STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3115

)

PREM N. TANDON, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held on March 8, 1989, in Orlando, Florida, before Robert D. Meale, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: David Pius, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399

For Respondent: Joseph M. Taraska, Esquire

Launa R. Cartwright, Esquire

Taraska, Grower, Uhger & Ketchum, P.A.

111 North Orange Avenue Suite 1700

Orlando, Florida 32853 BACKGROUND

By Administrative Complaint dated April 27, 1988, Petitioner alleged that Respondent, who is a physician licensed to practice medicine in Florida, treated

G.L. for injuries that he sustained in an automobile accident that took place on or about May 30, 1986. Petitioner alleged that Respondent obtained the signature of G.L. to a document authorizing his personal-injury attorney to disburse to Respondent $12,500 from the settlement proceeds. This sum was allegedly for payment of sums due Petitioner for past services, medical, social and humane assistance, and personal loans made to G.L. and his family.

The Administrative Complaint alleged that Respondent thereby made fraudulent, deceptive, misleading, or untrue representations in the practice of medicine and employed a trick or scheme in the practice of medicine, in violation of Section 458.331(1)(k), Florida Statutes. The Administrative Complaint alleged that Respondent thereby exploited or attempted to exploit a patient for the financial gain of Respondent, in violation of Section 458.331(1)(n), Florida Statutes.

Petitioner filed the First Amended Administrative Complaint on January 19, 1989. The amended allegations stated that Respondent referred G.L. to Respondent's attorney and provided additional details concerning the alleged incident. By Order dated February 20, 1989, the First Amended Administrative Complaint was deemed filed.

At the hearing, Petitioner called six witnesses and offered into evidence eight exhibits. Respondent called three witnesses and offered into evidence seven exhibits. All exhibits were admitted into evidence. Petitioner's Exhibit

8 is a sealed envelope containing the names of G.L., A.M., and a third patient. Petitioner's Exhibit 6 is Respondent's Exhibit 2.

FINDINGS OF FACT

1. Respondent is and at all times has been a licensed physician, holding Florida license number ME 0029977. He has been licensed in Florida since about 1976.

   
   

2. G.L. is 73 years old. He has a third grade education. Previously, he was a farmworker in the fields. He is at most barely literate. In any event, he would not appreciate the meaning of a document of the type described below.

   
   

3. G.L. and his companion, A.M., who is 59 years old and unemployed, had been patients of Respondent for about eight years at the time of the subject incident.

   
   

4. From time to time, Respondent has lent his patients money, such as for transportation or medicine. Respondent's daughter, who serves as his office manager, has even provided transportation for patients in order to get them to the office and back home. On certain occasions, Respondent has lent G.L. money or paid for his medicine, although the amounts involved were not significant.

   On many other occasions, Respondent provided G.L. with free medication by giving him samples. Respondent did not keep track of the amounts involved because of the unlikelihood of any repayment.

   
   

5. Between 1980 and the time of the incident, G.L.'s total charges for medical services rendered by Respondent were less than $5000. Medicare or Medicaid paid for about 80% of these costs.

   
   

6. In May, 1986, G.L. suffered injuries as a result of an automobile accident. Respondent treated G.L., who had a balance due of about $824 at the time in question. Respondent referred G.L. to Franklin Douglas McKnight, who also served as Respondent's attorney, for representation in the recovery of damages for personal injuries.

   
   

7. By January, 1987, Mr. McKnight was close to settling the case. At this point, Respondent visited Mr. McKnight and said that G.L. had agreed to pay Respondent a percentage of the settlement. The net amount that was estimated to be due G.L. was roughly $25,000, and Respondent was claiming $12,500. Mr. McKnight informed Respondent that he could not pay him a percentage and, in any event, could not pay him anything unless G.L. signed a letter authorizing the disbursement to Respondent. Mr. McKnight showed Respondent a simple example of such a letter.

8. Respondent then prepared a letter for G.L. to sign. The letter stated: To Whom It May Concern:

   For past services, medical, social and

   humane assistance and personal loans rendered to me [G.L.] and my family during last many years. We hereby agree that the sum of

   $12,500 ... may be deducted from the net proceeds recovered as a result of the automobile accident, of date 5-30-86.

