from June 1984 to June 1985 under past employment on the application. The Petitioner had merely placed his name on an eligibility list to work as a house physician at Coral Gables Hospital from June
1984 to June 1985, but did not actually work there. The evidence did not establish that Petitioner, in fact, ever worked as a house physician at Coral Gables Hospital between June 1984 and June 1985.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of the Petitioner, Fernando Pino, for
licensure by examination as a physician in the State of Florida be GRANTED.
DONE and ORDERED this 18th day of September, 1987 in Tallahassee, Leon County, Florida.
W. MATTHEW STEVENSON Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1987.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0511
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
Adopted in Finding of Fact 8.
Adopted in Finding of Fact 2.
Adopted in Finding of Fact 3.
Adopted in Finding of Fact 4.
Adopted in Finding of Fact 5.
Adopted in Finding of Fact 7.
Adopted in substance in Finding of Fact 8.
Adopted in substance in Finding of Fact 8.
Adopted in substance in Finding of Fact 7.
Adopted in substance in Finding of Fact 6.
Adopted in substance in Finding of Fact 12.
Adopted in substance in Finding of Fact 5.
Partially adopted in substance in Findings of Fact 5. Matters not contained therein are rejected as subordinate.
Adopted in Finding of Fact 11.
Adopted in Finding of Fact 13.
Adopted in Finding of Fact 13.
Adopted in Finding of Fact 19.
Adopted in Finding of Fact 14.
Adopted in Finding of Fact 15.
Adopted in Finding of Fact 18.
Adopted in Finding of Fact 18.
Adopted in Finding of Fact 1.8.
Adopted in Finding of Fact 18.
Adopted in Finding of Fact 19.
Adopted in Finding of Fact 16.
Adopted in Finding of Fact 17.
Adopted in Finding of Fact 20.
Adopted in Finding of Fact 20.
Rejected as subordinate and/or unnecessary.
Adopted in Finding of Fact 21.
Rejected as subordinate and/or unnecessary.
Adopted in Findings of Fact 20 and 21.
Adopted in Findings of Fact 20 and 21.
Adopted in Findings of Fact 20 and 21.
Adopted in Findings of Fact 20 and 21.
Rejected as subordinate and/or unnecessary.
Rejected as subordinate and/or unnecessary.
Rejected as subordinate and/or unnecessary.
Adopted in Finding of Fact 8.
Adopted in substance in Finding of Fact 8.
Rejected as subordinate and/or unnecessary.
Rejected as subordinate and/or unnecessary.
Adopted in substance in Finding of Fact 4.
Adopted in substance in Finding of Fact 4.
Rejected as subordinate and/or unnecessary.
Rejected as subordinate and/or unnecessary.
Adopted in substance in Finding of Fact 4.
Adopted in substance in Finding of Fact 4.
Adopted in substance in Finding of Fact 7.
Adopted in substance in Finding of Fact 7.
Adopted in substance in Finding of Fact 8.
Rejected as subordinate and/or unnecessary.
Adopted in substance in Finding of Fact 8.
Adopted in substance in Finding of Fact 8.
Rejected as a recitation of testimony and/or subordinate.
Adopted in substance in Finding of Fact 19.
Adopted in substance in Finding of Fact 19.
Adopted in substance in Finding of Fact 9.
Adopted in substance in Finding of Fact 9.
Adopted in substance in Finding of Fact 9.
Adopted in substance in Finding of Fact 9.
Adopted in substance in Finding of Fact 9.
Adopted in substance in Finding of Fact 9.
Rejected as argument and/or unnecessary.
Rejected as a recitation of testimony and/or subordinate.
Rejected as a recitation of testimony and/or misleading.
Rejected as a recitation of testimony and/or misleading.
Rejected as contrary to the weight of the evidence and/or argument.
Rejected as a recitation of testimony and/or argument.
Rejected as argument.
Adopted in substance in Finding of Fact 6.
Adopted in substance in Finding of Fact 5.
Adopted in substance in Finding of Fact 5.
Rejected as contrary to the weight of the evidence.
Partially adopted in Finding of Fact 14, matters not contained therein are rejected as argument and/or misleading.
Rejected as contrary to the weight of the evidence and/or a recitation of testimony.
Partially adopted in Finding of Fact 18, matters not contained therein are rejected as argument and/or a recitation of testimony.
Rejected as not supported by the weight of the evidence. Respondent's Exhibit 2 was not admitted into evidence.
Rejected as subordinate and/or unnecessary.
Harold M. Braxton, Esquire Suite 406 One Datran Center 9100 South Dadeland Blvd.
Allen R. Grossman, Esquire Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32399-1050
Hon. Tom Gallagher Secretary
Ms. Dorothy Faircloth Executive Director Department of Professional
