vs. ) CASE No. 89-4062
) DPR No. 0106084
JOHN R. AYERS, M. D., )
Respondent. )
Following the provision of notice, a formal hearing was held in this case on December 4, 1989. The authority for the conduct of the hearing is set forth in Section 120.57(1), Florida Statutes. The hearing took place in Gainesville, Florida. Charles C. Adams was the Hearing Officer.
For Petitioner: Wellington H. Meffert II, Esquire
For Respondent: Barbara C. Wingo
The issues under consideration in this case concern an administrative complaint placed by the Petitioner against Respondent accusing him of practicing medicine with an inactive license for the period of January 1, 1988 until on or about October 27, 1988. For this alleged activity Respondent is said to have violated Sections 458.327(1) (a) and 458.331(1)(x), Florida Statutes.
Having requested a formal hearing, Respondent was afforded that hearing on December 4, 1989.
Petitioner presented the testimony of David Frederick Fallon and Barbara Kemp. Petitioner's composite exhibit numbers 2 and 3 were admitted into evidence. Petitioner's composite exhibit 1 was admitted with certain limitations as are set forth in the transcript.
Respondent testified and presented the testimony of Dr. William Pettay and Jeri Dobbs. Respondent's composite exhibit numbers 1-3 were admitted into evidence.
Petitioner had moved to amend the administrative complaint to include a statutory reference to Section 458.331(1)(x), Florida Statutes. That amendment was considered when the hearing commenced and was allowed.
At the conclusion of the hearing the parties were granted until January 12, 1990, to file proposed recommended orders. Given that the original of the transcript was filed with the Petitioner's counsel and not with the Division of Administrative Hearings as is customary, a motion was made to extend the time for filing proposed recommended orders. This took into account that the transcript had been filed with Petitioner's office on January 3, 1990, and that Respondent's counsel received a copy on January 4, 1990. The transcript did not arrive at the Division of Administrative Hearings until January 10, 1990. Under these circumstances the request to extend the time for filing proposed recommended orders until January 17, 1990, was granted by an order of January 11, 1990. Both counsel timely filed proposed recommended orders. In addition, as allowed, Petitioner submitted a closing argument and memorandum. The proposed recommended orders and closing argument and memorandum by Petitioner have been considered in the preparation of this Recommended Order. The fact- finding suggested in the proposed recommended orders is commented on in an Appendix to this Recommended Order.
Respondent attended the University of Rochester from 1977 to 1990 and received a B.A. in biology and a B.S. in neuro- science. He then received his medical education at Upstate Medical Center in Syracuse, New York, from 1984 until 1985 and graduated as an M.D. He served surgical internship at Geisinger Medical Center, a general surgery internship, in the year 1985. From 1985 until the point of hearing, he had been receiving training as a resident at the University of Florida Department of Orthopedic Surgery. As such, he is employed by the University of Florida. The residency program in the Department of Orthopedics at the University of Florida is approved by the Council on Graduate Medical Education.
His duties as a resident physician include assisting the attending physician and making diagnosis and carrying out treatment, as well as prescribing medication. These duties are performed in Shands Teaching Hospital in Gainesville, Florida, and at the Veteran's Administration Hospital in that same community.
In the period January and February, 1988, he was at Shands Teaching Hospital in pediatric orthopedic service. He then served four months at the Veteran's Administration Hospital in the general orthopedic rotation. He then returned to Shands Teaching Hospital as part of the adult reconstructive service. At no time while participating in those programs did he undertake other medical employment.
On March 4, 1985, Respondent executed a form provided by the Board of Medical Examiners entitled "Registration Application for Unlicensed Physicians." It may be found as Petitioner's Exhibit 3B-1 admitted into evidence. The purpose of this form was to identify his participation as a resident at Shands Teaching Hospital. In response to the questionnaire, Respondent indicated that he did not intend to become licensed in Florida.
