STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION, ) BOARD OF MEDICINE, )

)

Petitioner, )

)

v. ) CASE NO. 89-5275

)

TED G. AVNER, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on July 29, 1991, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Francesca Small, Senior Attorney

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Wilson Jerry Foster, Attorney at Law

227 East Virginia Street Tallahassee, Florida 32301

STATEMENT OF ISSUES

The issue is whether the medical license of Ted G. Avner, M.D., should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

The Department of Professional Regulation (DPR) presented no testimony, but had one Petitioner's Exhibit admitted in evidence. Joint Exhibits 1-3 were also admitted in evidence. Dr. Avner presented his own testimony and that of Roger

1. Goetz, M.D. Respondent's Exhibits 1-8 were admitted in evidence. These exhibits included the deposition testimony of Newell R. Falkinburg, M.D.

   
   

   The transcript of the proceedings was filed on August 8, 1991. The parties timely filed their proposed findings of fact and conclusions of law on September 9, 1991. All proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

   FINDINGS OF FACT

   
   

   1. At all times material to his action, Dr. Avner has been licensed in the State of Florida, holding license ME 0014896.

      
      

   2. Dr. Avner was licensed to practice medicine in Colorado in 1974.

      
      

   3. The Colorado State Board of Medical Examiners is the licensing authority for the State of Colorado.

      
      

   4. On December 9, 1985, the Colorado Board of Medical Examiners summarily suspended Dr. Avner's license to practice medicine due to substance abuse involving his personal ingestion of cocaine.

      
      

   5. On February 14, 1986, the Colorado Board of Medical Examiners, by Stipulation and Order, granted a reinstatement of Dr. Avner's license to practice medicine with certain terms of probation, including the prohibition of his use of substances of abuse.

      
      

   6. Subsequently, Dr. Avner relapsed by again using cocaine. After testing positive for cocaine on a random urine test, Dr. Avner reported that fact to the Colorado Board. On January 23, 1987, he entered into an agreement with the Colorado Board of Medical Examiners that he would refrain from the practice of medicine until permitted to do so by order of the board.

      
      

   7. Thereafter he entered and completed an addiction treatment program and then moved to Virginia, a state in which he was not licensed to practice medicine.

      
      

   8. Effective March 11, 1988, the Colorado State Board of Medical Examiners accepted Dr. Avner's voluntary relinquishment of his medical license. The Stipulation which Dr. Avner signed clearly states that the relinquishment was permanent, but it also provides for the reinstatement of Dr. Avner's license to practice medicine if he submits "evidence satisfactory to the Board that he qualifies under all subsections of the Colorado Medical Practice Act."

      
      

   9. The terms of the Stipulation and Order of the Board make it clear that the relinquishment was called "permanent," but was in fact subject to reinstatement.

      
      

   10. After moving to Virginia, Dr. Avner contacted David G. Fluharty, M.D. Dr. Fluharty is the founder and present Chairman of the Physicians' Health and Effectiveness Committee of the Medical Society of Virginia. The purpose and function of that Committee in Virginia is the same as that of the Florida Physician's Recovery Network administered by Roger Goetz, M.D.

       
       

   11. Dr. Fluharty referred Dr. Avner to the Talbott Recovery Center in Atlanta, Georgia. Dr. Avner completed the addiction treatment program there and returned to Virginia in March, 1989.

       
       

   12. Since March 29, 1989, Dr. Avner has continued to reside in Virginia, has remained active in the recovery program of the Physicians' Health and Effectiveness Committee of the Medical Society of Virginia, and has complied with all the requirements of that program, including random drug testing, maintaining sobriety, and participating in required meetings.

   13. Between March 29, 1989, and July 25, 1991, Dr. Avner's urine has been tested numerous times and all tests have been negative.

       
       

   14. Dr. Avner is currently under contract with the Physicians' Health and Effectiveness Committee of the Medical Society of Virginia which is very similar to and consistent with the kind of contract used by the Physician's Recovery Network in Florida for chemically dependent physicians.

