STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIRCEA ALBIN MORARIU, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0319F

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on June 16, 1989, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Thomas Hoadley, Esquire

320 Fern Street

West Palm Beach, Florida 33401

For Respondent: Mary B. Radkins, Esquire

Department of Professional Regulation The Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0750

STATEMENT OF THE ISSUES

The issue for determination is whether Respondent, the state agency charged with regulation of the professional conduct of physicians in the State of Florida, was substantially justified with regard to the initiation of disciplinary proceedings against Petitioner, a licensed physician, in Division Of Administrative Hearings Case No. 87-5413; and whether, in the absence of such substantial justification, Petitioner is entitled to an award ofattorneys' fees and costs pursuant to Section 57.111, Florida Statutes, in connection with that previous administrative proceeding.

PRELIMINARY STATEMENT

On January 20, 1989, Petitioner filed an application for award of attorney's fees and costs with the Division Of Administrative Hearings pursuant to the provisions of Section 57.111, Florida Statutes.

By motion filed January 21, 1989, Respondent moved for entry of a summary final order dismissing the application on the basis that Petitioner was not a "prevailing small business party" as defined in Section 57.111(3)(c), Florida Statutes. Respondent's position was that Petitioner could not be treated as a

prevailing small business party because the final order entered in the Division Of Administrative Hearings Case No. 87-5413 imposed disciplinary sanctions against Petitioner's license. The Administrative Complaint in that case contained four alleged violations of professional conduct by Petitioner; one of which, failure to maintain written medical records justifying a course of treatment of the patient, was found to have been committed. By order dated May 2, 1989, Respondent's motion was denied. Subsequently, this cause came on for final hearing before the Division Of Administrative Hearings.

At the final hearing, Petitioner presented no testimony, but did present one evidentiary exhibit. Respondent presented the testimony of two witnesses and two evidentiary exhibits. Theparties jointly presented two evidentiary exhibits.

The transcript of the hearing was filed with the Division Of Administrative Hearings on July 6, 1989. Proposed final orders submitted by the parties are addressed in the appendix to this final order.

FINDINGS OF FACT

1. Petitioner is Mircea Albin Morariu, M.D.

   
   

2. Respondent is the Department of Professional Regulation, the agency charged with regulation of physicians in the State of Florida.

   
   

3. The parties stipulated that Petitioner is a resident of the State of Florida; that Petitioner is a "small business party"; and that there is no dispute as to the correctness or amount of fees and costs requested by Petitioner, the $15,000 maximum allowed under provisions of Section 57.111, Florida Statutes.

   
   

4. Petitioner is a "prevailing small business party" with regard to Division Of Administrative Hearings Case No. 87-5413, because he was found to have committed only one of the four alleged violations set forth in the administrative complaint in that case, failure to maintain written records justifying the course of the patient's treatment.

   
   

5. No appeal from the final order entered in Division Of Administrative Hearings Case No. 87-5413 has been taken and the time for filing such an appeal has expired.

   
   

6. Respondent initiated administrative proceedingsagainst Petitioner in Division Of Administrative Hearings Case No. 87-5413 as the result of a complaint lodged with Respondent in September of 1986 by a former patient of Petitioner. The complainant, afflicted with long standing paralysis of one side of her body, had paid Petitioner $5,000 for functional electrical stimulation treatment of her paralyzed limbs and had not achieved the level of recovery which she felt had been promised to her by Petitioner; namely, that her paralyzed arm movement would improve by 25 percent and her paralyzed leg movement would improve by 50 percent. The complainant alleged that her condition had worsened as a result of the treatment.

   
   

7. Following receipt of the patient's complaint, Respondent undertook an investigation. In that process, an investigator employed by Respondent interviewed the complainant, her husband and Petitioner. The investigator obtained the complainant's medical records and correspondence from Petitioner, as well as prior and subsequent medical records from complainant's doctors in

   the state of Indiana. This entire report was submitted to a board certified neurologist, Dr. Victor B. Robert, for an expert opinion as to the standard of medical care rendered by Petitioner.

   
   

8. In expressing his expert opinion, Dr. Robert stated that he "was not familiar with this therapeutic modality and the records available do not provide a description or a rationality" for the treatment accorded the complainant by Petitioner. Robert also opined that the complainant's motor impairment was permanentand that such "neurological deficit cannot be improved by any therapeutic modality known to medical science." Robert further stated that it was misleading as well as unethical to make any promises regarding significant improvement in a patient with such a long standing neurological deficit; that Petitioner's standard of care would be subject to question if the complainant's allegations were true; that the complainant underwent several unnecessary diagnostic procedures; and that there could exist a pattern of abuse by Petitioner calling for further investigation. Dr. Robert's testimony was not credited at the final hearing in lieu of other more persuasive expert testimony.

   
   

9. Respondent's entire investigative file, consisting of the affidavits of the patient and her husband, Petitioner's statements, the complainant's medical records and Dr. Robert's expert medical opinion, was provided to the members of a probable cause panel of the Board of Medicine several weeks in advance of the panel's meeting on August 21, 1987. At that meeting, the panel, after review and discussion of the materials provided them, determined that probable cause existed sufficient to support the filing of an administrative complaint against Petitioner.

