STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JACK W. MALLAN, JR., )
)
Petitioner, )
)
vs. ) CASE NO. 87-0618
)
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, ) ADVISORY COUNCIL ON RESPIRATORY ) CARE, )
)
Respondent. )
)
RECOMMENDED ORDER
Final hearing in the above-styled action was held on June 11, 1987, in Orlando, Florida, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.
The parties were represented as follows:
For Petitioner: Richard P. Siwica, Esquire
EGAN, LEV & SIWICA
918 Lucerne Terrace
Orlando, Florida 32806
For Respondent: M. Catherine Lannon, Esquire
Assistant Attorney General Suite 1601, The Capitol
Tallahassee, Florida 32399-1050 BACKGROUND AND PROCEDURAL MATTERS
In an order filed on January 5, 1987, the Board of Medicine, Advisory Council on Respiratory Care informed Jack Mallan, Jr., that his application for certification as a respiratory therapy technician was denied. This proceeding commenced with Mr. Mallan's timely request for formal hearing and the subsequent referral to the Division.
At the hearing, Mr. Mallan testified in his own behalf and presented one additional witness. His six exhibits were received into evidence, although Petitioner's exhibits #3 and #6 were received over objections on the basis of relevance. Exhibit #5, a dictation cassette of the Advisory Committee meeting on October 1, 1986, is of such poor auditory quality, it is of little evidentiary value.
Respondent presented the testimony of two witnesses and one exhibit, admitted into evidence over Petitioner's objection based on hearsay.
After the hearing both parties submitted proposed recommended orders and Petitioner submitted a post-hearing brief. These have been carefully considered in the preparation of this recommended order, and specific rulings on the proposed findings of fact are found in the attached appendix.
ISSUE
The basic issue in this proceeding is whether Petitioner's application for certification as a respiratory therapy technician should be granted. More specifically, the issue is whether Jack Mallan, Jr., submitted false information on, or in support of his application and, if so, whether that is sufficient basis to deny his application.
Despite confusion throughout the proceeding, the basis for Mr. Mallan's termination from employment at Florida Hospital was also at issue. This matter is addressed in more detail below.
FINDINGS OF FACT
Jack Mallan, Jr., submitted his application for certification as a respiratory therapy technician through endorsement in September 1985. His application stated that he was employed as a graduate therapist at Florida Hospital in Orlando, Florida, from 1980-1984. His response checked the answer "no", to question #6 on the form, "Have you ever been terminated, disciplined, or allowed to resign from an employment setting where you were employed to deliver respiratory care services?" [Petitioner's exhibit #4, Application].
Sometime later, apparently in the course of the Board of Medical Examiners' routine investigation, it was disclosed by Florida Hospital that Jack Mallan was terminated in November 1986, for misconduct and falsification of patient records and that, prior to the termination, he had been "written up" several times regarding problems he had with patients. [Petitioner's exhibit #4, letter dated July 30, 1986].
Mallan was informed that he must make a personal appearance before the Advisory Council on respiratory care and he did appear on October 1, 1986. [Petitioner's exhibit #4, letters dated September 10, 1986, and September 24, 1986; Petitioner's exhibit #5].
At his appearance, Mallan denied having falsified patients records and claimed that the basis for the termination was "a travesty". He conceded that he erred in his answer on the application and, at one point in the proceeding, apologized for writing the wrong answer and said that he was embarrassed and was hoping it wouldn't be discovered. The Council voted to deny his application. [Petitioner's exhibit #5].
The order from the Council, dated January 5, 1987, states the following as grounds for denial:
The applicant submitted false information on, or in support of, his application for licensure. See Section 468.365(1)(a), (d), and
(f), Florida Statutes; Section 468.354(5), Florida Statutes; and Rule 21M-37.02(2), Florida Administrative Code.
At the final hearing in this proceeding, Mr. Mallan continued to deny that he ever falsified patient's records. [Tr. 14].
