STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NOs. 89-3723

) 91-3864

FREDERICK J. KUNEN, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was convened in Miami, Florida on October 3, 1990 in Division of Administrative Hearings' ("DOAH") Case No. 89- 3723. Respondent did not appear at that hearing. As set forth in more detail below, Respondent subsequently requested a new hearing be scheduled in order to allow him an opportunity "to present his case." A hearing was scheduled for August 28, 1991, at which Respondent was to be given an opportunity to present evidence regarding the allegations in Case No. 89-3723.

On June 24, 1991, Petitioner filed a second, unrelated Administrative Complaint against Respondent, which was assigned DOAH Case No. 91-3864. As set forth in an Order Granting Consolidation entered on July 2, 1991, the new case was consolidated with Case No. 89-3723 for purposes of hearing.

As set forth in an Order Granting Continuance dated August 27, 1991, the August 28, 1991 hearing in the consolidated cases was continued and the cases were rescheduled for hearing on November 19, 1991. As set forth in an Order dated November 18, 1991, the November 19, 1991 hearing was continued and the cases were rescheduled for hearing on March 10, 1992. On March 10, 1992, a hearing on the consolidated cases was convened in Miami, Florida before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings. At the March 10, 1992 hearing, the parties were represented as follows:

APPEARANCES

For Petitioner: Mary B. Radkins

Senior Attorney

Department of Professional Regulation

Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Neil F. Garfield, Esquire Suite 333

3500 North State Road 7 Lauderdale Lakes, Florida 33319

STATEMENT OF THE ISSUES

The issue in these cases is whether disciplinary action should be taken against Respondent's license to practice medicine, No. ME 0046170, based upon the alleged violations of Section 458.331(1), Florida Statutes, set forth in the Administrative Complaint dated April 6, 1989, (the "First Administrative Complaint") which has been assigned DOAH Case No. 89-3723 and/or the Administrative Complaint dated August 16, 1990, (the "Second Administrative Complaint") which has been assigned DOAH Case No. 91-3864.

PRELIMINARY STATEMENT

In the three-count First Administrative Complaint, Petitioner charged Respondent with violating the Medical Practice Act in his treatment of a patient referred to in the First Administrative Complaint as Patient #1. Specifically, Petitioner alleged that Respondent violated Section 458.331(1)(t), Florida Statutes, as a result of gross or repeated malpractice or the failure 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. Count II alleged that Respondent violated Section 458.331(1)(m), Florida Statutes, by failing to keep written medical records justifying the course of treatment of Patient #1. Count III alleged that Respondent violated Section 458.331(1)(k), Florida Statutes, by making deceptive, untrue or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine. In an Election of Rights form dated June 20, 1989, Respondent disputed the factual allegations set forth in the First Administrative Complaint and requested a formal administrative hearing. The case was referred to DOAH and was initially assigned to Hearing Officer William Dorsey.

From approximately August 1989 through August 1990, this initial case was held in abeyance pending efforts to conclude a settlement stipulation between the parties. In June 1990, an Order was entered granting a Motion To Withdraw filed by the attorney representing Respondent. At that time, the only known address for Respondent was the address listed on the Election of Rights form that he signed. Respondent did not have a listed telephone number and had not provided a phone number to Petitioner or DOAH. On July 13, 1990, Petitioner filed a Motion for Formal Hearing which requested that the case be scheduled for a formal hearing in October, 1990. This Motion for Formal Hearing was sent to Respondent at his last known address (the address set forth on the Elections of Rights form.) On July 19, 1990, Hearing Officer William Dorsey entered a Second Notice of Hearing scheduling a hearing for October 3, 1990. That Second Notice of Hearing was also sent to Respondent at his last known address.

On October 2, 1990, the case was transferred to the undersigned Hearing Officer who appeared at the time and place scheduled for the hearing on October 3, 1990. The October 3, 1990 hearing was scheduled to start at 9:30 a.m. By approximately 11:30 a.m., Respondent had still not appeared for the hearing.

After noting for the record that the Second Notice of Hearing was sent to Respondent at his last known address and was not returned as undeliverable and that no request for a continuance had been submitted on behalf of Respondent, Petitioner was permitted to proceed with the presentation of its case.

Petitioner presented the testimony of four witnesses: Francis Fitzpatrick, an investigation supervisor for Petitioner; J.P., the patient referred to as Patient #1 in the First Administrative Complaint (in order to preserve the patient's confidentiality and to avoid confusion with the allegations of the Second Administrative Complaint, this patient will be referred to as J.P. in

this Recommended Order); Dahna Schaublin, an investigator employed by Petitioner; and Dr. Dale Lindbergh, who was qualified and accepted as an expert in the general practice of medicine. Petitioner offered eight exhibits into evidence, all of which were accepted. Petitioner's Exhibit 4 was a deposition of Dr. Allen Braunstein, who is Board certified in the area of internal medicine. The testimony presented at the hearing included an account by Petitioner's investigator regarding unsuccessful efforts to contact Respondent at his last known address.

A transcript of the October 3, 1990 hearing was filed with DOAH. In accordance with the schedule established at the conclusion of the hearing, Petitioner submitted proposed findings of fact and conclusions of law and mailed a copy of those proposals to Respondent at the address listed on the Election of Rights form and the Second Notice of Hearing. Shortly after the proposals were filed, Respondent contacted the undersigned Hearing Officer and counsel for Petitioner indicating that he had never received notice of the hearing.

Respondent stated that he had moved in early September of 1990. Respondent failed to notify DOAH and the Board of Medicine of this change of address. Moreover, the Board did not have a current office address on file for Respondent as required by Section 458.319(5), Florida Statutes.

Following a telephone conference hearing on December 12, 1991, Respondent filed a Motion to Vacate Hearing of October 3, 1990. That Motion to Vacate represented that Respondent had additional evidence and expert testimony that should be considered in resolving the allegations of the First Administrative Complaint. Petitioner objected to Respondent's request that a new hearing be convened in this matter. After considering the arguments raised by both parties, an Order was entered on April 19, 1991, granting Respondent an opportunity to supplement the record by presenting additional evidence. The evidence presented at the October 3, 1990 hearing was not stricken and the Order provided that the evidence presented at the October hearing would be considered in the preparation of a Recommended Order. Respondent was advised that if he wished to cross-examine any of the witnesses who testified at the October 3 hearing, it was his obligation to arrange for their presence at the supplemental hearing or otherwise arrange to present their testimony. In addition, the Order provided that Petitioner would have an opportunity to supplement its case-in- chief and present rebuttal evidence. After Petitioner filed a Response and Motion For Clarification With Respect to the April 19, 1991 Order, an Order was entered on May 8, 1991, clarifying the procedure to be followed. Pursuant to a Notice of Hearing dated May 9, 1991, the supplemental hearing was scheduled for August 28, 1991.

While the above events were transpiring, a second, unrelated Administrative Complaint dated August 16, 1990, (the "Second Administrative Complaint") was filed by Petitioner against Respondent. That Second Administrative Complaint was apparently not served on Respondent until June, 1991. The Second Administrative Complaint was referred to DOAH on June 24, 1991. At the time the case was filed with DOAH, Petitioner filed a Motion to Consolidate and requested that the new case be scheduled for hearing with DOAH Case No. 89-3723. As set forth in an Order Granting Consolidation dated July 2, 1991, that request was granted over Respondent's objection.

The allegations of the Second Administrative Complaint relate to the treatment of two patients referred to in the Second Administrative Complaint as Patient #1 and her son, Patient #2 (for purposes of this Recommended Order, these patients will be referred to as S.L. and her son, A.L.) Count I of the Second Administrative Complaint charges Respondent with violating Section

458.331(1)(e), Florida Statutes, by failing to report to the Department a person who the licensee knew was practicing in violation of Chapter 458 or the rules of the Board of Medicine. Count II of the Second Administrative Complaint charges Respondent with violating Section 458.331(1)(k), Florida Statutes, by making deceptive, untrue or fraudulent representations in or relating to the practice of medicine or employing a trick or a scheme in the practice of medicine. Count III alleges that Respondent violated Section 458.331(1)(w), Florida Statutes, by delegating professional responsibilities to a person when the licensee knew or had reason to know that such person was not qualified by training, experience or licensure to perform them.

