vs. ) CASE NO. 87-3004
Respondent. )
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 October 30, 1987, in Tallahassee, Florida.
For Respondent: Allen R. Grossman, Esquire
Assistant Attorney General Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32399-1050
The Petitioner, Supaththira Sivakumaran, M.D., applied for a medical license in the State of Florida by examination. The Respondent, the Board of Medicine, denied her application by Order dated June 5, 1987. The Petitioner filed a request for a formal hearing to contest this proposed agency action.
Prior to the commencement of the formal hearing the parties filed a Pre- hearing Stipulation which included, among other things, stipulated facts and 26 joint exhibits. The "facts" stipulated to by the parties in the Pre-hearing Stipulation are hereby accepted. The 26 exhibits were marked as "Joint" exhibits and accepted into evidence at the formal hearing.
At the formal hearing the Petitioner testified on her own behalf. The Petitioner also offered 5 exhibits which were marked as "Petitioner's" exhibits A through E and accepted into evidence.
The Respondent presented the testimony of Dorothy J. Faircloth. Ms.
Faircloth was accepted as an expert on the Respondent and its practices and procedures. The Respondent also offered 1 exhibit which was marked as "Respondent's" exhibit 1 and accepted into evidence.
Subsequent to the conclusion of the formal hearing the parties timely filed proposed recommended orders containing 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.
Whether the Petitioner is entitled to a medical license in the State of Florida by examination?
The Petitioner is a graduate of a foreign medical school. She graduated from the University of Ceylon, Colombo, Sri Lanka.
The Petitioner was licensed in Sri Lanka on March 8, 1976.
From March 8, 1976, through May, 1979, the Petitioner was employed as a physician at a government hospital located in Galle, Sri Lanka.
From May, 1979, until January 24, 1981, the Petitioner was employed as a physician at a government hospital located in Colombo, Sri Lanka.
While employed at the government hospitals in Galle and Colombo, Sri Lanka, the Petitioner earned 21 days of vacation time and 24 days of "casual" leave a year.
Upon the termination of her employment at the government hospital in Colombo, Sri Lanka, the Petitioner was paid for 21 days of her accrued vacation and casual leave.
If the 21 days for which the Petitioner was paid for upon her departure from the government hospital at Colombo, Sri Lanka are counted as time during which the Petitioner worked as a licensed physician, the Petitioner's employment during this period of time would run from March 8, 1976, to February 14, 1981. This is a total of 4 years and 343 days. If the 21 days are not counted, the Petitioner's employment would run from March 8, 1976, to January 24, 1981. This is a total of 4 years and 322 days.
On January 24, 1981, the Petitioner traveled from Sri Lanka to the United Kingdom to be with her husband. Therefore, the Petitioner did not practice medicine as a physician after January 23, 1981.
The Petitioner remained in the United Kingdom from January 24, 1981, to July 11, 1982.
The Petitioner was issued a Certificate of Limited Registration as a Medical Practitioner by the General Medical Council in the United Kingdom which authorized her to practice medicine. The Certificate limited the Petitioner's "employment" as a physician to the following:
Any supervised employment in hospitals within the National Health Service excluding employment in casualty or in accident and emergency departments
except to give a second opinion with a view to management or to assist a casualty officer in treatment or to administer anesthetics.
The Certificate also provided the following "period of limited registration": 9 Oct. 981 to 8 Oct. 1982.
In substance the Petitioner's practice as a physician in the United Kingdom was limited only as to where she could work (National Health Service hospitals) and the period during which she could practice (9 Oct. 1981 to 8 Oct. 1982). The requirement that her employment be supervised was consistent with the manner in which all physicians in the hospitals of the National Health Service are treated; "consultants" supervise all other physicians. The exclusion of the Petitioner's employment in casualty or in accident and emergency departments was included on the certificate only because the Petitioner did not choose to pay an additional 15 Pounds Sterling.
While in the United Kingdom, the Petitioner worked as a physician from October 1, 1981 until July 10, 1982, a total of 283 days.
On July 11, 1982, the Petitioner returned to Sri Lanka to visit with her son and her family before joining her husband in the United States.
The Petitioner remained in Sri Lanka from approximately July 11, 1982, until October 30, 1982.
In August of 1982 the Petitioner took over the practice of Dr. S. H.
M. Kaleel, on 7 intermittent days. Dr. Kaleel's practice consisted of a general-family practice.
Dr. Kaleel was in the United Kingdom from September 1, 1982, to October 7, 1982. This was a period of 37 days. During this period the Petitioner operated Dr. Kaleel's office for him.
On October 30, 1982, the Petitioner left Sri Lanka to join her husband in the United States. She arrived in New York, New York, on October 31, 1982.
The Petitioner and her husband initially lived in Athens, Georgia, where her husband attended the University of Georgia.
The Petitioner and her husband subsequently moved to Gainesville, Florida. The Petitioner still resides in Gainesville.