This form was submitted to the Department of Orthopedic Surgery at the University of Florida and was subsequently forwarded to the Department of Professional Regulation.
Notwithstanding the lack of intention on the part of the Respondent to practice medicine in Florida as expressed in his application as executed on March 4, 1985, Respondent applied for and was given an active license to practice medicine issued on November 22, 1985. The medical license is no. ME0047478. He took this step at the instigation of his employer the University of Florida who remitted the necessary fees to obtain that license.
On January 16, 1986, Shands Teaching Hospital submitted a list of unlicensed physicians participating in programs within the University of Florida College Medicine as of January 14, 1986 and employed by the University of Florida. This list was sent to Dorothy J. Faircloth, Executive Director of Board of Medical Examiners (Board of Medicine). The attached list included the Respondent's name as being among those persons who were unlicensed physicians working at the University of Florida College of Medicine, Shands Teaching Hospital a that time. A copy of the correspondence of January 16, 1986, is found as Petitioner's exhibit 3-C admitted into evidence and the list itself is Petitioner's exhibit 3-D admitted into evidence.
A copy of a list dating from July 1, 1986 describing unlicensed physicians at the University of Florida reflects Respondent's name. However, a line is drawn through his name and other identifying data concerning the Respondent. It is unclear from this record who had drawn that line through the name as reported. A copy of that report may be found as Petitioner's exhibit 3- E admitted into evidence.
The list of licensed physicians at the University of Florida as of July 1, 1987, submitted to the Board of Medicine did not reflect the Respondent's name. This can be seen in an examination of Petitioner's exhibit no. 3-G admitted into evidence. Likewise, on January 15, 1988, correspondence was directed to Ms. Dorothy Faircloth, Executive Director of the Board of Medicine, a copy of which is Petitioner's 3-H, admitted into evidence. A list of unlicensed physicians at the University of Florida was attached. That attachment is Petitioner's exhibit no. 3-I, admitted into evidence and it does not show the Respondent's name. That list reflects the circumstance of unlicensed physicians as of January 15, 1988.
The Respondent's initial registration as a resident physician on March 4, 1985, was in an effort to comply with the requirements set forth in Section 458.345, Florida Statutes. The submission of the list of the resident physicians and other physicians by the University of Florida, College of Medicine, in the periods as reported above was in an effort to comply with that institution's obligations under Section 458.345, Florida Statutes.
In late October or early November, 1987, Respondent received a notice from the Petitioner concerning the renewal of the medical license which had been issued on November 22, 1985. Following the receipt of that notice, he executed the necessary paperwork and submitted it to the accountant at the University of Florida who was responsible for paying Respondent's fees for the medical license as an employee of the University of Florida, School of Medicine, within the Department of Orthopedic Surgery.
Respondent took no further action to assure that his license was renewed until late March or early April, 1988. It was at that point that the Respondent was made aware that the replica of his medical license that he kept in his wallet reflected an expiration of that license. He made this discovery when attempting to use that replica as a form of identification.
At that juncture he reported to Ms. Jeri Dobbs, an employee of the University of Florida, who indicated that paperwork associated with this license may have been destroyed in a fire at Johnson Hall where certain records of the Department of Orthopedic Surgery were kept.
Ms. Dobbs' responsibility in the relevant time period under question, encompassed money matters within the Department of Orthopedics. This included the payment of license fees for residents in the University of Florida Department of Orthopedics. The technique was to request a check from the University of Florida and send that check along with the requisite forms to the Department of Professional Regulation.
Sometime in November or early December, 1987, a fire occurred in Johnson Hall at the University of Florida. Within that building were found invoices to be paid or checks requested and they were lost in the fire.