On August 15, 1991, Attorney Neil F. Garfield filed a Notice of Appearance in DOAH Case No. 89-3723. Mr. Garfield requested a continuance of the hearing scheduled for August 28, 1991. For the reasons set forth in an Order Granting Continuance dated August 27, 1991, Respondent's request for a continuance was granted without objection from Petitioner and the consolidated cases were rescheduled for hearing on November 19, 1991. As set forth in an Order dated November 18, 1991, the November 19, 1991 hearing was subsequently cancelled and the cases were rescheduled for hearing on March 10, 1992.

Prior to the hearing, Petitioner filed a Motion to Take Official Recognition of (a) the records of the United States District Court for the Southern District of Texas regarding Frederick J. Kunen and (b) the Disciplinary Guidelines of Rule 21M-20, Florida Administrative Code. Respondent filed a Motion to Strike the Motion for Official Recognition. Petitioner filed a Response to the Motion to Strike. At the March 10 hearing, ruling on the Motion for Official Recognition was reserved and the parties were allowed to further argue the matter in their proposed recommended orders.

Respondent's Motion to Strike is only directed towards the first category listed on the Motion for Official Recognition, i.e., the court records of a federal criminal proceeding brought against Respondent in Texas. Accordingly, official recognition has been taken of the Rule cited in Petitioner's Motion.

The court records attached to the Motion for Official Recognition were accepted into evidence during the hearing conducted on the First Administrative Complaint on October 3, 1990. Therefore, the submitted documents had already been reviewed by the undersigned Hearing Officer. Petitioner contends that the court records should also be considered in connection with the Second Administrative Complaint because they are pertinent to Respondent's "legal status" at the time of the alleged incidents. The court records indicate that on October 28, 1988, Respondent was indicted with several other individuals in the United States District Court for the Southern District of Texas. Also named in the Indictment was the Institute of Specialized Medicine, Respondent's employer during the time of the incidents alleged in the First Administrative Complaint. On February 24, 1989, Respondent entered a Plea of Guilty to one count of that Indictment. However, by Order dated May 11, 1990, Respondent's Plea of Guilty was withdrawn. On May 14, 1990, Respondent entered into an Agreement for Pre-Trial Diversion. No other evidence was presented as to the factual circumstances giving rise to the Indictment nor was any evidence presented to explain the ultimate disposition of that criminal proceeding. The allegations of the Indictment do not appear to be directly related to the allegations of the Second Administrative Complaint. In sum, the Motion for Official Recognition is GRANTED and the documents have been reviewed. See, Section 120.58(8)(1)(a), Florida Statutes. However, as noted above, no background or explanatory evidence has been provided regarding this criminal

case. Thus, except as noted in the Findings of Fact below, the court records are largely irrelevant to the issues involved in these cases.

On March 3, 1992, Petitioner filed a Motion To Amend the [Second] Administrative Complaint as follows:

In paragraph 9: Delete the words "drew blood;" substitute the words "ordered blood drawn"

10: Delete the sentences as written and substitute: "Mr. Seedarnee recommended allergy booster immune shots which he had invented for both patients and vitamin B-12 shots for Patient #1"

14: Delete the words "Patient was given two shots by Mr. Seedarnee;" substitute the words, "Mr. Seedarnee ordered two shots to be given to Patient #1"

At the hearing on March 10, 1992, Respondent indicated that he had no objection to the proposed amendments and the Motion to Amend was granted.

At the March 10, 1992 hearing, Petitioner presented the testimony of four witnesses in connection with the allegations of the Second Administrative Complaint: Mel Waxman, an investigator employed by Petitioner; S.L., (Patient #1 in the Second Administrative Complaint); Frank Seedarnee; and the Respondent. Petitioner offered six exhibits into evidence, all of which were accepted except Petitioner's Exhibit 6 which was withdrawn.

Respondent did not present any testimony other than testifying himself during Petitioner's case. Respondent offered one exhibit into evidence, the deposition of Leonard Judah Pianko, M.D., which was accepted without objection.

1. was recalled by Petitioner to testify in rebuttal to the testimony of Respondent.

   
   

   As discussed above, Respondent was given an opportunity at the March 10 hearing to present testimony regarding the First Administrative Complaint. At the March 10 hearing, Respondent testified on his own behalf and offered three exhibits into evidence regarding the First Administrative Complaint.

   Respondent's Exhibit 1 was the "cross-examination" deposition of Dr. Allen Braunstein, one of Petitioner's expert witnesses at the October 3, 1990 hearing. The exhibit was accepted. Respondent's Exhibits 2 and 3 were pages taken from certain medical texts cited by Respondent during his testimony. Since those exhibits were not disclosed to Petitioner as required in the Order of Prehearing Instructions, the exhibits were not accepted into evidence.

   
   

   As noted above, a transcript of the October 3, 1990 hearing was filed. In addition, a transcript of the evidence presented at the March 10, 1992 hearing in connection with both Administrative Complaints has been filed. Petitioner submitted proposed findings and conclusions of law in connection with the Second Administrative Complaint within the time frame established at the conclusion of the hearing. In addition, Petitioner timely submitted a supplemental proposed recommended order in connection with the First Administrative Complaint.

   Respondent did not submit proposed findings of fact and conclusions of law in accordance with the schedule agreed to at the conclusion of the March 10, 1992 hearing. Instead, Respondent submitted a Motion for Extension of Time on April 27, 1992. That Motion represented that Respondent was attempting to garner

   sufficient funds to obtain a transcript of the March 10, 1992 hearing. Petitioner, who apparently received the Motion for Extension of Time before it was filed with DOAH, filed Petitioner's Response to Respondent's Request for Extension of Time on April 24, 1992. Respondent submitted proposed findings of fact and conclusions of law on May 26, 1992. Petitioner filed Petitioner's Motion in Opposition to Respondent's "Notice of Filing Proposed Recommended Order" on May 28, 1992. It is clear that Respondent has disregarded the schedule established at the conclusion of the hearing and obtained an unwarranted advantage by having the opportunity to review Petitioner's proposals prior to submitting his own proposals. Nonetheless, in view of the protracted history of this case and in an attempt to avoid further delay, Respondent's proposals have been reviewed and considered in the preparation of this Recommended Order. A ruling on each of the proposed findings of fact submitted by the parties is included in the Appendix attached to this Recommended Order.

   
   

   On May 28, 1992, Respondent also submitted a deposition of Dr. Dale Lindbergh taken in an unrelated proceeding. Dr. Lindbergh was a witness for Petitioner at the October 3, 1990 hearing. Respondent was unable to depose or cross-examine Dr. Lindbergh. Therefore, Respondent submitted the deposition from this unrelated proceeding and argued in his proposed recommended order that the testimony of Dr. Lindbergh at the October 3, 1990 hearing should be stricken and/or disregarded because Dr. Lindbergh was not actively practicing medicine at the time of the incidents in question. After considering Dr. Lindergh's testimony at the October 3 hearing and the deposition submitted by Respondent and being fully advised in the premises, it is concluded that Respondent's arguments go to the weight to be given to the testimony rather than its admissibility. Therefore, Respondent's request to strike Dr. Lingbergh's October 3 testimony is DENIED. See, Section 120.58(1)(a), Florida Statutes.