The Petitioner has more than 5 years of licensed practice if her employment with the government hospitals in Sri Lanka (March 8, 1976 to February 14, 1981), her employment in the United Kingdom (October 1, 1981 to July 10, 1982), and her employment by Dr. Kaleel (7 days in August, 1982, and from September 1, 1982 to October 7, 1982) are counted. If the period from January 24, 1981 to February 14, 1981, and the Petitioner's employment in the United Kingdom are not counted, the Petitioner still has more than 5 years of licensed practice. If the period from January 24, 1981 to February 14, 1981, the Petitioner's employment in the United Kingdom and her employment by Dr. Kaleel are not counted the Petitioner has less than 5 years of licensed practice.
The Petitioner filed an Application for licensure by examination which was received by the Respondent on February 13, 1985 (hereinafter referred to as the "First Application").
In the First Application the Petitioner listed her current address as Gainesville, Florida. On the second page of the First Application, when requested to list "all places of residence since initiation of medical training," the Petitioner failed to list her residence in Athens, Georgia or Gainesville, Florida. The Petitioner also did not indicate that she had been in Sri Lanka from July 11, 1982, until October 30, 1982. Finally, the Petitioner indicated that she had resided in Sri Lanka until February, 1981. In completing this portion of the First Application the Petitioner did not list her residences. Instead, the Petitioner listed places of employment. Her failure to list all of her residences was caused by sloppiness and carelessness.
The Petitioner was also requested to list her places of employment on the First Application. In doing so, the Petitioner indicated that she had been employed in Sri Lanka until February of 1981. This was consistent with the position she has taken in this proceeding. The Petitioner also failed to list her employment in Sri Lanka after leaving the United Kingdom in July of 1982. She failed to list this employment because she forgot about this period of employment.
The Petitioner also filed a Professional Biodata dated February 9, 1985. Again she indicated that she worked in Sri Lanka until February, 1981, that she left for the United Kingdom in February, 1981, and failed to indicate that she had worked in Sri Lanka during 1982.
Two routine certifications of personal knowledge of the Petitioner's practice were filed with the Respondent by a Dr. Yogasakaran and a Dr. de Lanerllore.
By letter dated August 23, 1985, the Respondent informed the Petitioner that the affidavits submitted by Drs. Yogasakaran and de Lanerllore contain erroneous information about her Sri Lanka practice. The affidavits refer to her practice being from February 15, 1976 through February 14, 1981. The letter states that the Petitioner had stated in her letter to the Board that she was in the United Kingdom from February through October, 1981. The letter further advises that the practice in the United Kingdom is unacceptable toward the 5 years of licensed practice, because it was under a limited license.
In a letter dated October 2, 1985, the Petitioner informed the Respondent for the first time that she had worked as a physician from September 1, 1982 to October 7, 1982, at Dr. Kaleel's clinic. She enclosed affidavits from Drs. Devacaanthan and Yogasarkara indicating that she had practiced as a physician from March 8, 1976, to February 14, 1981 and from September 1, 1982 to October 7, 19.82. She also enclosed a letter from Dr. Kaleel indicating that she had practiced from September 1, 1982 to October 7, 1982.
In September, 1986, the Petitioner filed a second application for licensure by examination (hereinafter referred to as the "Second Application") pursuant to Section 458.311, Florida Statutes (1985), seeking a license based upon taking the FLEX examination and completing 5 years of licensed practice.
In the Second Application the Petitioner again listed her current residence as Gainesville, Florida. She left off her residence in Athens, Georgia, and Gainesville on the second page of the Second Application, however,
and again indicated that she had resided in Sri Lanka until February, 1981. Again the Petitioner listed her places of employment instead of her residence on the Second Application. Her failure to properly list her residences was caused by her sloppiness and carelessness.
The Petitioner also listed her places of employment on the Second Application. Although the Petitioner had informed the Respondent about her employment in Sri Lanka during 1982, the Petitioner again failed to list this employment.
By Order filed June 19, 1987, the Respondent denied the Petitioner's Second Application.
The Petitioner incorrectly answered the question, "[h]ave you ever had to discontinue practice for any reason for a period of one month or longer," on the First and Second Applications. She did so because she was sloppy and careless in completing these Applications.
Since at least 1978 the Respondent has interpreted Section 458.311(1)(c), Florida Statutes, to exclude practice by a physician pursuant to a limited or restricted license issued by a foreign jurisdiction for purposes of determining whether a physician has 5 years of licensed practice. Therefore, the Respondent did not accept the period during which the Petitioner practiced in the United Kingdom.
The position of the Respondent set out in Finding of Fact 34 has not been adopted as a rule. It has been consistently applied by the Respondent. The Respondent has taken this position because it believes that it is unable to determine what actual restrictions apply to a limited or restricted license issued by a foreign jurisdiction. The evidence in this proceeding proved, however, that the actual restrictions which apply to a limited or restricted license can be determined and are a matter of proof.