   
   

   I, [G.L.] Hereby thus authorize you,

   Mr. Douglas McKnight, (My representing Lawer) to disburse above amount out of net proceeds to Dr. Prem N. Tandon, M.D. without reservations. Thanking you:

   
   

   [Signed by G.L. and A.M. as witness.]

   
   

9. During an office visit, Respondent presented the letter to G.L. and

   A.M. for their signature. Little if any meaningful explanation accompanied the signing. G.L. and A.M. signed the letter based on their trust of Respondent as their physician.

   
   

10. When Respondent delivered the signed letter to Mr. McKnight, he told Respondent that he would not disburse any sums to Respondent without the consent of G.L. at the time of disbursement.

    
    

11. G.L. later refused to honor the disbursement letter. Confronted with conflicting claims to nearly $12,000 of the settlement proceeds, Mr. McKnight interpleaded the sum in Orange County Circuit Court.

    
    

12. Respondent has been disciplined twice previously. In a Final order dated February 27, 1984, Petitioner found Respondent guilty of violating Section 458.331(1)(r), Florida Statutes, by unlawfully prescribing to himself two legend drugs, Nembutal and Ritalin. Petitioner imposed an administrative fine of $200 and placed Respondent on probation for one month.

    
    

13. In a Final Order dated June 15, 1988, Petitioner found, Respondent guilty of various statutory violations concerning generally recordkeeping requirements with respect to controlled substances. Petitioner imposed an administrative fine of $1500, reprimanded his license, required him to attend 60 hours of Category I Continuing Medical Education courses in legal aspects of dispensing controlled substances, and restricted his license by prohibiting him from dispensing drugs in an office setting and maintaining drugs for the purpose of dispensing until he complied with certain conditions concerning recordkeeping requirements.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

15. Petitioner is authorized to revoke, suspend, or otherwise discipline the license of a physician for making deceptive, untrue, or fraudulent representations in the practice of medicine or employing a trick or scheme in

    the practice of medicine, in violation of Section 458.331(1)(k), Florida Statutes, and exercising influence on the patient so as to exploit the patient for financial gain of the licensee, including for the purpose of promoting or selling services, goods, appliances or drugs.

    
    

16. Petitioner has the burden of proving the material allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

17. The practice of medicine is defined as:

    
    

    The diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical or mental conditions.

    
    

    Section 458.305(3), Florida Statutes.

    
    

18. Under Count I, Petitioner was required to prove that the preparation of the letter and presentation to G.L. for execution constituted a deceptive, untrue, or fraudulent misrepresentation in the practice of medicine or a trick or scheme in the practice of medicine. However, Respondent's activities in this regard were not involved in the diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical or mental conditions. Petitioner has therefore failed to proved the allegations of Count I.

    
    

19. Under Count II, Petitioner was required to prove that Respondent exercised influence so as to exploit the patient for Respondent's financial gain. Petitioner proved its allegations under this count. Respondent asserted his claim to a sum of money that was far in excess of what he had advanced G.L. and even A.M. and her family over the years. Respondent's overreaching of G.L. was facilitated partly by G.L.'s ignorance, but partly by the trust that G.L. placed in Respondent as his physician.

    
    

20. Rule 21M-20.001, Florida Administrative Code, provides the guidelines to be followed in disciplining Respondent's license. The penalty for exercising influence on a patient for financial gain ranges from probation to denial or two years' suspension and an administrative fine from $250 to $5000. Rule 21M- 20.001(1)(g), Florida Administrative Code.

    
    

21. Rule 21M-20.001(3), Florida Administrative Code, sets forth the aggravating and mitigating circumstances that may result in the Board of Medicine deviating from the above-cited penalties. The issues to be considered are the degree of exposure of the patient or public to injury or potential injury, physical or otherwise; Respondent's legal status at the time of the offense; the number of counts established; the number of times that the same offense has been committed by Respondent; the disciplinary history of Respondent and his length of practice; the pecuniary benefit inuring to Respondent; and other relevant mitigating factors.