In support of this, he presented the testimony of Catherine "Kitty" Arnold, the charge nurse on the floor where Jack Mallan worked in 1983. While she heard that he was fired, she denied hearing complaints from any patients about Mr. Mallan. She also told Mallan's supervisor, Jim Richardson, before the termination, that she had not heard any complaints. [Tr. 52].
In support of his professional qualifications and fitness to practice, Mr. Mallan presented an employee performance review from Winter Park Hospital dated February 13, 1986. For every factor on the rating form, he was rated "very good", the highest rating, by his supervisor, Avery Smith. Mr. Smith also appeared before the Advisory Council on Mallan's behalf. Mallan was employed as a therapist at Winter Park Hospital from February 1985, until October 1986, when the council voted to deny his certificate. He was granted leave from his employer in order to pursue remedies to obtain the certificate. [Petitioner's exhibits #3, #5, and #6; Tr. 21-22].
In response to his attorney's question, "... why did you not go into detail about why you left the employ of Florida Hospital?", Mallan explained that he felt the "alleged termination at Florida Hospital" was unjust and untrue, that he did not want to spread lies about himself and was afraid for his future career. [Tr. 25].
On cross-examination, he refused to admit that he was "terminated" from employment by Florida Hospital, but later conceded that he did not leave the employment voluntarily and was accused of wrongdoing. [Tr. 31, 32].
His responses continued to be evasive and vague, as characterized by the following exchange:
Q [By Ms. Lannon] Were you ever disciplined at Florida Hospital prior to this occasion while you were employed there to deliver respiratory care services?
A Yes.
Q Isn't it true that in fact in August of that very same year, you were disciplined for allegedly falsifying patient records?
MR. SIWICA: I'd like a continuing objection to the relevancy.
THE HEARING OFFICER: Noted for the record but you may answer the question.
THE WITNESS: I have a choice to answer yes or no?
THE HEARING OFFICER: You'll be
allowed to explain the answer but go ahead and answer the question.
THE WITNESS: could you repeat it again, please?
BY MS. LANNON:
Q Isn't it true that in August
of the same year, the year that you were terminated, you were disci- plined based on an accusation or an allegation that you had falsified a patient's records?
A I don't recall.
Q Weren't you in fact suspended for two days in August of that year?
A What year was that, please? Q 1983.
A I can't recall.
Q Were you ever suspended from your job at Florida Hospital?
A I took sick days.
Q Were you ever suspended from your job at Florida Hospital?
MR. SIWICA: I think he's answered that.
THE HEARING OFFICER: Wait. No, he
hasn't.
MR. SIWICA: I'm sorry.
THE WITNESS: There was an incident. They told me to stay home. I can't remember when it was.
BY MS. LANNON:
Q Well, that wasn't ever. Were you ever suspended? I wasn't asking you to remember when it was with that question.
A I don't know if it was suspended. I was asked to stay
home from my shift and I don't known how many -- it was maybe one day, I think.
Q Maybe one day. You don't recall?
A No.
Q Were you paid for that day? A I don't remember that either. [Tr. 35-37].
His personnel record reflects a two-day suspension in August 1983 for charting treatment that the patient denied having received, and for rudeness to a patient. [Respondent's exhibit #1, Memo dated August 30, 1983, Discussion reports dated August 22, 1983, and August 20, 1983.]
Irv Hamilton was associate director of personnel at Florida Hospital in 1983. In a meeting with Jack Mallen he discussed the basis for termination. Mallen was observed sitting at the nurses' station when he was supposed to be coaching a patient in therapy and recording vital signs. After investigating, his supervisor, Jim Richardson, concluded that the record of treatment made by Mallan was falsified.
Hamilton also reviewed and briefly investigated Jim Richardson's recommendation for termination. While the nurses and patient denied talking with Richardson about the November incident, Hamilton affirmed the recommendation for termination. He felt that Mallan had contacted the witnesses after their initial statements to Richardson. He also concluded, based on Mallan's alleged admissions that he was in the nurses' station rather than in the patient's room for part of the therapy, that it would have been impossible for the treatment to have been properly administered. [Petitioner's exhibit #2; Tr. 59, 60, 73, 75, 81].
