STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1180

)

DAVID L. STURDIVANT, D.O., )

)

Respondent. )

)

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on December 15, 1987, in Daytona Beach, Florida.

The Respondent, David L. Sturdivant, D.O., represented himself at the formal hearing The Petitioner, the Department of Professional Regulation (hereinafter referred to as the "Department", was represented by William O'Neil, General Counsel of the Department, and Susan Branson, a Staff Attorney with the Department.

INTRODUCTION

David L. Sturdivant, D. O., is a licensed osteopathic physician in the State of Florida. Dr. Sturdivant was charged by Administrative Complaint filed by the Department on February 20, 1987, with violating Section 459.015(1)(w), Florida Statutes, renumbered Section 459.015(1)(bb), Florida Statutes, by Chapter 86-290, 1986 Laws of Florida. Section 459.015(1)(bb), Florida Statutes, provides that the following act constitutes grounds for disciplinary action against osteopathic physicians in Florida:

(bb) Delegating professional responsibilities to a person when the licensee delegating such

responsibilities knows or has reason to know that such person is not qualified by training, experience, or licensure to perform them.

Dr. Sturdivant executed an Election of Rights form disputing the allegations of fact contained in the Administrative Complaint and requesting an administrative hearing. Dr. Sturdivant's request for hearing was filed with the Division of Administrative Hearings by letter dated March 13, 1987.

Prior to the commencement of the formal hearing the Department filed a Motion that Request for Admissions be Deemed Admitted. To the extent that the Motion requested that Dr. Sturdivant be required to answer the Department's Request for Admissions "fully and properly", the Motion was granted. Dr.

Sturdivant was informed by telephone that he was required to answer the Department's Request for Admissions on or before December 9, 1987.

At the formal hearing the Department presented the testimony of Dr.

Sturdivant, Judy Baxley, Shirley Van Gampler, Douglas Cutsail, Eileen Mary Deasy, Gail Page Brick, Carol Ann Potter, Alvin E. Smith, M.D., and John Bradley. Petitioner's exhibits 1-11 were accepted into evidence.

Dr. Sturdivant testified on his own behalf.

At the commencement of the formal hearing the parties stipulated:

1. That the Department is the agency charged with regulating the profession of osteopathic medicine in the State of Florida; and

   
   

2. That Dr. Sturdivant is now, and has been at all times material to this proceeding, a practicing osteopathic physician licensed under Florida Statutes. His license number is OS 0003822.

Subsequent to the completion of the formal hearing the parties filed proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

1. Prior to and during part of 1983 Dr. Sturdivant practiced as an osteopathic physician. Dr. Sturdivant operated an office in Bradenton, Florida.

   
   

2. Sometime during 1983 Dr. Sturdivant met and discussed employment with Dr. Daniel Clark. Dr. Clark operated the Total Health Care Clinic Center (hereinafter referred to as the "Center"), in Ormond Beach, Volusia County, Florida.

   
   

3. Dr. Clark had been licensed as a physician in Florida. Dr. Clark's license to practice medicine in Florida was revoked, however, on April 21, 1983.

   
   

4. As a result of his discussions with Dr. Clark, Dr. Sturdivant practiced medicine at the Center four days a week during most of 1983. One day a week Dr. Sturdivant continued to work out of his office in Bradenton.

   
   

5. Sometime during 1984 Dr. Sturdivant left the Center. He did not return to the Center until 1985.

   
   

6. During the early part of 1985 Dr. Sturdivant returned to the Center where he worked full time as the Center's Medical Director. Dr. Sturdivant worked at the Center from at least March 27, 1985 to at least June 22, 1985.

   
   

7. During the period of time during 1985 that Dr. Sturdivant acted as the Medical Director of the Center, Dr. Clark's title was Administrator of the Center.

   
   

8. During the period of time after April 21, 1983, that Dr. Sturdivant was employed at the Center Dr. Sturdivant knew or had reason to know that Dr. Clark's license to practice medicine in the State of Florida had been revoked. During the portion of 1985 that Dr. Sturdivant was employed as the Medical

   Director of the Center Dr. Sturdivant was aware that he was responsible for the medical care of patients seen at the Center.

   
   

9. Ms. Judy Baxley was seen as a patient at the Center several times beginning in March, 1985, while Dr. Sturdivant was the Medical Director. Ms. Baxley was treated for asthma and a "yeast" infection. Ms. Baxley was seen by Dr. Clark on some of her visits. She received medical tests and treatments at the direction of Dr. Clark, as evidenced, at least in part, by progress notes signed by Dr. Clark.

   
   

10. Ms. Shirley Van Gampler was seen as a patient at the Center on May 8, 1985, while Dr. Sturdivant was the Medical Director of the Center. Ms. Van Gampler was seen by Dr. Clark as a patient. Dr. Clark's treatment of Ms. Van Gampler included examination, testing and diagnosis, as evidenced, at least in part, by progress notes signed by Dr. Clark.