In November, 1987, Ms. Dobbs had originally requested a check from the finance and accounting office at Johnson Hall to pay for the re-licensure of certain physicians. The names of those physicians are set forth in Respondent's exhibit no. 3, admitted into evidence. The package of paperwork on license renewal related to the named physicians was lost in the Johnson Hall fire. Respondent's name is not found in that list. Nonetheless, the circumstance that occurred with the physicians listed there may have well have occurred to the Respondent and in his conversation in late March or early April, 1988 with Ms. Dobbs he was impressed with the idea that his paperwork on license renewal may have been destroyed as was the situation with those other physicians.
The physicians whose names are listed on Respondent's exhibit no. 3 would have had their medical licenses expire on December 31, 1987, as was the case with Respondent's license.
In March, 1988, through efforts of Ms. Dobbs, the licenses of those physicians set forth in Respondent's exhibit no. 3 were renewed upon the payment of a $50 reinstatement or penalty fee as required by Petitioner. There is no indication that those persons as listed in Respondent's exhibit no. 3, were ever subject to disciplinary action for practicing medicine with an inactive license as has been the fate of Respondent in the present case, even though it can be fairly inferred that they had been participating as physicians at the University of Florida in the period January 1, 1988 through latter March, 1988 while their medical license had not been renewed before expiration on December 31, 1987.
In conversations between Ms. Dobbs and someone associated with the Petitioner, she expressed her concern at having to pay an additional $50 late fee in the face of the circumstance in which records had been lost in the Johnson Hall fire. In this conversation she was not lead to believe that there would be any problem with the practice of those physicians who were on that list found in Respondent's exhibit no. 3.
In her testimony, although Ms. Dobbs acknowledges that Respondent's name is not on the list of physicians whose licenses were reapplied for, she also indicates that she could not say for an absolute fact that these names were the only ones whose information on license renewal was lost.
Being of the belief based upon his conversation with Ms. Dobbs that the necessary paperwork for renewal had been destroyed in the Johnson Hall fire, Respondent took the initiative to ascertain the appropriate method to rectify the situation of his license renewal. To this end, at approximately the same time period as the discussion with Ms. Dobbs, he spoke with Ms. Faircloth. He explained the circumstances to Ms. Faircloth of his renewal and specifically the idea in which he was persuaded that his renewal papers had been burned up in the fire at the University of Florida. Her instructions to him were that the paperwork would be forthcoming, to fill it out as quickly as possible and that he should not worry that this sort of thing happened all the time. He was not told by Ms. Faircloth that he should not continue in his duties as a resident physician, given the status of his license renewal.
Having not heard from Ms. Faircloth within the week of his initial contact with her, he called her a second time. At that point she said that he should have received the materials.
A month after the second contact, another call was made from the Respondent to Ms. Faircloth because he had not received the materials. She indicated that by that time the materials should have been received and therefore she was going to send another set of those forms for him to fill out.
A further call was made to Ms. Faircloth and she indicated to the Respondent that the forms had been sent out, and sometime in late June or early July, 1988, information concerning the obtaining of his renewed license began to be received by Respondent.
Documents pertaining to the activity of gaining a new license may be found within Petitioner's composite exhibit no. 2 admitted into evidence, in particular those portions 2D through 2J. Throughout this process Respondent cooperated and made timely responses to what was asked of him to effectuate these purposes. Finally, effective October 24, 1988, Respondent obtained his renewed license. Throughout this endeavor neither Ms. Faircloth in conversations with Respondent nor anyone else associated with Petitioner indicated that the Respondent should cease his practice pending the issuance of the renewed license. None of the materials that were forwarded to the Respondent for purposes of license renewal had any admonition against his carrying forward his duties as a resident of the University of Florida pending the resolution of this license problem.
After returning the necessary materials to obtain his license, Respondent had not heard from the Department of Professional Regulation, so he checked with Jeri Dobbs and was told that the necessary cash had been remitted for renewal. He called someone within the Petitioner's organization and that person confirmed that the check in furtherance of his license renewal fee had been cashed and that it was probably still in the computer that the license had been printed, but probably had not been sent in the mail.