       
       

   15. While residing in Virginia, Dr. Avner has worked regularly as a volunteer as a counselor and facilitator of the aftercare group, Caduceus. He also regularly attends other aftercare groups such as A.A. and N.A.

       
       

   16. Beginning in October, 1989, Dr. Avner worked once or twice a week as a volunteer at the Bradley Free Clinic, first as a nurse assistant and later assuming more responsibilities consistent with his licensure status.

       
       

   17. Dr. Avner has abstained from the use of cocaine since January 25, 1987, and from alcohol since August 19, 1989.

       
       

   18. He applied for a medical license in Virginia and was denied by Order dated April 11, 1988.

       
       

   19. In 1989, Dr. Avner applied for his medical license in Colorado and was initially denied. On his request for reconsideration, the Colorado Board granted licensure.

       
       

   20. By Order dated January 18, 1991, the Colorado Board of Medical Examiners approved a Stipulation and Order granting Dr. Avner an "unrestricted license" to practice medicine in Colorado, subject to the terms of probation set forth in the Order. On Dr. Avner's return to Colorado he can commence the practice of medicine under the terms and conditions of a monitored three-year probation which require that he maintain sobriety and abstain from all addictive, habit forming drugs or controlled substances not prescribed by his personal physician or dentist; that his practice and sobriety be monitored by a physician approved by the Board; that he and his monitor provide quarterly reports to the Board regarding the status of his practice and sobriety; that he participate in a Board approved drug abuse treatment program; that he provide urine tests on a random basis; and that he obtain and provide periodic psychological reports.

       
       

   21. Dr. Avner again applied for a medical license in Virginia and was denied by Order dated April 5, 1990. He again applied and was finally granted an unrestricted license by Order of the Virginia Board dated February 13, 1991. The Virginia license contains no term of probation or other restriction.

       
       

   22. In July, 1991, Dr. Avner began a one-year surgical fellowship in pediatric otolaryngology at the University of Virginia Medical School.

       CONCLUSIONS OF LAW

       
       

   23. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

       
       

   24. Dr. Avner is charged with violating Section 458.331(1)(b), Florida Statutes, which provides for disciplinary action for:

       
       

       (b) Having a license to practice medicine revoked, suspended or otherwise acted against by the licensing authority of any state. The licensing authority's acceptance of a physician's relinquishment of a license in response to or in anticipation of the filing of administrative charges against the physician's license, shall be construed as action against the physician's license.

       
       

   25. The clear and convincing evidence is that Dr. Avner voluntarily relinquished his license in Colorado in response to and in anticipation of administrative charges. DPR has proven its charges and has established that the alleged violation occurred. It does not matter whether the relinquishment was permanent. The relinquishment was called "permanent," but was in fact not permanent.

       
       

   26. The real issue in this case is what penalty is appropriate in light of the extensive evidence offered in mitigation. Rule 21M-20.001(2)(b), Florida Administrative Code, sets forth the penalty range for a violation of Section 458.331(1)(b). That range is:

       
       

       From imposition of discipline comparable to the discipline which would have been imposed if the substantive violation had occurred in Florida to suspension or denial of the license until the license is unencumbered in the jurisdiction in which disciplinary action was originally taken and an administrative fine ranging from $250.00 to $5,000.00.

       
       

       Additionally, Rule 21M-20.001(3) provides:

       
       

       (3) Aggravating and Mitigating Circumstances. Based upon consideration of aggravating and mitigating factors present in an individual case, the Board may deviate from the penalties recommended above. . . .

