vs. ) CASE NO. 88-6469
ANA D. HERNANDEZ, M.D., )
Respondent. )
Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on May 17, 1988, in Miami, Florida.
For Petitioner: Jonathan R. King, Esquire
For Respondent: Ana D. Hernandez, M. D., pro se
Whether Respondent is guilty of the allegations contained in the Amended Administrative Complaint filed against her, and, if so, what disciplinary action should be taken against Respondent, if any.
On August 11, 1988, Petitioner issued an Amended Administrative Complaint against Respondent alleging that Respondent has violated the Medical Practice Act in several respects. Respondent requested a formal hearing on the allegations contained within that Amended Administrative Complaint.
Petitioner presented the testimony of the Respondent Ana D. Hernandez, M.D.; Maria Zerquera; Carlos Manuel Garrido, M.D.; Reynold M. Stein, M.D.; Orfelina Guerra, and Georgina Jorge. Additionally, Petitioner's Exhibits numbered 1-5 were admitted in evidence. The Respondent testified on her own behalf, and Respondent's Exhibit numbered 1 was admitted in evidence.
Petitioner has filed posthearing proposed findings of fact in the form of a proposed recommended order. A ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.
At all times material hereto, Respondent has been a licensed physician, having been issued license number ME 0020714 by the State of Florida.
By Final Order entered September 5, 1986, the Board of Medical Examiners, now known as the Board of Medicine, revoked the license to practice medicine of Celestino De La Heria Ledesma (hereinafter "De La Heria"). The revocation of De La Heria's license was predicated, in part, on findings that De La Heria was not competent to perform plastic surgery. Specifically, the Board's Final Order reflects that De La Heria treated a patient with "cupped" ears by suturing that patient's ears to the patient's head.
At all times material hereto, Respondent practiced medicine at her office located at 1995 East Fourth Avenue, Hialeah, Florida. Respondent purchased the building in 1982. Respondent had her office, consisting of two examining rooms, an office and a bathroom, on one side of the building. At the front entrance to Respondent's office, was a waiting room for patients. Until about 1987, Respondent lived in the other half of the building that housed her office. That portion of the building consisted of three rooms of moderate size, an office, and two bathrooms. There was an additional exterior door, which opened onto Fourth Avenue, in what was initially the residential side of Respondent's office building.
Respondent has known De La Heria since about 1951, when they met as students at the University of Havana, in Cuba. Respondent was subsequently the physician for De La Heria's former wife and his daughters. Additionally, De La Heria's family had visited Respondent in her home.
Prior to October 1, 1987, Dr. Carlos Garrido, a practicing physician in the Miami area, De La Heria, and a mutual friend of theirs, approached Respondent to discuss renting from her the space in which she lived in order to open a plastic surgery clinic. One meeting occurred among those four individuals. No formal arrangement resulted from that meeting.
Subsequent to that meeting, Respondent and De La Heria had discussions about De La Heria renting the space from Respondent to open a plastic surgery clinic.
Respondent knew that De La Heria either was having problems with his medical license or no longer had a license to practice medicine. She told De La Heria that he would have to obtain someone's medical license in order to operate the plastic surgery clinic and in order to lease space for a medical office from her. De La Heria produced a copy of the medical license of Dr. Garrido.
Respondent moved out of the space in which she was living. On October 1, 1987, Respondent entered into a business lease agreement, not with De La Heria and not with Garrido but with De La Heria's son, in which Respondent leased the space in which she had previously resided to De La Heria's son for the sum of $600 per month. The premises being leased were to be used to establish a plastic surgery clinic, although the lease itself referred to the premises being used as a medical clinic. No evidence was offered to show that De La Heria's son was a licensed physician.
De La Heria was not a party to the lease agreement, and Garrido was not a party to the lease agreement. Although Garrido never practiced medicine at that location, an occupational license for the leased premises was obtained in Garrido's name, the electrical service was established in Garrido's name, and telephone service was obtained in De La Heria's name. The copy of Garrido's medical license was hung in De La Heria's office, and a sign was placed on De La Heria's desk indicating that he was a doctor. Only Respondent's name appeared on the outside of the building.