Hamilton confirmed from his own recollection that Mallan was suspended in August 1983 for falsification of patient records. [Tr. 62].
Jim Richardson insisted that the nurse and patient had changed their story, that the nurse had indicated to him on the date of the incident that she heard of a patient's complaint. Further, when he approached the patient, she first said she didn't want to get anyone in trouble, but then said that the therapist who gave her treatment that night simply gave her the apparatus with medicine, left the room and returned after she finished the treatment to pick it up. [Tr. 98-101]
Mr. Richardson personally observed Mallan in the nurses' station but did not confront him at the time, nor was Richardson close enough to see exactly what Mallan was doing. [Tr. 104, 106-108].
Circumstantial evidence and hearsay in this proceeding is insufficient to establish conclusively that Mr. Mallan falsified records in November 1983.
He clearly, knowingly and deliberately falsified his application for certification. Even after appearing before the Council and hearing the concern about the need to be forthright, he remained very defensive and evasive throughout the final hearing. He feigned ignorance of the details of an incident in August 1983, when that incident was referenced on a special performance evaluation dated October 16, 1983. That evaluation, completed by his supervisor, Jim Richardson, rated him well above average and commended him for excellent effort in improvement. Notably, the first page of that evaluation was submitted and received as Petitioner's exhibit #1. The first page contains the rating factors and very positive levels of achievement selected by the supervisor as applicable. The second and subsequent pages are found in the personnel file, Respondent's exhibit #1. Those pages include a signature page with reference to an attached sheet. The typewritten attachments include general comments which reference past problems, including the August incident, and the commendation for improvement.
Jack Mallan obtained an Associates Degree in respiratory therapy from Valencia Community College in 1981. He received a "respiratory care technicians" certification from the National Board of Respiratory Care on March 16, 1985. [Tr. 9]. His qualifications as to training and experience are not in question in this proceeding.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this proceeding. Section 120.57(1), Florida Statutes, and Section 455.225(4), Florida Statutes.
In its order denying the Petitioner's application, the Advisory Council cites the following authorities: Section 468.365(1)(a), (d), and (f), Florida Statutes, Section 468.354(5), Florida Statutes, and Rule 21M-37.02, Florida Administrative Code.
Those authorities provided as follows:
468.365 Discplinary grounds and actions. --
The following acts constitute grounds for which the disciplinary actions in subsection (2) may be taken:
Procuring, attempting to procure, or renewing a certificate or registration as provided by this part by bribery, by fraudulent misrepresentation, or through an error by the department or the board.
* * *
(d) Willfully making or filing a false report or record, willfully failing to file a report or record required by state or federal law, or willfully impeding or obstructing such filing or inducing another person to do so. Such reports or records include only
those reports or records which require the signature of a certified respiratory care practitioner or a respiratory therapist registered pursuant to this part.
* * *
(f) Unprofessional conduct, which includes, but is not limited to,
any department from, or failure to conform to acceptable standards related to the delivery of respiratory care services, as set forth by the board and the Advisory Council on Respiratory Care in rules adopted pursuant to this part.
* * *
468.354 Advisory Council on Res- piratory Care; organization; function. --
(5)(a) The council shall recommend to the department a code of ethics for those persons certified or registered pursuant to this part.
(b) The council shall make recommendations to the department for the approval of continuing education courses.
* * *
21M-37.002 Unprofessional Conduct; Definition. A licensee is guilty of unprofessional conduct when he commits any of the following:
* * *
Has inaccurately recorded, falsified, or altered patient records, including, but not limited to, patient charts or medication administration records.
* * *
The references above regarding falsification of patients' records were relied upon by counsel for Petitioner in discerning that the Council considered the allegations underlying the termination from Florida Hospital. See the exchange between counsel for the parties at Tr. 46-47, wherein counsel for Respondent initially states the real issue is whether Mallan told the truth about the firing, then apparently agrees that the patient records incident was put in issue.