The Petitioner's testimony concerning the affidavits submitted by various physicians in support of the Petitioner's applications was not credible. The Petitioner testified that the dates of employment included by physicians who submitted affidavits were not provided to those physicians by the Petitioner and that she did not know where they got the dates. This testimony defies logic. Only one of those physicians, Dr. Kaleel, had any personal knowledge of the exact dates that the Petitioner engaged in the licensed practice of medicine. One of the physicians, Dr. Yogasakaran filed one affidavit with dates consistent with those supplied by the Petitioner. When the Respondent questioned those dates, Dr. Yogasakaran submitted a second affidavit with the new dates supplied by the Petitioner. The Petitioner's testimony on other matters was credible and her position that she has completed 5 years of licensed practice was substantiated by other credible evidence.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1986 Supp.).
The burden of proof in this licensing proceeding is on the Petitioner. Rule 28-6.008, Florida Administrative Code; and Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).
There are essentially two issues in this proceeding. The first issue is whether the Petitioner meets the requirement of Section 458.311(1)(c), Florida Statutes (1985), that she complete "at least 5 years of licensed practice." The weight of the evidence supports a conclusion that the Petitioner has met this requirement.
The evidence proved that the Petitioner engaged in licensed practice in Sri Lanka from March 8, 1976 to January 24, 1981. This is a total of 4 years and 322 days of licensed practice. The Petitioner's argument concerning the period from January 24, 1981 to February 14, 1981, is rejected. The weight of the evidence supports a conclusion that the Petitioner was not engaged in licensed practice during this period of time even though she may have been paid for 21 days of accrued leave.
The evidence also proved that the Petitioner was engaged in licensed practice in the United Kingdom from October 1, 1980 to July 10, 1982. This is a total of 283 days of licensed practice. The Respondent's argument concerning its policy of rejecting such practice is rejected. The Respondent has failed to adequately prove that its policy is reasonable.
Finally, the evidence proved that the Petitioner was engaged in licensed practice for Dr. Kaleel for 7 days in August of 1982, and for 37 days from September 1, 1982 to October 7, 1982.
Based upon the foregoing, it is concluded that the Petitioner was engaged in licensed practice for in excess of 5 years. It is also concluded that the Petitioner was engaged in licensed practice for more than 5 years even if the Petitioner's employment in the United Kingdom is not treated as licensed practice.
The second issue in this proceeding involves the Respondent's allegation that the Petitioner's "application contained false information." In arguing that this issue should be decided in favor of the Petitioner, the Petitioner has contended, among other things, that the Respondent has not stated this ground for denial with sufficient specificity to put the Petitioner on notice. This argument is rejected. See Maravel v. Department of Professional Regulation, 498 So.2d 481 (Fla. 1st DCA 1987).
The Petitioner has also argued that "false information" is not a ground for denial of the Petitioner's application pursuant to Section 458.311(1) or (2), Florida Statutes (1985). Although the Petitioner is correct that these Sections do not specifically address falsification of an application, it is also true that applicants for medical licensure are prohibited from, among other things not relevant to this proceeding, attempting to obtain a license by fraudulent misrepresentation. See Marvel, supra, and Gentile v. Department of Professional Regulation, 448 So.2d 1087 (Fla. 1st DCA 1984).
There is no doubt that the Petitioner failed to correctly complete the applications she filed with the Respondent. What the evidence failed to prove, however, is that the Petitioner's omissions were material or done with intent to defraud in any manner. As the Petitioner points out, most of the information which the Petitioner failed to include on her applications would have benefited the Petitioner had she included it from the very beginning. It is therefore concluded that the Petitioner did not attempt to obtain her license by fraudulent misrepresentation.
Based upon the weight of the evidence, it is concluded that the Petitioner's application should not be denied for filing an application which "contained false information." See Marvel, supra.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued GRANTING the Petitioner's
application for licensure by examination.
DONE and ENTERED this 3rd day of February, 1988, in Tallahassee, Florida.
LARRY J. SARTIN
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3004
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.
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection
1-9 These proposed findings of fact were stipulated to by the parties. They are hereby accepted.
10 3, 4 and 21.
13 8, 9, 14 and 16-18.
14 18.
15 These proposed findings of fact are summaries of testimony. See 34.
The Respondent's Proposed Findings of Fact 1 1 and 22.
2 29.
3 24 and 31.
4 21 and 24.
5 25.
6-7 28.
generally correct. They have been taken into account in weighing all of the evidence in this case. See 26-28.
17 2-4 and 8.
19 9-10 and 13.
20 34.
23 10.
24 1.
25-26 Not supported by the weight of the evidence.
27-28 33.
Paul Watson Lambert, Esquire Taylor, Brion, Buker & Greene Post Office Box 11189 Tallahassee, Florida 32302
Allen R. Grossman, Esquire Assistant Attorney General Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32399-1050
Ms. Dorothy Faircloth, Director Department of Professional Regulation
