STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE HASKELL MONSEIN, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 88-1744

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held on November 18, 1988, in Tallahassee, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

The representatives of the parties were as follows: For Petitioner: James F. Page, Jr., Est.

Gray, Harris & Robinson, P.A.

P.O. Box 3068 Orlando, FL 32802

William B. Fitzgerald, Esq. 1000 First Federal Building Detroit, Michigan 48226

For Respondent: Ann Cocheu, Esq.

Assistant Attorney General The Capitol

Suite 1603

Tallahassee, FL 32399-1050 BACKGROUND

By Board of Medical Examiners Endorsement Application dated July 12, 1987, Petitioner applied for licensure to practice medicine in the State of Florida. By Order filed March 3, 1988, the Board of Medicine notified Petitioner that it intended to deny his application for licensure as a physician by endorsement.

The grounds cited in the Order were that Petitioner had failed to demonstrate his ability to practice medicine with skill and safety insofar as his record reflected poor evaluations of his medical training and limitations upon his practice privileges and that Petitioner had failed to demonstrate good moral character. By Petition for Formal Hearing filed April 1, 1988, Petitioner requested a formal hearing.

Petitioner presented two witnesses and offered into evidence four exhibits.

Respondent presented no witnesses and offered into evidence one exhibit. All exhibits were admitted into evidence.

Each party filed a proposed recommended order. Treatment accorded the proposed findings of fact is detailed in the Appendix.

FINDINGS OF FACT

1. Petitioner is a board-certified physician radiologist. At the time of filing his Florida application, Petitioner had been licensed to practice medicine in Michigan since 1983 and New Mexico since 1986.

   
   

2. Petitioner, who was born on June 21, 1956, received his undergraduate and medical education from Michigan State University where he received degrees in zoology and medicine, respectively. He received his Doctor of Medicine degree on June 11, 1982.

   
   

3. Petitioner completed a four-year residency at the Henry Ford Hospital in Detroit, Michigan, in 1986. Petitioner's residency was devoted to radiology.

   
   

4. In his final year, Petitioner's 25 fellow residents elected him as chief resident on the basis of his integrity, competence, and good moral character. Petitioner's duties as chief resident required him to communicate the problems of residents to the hospital administrators.

   
   

5. Many of the residents' complaints centered around the gastrointestinal radiology program, which was headed by Dr. Stuart Simms. From time to time, Petitioner presented these grievances to Dr. Simms and other appropriate persons. As a result, the relationship between Petitioner and Dr. Simms gradually deteriorated.

   
   

6. After completing the four-year residency, Petitioner accepted a one- year fellowship at the University of New Mexico Hospital. Petitioner was to divide his time equally between interventional radiology and magnetic resonance.

   
   

7. Interventional radiology involves the placement of a dye into the affected part of the patient's body and the subsequent tracking of the dye within the body. Two interventional radiological procedures are the angiogram, which involves the placement of a tracking substance in the patient's arteries, and the myelogram, which involves the placement of a tracking substance in the patient's spine.

   
   

8. Shortly before Petitioner's arrival at the University of New Mexico Hospital, the interventionist radiologist resigned from the staff. Petitioner therefore began performing unsupervised interventional radiology procedures immediately upon his arrival at the hospital.

   
   

9. The working environment at the University of New Mexico Hospital was far different than that at the Henry Ford Hospital. In general, the radiology work was less sophisticated at the University of New Mexico Hospital where, for instance, one or two angiograms might be performed in a day as compared to 12 a day at the Henry Ford Hospital. Also, the equipment at the University of New Mexico Hospital was less sophisticated and the technical staff less experienced in the types of radiology common at the Henry Ford Hospital.

   
   

10. In the face of these challenges, Petitioner displayed inadequate interpersonal skills. Before long, his impatience with the technical staff's resistance to change led to recurring conflicts between Petitioner and the staff.

11. Petitioner became the target of complaints from non-physician staff persons. These complaints included his failure to flush catheters frequently enough and failure to follow proper procedures in obtaining patient consents. The complaints were insubstantial and generally involved the proper exercise of physician discretion.

    
    

12. At no time during the one year that Petitioner worked at the University of New Mexico Hospital were his privileges regarding interventional radiology limited or restricted. At all times, Petitioner performed interventional procedures, including angiography. At one point during the year, Dr. Fred Mettler, who was director of internal radiology at the University of New Mexico School of Medicine, offered Petitioner a job in interventional radiology, including angiography. However, as a result of the above-described problems, Dr. Mettler later restricted the offer of employment to interventional radiology not involving angiography.

    
    

13. After leaving the University of New Mexico Hospital, Petitioner accepted a fellowship at Johns Hopkins University Hospital where he has worked since June, 1988, in the area of neuroradiology. Petitioner has performed interventional radiology on almost a daily basis and, in the first six months of his fellowship, has performed under supervision approximately 20 angiograms and

    60 myelograms.

    
    

14. The Board of Medicine received several letters of recommendation concerning Petitioner. Most letters of recommendation are favorable, and such letters include the period during which Petitioner was a resident at Henry Ford Hospital and a fellow at the University of New Mexico Hospital. Two of these letters recommending Petitioner highly were from the successive chairmen of the diagnostic radiology department at Henry Ford Hospital. However, two letters were unfavorable. These were from Dr. Simms and Dr. Mettler.