The significance of the issue regarding the patient record incident is that it elevates the failure to accurately respond to an application question beyond a mere scrivener's error, beyond a mere technicality, beyond even a failure to admit that one was terminated for some less serious charge, for example, absenteeism.
Jack Mallan, Jr., was fraudulently and intentionably untruthful during the application process. His fear of the consequences of truthfulness and his assertions of innocence of the charges for which he was disciplined do nothing to refute or obviate the fact that he was disciplined, not once, but at least twice, for matters of utmost concern to the body from which he sought certification. His equivocal responses at the final hearing and his demeanor evidenced an utter lack of credibility.
In determining that Mall an was disciplined at least twice by his former employer, I have considered not only the personnel records received in evidence as Respondent's exhibit #1, but also the direct competent testimony of his supervisor and the associate personnel director.
Petitioner has made a novel argument that, since denial of an application for certification or registration is termed a "disciplinary action" in Section 468.365, Florida Statutes, and in Rule 21M-37.001(2), Florida Administrative Code, the Board must consider the mitigating or aggravating factors listed in that rule. Petitioner is neither a "certificate holder" or "registrant" as those terms are used in the rule. Respiratory therapists are "registered" by the Board; respiratory care practitioners (or respiratory therapy technicians) are "certified" by the Board. See Section 468.355, Florida Statutes, and Rule Chapters 21M-34 and 21M-35, Florida Administrative Code.
No authority is cited, nor can be found, for the proposition that a licensing board may impose a lesser penalty on an applicant, and grant a license.
Denial is appropriate. Farzad v. Department of Professional Regulation, 443 So.2d 373 (Fla. 1st DCA 1983), Gentile v. Department of Professional Regulation, Board of Medical Examiners, 448 So.2d 1087 (Fla. 1st DCA 1984).
Based upon the foregoing, it is hereby RECOMMENDED:
That a final order be entered DENYING Petitioner's application for certification as a respiratory therapy technician.
DONE AND ORDERED this 17th day of August, 1987, in Tallahassee, Florida.
MARY CLARK
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 17th day of August, 1987.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0618
The following constitute my specific rulings on the findings of fact proposed by the parties.
Petitioner
1. Adopted in paragraph #12. 2-3. Rejected as immaterial.
4. Incorporated in the finding in paragraph #10.
5-6. Incorporated in the findings in paragraphs #9 and #10.
Adopted in paragraph #5.
Adopted in paragraph #9.
Rejected as immaterial.
Adopted in substance in paragraph #6.
Adopted in paragraph #1.
Adopted in paragraph #7.
Respondent
1-2. Adopted in substance in paragraph #1.
Adopted in paragraphs #3 and #4.
Adopted in paragraphs #2 and #4.
Adopted in substance in paragraph #10.
Rejected as unsupported by competent evidence.
7-8. Adopted in part in paragraph #9, otherwise rejected as immaterial.
Adopted in paragraph #7.
Rejected as unnecessary, except the last sentence, which is adopted in paragraph #4.
Adopted in part in paragraph #11. While the Florida Hospital witnesses were credible and adequately explained the basis for termination, their testimony was insufficient to establish conclusively that the falsification occurred.
COPIES FURNISHED:
Richard P. Siwica, Esquire EGAN, LEV & SIWICA
918 Lucerne Terrace
Orlando, Florida 32806
M. Catherine Lannon, Esquire Assistant Attorney General Suite 1601, The Capitol
Tallahassee, Florida 32399-1050
Dorothy Faircloth, Executive Director Board of Medicine
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Van Poole, Secretary
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Joseph A. Sole, General Counsel Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICINE
ADVISORY COUNCIL ON RESPIRATORY CARE
JACK W. MALLAN, JR., M.D.,
Petitioner,
vs. DOAH CASE NO. 87-0618
DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICINE, ADVISORY COUNCIL ON RESPIRATORY CARE,
Respondent.