   
   

10. The administrative complaint was filed against Petitioner on August 26, 1987, as a result of the panel's probable cause finding. The administrative complaint contained four counts of alleged misconduct by Petitioner. Count I charged Petitioner with violation of Section 458.331(1)(t), Florida Statutes, through gross or repeated malpractice or failure to practice medicine withlevel of care, skill and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Count II charged Petitioner with making deceptive, untrue, or fraudulent representations in the practice of medicine, a violation of Section 458.331(1)(k), Florida Statutes. Count III charged Petitioner with exercising influence on a patient for financial gain, a violation of Section of 458.331(1)(o), Florida Statutes. Count IV of the complaint contained the charge which Petitioner was later found to have committed; namely his failure to maintain written medical records justifying the course of medical treatment accorded the complainant, a violation of Section 458.331(n), Florida Statutes.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Section 57.111(4)(a), Florida Statutes, mandates an award of attorney's fees and costs to a prevailing small business party in an adjudicatory proceeding pursuant to Chapter 120 which was initiated by a state agency. The two exceptions to this mandate are that the actions of the state agency were substantially justified; or that special circumstances exist which would make an award of attorney fees and costs unjust.

    
    

13. Petitioner bears the initial burden of proving small business party status, that Petitioner prevailed, and that theunderlying adjudicatory

    proceeding pursuant to Chapter 120 was initiated by a state agency. Once this showing is made, the burden shifts and Respondent must demonstrate substantial justification for its actions, or the existence of special circumstances which would make an award unjust. Gentele v. Department Of Professional Regulation, Board of Optometry, 9 FALR 310 (DOAH June 20, 1986) affirmed 513 So.2d 672 (Fla.

    1st DCA 1987).

    
    

14. Whether the state agency action was substantially justified is addressed by Section 57.111(3)(e), Florida Statutes, as follows:

    
    

    A proceeding is "substantially justified" if it had a reasonable basis in law and in fact

    at the time it was initiated by a state agency.

    
    

15. An agency need not prevail in the underlying administrative action or prove that its decision to prosecute was based on a substantial probability of prevailing. The standard is one of reasonableness. Ashburn v. U.S., 740 F.2d 843 (11th Cir. 1984).

    
    

16. The evidence available at the time the charges were filed in Case No. 87-5413 determines whether the agency's action was substantially justified, as opposed to the evidence received at the formal hearing. Lindsay v. Department Of Insurance And Treasurer, DOAH Case No. 88-3095F (Final Order entered December 9, 1988).

    
    

17. The complainants' affidavits, the expert opinion of Dr. Robert and the available medical records constituted asufficient evidentiary basis for the formation of a reasonable belief by the probable cause panel that Petitioner had violated those provisions cited in the administrative complaint in Division Of Administrative Hearings Case No. 87-5713, even though some of this evidence was not credited at the final adjudicatory hearing.

    
    

18. The argument of counsel for Petitioner that evidence presented at the final hearing in Case No. 87-5713 should be determinative of the reasonableness of the probable cause panel's decision is not persuasive. Such a finding would deviate from the standard enunciated in Section 57.111(3)(e), Florida Statutes, that substantial justification for administrative action is determined by whether that action had a reasonable basis in law and fact at the time it was initiated.

    
    

19. In this case, the probable cause panel had evidence before them which, if credited at final hearing, would reasonably indicate that the alleged violation had occurred. Kibler v. Department of Professional Regulation, 418 So.2d 1081 (Fla. 4th DCA 1982). Such evidence establishes substantial justification for the subsequent administrative complaint and formal proceeding had in the Division Of Administrative Hearings Case No. 87-5713.

Based on the foregoing, it is ORDERED that the petition for attorney's fees and costs be denied.

DONE AND ORDERED this 14th day of August, 1989, in Tallahassee, Leon County, Florida.

DON W.DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 1989.

APPENDIX

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's Proposed Findings.

1.-2. Addressed.

1. Rejected, substantial justification exists if the decision to take administrative action is reasonable in view of the evidence present when that decision is made. Further, the proposed finding is not supported by the evidence presented at hearing in this case.

2. Rejected as argumentative, speculative and not supported by the evidence as to that portion of the proposed finding that the expert's opinion statement should have put Respondent on notice of the need for further investigation. Remainder of this finding is addressed.

3. Rejected, not supported by the evidence presented at the final hearing in this cause.

4. Adopted by reference.

Respondent's Proposed Findings

1.-18. Adopted in substance.

COPIES FURNISHED:

Thomas Hoadley, Esq.

320 Fern St.

West Palm Beach, FL 33401

Mary B. Radkins, Esq.

Department of Professional Regulation The Northwood Centre, Suite 60

1940 N. Monroe St. Tallahassee, FL 32399-0750

Kenneth Easley, Esq.

General Counsel

Department of Professional Regulation The Northwood Centre, Suite 60

1940 N. Monroe St. Tallahassee, FL 32399-0750

Lawrence A. Gonzales Secretary

Department of Professional Regulation 1940 N. Monroe St.

Tallahassee, FL 32399-0750

Dorothy Faircloth Executive Director Board of Medicine

Department of Professional Regulation 1940 N. Monroe St.

Tallahassee, FL 32399-0750

NOTICE OF RIGHT OF 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 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: 89-000319F

Orders for Case No: 89-000319F