After October 1, 1987, De La Heria began to practice medicine in the portion of the premises leased to De La Heria's son by Respondent. Respondent knew that De La Heria was practicing medicine although Respondent knew at the time that De La Heria was either having problems with his medical licensure or no longer had medical licensure. Respondent specifically questioned De La Heria about his licensure problems when the two passed in the waiting room area that they shared. On a prior occasion, Respondent discussed De La Heria's licensure problems with his ex-wife. On one occasion subsequent to October 1, 1987, Garrido stopped by Respondent's office building to visit and made a comment to Respondent about De La Heria's lack of licensure. By Respondent's own admission, she knew something was not proper when De La Heria had the lease placed in his son's name.
After October 1, 1987, Respondent's office hours were Monday, Wednesday, and Friday, from 2:00 p.m. until 7:00 p.m. De La Heria's office was open in the mornings, Monday through Friday.
Although Respondent's office hours were in the afternoon, on occasion she would come to the office in the morning. When she did, she would enter through the waiting room which she shared with De La Heria. When she did, she saw patients sitting in the waiting room waiting for De La Heria. On those occasions, when she saw De La Heria in the office, he was wearing surgical scrubs.
After October 1, 1987, Orfelina Guerra, Respondent's employee who performed receptionist/secretarial duties for Respondent in the afternoons, requested Respondent's permission to work for De La Heria in the mornings, answering the telephones. Respondent gave her permission.
After October 1, 1987, only De La Heria practiced medicine in the leased portion of Respondent's building. Respondent knew that no other physician was practicing medicine in the leased portion of her building. Respondent knew that De La Heria was treating patients in the leased portion of her building.
In early 1988, the Department of Professional Regulation was advised that De La Heria was practicing medicine at 1995 East Fourth Avenue, in Hialeah, Florida, while De La Heria's license was in a revoked status. Georgina Jorge, an investigator with the Department assigned to the matter, went to Respondent's office building. On the exterior of the building, she observed Respondent's name along with two telephone numbers. She then attempted to telephone De La Heria at one of those telephone numbers and was advised that he was not available at that particular moment.
She next contacted Maria Zerquera, a police officer with the State Attorney's Office, and requested that Officer Zerquera go to De La Heria's office in an "undercover" capacity in order to determine whether De La Heria was
practicing medicine without a license. Zerquera telephoned Respondent's office to arrange an appointment with De La Heria. Orfelina Guerra answered the telephone and advised the caller to call back using a different telephone number. When Zerquera did so, Orfelina Guerra answered that telephone and gave Zerquera an appointment to see De La Heria on February 19, 1988, at 10:30 a.m.
When Zerquera arrived for her appointment, there were patients waiting in the waiting room. A short time thereafter, De La Heria came into the waiting room, introduced himself to Zerquera as "Dr. De La Heria" and took her into the inner office area.
During the course of this appointment, De La Heria represented to Zerquera that he could remove a scar on Zerquera's right eye and could "fix" Zerquera's neck. He offered to do the right eye immediately free of charge and suggested that Zerquera return later to have the work performed on her neck for which he was going to charge "a couple of thousand dollars".
Officer Zerquera was taken by De La Heria into an operating room, which appeared to be fully equipped for surgery. In the operating room, Zerquera saw gauze with blood on it from an eye operation De La Heria had just performed on another woman.
When Officer Zerquera identified herself to De La Heria, the other investigators waiting outside entered De La Heria's office. While there, they found in De La Heria's office four blank prescriptions which had previously been signed by the Respondent. De La Heria directed Orfelina Guerra to contact Respondent who then came to the office.
Respondent admitted that the four prescriptions had been signed by her in blank. She stated that she had left about six or seven presigned blank prescriptions because she was going on vacation and some of her patients might need medication on an emergency basis. Only four of the "six or seven presigned blank prescriptions were found.
Only licensed physicians are authorized by law to issue prescriptions. The individual who makes the judgment as to what medication is necessary, based upon seeing the patient and gathering data, is practicing medicine. Even in instances where patients come in with an established diagnosis, medical evaluation is necessary to determine whether the person continues to require the same medication. Each time a prescription is given, a medical judgment is made. Delegating the prescribing activity to unlicensed individuals can result in harm to the patient.
The practice of plastic surgery is the practice of medicine. The prescription of plastic surgery for a human deformity is the practice of medicine.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.
Section 458.331(1), Florida Statutes, sets forth the acts which constitute grounds for which disciplinary action may be taken against licensed physicians and provides, in part, as follows:
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(f) 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.
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(w) Delegating professional responsibilities to a person when the licensee delegating such responsibilities knows or has reason to know that such person is not qualified by training, experience, or licensure to perform them.
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(aa) Presigning blank prescription forms.