/
FINAL ORDER
The Advisory Council on Respiratory Care, Of the Board of Medicine, after having reviewed the Recommended Order entered by Mary Clark, Hearing Officer of the Division of Administrative Hearings on August 17, 1987 (Exhibit A), the Exceptions to the Recommended Order filed by the Petitioner (Exhibit B), and the completed record and after hearing oral argument of the Respondent, and being otherwise fully advised in the premises enters the following Order:
Petitioner was represented by Richard P. Siwica, Esquire, at the formal hearing before the Division of Administrative Hearings. The Petitioner did not appear before the Advisory Council on Respiratory Care when this matter was considered. The Respondent was represented by M. Catherine Lannon, Assistant Attorney General.
The Advisory Council on Respiratory Care has jurisdiction over this matter pursuant to Section 120.57(1) Florida Statutes, and Chapters 455 and 468, Florida Statutes, and Rule 21M-35, Florida Administrative Code.
RULINGS ON EXCEPTIONS FILED BY PETITIONER
Petitioner took exception to Findings of Fact of the Hearing Officer as set forth in the Recommended Order as not being supported by the Record or by competent substantial evidence. In regard to said Exceptions the Advisory Council on Respiratory Care make the following rulings:
Petitioner took exception to the Finding of fact at page 3 paragraph 2 of the Recommended Order. The Council finds that the Hearing Officer's, Finding of Fact was based upon competent substantial
evidence. Therefore, said Exception is rejected.
Petitioner took exception to the Hearing Officer's Finding of Fact as found in paragraph 2 page 3 of the Recommended Order. The Council determines that the Hearing Officer's Finding of Fact was based upon competent substantial evidence. Therefore, said Exception is rejected.
Petitioner took exception to the Finding of Fact of the Hearing Officer at page 3 paragraphs 3 and 4. The Council finds that the Hearing Officer's Finding of Fact was based on competent substantial
evidence. Therefore, said Exception is rejected.
Petitioner took exception to the Finding of Fact of the Hearing Officer located at pages 3 and 4, paragraphs 3 and 4 of
the Recommended Order. The Council finds that the Hearing Officer's Finding of Fact was based upon competent substantial
evidence. Therefore, said Exception is rejected.
The Petitioner takes exception to the Hearing Officer's Finding of Fact at page
5 paragraph 7 of the Recommended Order.
The Council determines that said Finding
of Fact was based upon competent substantial evidence. Therefore, said Exception is rejected.
The Petitioner took exception to the Hearing Officer's Finding of Fact at page 7 para- graph 9 of the Recommended Order. The Council determines that the Hearing Officer's Finding of Fact was based upon competent substantial evidence. Therefore, said Exception is rejected.
The Petitioner took exception to the Hearing Officer's Finding of Fact at page 7 paragraph
9. The Council determines that said Finding of Fact was based upon competent substantial
evidence. Therefore, said Exception is rejected.
The Petitioner took exception to the Finding of Fact of the Hearing Officer at pages 7 and
8 paragraph 9 of the Recommended Order. The Council finds that the Hearing Officer's Finding of Fact was based upon competent substantial evidence. Therefore, said
Exception is rejected.
The Petitioner takes exception to the first paragraph of Finding of Fact number 10 on page 8 of the Recommended Order. The Council determines said Finding of Fact is based upon competent substantial evidence. Therefore, the Exception is rejected.
The Petitioner takes exception to the Finding of Fact of Hearing Officer at page 8 paragraph
8 of the Recommended Order. The Council determines said Finding of Fact was based upon competent substantial evidence. Therefore, the Exception is rejected.
The Petitioner also took exception to Conclusions of Law of the Hearing Officer as being erroneous. The Council makes the following Rulings on said Exceptions:
Petitioner took exception to the Hearing Officer's Conclusion of Law found at page
12 paragraph 4. The Council determines that the Hearing Officers Conclusion was appropriately supported by the evidence and is an appropriate interpretation of the law. This Exception is rejected.