   
   

   FINDINGS OF FACT

   
   

   Based on the evidence adduced at the hearings on October 3, 1990, and March 10, 1992, and the entire record in this proceeding, the following findings of fact are made:

   
   

   1. Respondent is, and has been at all times material hereto, a licensed physician, having been issued license number ME 0046170 by the State of Florida. Respondent was initially licensed to practice medicine in the State of Florida in approximately April of 1985. No evidence was presented of any prior disciplinary action against Respondent. Respondent's last known address is 10611 N.E. 11th Avenue, Miami Shores, Florida 33138.

      
      

   2. Sometime around 1986, Respondent became affiliated with EMSA which is an emergency room provider. EMSA contracts with hospitals to staff emergency rooms. Thus, Respondent has been working as an emergency room physician since 1986. The evidence did not establish the extent of Respondent's obligations with EMSA since 1986. As discussed in more detail below, since 1986, Respondent has also been affiliated with at least two other entities, the Institute of Specialized Medicine and the Immunology Allergy Institute, Inc.

      
      

      Facts Regarding the First Administrative Complaint

      
      

   3. Respondent was employed as a salaried employee of the Institute of Specialized Medicine (the "Institute") for at least several months during the year 1987. Although the evidence regarding Respondent's affiliation with EMSA was not entirely clear, it appears that he retained his affiliation with that company during the time that he worked at the Institute.

   4. In June of 1987, Respondent was associated with the Institute.

      
      

   5. In June of 1987, J.P. was a 36 year old female who saw an advertisement in a newspaper for the Institute of Specialized Medicine. That advertisement suggested that weight loss could be accomplished through adjusting a person's metabolism. J.P. called the Institute and scheduled an appointment for June 30, 1987.

      
      

   6. J.P. had been seriously overweight all of her adult life and had previously tried almost every possible method of weight loss. Shortly before her visit to the Institute, J.P. had been able to lose 80 pounds by diet and exercise alone.

      
      

   7. On June 30, 1987, J.P. visited the Institute and was told that she needed to provide certain information to determine her eligibility for the Institute's program. J.P. was advised that the Institute charged a $925 fee for testing and consultation. That fee included her first two visits, after which she was to be charged $40 per visit. The Institute's staff told J.P. that she had to pay $285 and that the rest would be billed to her insurance company.

      J.P. paid $285 on this first visit.

      
      

   8. On her first visit, J.P. filled out various questionnaires regarding her health, background and other general information. She was given a "blood test," a spirometric test, an EKG, and she provided a urine sample. J.P. did not see a physician or dietician during this visit.

      
      

   9. On July 6, 1987, J.P. returned to the Institute and was seen for about ten minutes by Respondent, who listened to her heart and lungs. Her height, weight, blood pressure, and pulse rate were noted, but no other physical examination was performed and Respondent did not inquire regarding any of the matters disclosed in the questionnaire filled out by J.P. during her first visit.

      
      

   10. During the July 6, 1987 visit, Respondent informed J.P. of his interpretation of her test results. He told J.P. that her tests showed she had an irregular thyroid, that her metabolism was below normal range, and that her body retained fluid.

       
       

   11. In his records of J.P.'s July 6, 1987 visit, Respondent diagnosed J.P. as having "Euthyroid Sick Syndrome." Euthyroid Sick Syndrome is a condition which may arise in a patient seriously ill from another cause. In such a situation, there are abnormal findings in blood tests for thyroid function, but these findings do not indicate the true thyroid status which is normal. The evidence established that this was an incorrect diagnosis for J.P. based upon the test results and history provided.

       
       

   12. Respondent did not provide a cogent explanation for his written diagnosis of Euthyroid Sick Syndrome nor did he explain the verbal diagnosis given to J.P.

       
       

   13. Respondent's records do not include the results of the spirometric test or the EKG. In addition, the urinalysis was incomplete and, while the doctor's notes and billing records reflect a chest x-ray was taken, there is no evidence of such an x-ray in the records. The results of J.P.'s blood tests reflect all normal values with the exception of a slightly low "total iron."

   14. At the conclusion of the July 6, 1987 visit, Respondent prescribed Cytomel, 25 micrograms BID, and Maxzide for J.P. No directions were given regarding the administration of Maxzide.

       
       

   15. Cytomel is a prescription drug containing the active ingredient of the secretions of the thyroid gland. Cytomel is used to replace the hormone in cases of thyroid underactivity (hypothyroidism).

       
       

   16. There is no indication from the medical records that J.P. was suffering from Euthyroid Sick Syndrome, that her thyroid was malfunctioning, that her metabolism was below normal, or that she required any hormonal replacement therapy.

       
       

   17. Respondent now admits that the test results indicate J.P. was not hypothyroid. Respondent claims that if he had actually believed that the patient had been hypothyroid, the dosage prescribed would have been approximately three times greater. He contends that he prescribed Cytomel to increase oxygen consumption. To justify his prescription of Cytomel, Respondent cited to two medical texts which he claims were in wide circulation in 1987. He says those texts support his prescription of Thyroid hormone to encourage weight reduction. Only one of the two cited references even marginally supports Respondent's contention. In any event, the more persuasive evidence established that, before the advent of thyroid testing (approximately twenty years ago), Cytomel was occasionally used in an attempt to encourage weight loss in patients. However, the prescription of Cytomel for weight loss in 1987 was below the standard of care expected of a reasonably prudent physician under similar conditions and circumstances.

       
       

   18. Respondent also attempted to justify his prescription of Cytomel by claiming that J.P. had advised him that she had previously been taking a thyroid supplement. Respondent contends that some patients who stop taking thyroid supplements have a "rebound effect where their metabolic rate decreases."

       
       

   19. During her testimony, J.P. denied having ever been on thyroid medication. The questionnaires filled out by J.P. during her first visit to the Institute do not reflect that she had ever taken thyroid medication in the past. Furthermore, there is no notation in the medical records indicating that J.P. had been on thyroid medication in the past. Respondent's testimony that J.P. advised him that she had previously been on thyroid supplements but was no longer taking them is not credited.

       
       

   20. Maxzide is a prescription drug, a diuretic appropriate for patients with high blood pressure. Maxzide should not be used as initial therapy for fluid retention. Maxzide can have deleterious effects on a patient and should not be used in a weight reduction program unless other reasons indicating its use are present.

       
       

   21. Respondent's medical records do not justify the prescription of Maxzide to J.P. There is no indication that the patient had high blood pressure. Furthermore, J.P. denied having any previous problems with fluid retention and no such problems are noted on the medical history that she filled out. While Respondent noted "++edema" as part of his examination on July 6, 1987, the notation is not consistent with Respondent's other notes of his exam or J.P.'s testimony regarding her condition. Moreover, J.P.'s weight loss of only three pounds between July 6 and July 30, 1987, indicates that she had no edema on July 6, 1987.

   22. During the July 6, 1987 visit, J.P. saw the Dietitian at the Institute of Specialized Medicine for about 20 minutes. The only thing the Dietitian did was to give J.P. a 1,000 calorie per day diet which she was told to follow.

       
       

   23. On July 30, 1987, J.P. returned to the Institute to see Respondent because she thought she was suffering nausea from the effects of the medications Cytomel and Maxzide. Respondent did not document in his notes any treatment for her nausea.

       
       

   24. J.P.'s health insurance claim form, submitted under Respondent's signature, reflects a diagnosis of "Euthyroidism" and a corresponding insurance code number of 244.9. Euthyroidism means normal thyroid function. An insurance company will not pay for a diagnosis of a normal condition. Insurance code number 244.9 indicates a condition of hypothyroidism or thyroid insufficiency which Patient J.P. did not have.

       
       

   25. The health insurance claim form submitted under Respondent's signature reflects overlapping billings for a hemogram and WBC, includes charges for an x- ray and spirometry of which there is no record, and contains a coded diagnosis of Hypothyroidism which conflicts with the results of the tests performed on

       J.P. and also conflicts with the Respondent's recorded diagnosis of Euthyroid Sick Syndrome.