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Petitioner has met its burden of proving that Respondent has violated those statutory provisions as alleged in the Amended Administrative Complaint filed against Respondent in this cause.
Clear and convincing evidence was presented to establish that Respondent aided or assisted De La Heria in the unlicensed practice of medicine by providing De La Heria with space to practice medicine and by providing him with blank prescriptions to be used for patients. Clearly, Respondent assisted De La Heria (who had previously had his license to practice medicine revoked because of findings that he was not competent to practice plastic surgery) to resume the practice of plastic surgery without a license. It is equally clear that De La Heria and Respondent attempted to structure De La Heria's practice in a manner which would both conceal De La Heria's actual involvement and which would presumably absolve Respondent of any responsibilities. It is clear, however, that Respondent knew of De La Heria's unlicensed medical practice, condoned it, and knowingly allowed it to continue. Accordingly, Respondent has violated Section 458.331(1)(f), Florida Statutes. Clear and convincing evidence was presented by Petitioner to establish that Respondent, by leaving blank prescriptions at her office to be filled in by either De La Heria or other equally unqualified and unlicensed personnel (such as Orfelina Guerra), delegated professional responsibilities to a person when Respondent knew or had reason to know that De La Heria (and the other office personnel) were not qualified by licensure, training, or experience to perform those responsibilities. Prescribing medication requires medical judgment, which should only be exercised by physicians. It is inappropriate to delegate such tasks to unlicensed personnel, particularly when the tasks are to be performed in the physician's absence, without the benefit of evaluation of the patient by a licensed physician. Although four of the presigned blank prescriptions were found in De La Heria's office, the additional prescriptions Respondent admitted presigning have not been accounted for or located. Accordingly, Respondent is guilty of violating Section 458.331(1)(w), Florida Statutes.
Lastly, Respondent has admitted to presigning blank prescriptions. The evidence is, therefore, uncontroverted that Respondent has violated Section 458.331(1)(aa), Florida Statutes.
Chapter 21M-20, Florida Administrative Code, contains disciplinary guidelines, a recommended range of penalties for violation of the Medical
Practice Act, and aggravating and mitigating circumstances to be considered in determining disciplinary action to be taken against a licensed physician.
Respondent exposed unknowing patients to great potential harm by aiding and assisting De La Heria to practice plastic surgery and medicine when De La Heria had already been determined to be incompetent to perform plastic surgery.
Respondent implicitly agreed to remain silent about De La Heria's activities in exchange for $600 a month rent. Respondent's activities in assisting De La Heria to practice plastic surgery and medicine are unconscionable. Therefore, the penalty should be commensurate with the gravity of the offense.
Respondent knew that De La Heria no longer was licensed to practice medicine. She admitted to the investigators or testified in her deposition or at the final hearing in this cause that she discussed De La Heria's licensure problems with his ex-wife and with him; Garrido commented to Respondent regarding De La Heria's lack of medical licensure; and Respondent knew that something was inappropriate when De La Heria put the lease in his son's name. Respondent allowed De La Heria to use a copy of Garrido's license to set up medical offices in the space rented from her; yet, she knew that Garrido was not practicing medicine at that location. Respondent and De La Heria shared a waiting room and a receptionist/secretary; yet, De La Heria's name was not advertised on the outside of the building along with Respondent's. When De La Heria was arrested at Respondent's office, she told investigators both that he was employed as her assistant and that he was simply someone renting space from her. In many respects, her statements made to investigators and her testimony both in deposition and at final hearing are conflicting and contradictory.
Since De La Heria as an unlicensed physician would not have been able to write prescriptions for patients, Respondent presigned blank prescriptions which were then made available to De La Heria. Revocation is an authorized penalty for aiding and assisting an unlicensed person to practice medicine. It is also an appropriate penalty in this case.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore,
RECOMMENDED THAT a Final Order be entered finding Respondent guilty of the allegations contained within the Amended Administrative Complaint filed against her and permanently revoking Respondent's license to practice medicine in the State of Florida.
DONE and ENTERED this 22nd day of August, 1989, at Tallahassee, Florida.
LINDA M. RIGOT
Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1989.
APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 88-6469
Executive Director, Board of Medicine Department of Professional Regulation 1940 North Monroe Street, Suite 60
Kenneth D. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60
Stephanie A. Daniel, Chief Attorney Department of Professional Regulation 1940 North Monroe Street, Suite 60
Ana D. Hernandez, M. D. 1995 East 4th Avenue Hialeah, FL 33010