    
    

22. The facts proven by Petitioner show a high degree of exposure of G.L. to financial injury for the pecuniary benefit of Respondent. In 13 years of practice, Respondent has been disciplined twice, but for unrelated offenses involving the improper maintenance or dispensing of, or recordkeeping with respect to, legend drugs or controlled substances; in both cases, there was no evidence that Respondent's offenses contributed to substance abuse. On balance,

there is no justification for deviating from the regulatory guidelines concerning the appropriate penalty.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered finding Respondent guilty of violating of Section 458.331(1)(n), Florida Statutes, suspending Respondent's license for six months, and imposing an administrative fine of $5000.

ENTERED this 3rd day of May, 1989, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 1989.

APPENDIX

Treatment Accorded Proposed Findings of Petitioner 1-3 Adopted.

4 Adopted in substance.

5-7 Adopted.

1. Adopted except as to the mischaracterization of the document as a promissory note.

2. Rejected as irrelevant, contrary to the greater weight of the evidence, and recitation of testimony. Whether G.L. was able to read is beside the point. He was incapable of understanding the meaning of the document that he signed.

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

4. Rejected as cumulative and, to the extent not cumulative, irrelevant. 12-15 Rejected as recitation of testimony and subordinate.

16-17 Adopted in substance.

18 Rejected as recitation of evidence and legal argument.

19-21 Rejected as recitation of testimony and subordinate except that the first sentence of Paragraph 21 is adopted.

1. Rejected as irrelevant.

2. Rejected as recitation of testimony.

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

4. Adopted.

5. Rejected as cumulative and, to the extent not cumulative, irrelevant.

6. Rejected as legal argument contrary to the cited statutory definition of the practice of medicine.

7. Rejected as recitation of testimony.

8. Adopted in substance.

Treatment Accorded Respondent's proposed Findings

1-4 Adopted.

5-6 Rejected as subordinate.

1. Adopted.

2. Rejected as irrelevant and, to the extent implying that G.L. understood the meaning of the document that he was signing, against the greater weight of the evidence.

9-10 Rejected as irrelevant. See Paragraph 9 in preceding section. 11-14 Adopted.

15 Adopted in substance.

16-19 Adopted in substance except that the first sentence of Paragraph 16 is rejected as against the greater weight of the evidence.

1. Rejected as irrelevant.

2. First sentence adopted. Second sentence rejected as irrelevant.

3. Adopted.

COPIES FURNISHED:

Dorothy Faircloth Executive Director

Board of Medical Examiners

Department of Professional Regulation

130 North Monroe Street Tallahassee, FL 32399-0750

Kenneth D. Easley, Esq. General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, FL 32399-0750

David G. Pius, Esq.

Senior Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, FL 32399-0750

Joseph M. Taraska, Esq. Launa K. Cartwright, Esq.

Taraska, Grower, Unger and Ketcham, P.A. Post Office Box 538065

Orlando, FL 32853-0065

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

AGENCY FINAL ORDER

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

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICINE

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO. 88-3115

PREM N. TANDON, M.D.,

Respondent.

/

FINAL ORDER

This cause came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)9, Florida Statutes, on June 3, 1989, in Tallahassee, Florida, for the purpose of considering the Hearing Officer's Recommended Order, Petitioner's Exceptions to the Recommended Order, and Respondent's Response to Petitioner's Exceptions, Respondent's Exceptions to the Recommended Order and Petitioner's Response to Respondent's Exceptions to Recommended Order (copies of which are attached hereto as Exhibits A, B, C, D, and E, respectively) in the above-styled cause. Petitioner, Department of Professional Regulation, was represented by Stephanie A. Daniel, Attorney at Law. Respondent was present and represented by Launa K. Cartwright.

Upon review of the Recommended Order, the argument of the parties, and after a review of the complete record in this case, the Board makes the following findings and conclusions.

FINDINGS OF FACT

1. Findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein.

   
   

2. There is competent substantial evidence to support the findings of fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.