       
       

   26. The insurance claim form also includes charges for a complete history and physical. After J.P. filed a complaint with Petitioner, Respondent attempted to justify this billing by telling Petitioner's investigator that he gave J.P. a complete physical examination and a "full workup". However, the evidence established that Respondent did not perform a complete physical examination of J.P. Respondent did not examine J.P.'s breasts, recommend a mammogram, perform or refer J.P. for a gynecological examination, examine her throat, eyes, ears, or abdomen; address her familial history of diabetes, kidney disease, hypertension or obesity; question her about her listed allergies, past anemia, abnormal stomach x-rays, or changing moles; consider her serious depressions and emotional problems; interpret her EKG; or address the basic causes of her obesity.

       
       

   27. Respondent contends that he did not handle the billing for the Institute and did not himself submit any diagnosis to the insurance carrier. In addition, he claims that he has subsequently learned that the Institute forged his name on some insurance documents. These contentions do not provide a defense to the charges in this case. It is clear that the billings to the insurance company were submitted under Respondent's signature. There is no evidence that the health claim form in this case was forged. The insurance company directed an inquiry to Respondent regarding his diagnosis of J.P. and Respondent did little or nothing to clarify the situation. Furthermore, when

       J.P. complained to Respondent about the treatment and costs, there is no indication that Respondent took any steps to investigate the situation or correct the problems.

       
       

   28. In the original billings submitted to J.P.'s insurance company, the Institute sought payment of $925 for the treatment and tests rendered to J.P., even though the patient had already paid $285 of that agreed upon fee. Respondent's records reflect that ultimately the insurance company paid $670 for the services rendered to J.P.

   29. Respondent's treatment of J.P. failed to meet that level of care, skill and treatment expected of a reasonably prudent similar physician under similar conditions and circumstances because Respondent inappropriately prescribed Cytomel and Maxzide to J.P. when the need for those drugs was not indicated by the results of the tests performed and because his final diagnosis of "Euthyroid Sick Syndrome" was incorrect and unsupported by any tests or physical findings.

       
       

   30. Respondent failed to keep written medical records justifying his course of treatment of J.P. because the records (1) do not justify his diagnosis of Euthyroid Sick Syndrome, (2) do not justify his prescription of Cytomel for the patient who had no evidence or history of hypothyroidism, (3) do not justify his prescription of Maxzide for the patient who had no fluid retention and who presented with normal findings other than her obesity, (4) do not justify the extensive and inappropriate tests performed, (5) do not appropriately reflect J.P.'s EKG, do not report on results of her x-ray (if it was made) or spirometry, and (6) do not indicate that Respondent either advised or treated

       J.P. on July 30, 1987, when she complained that the medications were making her nauseous.

       
       

   31. By prescribing medications for J.P. which were medically unnecessary, by filing conflicting diagnoses, by charging for a complete physical examination when one was not performed, and by signing off on duplicative billing on J.P.'s health insurance claim form, Respondent has made deceptive, untrue and/or fraudulent representations in the practice of medicine.

       
       

       Facts Regarding the Second Administrative Complaint

       
       

   32. Respondent quit working at the Institute in approximately November of 1987.

       
       

   33. As noted in the Preliminary Statement above, Respondent was indicted in October of 1988 in connection with his affiliation with the Institute of Specialized Medicine. While the circumstances and facts surrounding that indictment were not fully explained at the hearing in this cause, it appears that Respondent was indicted with several other individuals for allegedly participating in a scheme to defraud insurance companies by billing for tests and treatments that were unnecessary or unrelated to patients' true conditions. The indictment was pending through out the time of the incidents alleged in the Second Administrative Complaint. Respondent ultimately entered into a pretrial diversion program as a result of those charges.

       
       

   34. Sometime in 1988, Respondent became associated with the Immunology Allergy Institute, Inc., (the "Allergy Clinic"). Respondent claims that he was seeking to establish a private family practice and associated with the Allergy Clinic as part of an office sharing arrangement. The Allergy Clinic was owned by Frank Seedarnee and his ex-wife.

       
       

   35. Respondent contends that in return for office space, he was to serve as the "medical director" for the office and would be responsible for examining and diagnosing all medical problems and prescribing necessary controlled substances. Respondent contends that he never discussed cases with Seedarnee and did not rely on any recommendations from him because Seedarnee was not a doctor. Respondent further contends that Seedarnee's only function was to recommend diet changes, vitamins, or other products to help patients keep their homes free from allergies. However, the evidence presented in this case established that the Allergy Clinic did not always function in this manner, at least with respect to the patient S.L. and her son A.L.

   36. In March of 1989, S.L. was experiencing sinus problems and had a cough. In addition her son, age 10 months at the time, had been coughing for a few months. S.L. had previously been diagnosed as having allergies.

       
       

   37. S.L. was told of the Allergy Clinic by a friend who recommended "Dr. Seedarnee" as a allergist. She assumed from this conversation that Dr. Seedarnee was a medical doctor. She made an appointment at the Allergy Clinic for herself and her son for March 30, 1989.

       
       

   38. On March 30, 1989, S.L. arrived at the Allergy Clinic with her son as scheduled. She did not see a sign at the Allergy Clinic or any indication as to who the doctors were.

       
       

   39. During her initial visit, S.L. filled out an extensive health questionnaire form on herself and her son, A.L.

       
       

   40. S.L. and her son were escorted by a woman who appeared to be a nurse into an office. The nurse stated "Dr. Seedarnee will see you now." This nurse also mentioned that Respondent was not in because he was out on an emergency.

       
       

   41. The office contained a large microscope and a TV-like screen. A man in a white coat introduced himself as Dr. Seedarnee.

       
       

   42. Seedarnee reviewed S.L.'s health history forms and discussed with her the reasons why she wished to see an allergist. He told S.L. that he had developed an immune booster to help immune systems, that he would be taking blood from S.L. and A.L. so he could diagnose their problems, and that he had invented a microscope capable of evaluating the blood that same day.

       
       

   43. Seedarnee did not physically examine S.L. or A.L. or inquire if anyone else in the office had examined them.

       
       

   44. Seedarnee ordered a nurse to draw blood from S.L. and A.L. The blood was drawn as requested without question or surprise by the nurse. S.L. also provided a urine sample at the nurse's request.

       
       

   45. After the samples were obtained, S.L. and A.L. returned to Seedarnee's office where an enlarged picture of two slides of blood were shown to S.L. on the TV-like screen. Seedarnee took photographs of the blood slides and gave them to S.L. Those photographs were introduced as Petitioner's Exhibits 2 and 3.

       
       

   46. Seedarnee told S.L. that the white cell in the middle of her blood slide was an "allergy cell" and the other figures in the picture were iron- deficient cells. He also told her that she had a "low immune system."

       
       

   47. Seedarnee told S.L. that A.L.'s blood slide had clumped-together cells because he had a sluggish immune system.

       
       

   48. Seedarnee indicated that his conclusions were based on the blood pictures. He recommended that S.L. receive one of his "immune boosters" once a month for the next few months and one yearly thereafter. He also indicated that

       A.L. needed an immune booster and should get one yearly thereafter. Seedarnee specifically used the words "diagnosis" and "treatment" and stated that he was

       going to run further tests in order to make his final diagnosis. Seedarnee's statements to S.L. on March 30 constituted a diagnosis and the practice of medicine.

       
       

   49. The evidence presented at the hearing established that the diagnosis made by Seedarnee on March 30 could not validly be made on the basis of the blood slides. Moreover, the pictures of S.L.'s and A.L.'s blood appear normal. The "allergy cell" was simply a white blood cell and the clumping of A.L.'s blood was due to an artifact.

       
       

   50. S.L. did not see Respondent or any other person she thought was a physician on the March 30 visit. At this point, she still believed Seedarnee to be a physician.