According to Barbara Kemp an employee of Petitioner, who has responsibility for processing requests for license renewal, the detailed requirements set forth in Petitioner's composite exhibit 2 are utilized in the instance wherein the license was not renewed in the ordinary period for renewal.
Respondent's situation was perceived in that way. Ms. Kemp refers to this as the reactivation of a license and describes this exhibit as being an indication of the materials necessary to reactivate.
As Ms. Kemp explained in her remarks, typically the renewal packet is dispatched 60 days prior to the expiration of the license. That would correspond in this instance to 60 days before December 31, 1987. That circumstance, unlike the situation reflected in Petitioner exhibit no. 2 admitted into evidence, does not contemplate the need to document compliance with certain requirements related to license renewal. In the reactivation mode, that documentation as evidenced by items set forth in Petitioner's exhibit no. 2 would be necessary.
According to Ms. Kemp, in the instance where there is a belief that the practitioner has been practicing medicine without the benefit of an active license, a memorandum is sent to those persons within the Petitioner's organization who are responsible for considering administrative complaints. This does not usually occur within the first couple of months beyond the period of license expiration. In this instance, that would correspond to the first couple of months beyond December 31, 1987. The reason for not reporting tardiness in license renewal is due to the fact that Petitioner is busy trying to renew a high number of licenses and the computer takes time to catch up and conclude that activity. This describes the time necessary for data to be entered in the computer system. In this instance, Ms. Kemp complained to the investigatory arm of her organization about the Respondent's possible practice without the benefit of a license and that complaint was made on September 16, 1988.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 120.57(1), Florida Statutes.
In determining the question of culpability, the evidence presented by the Petitioner in this cause must be clear and convincing or Petitioner shall not prevail. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
In interpreting the statutory references and rules which are utilized to resolve this dispute, deference is generally paid to the Petitioner's construction of those provisions unless the agency has clearly drawn an erroneous impression or the construction is unauthorized. For this proposition, see P.W. Ventures, Inc. v. Nichols, 533 So.2d 281 (Fla. 1988). This is a case out of the Public Service Commission as appealed to the Florida Supreme Court. While that general reference may be deemed to be controlling in some instances, it has limited utility in a disciplinary case such as this. The more appropriate standard for examining the applicable statutes and rules is that announced in Lester v. Department of Professional and Occupational Regulation, State Board of Medical Examiners, 348 So.2d 923 (Fla. 1st DCA 1977), which explains that the construction of the statutes and rules will be strictly construed and no conduct that is under scrutiny will be regarded as included within that construction if it is not reasonably prescribed by the statute or rule. Ambiguities in such construction will favor the Respondent and not the Petitioner.
When Respondent became a resident in the orthopedic surgery program at the University of Florida the requirements for his participation in that program were as announced in Section 458.345, Florida Statutes, which said:
Every person practicing as a resident physician, assistant resident physician, house physician, or intern in this state shall register with the department, showing the date upon which he started to practice as aforesaid within this state. Every hospital employing a resident physician, assistant resident physician, house physician, or intern shall, on January 1 and July 1 of each year, furnish the department with a list of its employees and such other information as the board may direct. Unless previously authorized by the board, no person may be employed as a house physician or act as a resident physician, an assistant resident physician, or an intern in a hospital of this state for more than 2 years without a license, except that resident physicians, assistant resident physicians, and interns in approved training programs shall be exempt from this limitation. Any person violating this section shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s.
775.083, or s. 775.084.
A reading of this section reveals that the principal emphasis was to assure that persons practicing as a resident physician be registered and that the employing hospital report their status as a resident twice a year. Nothing in that provision described the idea that licensure as a medical doctor relieved the obligation of registration while still a resident physician or relieved the hospital of the necessity to make periodic reports of who the resident physicians were in their program. As a consequence, one could conclude that a physician could have the dual status of being registered and licensed and that licensure following registration did not supercede the physician's status as a registrant.
