STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM E. DALTON, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 87-1147

)

BOARD OF MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled action was held on June 10, 1987, in Orlando, Florida, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties ware represented as follows:

For Petitioner: Charles A. Stampelos, Esquire

Finley, Kumble, Wagner, Heine, Underberg, Manley, Myerson & Casey Post Office Box 2174

Tallahassee, Florida 32316-2174

For Respondent: M. Catherine Lannon, Esquire

Assistant Attorney General Room 1601, The Capitol

Tallahassee, Florida 32399-1050 BACKGROUND AND PROCEDURAL MATTERS

On February 23, 1987, the Board of Medicine entered an Order informing William E. Dalton that his application for licensure as a physician by examination was being denied based upon material misrepresentations relating to courses taken at Loma Linda. The order referenced Section 458.331(1)(a) and (2), Florida Statutes.

Later, after Petitioner requested a formal hearing and this proceeding commenced, the Board, in its response to interrogatories, notified Dr. Dalton that it relied on Sections 458.301, 458.311, 458.311(1)(c), 458.327(1)(c), and 458.331(1)(a) and (g), (2) and (3), Florida Statutes (1986 Supp.) and Rule Chapters 21M-21, 23M-22 and 21M-29, Florida Administrative Code.

At the hearing, Petitioner testified in his own behalf and presented one additional witness. His ten exhibits were admitted, the first four without objection, and the remainder, Nos. 5 through 10, over Respondent's objections on relevance.

The parties jointly submitted a composite exhibit, the Board's entire application file.

After hearing, both parties submitted proposed findings of fact and conclusions of law. 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 issue in this proceeding is whether Petitioner attempted to obtain his license by fraudulent misrepresentations to the Board, related to his medical education at Loma Linda University, thereby lacking good moral character and ineligible for licensure as a physician in the State of Florida.

FINDINGS OF FACT

1. William E. Dalton, fifty-seven years of age, is currently licensed as a medical doctor in the States of California, Texas, Georgia and Arkansas.

   
   

2. He commenced his medical school education in Loma Linda, California, in 1962. He failed no courses that first year and was ranked 54 out of 94 in his class.

   
   

3. The second year he failed Medical Microbiology and Human Pathology, and made "D" in General Pharmacology. He was ranked 104 out of 104.

   
   

4. He repeated the second year and achieved a "C-" in Medical Microbiology, a "C" in Human Pathology and a "D" again in General Pharmacology.

   
   

5. At Loma Linda, a "D" was considered a passing grade.

   
   

6. After Dr. Dalton repeated the three courses, the Associate Dean at Loma Linda visited his house and explained that the Executive Committee at the University did not believe that he was proficient enough to pass the National Board exam.

   
   

7. Dr. Dalton assumed that he was dismissed from Loma Linda, because it was his understanding that you had to have a sponsor to take the exam and that, without the exam, you could not continue with the third and fourth years of medical school training.

   
   

8. In September 1966, he enrolled as a medical student at the University of Guadalajara in Mexico. He completed his third, fourth and fifth years of medical school at the University of Guadalajara, completed other requirements for graduation and was awarded a degree from that institution.

   
   

9. After satisfying its requirements and passing its examination, Dr. Dalton was certified by the Educational Council for Foreign Medical Graduates (ECFMG) on September 15, 1971. He passed the California FLEX examination in December 1972.

   
   

10. In addition to the various state licenses addressed above, William Dalton received a license to practice medicine in Florida in 1981. This was a license by endorsement and required that he commence practice in Florida within three years. He started practicing after the June 16, 1984 deadline and his license was revoked.

11. He submitted his application for licensure by examination in February 1985. At the request of the Foreign Medical Graduate Committee of the Board of Medical Examiners, he appeared before the Committee on May 30, 1985. Then asked by the committee whether he had all his training in Mexico, he replied that he had ". . . two years at Loma Linda, the first and second." [JE #1, transcript, p.3]

    
    

12. He told the committee that he was successful in both years but did not return because the university did not think he was strong enough to pass the national boards. He said he was dismissed from the school. He also made these responses:

    
    

    Q. Did you fail any courses at Loma Linda?

    A. I did not fail any course.

    Q. Did you get credit for all of those courses at Guadalajara?

    A. That's right.

    
    

    Unable to resolve what they deemed was a conflict between the "dismissal" and "passing," the committee voted to permit Dr. Dalton to take the examination but that a transcript would be obtained from Loma Linda and he would have to appear before the committee again before being licensed.

    
    

13. Even after the committee voted, and Dr. Dalton was aware of the committee's decision, he responded again:

    
    

    DR. KATIMS: You have testified to us that you passed all your courses?

    THE WITNESS: I did.

    [JE #1, transcript, p. 13]

    
    

14. After passing the examination, Dr. Dalton appeared again before the Board of Medicine on October 12, 1986. On this occasion he stated that he took pharmacology twice; the first time he didn't pass; the second time, he did. He also stated, "I have no failing subjects at Loma Linda, which the transcript should indicate." [JE #1, transcript, p. 3]

    
    

15. When confronted with the two failing grades in Medical Microbiology and Human Pathology, he explained that he repeated the courses and passed them, and had passed all his courses.

    
    

16. The Board voted to deny Dr. Dalton licensure by examination.

    
    

17. At the formal hearing, Dr. Dalton explained the circumstances of his apparent inconsistencies in careful detail. It was never his intention to deliberately mislead the Board; he passed the courses; he got his medical education and that was, to him, the significant fact. He had not taken the time to review his paperwork prior to testifying before the Board. Although it took him three years to complete the first and second years of medical school at Loma Linda, he did complete those years with passing grades.