       
       

   51. S.L. was told that she was required to pay 20% of the "total cost" for the treatment and her insurance company was to pay the remaining 80%. At the conclusion of the March 30, 1989 visit, S.L. wrote a check to the Allergy Clinic for $371.20.

       
       

   52. On April 4, 1989, S.L. returned without her son to the Allergy Clinic. She did not bring her son because her husband was skeptical that a proper diagnosis could be made from the blood slide picture.

       
       

   53. On April 4, S.L. was taken directly to Seedarnee's office where Seedarnee reviewed with her the results from her blood test and urinalysis, told her that she was allergic to dust and had a sensitivity to milk and yeast, and suggested to her that she needed his immune booster and B-12 injections. Seedarnee also reviewed with S.L. her son's test results. He told S.L. that

       A.L. had no allergy problems, but, because A.L. had a low immune system, he recommended an immune booster.

       
       

   54. During the April 4 visit, S.L. asked Seedarnee where he went to school. He told her India and England and said he had a Ph.D. and worked under a physician. Until this time, S.L. believed him to be a medical doctor.

       
       

   55. The office staff at the Allergy Clinic all referred to Seedarnee as "doctor."

       
       

   56. The medical records from the Allergy Clinic for S.L. and A.L. are captioned as follows:

       
       

       Patient: L, S.

       Physician: Seedarnee/Kunen

       and Patient: L, A.

       Physician: Seedarnee/Kunen

       
       

   57. After S.L. met with Seedarnee in his office on April 4, she was given two injections by a nurse. The medical records indicate the injections were (1) B-12 and Folic Acid and (2) "URT." There was no doctor's order for these injections. At the hearing, neither Seedarnee nor Respondent could, or would, identify "URT." Seedarnee's interpretation of tests, diagnosis of allergies and development of a treatment plan for S.L. on April 4 by ordering two injections for her which were given before S.L. ever saw a physician constitute the practice of medicine.

   58. After the injections, the nurse took S.L. to an examining room. Shortly thereafter, Respondent entered and introduced himself as Dr. Kunen. He asked S.L. what Dr. Seedarnee had recommended. Thus, it is clear that Respondent was aware that the patient had already seen Seedarnee and that he knew Seedarnee had at least developed some recommendations for her treatment.

       It is not clear whether Respondent knew that S.L. had already been given two injections. S.L. told Respondent that Seedarnee had diagnosed her allergies and told her that she needed B-complex, an immune booster and yearly immune boosters thereafter. Respondent's only response was something to the effect of "good, fine." He said nothing more about her treatment.

       
       

   59. S.L. was with Respondent for only about five minutes. Respondent briefly examined her. He listened to her heart and lungs and checked the glands in her neck. She was fully clothed during the exam. Respondent did not review with S.L. any of the items on her health form questionnaire. He did not inquire as to any of the items noted on the form such as the antibiotics she was taking, her sensitivity to perfume, her symptoms of fatigue and/or lethargy, her complaints of pressure in her head, muscle weakness and heart palpitations, or her notations of mucus in her stool or problems with urinary frequency. Her blood pressure was never taken. She was not asked about her history of rheumatic fever.

       
       

   60. Respondent did not discuss with S.L. her allergy symptoms, what she was allergic to, her test results or why she needed an immune booster and B-complex.

       
       

   61. Respondent did not ask about A.L. and S.L. did not tell Respondent that she wanted A.L. to be tested.

       
       

   62. Respondent's medical records regarding S.L. contain one undated page of notes indicating that Respondent requested allergy testing for S.L. and that

       S.L. wanted her son to be tested. S.L. denies telling Respondent that she wanted her son tested. Indeed, the evidence established that S.L. and her son had already been tested the week before by Seedarnee and that S.L. told Respondent of Seedarnee's diagnosis and treatment plan.

       
       

   63. Respondent's medical records for A.L. contain the boy's birth date rather than a current date. The notation in Respondent's handwriting states "patient here for testing, will return next week." Respondent claims that he saw the son otherwise he would not have filled out this medical note on the child. S.L. claims that her son was not with her on the April 4, 1989 visit and, therefore, Respondent never saw him. S.L.'s testimony is credited.

       
       

   64. In sum, it is concluded that Respondent's notes in the medical records for S.L. and A.L. do not accurately reflect the events that occurred and were an apparent attempt to justify after the fact Seedarnee's actions and treatment.

       It is also concluded that Respondent never saw A.L. as a patient and that Respondent "recommended" a treatment plan for S.L. which had already been carried out.

       
       

   65. At the conclusion of her April 4 visit, S.L. wrote a check to the Allergy Clinic for $162 to cover the cost of her visit and the purchase of a product which Seedarnee had recommended and supposedly developed called Allergex. This product was supposed to be put in the laundry and used to wipe down tables, etc. to eliminate household dust.

   66. After her visit on April 4, S.L.'s suspicions were aroused. She inquired of authorities about the licensure of the Allergy Clinic (it had none) and of Respondent and Seedarnee (he had no license).

       
       

   67. Following the April 4 visit to the Allergy Clinic, S.L. went to see a Board certified allergist who questioned the treatment she received at the Institute. The allergist advised S.L. that she was allergic to items other than those Seedarnee had claimed.

       
       

   68. On May 23, 1989, S.L. wrote to Respondent elaborating on what Seedarnee had done, complaining that she was mislead to believe that Seedarnee was a physician and that Respondent had done nothing but rubber stamp Seedarnee's findings and treatment. Respondent was on notice at least from this time that Seedarnee was practicing medicine without a license.

       
       

   69. S.L. filed a complaint with the Department of Professional Regulation on June 9, 1989. During the ensuing investigation, Respondent told the Department's investigator on January 23, 1990 that Seedarnee only worked under his supervision and that Seedarnee never made recommendations to patients.

       These statements were made even though S.L. had told Respondent during her April 4th visit and in her letter of May 23, 1989 about Seedarnee's actions.

       
       

   70. At the hearing, Respondent disclaimed any knowledge of the "diagnosis" made by Seedarnee and/or the administration of injections to S.L. pursuant to Seedarnee's instructions. He suggests that if any such actions took place, they were contrary to the specific understandings that he had as to the procedures of the Allergy Clinic. Even if Respondent thought that he was supposed to make all diagnoses and develop all treatment plans at the Clinic, it is clear that these procedures were not followed with respect to S.L. and A.L. Moreover, it is clear that Respondent was aware of Seedarnee's activities by at least April 4, 1989.

       
       

   71. It is the physician's responsibility to formulate a treatment plan and treat a patient. Professional responsibility should be delegated only to individuals who have training and degrees to perform those tasks and non-medical personnel should not be allowed to assume functions that are to be performed by physicians.

       
       

   72. It is the physician's obligation, if he knows an unlicensed, untrained individual with whom he is working is following practices which constitute the practice of medicine, to stop that activity if possible and report it to the Department of Professional Regulation.

       
       

   73. Respondent was aware that Seedarnee was not a licensed medical doctor and was not qualified to make a diagnosis or to treat patients. Respondent never reported Seedarnee's unlicensed activity to any authority.

       
       

   74. Respondent's actions on April 4 with respect to S.L. constitute an acquiescence to Seedarnee's recommendations and treatment.

       
       

   75. Respondent contends that even if S.L. was administered the two injections discussed above, there is no evidence that those injections were controlled substances. Thus, Respondent argues there is no evidence that Seedarnee engaged in the unauthorized practice of medicine. This contention is rejected.

   76. As noted above, neither Seedarnee nor Respondent could explain what the immune booster or "URT" was. They both suggest that anything not prescribed should be considered part of a therapy program not medicine. However, the administration of an injection, particularly if not indicated by medical testing, always runs the risk of causing a reaction in a patient. The Respondent's interpretation of the practice of medicine is unduly narrow and is rejected. As discussed above, it is clear that the Clinic operations led at least one person, S.L., to believe that Seedarnee was a physician and it is clear that, with respect to at least this patient, Seedarnee interpreted test results, developed a diagnosis and directed a treatment plan. Moreover, it is clear that Respondent was made aware of these activities by at least April 4, 1989 and that he took no steps to halt or correct the situation and, indeed, that he acquiesced to it.

