STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2896

)

CHARLES C. VASSAR, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on September 7, 1988, in Miami, Florida, before Joyous D. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Peter Fleitman

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Michael I. Schwartz

119 North Monroe Tallahassee, Florida 32301

BACKGROUND AND PROCEDURAL MATTERS

This case began on June 5, 185, when the Department of Professional Regulation (Department) filed an administrative complaint against Respondent. This complaint alleged Respondent had violated seven subsections of Section 458.331, Florida Statutes. These alleged violations related to the mixture and sale of a drug containing procaine which was claimed to be sold through a business known as the Fountain of Life Medical Center located in Miami, Florida. Count one alleged Respondent had violated Section 453.331(1)(g), Florida Statutes, by prescribing, dispensing, administering, mixing or otherwise preparing a legend drug, other than in the course of his professional practice. Count two alleged Respondent had violated Section 458.331(1)(g), Florida Statutes, by aiding, assisting, procuring or advising unlicensed persons to practice medicine. Count three alleged Respondent had violated Section 458.231(1)(1), Florida Statutes, by making deceptive, untrue or fraudulent representations in his practice of medicine or employing a trick or scheme in his practice of medicine, said trick or scheme failing to conform to the generally prevailing standards of treatment in the medical community. Count four alleged Respondent had violated Section 458.331(1)(n), Florida Statutes, by failing to keep written medical records justifying the course of treatment of the client/patients. Count five alleged that Respondent had violated Section

458.331(1)(t), Florida Statutes, by committing gross or repeated malpractice or the failure to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Count six alleged Respondent had violated Section 458.331(1)(h), Florida Statutes, by failing to perform statutory and legal obligations placed upon him as a physician. Count seven alleged Respondent had violated Section 4S8.331(1)(x), Florida Statutes, by his violation of the statutes set-forth in the previous counts.

The Respondent filed an Election of Rights dated July 6, 1987, and requested a formal hearing. The case was then forwarded to the Division of Administrative Hearings for formal proceedings on July 10, 1987. The parties sought continuances of this case on several occasions. These delays, coupled with discovery disputes and Respondent's election to change attorneys, resulted in the case not being set for hearing until September 7, 1988.

At the hearing, Petitioner presented the testimony of Hugh Fitzpatrick, an investigator for the Department. Petitioner offered three exhibits: exhibit 1, the deposition of Mark R. Montgomery, Ph.D., was received without objection; exhibits 2 and 3 were ruled inadmissible but have been offered for the record. Respondent offered no evidence.

After the hearing, a transcript was prepared and filed in this cause on September 30, 1988. The parties waived the rule requirement that a recommended order issue within 30 days after the date the transcript is filed, and agreed to submit their proposed recommended orders within twenty days of the filing of the transcript.

Both parties have filed proposed recommended orders which have been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix.

ISSUE

The central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint and, if so, what penalty should be imposed.

FINDINGS OF FACT

Based upon the testimony of the witness and the documentary evidence received at the hearing, I make the following findings of fact:

1. Petitioner is the agency of the State of Florida authorized to regulate the licensure and discipline of physicians practicing within this state.

   
   

2. Respondent, Charles C. Vassar, M.D., is a licensed physician in this state, license no. ME 0021039.

   
   

3. In October, 1984, while investigating a complaint which had been filed with the Department, Hugh Fitzpatrick interviewed the Respondent with regard to activities conducted by the Fountain of Life Medical Clinic located in Miami, Florida.

   
   

4. During the course of the interview, Respondent admitted he was employed at the clinic but his specific duties and role there were not disclosed. Also unknown is the period of time the Respondent was employed by the clinic. The

   record in this matter does not indicate what medical services were rendered by the Respondent or the clinic. Apparently, other doctors were also employed at the clinic but their responsibilities are also unknown. Burden of proof for the revocation of a license is that the evidence must be clear and convincing.

   Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

5. Petitioner alleged that Respondent violated the provisions of Section 458.331(1), Florida Statutes, which have, in some instances, been renumbered since the filing of the administrative complaint. All subsections have, however, remained substantially in effect at all times material to the allegations.

   
   

6. Count one claimed Respondent had violated section 458.331(1)(g), Florida Statutes. This subsection provides, in part:

   
   

   1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

      (g) Prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of the physician's professional practice.

      
      

7. The Department has not proved by clear and convincing evidence that the Respondent prescribed, mixed or dispensed a legend drug. Assuming that a procaine compound was mixed at the clinic, there is no evidence which clarifies that such substance is or was at the time a "legend drug." Further, the only evidence which links Respondent to the mixing of a procaine drug is an admission allegedly made, to investigator Fitzpatrick. Assuming further that the procaine mixed at the clinic by Respondent was a legend drug, there is no evidence which would suggest the substance was prepared and administered other than in the course of the physician's practice. Consequently, Count one must fail.

   
   

8. Count two claimed Respondent had violated Section 458.33l(1)(g), Florida Statutes. This subsection, now numbered 458.331(1)(f) , provides:

   
   

   Aiding, assisting, procuring, or

   advising any unlicensed person to practice medicine contrary to this chapter or to a rule of the department or the board.

   
   

9. The Department has not proved by clear and convincing evidence the allegations contained in count two. The Department presented no evidence regarding unlicensed persons at the clinic. The only reference to other employees related to other physicians at the clinic. In this case it is impossible to determine whether or not unlicensed individuals practiced medicine at the clinic and whether such individuals were somehow aided by Respondent. Consequently, Respondent cannot be found guilty of Count two.

   
   

10. Count three maintained Respondent had violated Section 458.331(1)(1), Florida Statutes. That subsection, now numbered 458.331(1)(k), provides:

    
    

    (k) Making deceptive, untrue, or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine.

11. The Department Presented no evidence of Respondent having made deceptive or untrue statements in the practice of medicine. The Department did not offer a single witness who had allegedly been treated by Respondent. Further, there was no documentary evidence which indicated Respondent had made false or fraudulent representations to anyone. Accordingly, Count three must fail.

    
    

12. Count four alleged Respondent had violated Section 458.331(1)(n), Florida Statutes. This subsection, 458.331(1)(m), provides:

    
    

    (m) Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results, and test results.

    
    

13. In this case, the Department did not establish what records, if any, were kept by the Fountain of Life Clinic. The investigator in this case did not request copies of the relevant medical records at the time the complaint was made. Respondent may have kept adequate records or may not have. By the time the Department sought the records from the clinic, the owners or others in control of the records had disappeared and Respondent was no longer employed there. Further, there was no evidence linking Respondent to the ownership or control of the clinic. As a result, there is no clear and convincing evidence that Respondent failed to keep medical records justifying the course of treatment given to patients. The Department's delay of several months before it attempted to subpoena information and the fact that records were not found does not establish that the proper records were never kept by Respondent.

    
    

14. Count five of the administrative complaint claimed Respondent had violated Section 458.331(1)(t), Florida Statutes. This subsection provides, in part:

    
    

    (t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.

    
    

15. The record in this case is totally void of any evidence which would support Count five. The testimony of Mark Montgomery, the toxicologist, did not suggest that the allegations against Respondent, if true, constituted gross or repeated malpractice. The Department offered no other expert to establish a reasonably prudent similar physician would have found Respondent had failed to practice medicine with the requisite skill under similar conditions and circumstances. Consequently, Count five has not been proved by clear and convincing evidence.

    
    

16. Count six alleged Respondent had violated Section 458.331(1)(h), Florida Statutes. This subsection, now 458-.331(1)(g), provides:

    
    

    Failing to perform any statutory or legal obligation placed upon a licenced physician.

17. The Department has not shown what statutory or legal obligation Respondent failed to perform. Since the Department has not, by clear and convincing evidence, established a specific violation, Respondent cannot be found to have violated any statutory obligation. Similarly, the Department has not shown a violation or legal obligation. Therefore, based upon the allegation of Count six, Respondent must be found not guilty.