   
   

2. The Board grants Petitioner's exception with regard to the conclusion of law and thereby finds that the facts found establish by clear and convincing evidence that Respondent's conduct constituted a violation of Section 458.331(k), Florida Statutes.

3. The conclusions of law set forth in the Recommended Order are approved and adopted and incorporated herein to the extent they are not inconsistent with the conclusion relating to Section 458.331(1)(k), Florida Statutes; those contradictory conclusions noted above are rejected.

   
   

4. There is competent substantial evidence to support the Board's conclusions of law.

RULINGS ON PETITIONER'S EXCEPTIONS

Petitioner's Exception to a conclusion of law is GRANTED on the basis that, having reviewed the views of the Hearing Officer and the parties, the Board agrees with interpretation and reasoning set forth by the Department both in writing and orally.

RULINGS ON RESPONDENT'S EXCEPTIONS

1. Respondent's first exception is rejected far the reasons set forth by Petitioner.

   
   

2. Respondent's second exception is rejected for the reasons set forth by Petitioner.

   
   

3. Respondent's third exception is rejected for the reasons set forth by Petitioner.

   
   

4. Respondent's fourth exception is rejected for the reasons set forth by Petitioner.

5, Respondent's fifth exception is rejected for the reasons set forth by Petitioner.

1. Respondent's sixth exception is rejected for the reasons set forth by Petitioner.

   
   

2. Respondent's seventh exception is rejected for the reasons set forth by Petitioner.

PENALTY

Upon a complete review of the record in this case, the Board determines that the penalty recommended by the Hearing Officer be REJECTED as inadequate. The Board's reasons for increasing the penalty include the facts that the Board found Respondent guilty of both charges, rather than only one, as found by the Hearing Officer. In addition, this is the third time Respondent has appeared before the Board for a disciplinary hearing and, after a formal hearing each time, he has been found guilty each time. Further, the Board notes that the facts of the offenses herein establish that the offenses arose out of the physician-patient relationship and, in fact, required the physician-patient relationship in order to occur. This is particularly egregious. It undermines the very foundation of medical practice-the physician-patient relationship. On the record at the hearing, the Board expressed more fully reasons for increasing the penalty recommended by the Hearing Officer to revocation on the (1)(n) count and the reasons for imposing the ultimate penalty of revocation on the (1)(k) count; the transcript is attached hereto as Exhibit F and is incorporated into this Order for purposes of compliance with Section 120.57(1)(b)(10), Florida Statutes. Finally, the Board also asserts as its reasons for its increase in

penalty the reasons stated by Petitioner in its Motion To Increase Penalty and Petitioner's written Response to Respondent's Motion to Decrease Penalty (attached hereto as Exhibits G and H respectively).

WHEREFORE,

IT IS HEREBY ORDERED AND ADJUDGED THAT

1. For the violation of Section 458.331(1)(k), Florida Statutes, Respondent's license to practice medicine in the State of Florida is REVOKED.

   
   

2. For the violation of Section 458.331(1)(n), Florida Statutes, Respondent's license to practice medicine in the State of Florida is REVOKED.

This Order takes effect upon filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 13th percent day of June, 1989.

BOARD OF MEDICINE

SKINNER, M.D., VICE CHAIRMAN

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 DEPARTMENT OF PROFESSIONAL REGULATION 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.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by certified mail to Prem N. Tandon, M.D., 5705 Hansel Avenue, Orlando, Florida 32809 and Joseph M. Taraska and Launa K. Cartwright, Attorneys at Law, Taraska, Grower, Unger & Ketchum, 111 North Orange Avenue, Suite 700, Orlando, Florida 32853 and by U.S. Mail to Robert D. Meale, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399- 1550; and by interoffice delivery to David

G. Pius, Attorney at Law, Department of Professional Regulation, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0750, at or before 5:00 P.M., this 13th day of June, 1989.

FILED

Department of Professional Regulation

AGENCY CLERK

Docket for Case No: 88-003115

Orders for Case No: 88-003115