    
    

11. Mr. Douglas Cutsail was seen as a patient at the Center in April, 1985, while Dr. Sturdivant was the Medical Director. Mr. Cutsail had a history of heart attacks and hypertension. He went to the Clinic in an effort to control his high blood pressure. Dr. Clark treated Mr. Cutsail as a patient, performing tests on Mr. Cutsail and directing chelation therapy treatments of Mr. Cutsail's medical problems. Dr. Clark signed the progress notes on Mr. Cutsail. Dr. Sturdivant also signed the progress notes but his signature was added at a later date after Dr. Clark had already treated Mr. Cutsail.

    
    

12. Ms. Eileen Deasy was seen as a patient at the Center in April, 1985, while Dr. Sturdivant was the Medical Director of the Center. Dr. Clark treated Ms. Deasy as a patient, as evidenced by progress notes signed by Dr. Clark.

    
    

13. Ms. Lonna Sloan was seen as a patient at the Center in April, 1985, while Dr. Sturdivant was the Medical Director of the Center. Ms. Sloan, who is now deceased, had breast cancer at the time she was seen by Dr. Clark. Ms. Sloan was treated as a patient by Dr. Clark. The treatment received by Ms. Sloan was substandard treatment.

    
    

14. Dr. Sturdivant allowed Dr. Clark to exercise professional medical responsibilities during 1985 while Dr. Sturdivant was the Medical Director of the Center and with knowledge that Dr. Clark was not licensed to carry out those responsibilities.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

    
    

16. Pursuant to Chapter 459, Florida Statutes, the Department is charged with the responsibility to regulate the practice of osteopathic medicine in the State of Florida. Section 459.015(1), Florida Statutes, authorizes the Department to discipline osteopathic physicians who commit any of the acts specified in that Section.

    
    

17. In this proceeding, Dr. Sturdivant has been charged with violating Section 459.015(1)(bb), Florida Statutes, which prohibits the delegation of professional responsibilities by an osteopathic physician to any person who the physician knows or has reason to know is not qualified by training, experience, or licensure to perform the tasks.

18. Dr. Sturdivant, while responsible for the medical care of patients of the Center during part of 1985, allowed Dr. Clark to carry out professional responsibilities on at least five patients (Ms. Baxley, Ms. Van Gampler, Mr. Cutsail, Ms. Deasy and Ms. Sloan). Dr. Sturdivant allowed Dr. Clark to carry out professional responsibilities despite his knowledge that Dr. Clark's license to practice medicine had been revoked.

    
    

19. Dr. Sturdivant testified at the formal hearing that he was not aware that Dr. Clark's license had been revoked. Instead, Dr. Sturdivant testified that Dr. Clark only told him that his license was being "contested" and that it had been "eliminated." Dr. Sturdivant's testimony with regard to this matter was not credible. Especially in light of Dr. Sturdivant's testimony concerning his duties at the Center during 1985, as compared to Dr. Clark's duties. Dr. Sturdivant attempted to characterize Dr. Clark's duties as non-professional. According to Dr. Sturdivant, he provided medical treatment of "patients" at the center and Dr. Clark provided nutritional products to "clients." The evidence in this proceeding refutes this distinction.

    
    

20. Dr. Sturdivant also testified that, if Dr. Clark was practicing medicine during 1985, he was not aware of it. In light of Dr. Sturdivant's testimony concerning the nature of Dr. Clark's duties and his attempts to characterize those duties as merely providing a non-medical service to clients, Dr. Sturdivant's testimony is not credible.

    
    

21. Dr. Sturdivant is guilty of violating Section 459.015(1)(bb), Florida Statutes. He is, therefore, subject to disciplinary action by the Department pursuant to 459.015(2), Florida Statutes, which provides:

    
    

    When the board finds any person guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:

    1. Refusal to certify, or certify with restrictions, to the department an application for certification, licensure, renewal, or revocation.

    2. Revocation or suspension of a license or certification.

    3. Restriction of practice.

    4. Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.

    5. Issuance of a reprimand.

    6. Issuance of a letter of concern.

    7. Placement of the osteopathic physician on probation for a period of time and subject to such conditions as the board may specify, including, but not limited to, requiring the osteopathic physician to submit to treatment, attend continuing education courses, submit to reexamination, or work under the supervision of another osteopathic physician.

22. The evidence in this case failed to prove that Dr. Sturdivant has been disciplined by the Department in the past. This should be taken into account in determining what discipline is appropriate in this case.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED that Dr. Sturdivant's license to practice in the State of

Florida be suspended for a period of one (1) year.

It is further,

RECOMMENDED that the recommended suspension of Dr. Sturdivant's license for one (1) year be stayed and set aside and that he be placed on probation for a period of three (3) years in lieu thereof. During the period that Dr.