    
    

18. Count seven based its allegations on the previous counts and concluded that Respondent had Violated Section 458.33l(1)(x), Florida Statutes. This subsection Provides:

Violating any provision of this chapters - a rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the department.

1. Based upon the conclusions reached above as to each count of the administrative complaint, Count seven must also fail. Since there is insufficient proof that Respondent violated a provision of the chapter, and since the Department did not argue a rule or order violation, Respondent must also be found not guilty of Count seven.

   
   

2. In reaching the conclusions found herein, consideration has been given to the admissions Respondent allegedly made to Mr. Fitzpatrick. However, the weight given to the investigator's testimony in this matter was insufficient to meet the clear and convincing burden. Mr. Fitzpatrick used an investigative report to refresh his recollection. This report was apparently prepared many weeks after his interview with the doctor. While there is certainly nothing improper in the use of the document to refresh recollection, the inconsistencies between his refreshed recollection and his recollection without the report suggest that Mr. Fitzpatrick had no independent recollection of the pertinent specifics of the interview. In several instances Mr. Fitzpatrick recited information directly gleaned from the report for which he admitted no recollection. Further, it is clear that the report contained information beyond the scope of the interview with Respondent which Mr. Fitzpatrick may have relied upon in reaching the facts adduced in his testimony. For these reasons the investigator's testimony was given little weight in adjudging the record in this cause.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Department of Professional Regulation, Board of Medicine enter a final order finding the Respondent not guilty of all counts of the administrative complaint and dismissing the cause.

DONE and RECOMMENDED this 16th day of November, 1988, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

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 16th day of November, 1988.

APPENDIX

RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT:

1. Paragraphs A. 1-3 are accepted.

2. Paragraphs B.1-7 are accepted.

3. With regard to paragraphs B.8-l6, the weight of Mr. Fitzpatricks testimony and the admissions Dr. Vassar allegedly made during one interview (the notes of the interview were not transcribed timely) is insufficient to make findings of fact as specified. Mr. Fitzpatrick did not appear to have independent knowledge (aside from the report) of the facts which he testified to and did not indicate whether the source of the information offered as fact was a direct result of the conversation with Dr. Vassar or other information gathered in this investigation. See findings made in paragraphs 3-6.

4. Paragraphs B. 17-18 are accepted but are unnecessary, irrelevant, or immaterial to the findings in this cause.

5. Paragraphs B. 19-32 are accepted as a recitation of Montgomery's testimony but do not constitute findings of fact that the Respondent utilized the procaine compound described by Montgomery or falsely represented its value to treat old age. In other words, the Petitioner failed to establish the underlying facts to justify Montgomerys conclusion. Further, Montgomery did not testify that such conduct, if true, violated a standard of failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Were there clear and convincing evidence Respondent used the substance described by Montgomery and Misrepresented its value, the testimony would support the misrepresentation claim but that is not the record in this cause.

6. Paragraph B. 23 is accepted.

7. Paragraphs B. 34-35 are rejected since they are not findings of fact but constitute argument, comment, or conclusions.

RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT:

1. Paragraphs 1-2 are accepted.

2. Paragraphs 2-4 -are rejected since they represent a recitation of rulings made in this case and do constitute a finding of fact.

3. Paragraphs 5-6 are rejected as argument, comment or conclusions which are not findings of fact.

4. Paragraphs 7-8 are accepted only to the extent that they find it is unclear from this record whether or not procaine is a legend drug.

5. No findings of fact are made in Paragraphs 9-20, accordingly they are rejected as argument, conclusions of law, or comment.

COPIES FURNISHED:

Peter S. Fleitman Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Michael I. Schwartz

119 North Monroe Street Tallahassee, Florida 22301

Bruce D. Lamb, Esquire Department of Professional Regulation

130 forth Monroe Street Tallahassee, Florida 32399-0750

Dorothy Faircloth, Executive Director Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-002896

Orders for Case No: 87-002896