       
       

   77. The Allergy Clinic has been owned by Seedarnee for approximately 12 years. Seedarnee refers to the entity as a "research institute" rather than a laboratory or medical clinic. Seedarnee formulated the internal rules and procedures for the Allergy Clinic. Seedarnee's testimony on these procedures and other issues at the hearing was evasive, ambiguous and inconsistent. Seedarnee recognized that he needed a licensed physician to "approve prescribed substances and supervise techniques." However, it is clear that, at least during the time in question, the Allergy Clinic was operated in a manner that permitted him to diagnose and order vitamins and booster injections.

       
       

   78. Respondent was Medical Director of the Allergy Clinic from 1988 until at least mid-1990. Other than the matters raised in the Second Administrative Complaint and discussed above, no evidence was presented as to any other situations where Respondent acquiesced in the practice of medicine by Seedarnee.

       
       

   79. Respondent's testimony regarding his relationship with the Allergy Clinic was vague, conveniently selective and sometimes inconsistent. Respondent admits that he was hired to be Medical Director and was given office space. However, he claims that he had no obligation to Seedarnee, was not salaried (although he admits he was "loaned" money by Seedarnee, only some of which he paid back) and that he had no duties as Medical Director except "to be a good physician and see patients and to build a practice." He says he never had the need to discuss a case from a medical standpoint with Seedarnee or with other physicians there. He also says there were no staff meetings. Seedarnee's version of the relationship was quite different. Seedarnee testified that Respondent was paid a salary for his duties at the Allergy Clinic. At one point, Seedarnee claimed that the Medical Director made decisions for testing of patients on the basis of the patient's medical questionnaire.

       
       

   80. Because the allegations of the Second Administrative Complaint are limited to the treatment rendered to S.L. and her son, it is not necessary to fully explore and/or resolve the nature of Respondent's affiliation with the Allergy Clinic. That evidence established that, at least with respect to S.L. and her son, Respondent's role differed greatly from his description of the Clinic's operations. Respondent failed to report what was clearly the unauthorized practice of medicine by Seedarnee. Furthermore, by acquiescing in Seedarnee's diagnosis and treatment, Respondent unlawfully delegated professional responsibility to a person he knew to be unlicensed. Finally, Respondent's participation in the treatment of S.L. and her son constitutes the employment of a trick or scheme in the practice of medicine.

       CONCLUSIONS OF LAW

       
       

   81. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.57, Florida Statutes.

       
       

   82. Petitioner has the burden of proof in this license discipline case and must prove the allegations set forth in the Administrative Complaints by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

       
       

   83. Disciplinary action with respect to a professional license is limited to the offenses and facts alleged in the Administrative Complaint. Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So.2d 1324, 1325 (Fla. 1st DCA 1985).

       
       

   84. Under the provisions of Section 458.331(2), Florida Statutes, the Board of Medicine is empowered to revoke, suspend or otherwise discipline the license of a physician for any of the following violations of Section 458.331(1), Florida Statutes:

       
       

       (e) Failing to report to the department any person who the licensee knows is in violation of this chapter or the rules of the department or the board....

       
       

       * * *

       
       

       (k) Making deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employing a trick or scheme in the practice of medicine.

       
       

       * * *

       
       

       (m) Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results, and test results.

       
       

       * * *

       
       

       (t) Gross or repeated malpractice or the failure 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. The board shall give great weight to the provisions of

       s. 768.45 when enforcing this paragraph. As used in this paragraph, "repeated malpractice" includes, but is not limited to, three or more claims for medical malpractice within the previous 5-year period resulting in indemnities being paid in excess of

       $10,000 each to the claimant in a judgment or settlement and which incidents involved

       negligent conduct by the physician. As used in this paragraph, "gross malpractice" or "the failure 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," shall not be construed so as to require more than one instance, event, or act.

       
       

       * * *

       
       

       (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.

       
       

   85. The First Administrative Complaint charges Respondent with violating subsections (k), (m) and (t) in connection with his treatment of J.P. The Second Administrative Complaint charges Respondent with violating subsections (e), (k) and (w) in his treatment of S.L. and her son.

       
       

   86. Petitioner has proven by clear and convincing evidence that Respondent's conduct with respect to Patient J.P. violated Sections 458.331(1)(k), (m) and (t), Florida Statutes, as alleged in the First Administrative Complaint. Petitioner has clearly and convincingly proved that Respondent misdiagnosed Patient J.P. as having Euthyroid Sick Syndrome even though J.P. had perfectly normal thyroid test results, that Respondent prescribed medication not indicated for this patient, that he did not adequately assess this patient's condition or complaint (obesity) and, therefore, Respondent has violated Section 458.331(1)(t), Florida Statutes, as charged in Count One of the First Administrative Complaint.

       
       

   87. Petitioner has clearly and convincingly proved that Respondent's written medical records regarding J.P. do not justify the tests ordered for her, do not justify his prescriptions of Cytomel or Maxzide to her, and do not support his incorrect diagnosis of Euthyroid Sick Syndrome. Therefore, Respondent has violated Section 458.331(1)(m), Florida Statutes, as charged in Count II of the First Administrative Complaint.

       
       

   88. Petitioner has clearly and convincingly shown that Respondent entered an erroneous diagnosis regarding J.P., that duplicative and erroneous billings were submitted to J.P.'s insurance carrier under Respondent's name, that Respondent prescribed unwarranted and potentially harmful medications to J.P. and preyed upon her desire to lose weight by misleading her into believing that the medications would regulate her low metabolism and help her burn calories. These actions constitute violations of Section 458.331(1)(k), as charged in Count III of the First Administrative Complaint.

       
       

   89. Petitioner has also proven by clear and convincing evidence that Respondent's conduct with respect to patients S.L. and A.L. violated Sections 458.331(1)(e), (k) and (w), Florida Statutes, as alleged in the Second Administrative Complaint.

   90. The evidence clearly and convincingly established that Seedarnee was engaged in the unauthorized practice of medicine as a result of making diagnoses, developing treatment plans and directing the treatment of S.L. and

       A.L. The evidence also established that Respondent was aware of this activity at least by April 4, 1989 and that he failed to take any action to halt the activities or report Seedarnee to the appropriate authorities. Indeed, Respondent's actions furthered the scheme developed by Seedarnee and were an apparent attempt to legitimize those activities. Consequently, Respondent has violated Section 458.331(1)(e), Florida Statutes, as alleged in Count I of the Second Administrative Complaint.

       
       

   91. The evidence also clearly and convincingly established that Respondent's actions facilitated what was obviously a scam on the part of Seedarnee. Therefore, Respondent has violated Section 458.331(1)(k), Florida Statutes, as alleged in Count II of the Second Administrative Complaint.

       
       

   92. The evidence also clearly and convincingly established that Respondent acquiesced and approved the diagnoses and treatments developed by Seedarnee for patient S.L. even though he never fully examined the patient or questioned her regarding her history. By doing so, Respondent implicitly delegated professional responsibilities to a person whom he knew was not qualified by training, licensure or experience to perform them. As a result, Respondent has violated Section 458.331(1)(w), Florida Statutes, as alleged in Count III of the Second Administrative Complaint.

