STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES P. VILLOTTI JR., M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 88-2056F

) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

MEDICAL EXAMINERS, )

)

Respondent. )

)

FINAL ORDER

A formal hearing in this cause was waived by both parties pursuant to their Stipulation filed August 30, 1988. The issue for determination herein is whether Petitioner is entitled to attorney's fees and costs under Section 57.111, Florida Statutes, The Florida Equal Access to Justice Act.

APPEARANCES

For Petitioner: Robert Jackson McGill, Esquire

1515 South Tamiami Trail, Suite One Venice, Florida 34292

For Respondent: David L. Milford, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Petitioner and Respondent entered into a Stipulation regarding the factual basis for this dispute. The parties agree that the sole issue remaining in this proceeding is whether Respondent's action in filing the Administrative Complaint against Petitioner in DOAH Case NO. 87-0276 was substantially justified, having a reasonable basis in law and fact at the time it was initiated by the Department of Professional Regulation, Board of Medicine.

Both parties submitted proposed findings of fact in the form of proposed final orders. A ruling on each proposed finding of fact can be found in the Appendix to this Final Order.

FINDINGS OF FACT

1. On July 17, 1986, a Probable Cause Panel of the Board of Medicine met to review the investigative report which resulted from a complaint filed against Petitioner by the mother of a deceased patient.

   
   

2. Prior to the meeting of the Probable Cause Panel, Robert N. Baskin, M.D., had reviewed Petitioner's office records, the medical examiner's report, the emergency room records and a letter from the patient's mother concerning

   Petitioner's care and treatment of that patient. Dr. Baskin had concluded that, if subsequently proven, the facts would constitute negligent or incompetent practice of medicine.

   
   

3. The panel discussed the information which had been previously provided to it and determined that additional information was necessary before making a final determination of probable cause or no probable cause. The matter was returned to the Department of Professional Regulation for additional investigation.

   
   

4. On September 25, 1986, a Probable Cause Panel of the Board of Medicine met to review the investigative report, including the supplemental report containing the additional information requested by the prior Probable Cause Panel.

   
   

5. Based on the Investigative report which included Petitioner's office records, a summary of an interview with Petitioner, summaries of interviews with the patient's mother, a summary of an interview with and records of the medical examiner, and a summary of an interview with and the report of consultant Robert

   1. Baskin, M.D., the panel found that probable cause existed that Petitioner's activities had violated:

      
      

      1. Section 458.331(1)(t), Florida Statutes, by gross or repeated malpractice or by 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;

      2. Section 458.331(1)(i), Florida Statutes, now Section 458.331(1)(h), by making or filing a report which the licensee knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing or inducing another person to do so; and

      3. Section 458.331(1)(1), Florida Statutes, now Section 458.331(1)(k), by making deceptive, untrue, or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine.

   
   

6. The Probable Cause Panel expressed concern regarding several aspects of Petitioner's treatment of the deceased patient. The panel noted its basis for a finding of probable cause in Count One, the malpractice count:

   
   

   1. Diabetic ketone acidosis was consistent with the patient's history, and there was "sort of a lack of attention paid about some of [the patient's] complaints"; and

   2. One of the two panel members opined that Petitioner "did misdiagnose the symptoms that this patient had", and described Petitioner's practice in this case as "a little sloppy".

      
      

7. Further, the consultant's report questioned whether Petitioner recognized the seriousness of the patient's condition at the time of his

   examination of the patient. This question focused on whether Petitioner had recommended that the patient be hospitalized, but the patient's mother had refused to hospitalize her son.

   
   

8. Counts Two and Three of the Administrative Complaint were based solely on whether Petitioner had recommended hospitalization as his records reflected or if, in fact, the mother's contrary version of what had happened was correct. One of the two panel members opined that "Somebody's lying." This was a credibility question to be determined. The Probable Cause Panel found that there was probable cause to believe that Petitioner may have falsified his records, if the Hearing Officer found that Petitioner was the one not telling the truth in this matter.

   
   

9. Petitioner's records showed that an addendum was written, stating that Petitioner recommended that the patient be hospitalized. A memorandum to the medical records file by Registered Nurse Betty J. Launius, written after the patient died, explained why Petitioner did not immediately respond to telephone calls regarding the patient's condition. These documents lent some credibility to the possibility that they were done after the fact to protect Petitioner from subsequent litigation alleging malpractice in this case.

   
   

10. The Probable Cause Panel recognized that the questions raised by the investigation should be answered or resolved one way or another at an evidentiary hearing.

    
    

11. Petitioner disputed the allegations contained in the Administrative Complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. The case was referred to the Division of Administrative Hearings to conduct an evidentiary hearing and to issue a Recommended Order based upon the evidence presented. Division of Administrative Hearings Case No. 87-0276 was assigned.