Sturdivant is on probation, he should be required to work under the supervision of an osteopathic physician. He should not work in any supervisory capacity.

During the period of his probation, Dr. Sturdivant and his supervisor should submit quarterly written reports of Dr. Sturdivant's employment activities.

DONE and ENTERED this 8th day of February, 1988, in Tallahassee, Florida.

LARRY J. SARTIN

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 February, 1988.

APPENDIX

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact of Acceptance or Reason for Rejection

1 Stipulated to by the parties. 2 3.

1. 2 and 4.

2. 5 and 6.

5 6.

6 7.

7 8.

8 9.

9 10.

10 11.

11 12.

12-13 13.

1. This is a conclusion of law. Lonna Sloan's deposition is hearsay. It has been accepted only to the extent that it corroborates the testimony of Dr. Smith and Petitioner's exhibit 3, the progress notes on Ms. Sloan.

2. Summary of testimony.

3. Cumulative and hearsay.

The Respondent's Proposed Findings of Fact

1. Not supported by the weight of the evidence and irrelevant. The evidence established that Dr. Sturdivant was aware that Dr. Clark's license to practice in Florida had been revoked. Whether Dr. Clark had a license to practice in Georgia is irrelevant.

2. The evidence failed to prove this contention.

3. The evidence did prove that some of the products sold by the Center were nutritional products available in health food stores. The evidence also proved that persons who received nutritional products were treated medically by Dr. Clark. The evidence failed to prove that these nutritional products were prescribed as only for nutritional purposes.

COPIES FURNISHED:

Susan Branson, Esquire William O'Neil, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

David L. Sturdivant, D.O. 800 South Nova Road Suite H

Ormond Beach, Florida 32074

Mr. Rod Presnell Executive Director

Department of Professional Regulation

Osteopathic Medical Examiners

130 North Monroe Street Tallahassee, Florida 32399-0750

William O'Neil General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

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

AGENCY FINAL ORDER

================================================================= BEFORE THE BOARD OF OSTEOPATHIC MEDICAL EXAMINERS

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. DPR CASE NO.: 0061134

DOAH CASE NO.: 87-1180

DAVID L. STURDIVANT, D.O.,

Respondent.

/

FINAL ORDER

Respondent, David L. Sturdivant, D.O., is a licensed osteopathic physician in the State of Florida, having been issued license No. OS 0003822. Petitioner

filed an Administrative Complaint Seeking suspension, revocation, or disciplinary action against the license.

Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. The Recommended Order has been forwarded to the Board pursuant to Section 120.57(1), F.S.; it is attached to and made a part of this Order.

The Board of Osteopathic Medical Examiners met on March 19, 1988, in Miami Beach, Florida to take final agency action. The Petitioner was represented by Bruce D. Lamb, Esquire; the Respondent was present but not represented. The Board has reviewed the entire record in the case.

The Board adopts the findings of fact, conclusions of law, and of the recommended order. The Board modifies the recommended penalty by dissolving the stay; however, the remainder of the recommended penalty is adopted.

Wherefore it is hereby ORDERED that Respondent's license be suspended for one year; to be followed by a three year period of probation. During the year of suspension Respondent shall attend and complete: 50 hours of continuing medical education in family medicine and 25 hours in oncology. Reinstatement of Respondent's license after the one year period shall require an appearance before the Board and a demonstration that he is able to engage in the practice of osteopathic medicine with skill and safety. During the three year period of probation, Respondent shall practice under the direct supervision of a Board approved osteopathic physician who shall submit quarterly reports to the Board regarding Respondent's practice; Respondent shall appear quarterly before the Board.

As reasons for its departure from the recommended order, the Board states as follows: The record in its entirely reflects continued substandard treatment by Respondent of five patients through Respondent's allowing treatment of those patients by an allopathic physician whose license had been revoked. The Board notes that this treatment was continuing rather than isolated, and that one patient died. This order takes effect upon filing. This Order may be appealed by filing notices of appeal and a filing fee, as set out in Section 120.68(2),

F.S. and Florida Rule of Appellate Procedure 9.110(b)(c) within 30 days of the date of filing.

DONE AND ORDERED this 19th day of April, 1988.

BOARD OF OSTEOPATHIC MEDICAL EXAMINERS

RALPH GREENWASSER, D.O., CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was furnished by hand to Bruce D. Lamb, Esquire, Department of Professional Regulation, 130 North Monroe Street, Tallahassee, Florida 32301, by Certified Mail to David L. Sturdivant, D.O., 800 South Nova Road, Suite H, Ormond Beach, Florida 32074 and by U.S. Mail

to Larry J. Sartin, Hearing Officer, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida 32361 this 19th day of April, 1988.

Docket for Case No: 87-001180

Orders for Case No: 87-001180