In describing the status of a resident such as Respondent the Board of Medicine enacted Chapter 21M-23, Florida Administrative Code. Within that section is a reference to a term which they have coined independent of Section 458.345, Florida Statutes. That term is "unlicensed physicians." At Rule 21M- 23.001, that person is defined as:
An unlicensed physician is a person holding a degree as a medical doctor or its equivalent, but not licensed by the Board of Medical Examiners. For the purpose of administering this rule chapter, such unlicensed physicians shall embrace and include interns, resident physicians,
assistant resident physicians, and house physicians as these terms are hereinafter defined.
It can be seen that the definition equates the idea of an unlicensed physician with that of a resident physician. It goes on to describe that unlicensed physicians are those persons who are not licensed by the Board of Medical Examiners, now Board of Medicine. This can be read to say that persons who have licenses are no longer required to be registered in their status as resident physicians during the pendency of their residency under Section 458.345, Florida Statutes, and that the employing hospital does not need to report them as being resident physicians in the semiannual reporting period announced in that statutory section. Therefore, the rule provision and statutory provision to that extent may seem to be inconsistent. While Rule 21M- 23.001, Florida Administrative Code, is not under attack through a rule challenge pursuant to Section 120.56, Florida Statutes, Petitioner should not be allowed to use the rule to suggest that the Respondent's licensure on November 22, 1985 superceded his status as a registrant and as a result causes him to be disciplined as a licensee for his continued practice as a resident physician in the relevant time period January 1, 1988 until his license was reactivated on October 24, 1988. Respondent never relinquished his status as a resident physician and continued to practice in the questioned time period within the supervision of the University of Florida's training program. As such, according to Section 458.345, Florida Statutes, he was perceived as being a resident physician registered with the Petitioner, whose hospital was obligated to make semiannual reports of his status as a resident physician regardless of his licensure as a practicing physician. By a fair reading of Section 458.345, Florida Statutes, as it existed at the time that his medical license expired on December 31, 1987, he still remained registered and was allowed to carry on his duties as a resident physician and was not subject to discipline for practicing under the terms of an inactive license. His activity from January 1, 1988 through October 24, 1988, when he received his renewed medical license was as a resident physician and authorized by law. Being authorized by law he is not subject to the discipline which is sought here. In this context the medical license which he had was an unnecessary redundancy. He was not required to use the authority of that license as a means of carrying forward his practice as a resident physician.
In February 1988, Section 458.34,5, Florida Statutes, was amended. It then said:
Any person desiring to practice as a resident physician, assistant resident physician, house physician, or intern in this state who does not hold a valid, active license issued under this chapter shall apply to the department to be registered and shall remit a fee not to exceed $100 as set by the board. The department shall register any applicant the board certifies has met the following requirements:
Is at least 21 years of age.
Has not committed any act or offense within or without the state which would constitute the basis for refusal to certify an application for licensure pursuant to s.
458.331.
Is a graduate of a medical school or college as specified in s. 458.311(1)(f).
Registration under this section shall automatically expire after 2 years and shall neither be renewed nor extended, unless the registrant is in an approved postgraduate training program as defined by the board by rule.
The board shall not certify to the department for registration any applicant who is under investigation in any state or jurisdiction for an act which would constitute the basis for imposing a disciplinary penalty specified in s. 458.331(2) (b) until such time as the investigation is completed, at which time the provisions of s. 458.331 shall apply.
Every hospital employing a resident physician, assistant resident physician, house physician, or intern shall, on January 1 and July 1 of each year, furnish the department with a list of its employees and such other information as the board may direct. No person registered under this section may be employed as a house physician or act as a resident physician, an assistant resident physician, or an intern in a hospital of this state for more than 2 years without a valid, active license, except that resident physicians, assistant resident physicians, and interns in approved training programs listed by the board in rule shall be exempt from this limitation. Any person willfully violating this section shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or 2s. 775.084.