       
       

   93. Disciplinary guidelines for violations of Section 458.331, Florida Statutes, are provided in Rule 21M-20.001, Florida Administrative Code. Rule 21M-20.001(2) requires Petitioner to impose penalties within the stated range for each statutory violation. For a violation of Section 458.331(1)(e), Rule 21M-20.001(2)(e) requires a minimum penalty of a reprimand and an administrative fine of $250 and authorizes a maximum penalty of probation and an administrative fine of $5,000. For a violation of Section 458.331(1)(k), Rule 21M-20.001(2)(k) requires a minimum penalty of probation and an administrative fine in the amount of $250 and authorizes a maximum penalty of revocation and an administrative fine of $5,000. For a violation of Section 458.331(1)(m), Rule 21M-20.001(2)(m) requires a minimum penalty of a reprimand and an administrative fine of $250 and authorizes a maximum penalty of revocation and an administrative fine of $5,000. For a violation of Section 458.331(1)(t), Rule 21M-20.001(2)(t) requires a minimum penalty of probation and an administrative fine of $250 and authorizes a maximum penalty of revocation and an administrative fine of $5,000. For a violation of Section 458.331(1)(w), Rule 21M-20.001(2)(w) requires a minimum penalty of one year probation and an administrative fine of $250 and authorizes a maximum penalty of five years suspension followed by probation and an administrative fine of $5,000.

       
       

   94. The following aggravating and mitigating circumstances are enumerated in Rule 21M-20.001(3), Florida Administrative Code:

       
       

       1. Exposure of patient or public to injury or potential injury, physical or otherwise: none, slight, severe, or death;

       2. Legal status at the time of the offense: no restraints, or legal constraints;

       3. The number of counts or separate offenses established;

       4. The number of times the same offense or offenses have previously been committed by

          the licensee. . . ;

       5. The disciplinary history of the . . . licensee in any jurisdiction and the length of practice;

       6. Pecuniary benefit or self-gain inuring to the . . . licensee;

       7. Any other relevant mitigating factors.

          
          

   95. Determining the appropriate penalty requires careful analysis of the circumstances of the case in light of the guidelines set forth in the rule. Key factors in determining an appropriate penalty are the severity of the offenses and the danger to the public. While it does not appear that either of the patients involved in these cases suffered any significant or long term injuries, the offenses in these cases are severe. Respondent's conduct adversely reflects on the practice of medicine and diminishes the public trust in the profession. Even though the length of time since the date of the first incident is several years, the evidence established that Respondent engaged in a separate, unrelated scheme after his association with the Institute of Specialized Medicine ended. On the other hand, there was no evidence presented of any misconduct by Respondent other than the situations involving J.P. and S.L. Respondent contends that he was trying to develop a private family practice. Although the evidence was not entirely clear, it appears that Respondent is primarily involved in the practice of emergency medicine and his involvement with the Institute of Specialized Medicine and the Allergy Clinic were not full time situations. Respondent disclaims any further interest in developing a private practice and states that he only wishes to continue his practice as an emergency room physician. No evidence was presented one way or the other regarding Respondent's competency as an emergency room physician. After considering all the pertinent facts and circumstances, it is concluded that the Board should take action which reflects its disapproval of Respondent's conduct.

Respondent's actions, his statements during the Department's investigation, and his testimony at the hearing reflect an attempt to obscure and minimize his conduct. Respondent's actions mandate a penalty with strong deterrent effect.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order finding

Respondent guilty of violating Sections 458.331(1)(k), (m) and (t), Florida

Statutes as alleged in the First Administrative Complaint and finding Respondent guilty of violating Sections 458.331(e), (k) and (w), Florida Statutes as alleged in the Second Administrative Complaint. As punishment therefore, Respondent should be (1) reprimanded, (2) fined $15,000, (3) suspended from the practice of medicine for five years, two years of which should be suspended if Respondent successfully completes Board approved continuing medical education courses, and (4) thereafter, Respondent should be placed on probation for a period of three years, the terms and conditions of which should be set by the Board of Medicine. It is recommended that one condition of probation should be a limitation on Respondent's establishment or participation in a private office practice.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of September, 1992.

J. STEPHEN MENTON 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 16th day of September, 1992.

APPENDIX

Case Numbers 89-3723 and 91-3864

Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties.

The Petitioner's Submittal with Respect to the October 3, 1990 Hearing

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or

Reason for Rejection.

1. The first sentence is adopted in substance in Findings of Fact 15. The second sentence is subordinate to Findings of Fact 12.

   
   

2. Subordinate to Findings of Fact 20.

   
   

3. Adopted in substance in Findings of Fact 11.

4. Adopted in substance in Findings of Fact 11.

   
   

5. Adopted in substance in Findings of Fact 13.

   
   

6. Adopted in substance in Findings of Fact 16.

   
   

7. Adopted in substance in Findings of Fact 21.

   
   

8. Adopted in substance in Findings of Fact 22.

   
   

9. Adopted in substance in Findings of Fact 23.

   
   

10. Rejected as unnecessary.

    
    

11. Subordinate to Findings of Fact 26.

    
    

12. Adopted in substance in Findings of Fact 26.

    
    

13. Adopted in substance in Findings of Fact 29.

    
    

14. Adopted in substance in Findings of Fact 30.

    
    

15. Adopted in substance in Findings of Fact 24.

    
    

16. Adopted in substance in Findings of Fact 24.

    
    

17. Adopted in substance in Findings of Fact 24.

    
    

18. Adopted in substance in Findings of Fact 25.

    
    

19. Adopted in substance in Findings of Fact 31.

    
    

    The Petitioner's Supplemental Proposals regarding the First Administrative Complaint

    
    

    Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or

    Reason for Rejection.

    
    

    1. Subordinate to Findings of Fact 27.

    2. Adopted in substance in Findings of Fact 19.

       
       

    3. Adopted in substance in Findings of Fact 19.

       
       

    4. Adopted in substance in Findings of Fact 21.

       
       

    5. Subordinate to Findings of Fact 20 and 21.

       
       

    6. Adopted in substance in Findings of Fact 12.

       
       

    7. Rejected as unnecessary.

       
       

    8. Rejected as unnecessary. This subject matter is addressed in Findings of Fact 11.

The Petitioner's Proposed Findings regarding the Second Administrative Complaint

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or

Reason for Rejection.

1. Rejected as unnecessary.

   
   

2. Adopted in substance in Findings of Fact 1.

   
   

3. Adopted in substance in Findings of Fact

   36 and 38.

   
   

4. Adopted in substance in Findings of Fact 37.

   
   

5. Adopted in substance in Findings of Fact 38.

   
   

6. Adopted in substance in Findings of Fact 39.

   
   

7. Adopted in substance in Findings of Fact 40.

   
   

8. Adopted in substance in Findings of Fact 41.

   
   

9. Adopted in substance in Findings of Fact 42.

   
   

10. Adopted in substance in Findings of Fact 43.

    
    

11. Adopted in substance in Findings of Fact 44.

12. Adopted in substance in Findings of Fact 45.

    
    

13. Adopted in substance in Findings of Fact 46.

    
    

14. Adopted in substance in Findings of Fact 47.

    
    

15. Adopted in substance in Findings of Fact 48.

    
    

16. Adopted in substance in Findings of Fact 49.

    
    

17. Adopted in substance in Findings of Fact 50.

    
    

18. Adopted in substance in Findings of Fact 52.

    
    

19. Adopted in substance in Findings of Fact 53.

    
    

20. Adopted in substance in Findings of Fact 53.

    
    

21. Adopted in substance in Findings of Fact 53.

    
    

22. Adopted in substance in Findings of Fact 56.

    
    

23. Adopted in substance in Findings of Fact 54.

    
    

24. Adopted in substance in Findings of Fact 55.

    
    

25. Adopted in substance in Findings of Fact 57.

    
    

26. Adopted in substance in Findings of Fact 58.

    
    

27. Adopted in substance in Findings of Fact 58.

    
    

28. Adopted in substance in Findings of Fact 58.

    
    

29. Adopted in substance in Findings of Fact 59.

    
    

30. Adopted in substance in Findings of Fact 59.

31. Adopted in substance in Findings of Fact

    59 and 61.