    
    

12. On July 16, 1987, DOAH Case No. 87-0276 was heard in Venice, Florida.

    
    

13. A Recommended Order was issued on October 22, 1987, recommending that a Final Order be entered finding Respondent not guilty of the allegations contained within the Administrative Complaint and dismissing the Administrative Complaint filed against Petitioner. The Board of Medicine adopted the Recommended Order and dismissed the Administrative Complaint against Respondent on February 18, 1988.

    
    

14. The parties have agreed that the costs and attorney's fees set forth in the Amended Petition for Attorney's Fees filed June 20, 1988 are the amounts in question in this proceeding.

    
    

15. Petitioner is a "small business party" as that term is defined in Section 57.111(3)(d), Florida Statutes.

    
    

16. The underlying administrative proceeding was initiated by the Respondent, a state agency.

    
    

17. Petitioner was the prevailing party in the administrative proceeding material to this matter.

    
    

18. There is no evidence that the transcript of the Probable Cause Panel meeting of July 17, 1986, was provided to or considered by the Probable Cause Panel which met on September 25, 1986.

19. Petitioner incurred attorney's fees in the amount of $6,780.00 to defend himself in the underlying administrative proceeding and also incurred costs in the amount of $3,089.55. The amount of attorney's fees and costs are reasonable.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

21. The Florida Equal Access to Justice Act (FEAJA), Section 57.111, Florida Statutes, provides in relevant part:

    
    

    (4)(a) Unless otherwise provided by law, an award of attorney's fees and costs shall be made to a prevailing small business party in any adjudicatory proceeding or administrative proceeding pursuant to chapter 120 initiated by a state agency, unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust.

    
    

22. The parties have stipulated that the administrative proceeding material to this proceeding was initiated by the Respondent, a state agency; that Petitioner is a "small business party" as that term is defined in Section 57.111(3)(d), Florida Statutes; and that the Petitioner is the "prevailing party" as required by Section 57.111(3)(c), Florida Statutes. A proceeding is "substantially justified" if it had "a reasonable basis in law and fact at the time it was initiated". Section 57.111(3)(e), Florida Statutes.

    
    

23. Section 455.225, Florida Statutes, requires the Department of Professional Regulation to submit all legally sufficient complaints filed with the Department to the probable cause panel of the appropriate board for determination of probable cause. It further requires the Department to follow the directions of the panel with regard to the filing and prosecution of a formal complaint unless the Department determines that probable cause was improvidently found.

    
    

24. The action of the Department of Professional Regulation in filing Count One of the Administrative Complaint was substantially justified based upon the probable cause panel's review and evaluation of Petitioner's treatment of this patient. Specifically, the probable cause panel's comments that Petitioner had misdiagnosed the patient, that diabetic ketone acidosis was consistent with the patient's history, that there was a lack of attention paid to some of the patient's complaints, and the description of Petitioner's practice in this case as a "little sloppy" demonstrate a reasonable factual and legal basis for the panel's act of finding probable cause.

    
    

25. The Department of Professional Regulation was substantially justified in filing Counts Two and Three of the Administrative Complaint. There was a credibility question concerning Petitioner's allegation that he requested the patient be hospitalized, but the mother refused to hospitalize her son.

Respondent was substantially justified in its actions in this case as there was a reasonable basis in law and fact for initiating the action.

It is, therefore,

Ordered that the Amended Petition for Attorney's Fees filed by Petitioner is DENIED.

DONE and ORDERED this 8th day of November, 1988, in Tallahassee, Florida.

LINDA M. RIGOT

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 November, 1988.

APPENDIX TO FINAL ORDER DOAH Case NO. 88-2056F

1. Petitioner's proposed findings of fact numbered 2, 4, 5, 8, and 9 have been adopted in substance in this Final Order.

2. Petitioner's proposed findings of fact numbered 1, 10, 11, and 16 have been rejected as not being supported by the record in this cause.

3. Petitioner's proposed findings of fact numbered 3, 6, 7, and 12-15 have been rejected as being unnecessary for resolution of the issue herein.

4. Respondent's proposed findings of fact numbered 1-19 have been adopted in substance in this Final Order.

COPIES FURNISHED:

Robert Jackson McGill, Esquire Suite One

1515 South Tamiami Trail Venice, Florida 34292

David L. Milford, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Lawrence A. Gonzalez, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Bruce D. Lamb, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Dorothy Faircloth, Executive Director Board of Medicine

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

NOTICE OF RIGHT TO JUDICIAL REVIEW A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS' AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 88-002056F

Orders for Case No: 88-002056F