Persons required to reregister under this section on February 8, 1988, shall complete that registration within 1 year.
From this point forward it was clear that the person who had received a license was not called upon to register; however, this provision did not take effect until February 8, 1989. In essence, persons who had been previously registered were given a one year grace period to pay the $100 registration fee contemplated by that provision. Respondent gained the renewal of his license before February 8, 1989. As a consequence he was allowed to substitute licensure for registration and was not required to honor the requirements of the amended Section 458.345, Florida Statutes. Because Respondent was not the holder of an active license at the time the statute was amended, his status was that of a registrant who had a year to pay the registration fee again, and that requirement never became necessary for the Respondent because he renewed his medical license on October 24, 1988. This change in the statutory language at Section 458.345, Florida Statutes, did not modify the fact that he was still a resident physician entitled to pursue the duties of a resident physician from
the time of amendment in February, 1988 until October 24, 1988, when he received his renewed medical license.
Rule 21M-23.004 and 21M-23.005, Florida Administrative Code, respectively, define and identify the duties of resident physicians in the requisite time frame under consideration. Respondent meets the definition of resident physician and his duties parallel the duties identified in the subject rule. This lends further support to the argument that Respondent has not been guilty of any impropriety.
Section 458.331, Florida Statutes, identifies the grounds of disciplinary action of a licensee. Within that provision is found Section 458.331(1) (x), Florida Statutes, which states:
Violating any provision of this chapter, a rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the department.
The administrative complaint specifically accuses the Respondent of that portion which describes the idea of violation of some other provisions within the chapter. In particular, Respondent is said to have violated Section 458.327(1) (a), Florida Statutes, which states:
Penalty for violations.--
Each of the following acts constitutes a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084:
The practice of medicine- ore an attempt to practice medicine without an active license.
To successfully prosecute the Respondent under these provisions, assuming that he was no longer in the category of a registrant practicing as a resident physician and needed his medical license to continue in the practice, which is not the law, Respondent may not be disciplined as a licensed practitioner because a court of competent jurisdiction has not decided that he has plead or been found guilty of the third degree felony described in Section 458.327(1) (a), Florida Statutes. Thus, he can not be said to have violated Section 458.331(1)(x), Florida Statutes.
Moreover, there is some question about the consistency of the agency's treatment of the Respondent when compared to the other physicians who were working at the University of Florida and who were allowed to renew their licenses without further incident. This conclusion taken into account at the point which those persons had renewed and the Respondent renewed and at which the possibility, if not high probability that Respondent's paperwork on relicensure was destroyed in the Johnson Hall fire.
Finally, if it is concluded that the Respondent has violated these provisions, and that recommendation is not made, the suggested public humiliation of the Respondent through an appearance before the Board of Medicine to receive a public reprimand and the imposition of a $1000 fine is insensitive in the extreme when considering the facts of this case. It would be hoped that
the Board of Medicine would not subscribe to this suggested disposition set out by counsel to the Petitioner.
complaint.
CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building
The following discussion is given concerning the proposed facts of the parties.
Paragraphs 1-8 and all of paragraph 9 save the last phrase are subordinate to facts found. The idea of a supposition by the Board of Medicine that Respondent had withdrawn from the residency program and had become licensed is not crucial to the disposition of this case.
Paragraphs 10 and 11 are subordinate to facts found. Paragraph 12 is contrary to facts found.
Paragraphs 13-17 are subordinate to facts found. Respondents's Facts
Paragraphs 1-9 are subordinate to facts found.
Paragraph 10 with the exception of the last sentence is subordinate to facts found. The exact whereabouts of the paperwork necessary for renewal was not established with certainty.
Paragraphs 11-20 are subordinate to facts found.
Wellington H. Meffert II, Esquire Department of Professional
Barbara C. Wingo Associate General Counsel University of Florida
Regulation, Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0792
Kenneth E. Easley, General Counsel Department of Professional