    
    

18. Counsel for the Board theorizes, in her proposed recommended order, that Dr. Dalton knowingly and deliberately misled the Board until it was apparent that they had the true facts at hand; then he became candid and forthright. This is not supported by the record.

19. If misleading the Board had been his intent, he never would have testified at his first appearance in May 1985 that he was dismissed from Loma Linda. He could have simply said he transferred to a different school. Further, it is not clear from the record that he was "dismissed" from Loma Linda. He did successfully complete two years there, but had a sincere belief that since the school felt he was not prepared to take the National Board examinations, he could not take them, that he needed the Boards to go on with his medical school education, and he was, therefore, de facto dismissed.

    
    

20. Even after the Foreign Medical Graduate Committee voted to get the Loma Linda transcript for verification, Dr. Dalton still affirmatively responded that he passed all his courses. At this point, given Respondent's theory, he should have started recanting his earlier testimony.

    
    

21. Some of Dr. Dalton's erroneous testimony was against his interests -- for example, in his second appearance, before the full Board, he stated that he first failed, then passed Pathology. He never failed that course.

    
    

22. Dr. Frank David Kuitems testified as a character witness. He has worked closely with Dr. Dalton during the past fifteen months. Dr. Kuitems has high regard for Dr. Dalton, both as to his proficiency as a physician and as to his integrity and honesty. Dr. Kuitems' testimony corroborates and is consistent with the letters of recommendation in Dr. Dalton's application file.

    
    

23. Dr. Dalton is licensed to practice in four states and has actively practiced medicine for over fifteen years. The Board's investigation reflects no blemishes on his professional record. He is a Board-certified diplomate of the American Board of Family Practice.

    
    

24. It is apparent from the evidence in this proceeding that Dr. Dalton did not deliberately mislead or lie to the Board. He never contemplated that the Board would deny him access to a license if they knew he had originally failed two courses at Loma Linda. He was previously licensed by endorsement in Florida without any apparent difficulty. What the Board perceived as persistent evasive answers was more likely "tunnel-vision" and failure to grasp the Committee's concern about his peculiar story that although he passed his courses, he was still "dismissed."

    
    

25. Dr. Dalton meets the requirements for licensure by examination, including good moral character. He has not attempted to obtain his license through fraudulent misrepresentations.

    
    

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has juris- diction of the parties and subject matter in this cause pursuant to Section 120.57, Florida Statutes.

    
    

27. Petitioner has the burden of proving his entitlement to the license he is seeking. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

    
    

28. Making false and misleading statements in the application process is relevant to whether the applicant is of good moral character and can safely engage in the practice of medicine. Intentional falsification and lies to the

    Board are valid grounds for denial of a license. Gentile v. Department of Professional Regulation, Board of Medical Examiners, 448 So.2d 1087, 1090 (Fla. 1st DCA 1984).

    
    

29. William Dalton affirmatively presented competent evidence of his good moral character. He presented a rational, credible explanation of the circumstances of his testimony before the Committee and the Board. He met his burden of proving eligibility for licensure.

    
    

30. The Board presented no evidence, other than the record before it. The credible explanations by Dr. Dalton negate any inference that he was deliberately misleading the Board.

    
    

    RECOMMENDATION

    
    

    Based on the foregoing, it is, hereby

    
    

    RECOMMENDED: That a Final Order be entered by the Board of Medicine approving William E. Dalton's application for licensure as a physician in the State of Florida.

    
    

    DONE AND RECOMMENDED this 13th day of August, 1987, in Tallahassee, Leon County, 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 13th day of August, 1987.

    
    

    APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1147

    
    

    The following constitute my specific rulings on the parties' proposed findings of fact:

    
    

    Petitioner:

    
    

    1-2. Rejected as irrelevant to the issues framed in the pleadings in this case.

    1. Adopted in substance in paragraph 2.

    2. Adopted in substance in paragraph 3.

5-8. Adopted in substance in paragraph 5. The details of his education at Guadalajara are omitted as immaterial.

1. Adopted in paragraph 5.

2. Adopted in paragraphs 1 and 12.

3. Rejected as cumulative and unnecessary.

4. Adopted in paragraph 12.

5. Adopted in paragraph 6.

6. Rejected as cumulative and unnecessary.

7. Adopted in substance in paragraph 6. 16-19. Adopted in paragraph 7.

20-21. Rejected as immaterial. 22-23. Adopted in paragraph 8.

1. Adopted in substance in paragraph 10. 25&27. Rejected as immaterial and unnecessary. 28&29. Adopted in paragraph 11.

   
   

   Respondent:

   
   

   1-2. Adopted in paragraph 7.

   1. Adopted in paragraph 8.

   2. Addressed and essentially adopted in the Background portion of this Recommended Order.

5-6. Adopted in substance in paragraphs 2 and 3.

7-10. Rejected as argumentative and unsupported by the evidence as a whole.

11. Rejected as inconsistent with the evidence as a whole.

COPIES FURNISHED:

Charles A. Stampelos, Esquire

Finley, Kumble, Wagner, Heine, Underberg, Manley, Myerson & Casey

Post Office Box 2174 Tallahassee, Florida 32316-2174

M. Catherine Lannon, Esquire Assistant Attorney General Suite 1601, The Capitol

Tallahassee, Florida 32399-1050

Ms. Dorothy Faircloth Executive Director Board of Medicine

130 North Monroe Street Tallahassee, Florida 32399-0750

Honorable Van B. Poole Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Joseph A. Sole, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-001147

Orders for Case No: 87-001147