The Petitioner also took exception to additional findings and conclusions of the Hearing Officer as set forth in paragraph 3 of Petitioner's Exceptions to the Recommended Order. The Council make the following rulings on said Exceptions:
Petitioner took exception to the Hearing Officer's Findings of Fact at page 5 paragraph 7. The Council determines that this is a Finding of Fact and is Supported by competent substantial evidence in the
record. Therefore, this Exception, is rejected.
Petitioner took exception to the Hearing Officer's Finding of Fact at page 8 para- graph 11. The Council determines that the Hearing Officer appropriately characterized this as a Finding of Fact, and that said finding is supported by competent substantial evidence. This Exception is rejected.
Petitioner took exception to the Hearing Officer's Finding of Fact at page 8 para- graph 11. The Council determines that the Hearing Officer appropriately characterized this as a Finding of Fact, and that said finding is supported by competent substantial evidence. This Exception is rejected.
Petitioner took exception to the Hearing Officer's determination found at page 12 paragraph 4 of the Recommended Order, and characterized by the Hearing officer as a Conclusion of Law. The Council determines that this may be appropriately characterized
as a Finding of Fact or may support a con- clusion on the part of the Hearing Officer in regard to the Petitioner's credibility.
The Council determines that this finding
is based upon competent substantial evidence and is an appropriate conclusion by the Hearing Officer in regard to Petitioner's credibility. This Exception is rejected.
The Petitioner took exception to the Hearing Officer's interpretation of Rule 21M-37.001(2). The Council determines that the Hearing Officer appropriately interpreted this rule.
The Petitioner took exception to the Hearing Officer's framing of the issues found in the Recommended Order at page 2 of the Recommended Order. The Council determines that this is a Conclusion of Law of the Hearing Officer and is a proper interpretation of the law. This Exception is rejected.
The Petitioner took exception to an implied, finding of the Hearing Officer at page 12 that the Council may not "impose a lesser penalty (than denial) on an applicant." Also, the Council is limited to either granting or denying a license. The Council adopts this Exception to the Hearing Officer's Recommended Order.
The Petitioner took exception to the Hearing Officer's refusal to find that certain provisions of Chapter 468, Florida Statutes were applicable to the Petitioner, as found at page 12 paragraph 5 of the Recommended Order. The Council determines that this is a Conclusion of Law of the Hearing Officer that is an appropriate interpretation of the law. This Exception is rejected.
The Petitioner took exception to the Hearing Officer's Conclusion of Law at page 13 that "denial is appropriate." The Council determines that denial is an available and appropriate remedy under the Finding of Fact made by the Hearing Officer. This Exception is rejected.
The Petitioner took exception to the Hearing Officer's recommendation that a Final Order be entered denying Petitioner's application for certification as a Respiratory Therapy Technician. The Council determines that the Hearing Officer's recommendation is appropriate under the circumstances as set forth in the Hearing Officer's Recommended Order.
The Council adopts the Findings of Fact of the Hearing Officer as being based upon competent substantial evidence.
The Council adopts the Conclusions of Law of the Hearing Officer as modified by the adoption of Petitioner's exception found in paragraph 6 of Petitioner's Exceptions to the Recommended Order (Exhibit B).
The Council adopts the recommendation of the Hearing Officer that Petitioner's application for certification as a Respiratory Therapy Technician be denied.
Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this Final Order by filing one copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of Appeal within thirty (30) days of
the date this order is filed, as provided in Chapter 120, Florida Statutes, and the Florida Rules of Appellate Procedure.
WHEREFORE, the Advisory Council on Respiratory care of the Board of Medicine hereby ORDERS that the Petitioner's application for certification as a Respiratory Therapy Technician be denied.
DONE and ORDERED this 6th day of December, 1987 by the Advisory Council on Respiratory Care of the Board of Medicine.
Chairman, Advisory Council on Respiratory Care
| Issue Date | Proceedings |
|---|---|
| Aug. 17, 1987 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 06, 1987 | Agency Final Order | |
| Aug. 17, 1987 | Recommended Order | Certificate for Respondent therapy technical denied when applicant lied about reason for prior employment discipline falsification of patient records. |