    
    

32. Adopted in substance in Findings of Fact 62.

    
    

33. Adopted in substance in Findings of Fact 63.

    
    

34. Subordinate to Findings of Fact 64.

    
    

35. Subordinate to Findings of Fact 66 and 67.

    
    

36. Adopted in substance in Findings of Fact 68.

    
    

37. Adopted in substance in Findings of Fact 69.

    
    

38. Adopted in substance in Findings of Fact 69.

    
    

39. Rejected as unnecessary.

    
    

40. Adopted in substance in Findings of Fact 49.

    
    

41. Adopted in substance in Findings of Fact 49.

    
    

42. Adopted in substance in Findings of Fact 47.

    
    

43. Adopted in substance in Findings of Fact 57.

    
    

44. Adopted in substance in Findings of Fact 76.

    
    

45. Subordinate to Findings of Fact 74.

    
    

46. Adopted in substance in Findings of Fact 71.

    
    

47. Adopted in substance in Findings of Fact 73.

    
    

48. Adopted in substance in Findings of Fact 72.

    
    

49. Adopted in substance in Findings of Fact 73.

    
    

50. Adopted in substance in Findings of Fact 76.

    
    

51. Subordinate to Findings of Fact 77.

52. Subordinate to Findings of Fact 76 and 77.

    
    

53. Subordinate to Findings of Fact 79 and 80.

The Respondent's Proposed Findings of Fact regarding the Second Administrative Complaint

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or

Reason for Rejection.

1. Rejected as unnecessary.

   
   

2. The first and the third sentences are adopted in substance in Findings of Fact 1. The second sentence is subordinate to Findings of Fact 3.

   
   

3. Subordinate to Findings of Fact 33-35, 70, 75 and 79-80.

   
   

4. Adopted in pertinent part in Findings of Fact 34.

   
   

5. Rejected as unnecessary. This subject matter is addressed in Findings of Fact 38.

6.-10. Subordinate to Findings of Fact 35, 70, 75,

77, 79 and 80.

1. Rejected as unnecessary and subordinate to Findings of Fact 40, 58 and 59.

   
   

2. Rejected as unnecessary and subordinate to Findings of Fact 58 and 59.

   
   

3. Subordinate to Findings of Fact 59.

   
   

4. Adopted in substance in Findings of Fact 36.

   
   

5. Adopted in substance in Findings of Fact 37.

   
   

6. Adopted in pertinent part in Findings of Fact 37.

   
   

7. Adopted in substance in Findings of Fact 39.

   
   

8. Adopted in substance in Findings of Fact 40.

9. The first sentence is adopted in substance in Findings of Fact 40. The second sentence is rejected as constituting argument.

   
   

10. Adopted in substance in Findings of Fact 41

    
    

11. Adopted in substance in Findings of Fact 44.

    
    

12. Adopted in substance in Findings of Fact 44.

    
    

13. Adopted in substance in Findings of Fact 45.

    
    

14. Adopted in substance in Findings of Fact 42.

    
    

15. Adopted in substance in Findings of Fact 48.

    
    

16. Adopted in substance in Findings of Fact 49.

    
    

17. Adopted in substance in Findings of Fact

46 and 47.

28.-29. Rejected as unnecessary and subordinate to Findings of Fact 70.

1. Adopted in substance in Findings of Fact 50.

   
   

2. Rejected as unnecessary.

   
   

3. Adopted in substance in Findings of Fact

   52 and 53.

   
   

4. Adopted in substance in Findings of Fact 54.

   
   

5. The first two sentences are adopted in substance in Findings of Fact 55 and 57. The remainder is subordinate to Findings of Fact 70, 79 and 80.

   
   

6. Adopted in substance in Findings of Fact 35, 70, 75, 79 and 80.

36.-37. Subordinate to Findings of Fact 70, 75, 77,

79 and 80.

1. Subordinate to Findings of Fact 70.

   
   

2. Rejected as unnecessary.

3. Subordinate to Findings of Fact 76, 77 and 78.

   
   

4. Subordinate to Findings of Fact 75.

   
   

5. Subordinate to Findings of Fact 75, 79 and 80.

   
   

6. Rejected as vague, ambiguous and unnecessary. This subject matter is addressed in Findings of Fact 56.

   
   

7. Rejected as unnecessary and subordinate to Findings of Fact 64.

   
   

8. Subordinate to Findings of Fact 70.

   
   

9. Subordinate to Findings of Fact 70.

   
   

10. Rejected as unnecessary. This subject matter is addressed in Findings of Fact 34 and 77.

    
    

11. Subordinate to Findings of Fact 57 and 70.

    
    

12. Rejected as unnecessary. The evidence established that Respondent continued working at the Allergy Clinic for a year or more after S.L. alerted him to Seedarnee's actions.

    
    

13. Subordinate to Findings of Fact 76.

    
    

14. Subordinate to Findings of Fact 76.

The Respondent's Proposed Findings of Fact regarding the First Administrative Complaint

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or

Reason for Rejection.

1. Rejected as unnecessary.

   
   

2. Adopted in substance in Findings of Fact 1.

   
   

3. Addressed in the Preliminary Statement.

   
   

4. Addressed in the Preliminary Statement.

   
   

5. Addressed in the Preliminary Statement.

   
   

6. Adopted in substance in Findings of Fact 5.

   
   

7. Adopted in substance in Findings of Fact 5.

8. Adopted in substance in Findings of Fact 4.

   
   

9. Subordinate to Findings of Fact 6.

   
   

10. Adopted in substance in Findings of Fact

    7 and 8.

    
    

11. Subordinate to Findings of Fact 9 and 10.

    
    

12. Rejected as contrary to the weight of the evidence and subordinate to Findings of Fact 18 and 19.

    
    

13. Adopted in substance in Findings of Fact 14.

    
    

14. Rejected as contrary to the weight of the evidence and subordinate to Findings of Fact 18 and 19.

    
    

15. Subordinate to Findings of Fact 12.

    
    

16. Subordinate to Findings of Fact 12.

    
    

17. Subordinate to Findings of Fact 12.

    
    

18. Rejected as unnecessary and as constituting argument rather than a finding of fact.

    
    

19. Subordinate to Findings of Fact 12.

    
    

20. Subordinate to Findings of Fact 12.

    
    

21. Adopted in substance in Findings of Fact 23.

    
    

22. Adopted in substance in Findings of Fact 23.

    
    

23. Subordinate to Findings of Fact 27 and 28.

    
    

24. Rejected as unnecessary and subordinate to Findings of Fact 27.

    
    

25. Subordinate to Findings of Fact 27.

    
    

26. Subordinate to Findings of Fact 27.

    
    

27. Rejected as constituting argument rather than a finding of fact.

    
    

28. Addressed in the Preliminary Statement.

    
    

29. Rejected as constituting argument. The issues raised by Respondent go to the weight of the evidence and not to its admissibility.

30. Subordinate to Findings of Fact 12.

    
    

31. Rejected as unnecessary. The issues raised by Respondent regarding Dr. Lindbergh's qualifications go to the weight to be given to his testimony rather than its admissibility.

    
    

32. Rejected as constituting argument. See #31 above.

    
    

33. Rejected as speculative, constituting argument rather than a finding of fact and unnecessary.

    
    

34. Subordinate to Findings of Fact 12.

    
    

35. Rejected as unnecessary.

    
    

36. Rejected as unnecessary.

    
    

37. Addressed in Findings of Fact 12.

    
    

38. Rejected as unnecessary.

    
    

39. Rejected as unnecessary.

COPIES FURNISHED:

Mary B. Radkins, Senior Attorney Department of Professional

Regulation

1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792

Neil F. Garfield, Esquire Suite 333

3500 North State Road 7 Lauderdale Lakes, Florida 33319

Dorothy Faircloth, Executive Director Department of Professional

Regulation/Board of Medicine 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792

Jack McRay, General Counsel Department of Professional

Regulation

1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 89-003723

Orders for Case No: 89-003723