    
    

15. Dr. Simms rated Petitioner poor in the areas of integrity and his professional relationship with teaching staff and colleagues. He described Petitioner as "self-centered, egotistical, and devious." He recommended Petitioner with some reservation.

    
    

16. Dr. Mettler initially recommended Petitioner with some reservation, although he later upgraded his recommendation to "qualified and competent," which is still one rank below "outstanding." Dr. Mettler did not rate Petitioner poor in any area, but rated him only fair in the areas of research potential and his professional relationship with teaching staff, colleagues, and nursing staff.

    
    

17. Petitioner has proven that he is of good moral character and integrity. Petitioner has also proven that he has the competence to, and in fact does, practice medicine with the requisite skill and safety.

    
    

18. The common complaint of Dr. Simms and Dr. Mettler concerning unsatisfactory professional relationships with non- patients, which is not borne out by other recommendations received by the Board of Medicine, is partially justified. Petitioner clearly suffers from an intellectual arrogance, which has at times interfered with his ability to deal with physicians and technical staff persons whom he deems to be his intellectual inferiors. However, there is no evidence that this annoying characteristic has contributed to anything more than, as Dr. Simms put it, a few burned bridges with respect to certain

    professional relationships. There is no evidence that this characteristic has impaired Petitioner's ability to practice medicine safely.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes.

    
    

20. Respondent shall issue a license by endorsement to any applicant who demonstrates that he has met, among other requirements, the qualifications for licensure set forth in Section 458.311(1)(b)-(f) , Florida Statutes. Section 458.313(1), Florida Statutes.

    
    

21. Among the necessary qualifications are that the applicant be of "good moral character" and that he has not "committed any act or offense in any jurisdiction which would constitute the basis for disciplining a physician pursuant to s. 458.331." Section 458.311(1)(c) and (d) , Florida Statutes.

    
    

22. A physician's license may not be reinstated, once it has been suspended or revoked, until Respondent determines that the physician is "capable of safely engaging in the practice of medicine." Section 458.311(4), Florida Statutes (1988 Supp.).

    
    

23. Petitioner must prove his entitlement to a license by a preponderance of the evidence. Florida Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981)

    
    

24. Petitioner has proven his good moral character, including his integrity.

    
    

25. Petitioner has proven that he is capable of practicing, medicine safely. Petitioner's occasional arrogance and inconsistency concerning certain of his past professional relationships are not so serious as to interfere with his ability to practice medicine with the requisite skill and safety.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered granting Petitioner a license by endorsement to practice medicine.

DONE and RECOMMENDED this 8th day of February, 1989, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 1989.

APPENDIX

Treatment Accorded Petitioner's Proposed Findings 1-2. Adopted.

1. First sentence adopted. Remainder rejected as subordinate or irrelevant.

   
   

2. First sentence adopted. Remainder, except last sentence, rejected as recitation of testimony. Last sentence is rejected as against the greater weight of the evidence. On balance, Dr. Simms' evaluation is entitled to little weight in the face of other factors, such as Petitioner's election as chief resident and favorable recommendations from other persons involved in the Henry Ford Hospital program, including Dr. Simms' superiors, during the same period of time. However, Petitioner cannot be absolved of all blame given his proclivity toward intellectual arrogance.

   
   

3. Rejected as subordinate.

   
   

4. The recommendations of the two chairmen have been adopted. Remainder rejected as recitation of testimony and irrelevant.

   
   

5. Rejected as recitation of testimony and irrelevant.

   
   

6. Rejected as irrelevant.

   
   

7. First sentence adopted. Reference to 20 angiograms and

60 myelograms in third sentence adopted. Remainder rejected as irrelevant and cumulative.

10-11. Rejected as irrelevant.

1. Adopted in substance.

2. First sentence adopted. Remainder rejected as against greater weight of the evidence.

Treatment Accorded Respondent's Proposed Findings

1. Adopted insofar as Petitioner has had difficulties with Dr. Simms, Dr. Mettler, and various staff persons at the University of New Mexico Hospital. Also adopted insofar as to suggest intellectual arrogance on the part of Petitioner. Rejected insofar as to suggest that these shortcomings have been sufficiently prevalent or serious as to impair Petitioner's good moral character or ability to practice medicine safely.

   
   

2. Rejected as against the greater weight of the evidence.

COPIES FURNISHED TO: JAMES F. PAGE, JR., ESQ.

GRAY, HARRIS & ROBINSON, P.A.

P.O. BOX 3068 ORLANDO, FL 32802

WILLIAM B. FITZGERALD, ESQ. 1000 FIRST FEDERAL BUILDING DETROIT, MICHIGAN 48226

ANN COCHEU, ESQ.

ASSISTANT ATTORNEY GENERAL THE CAPITOL

SUITE 1603

TALLAHASSEE, FL 32399-1050

KENNETH D. EASLEY, ESQUIRE GENERAL COUNSEL

DEPARTMENT OF PROFESSIONAL REGULATION

130 NORTH MONROE STREET TALLAHASSEE, FL 32399-0750

DOROTHY FAIRCLOTH EXECUTIVE DIRECTOR BOARD OF MEDICINE

130 NORTH MONROE STREET TALLAHASSEE, FL 32399-0750

Docket for Case No: 88-001744

Orders for Case No: 88-001744