   27. In this case, Dr. Avner's treatment and recovery program, together with the reinstatement of his Colorado license and the grant of his Virginia license, constitute important mitigative evidence of successful rehabilitation. When these mitigating factors are considered with the recommended penalty range, it becomes apparent that some deviation is appropriate. Dr. Avner is already subject to a contract with an impaired physician's program similar to that in Florida. That contract runs from March 3, 1989, to March 2, 1994, and contains the same terms and conditions as are required in contracts with the Florida Physician's Recovery Network.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of

Medicine, enter a Final Order and therein:

Reprimand Dr. Avner for violation of Section 458.331(1)(b).

Restrict Dr. Avner's Florida license by requiring that Dr. Avner continue to remain in good standing in both Colorado and Virginia and that he comply with his contract in Virginia for its entire term. The Virginia Physicians' Health and Effectiveness Committee is to be asked to immediately notify the Florida Board of Medicine if Dr. Avner fails to remain in full compliance with that contract.

Fine Dr. Avner in the amount of $1000.00.

DONE and ENTERED this 8th day of October, 1991, in Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1991.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-5275

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation, Board of Medicine

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1) and 3(3).

2. Proposed finding of fact 2 is subordinate to the facts actually found in this Recommended Order.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Ted G. Avner, M.D.

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-9(1-8); 10-15(10-15); 17-22(17- 21); and 23(22).

2. Proposed finding of fact 24 is subordinate to the facts actually found in this Recommended Order

3. Proposed finding of fact 16 is unsupported by the competent, substantial evidence. Dr. Falkinburg is not accepted as an expert qualified to render such an opinion, Dr. Fluharty's statements are hearsay and cannot support a finding of fact, and Dr. Goetz' testimony is entitled to little weight because it is based essentially on hearsay information.

COPIES FURNISHED:

Dorothy Faircloth, Executive Director Board of Medicine

1940 North Monroe Street Tallahassee, FL 32399-0750

Jack McRay General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Wilson Jerry Foster Attorney at Law

227 East Virginia Street Tallahassee, FL 32301-1263

Francesca Small Plendl Senior Attorney

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 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.

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AGENCY FINAL ORDER

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DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICINE

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner, DPR CASE NUMBER: 0110229 vs. DOAH CASE NUMBER: 89-5275

LICENSE NUMBER: ME 0014896

TED G. AVNER, M.D.,

Respondent.

/

FINAL ORDER

This cause came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)10, Florida Statutes, on December 6, 1991, in Miami, Florida, for the purpose of considering the Hearing Officer's Recommended Order, Respondent's Exceptions to the Recommended Order, and Petitioner's Response to Respondent's Exceptions (copies of which are attached hereto as Exhibits A, B, and C, respectively) in the above-styled cause. Petitioner, Department of Professional Regulation, was represented by Bruce D. Lamb, Attorney at Law.

Respondent was present and represented by Wilson Jerry Foster, Attorney at Law.

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

FINDINGS OF FACT

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

   
   

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

CONCLUSIONS OF LAW

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

   
   

2. The conclusions of law set forth in the Recommended Order are approved and adopted and incorporated herein.

   
   

3. There is competent substantial evidence to support the conclusions of

law.

RULINGS ON EXCEPTIONS

1. Respondent's exception number 1 is rejected for the reasons stated by

   Petitioner orally and in writing. There is competent substantial evidence in the record to support the Hearing Officer's ruling.

   
   

2. Respondent's exception number 2 is rejected for the reasons stated by Petitioner orally and in writing.

   
   

3. Respondent's exception number 3 is accepted for the reasons stated by Respondent orally and in writing.

PENALTY

Upon a complete review of the record in this case, the Board determines that the penalty recommended by the Hearing Officer be altered to provide that if Respondent comes to practice medicine in Florida, he must enroll in and comply with the requirements of the Florida Physician's Recovery Network. The reasons for this change are that the Hearing Officer recognized that Respondent needs to be monitored in order for the state to assure his continued safe practice; however, without the change by the Board, if Respondent were to leave Virginia and come to practicein Florida, Florida would have no authority to required the necessary monitoring. WHEREFORE,

IT IS HEREBY ORDERED AND ADJUDGED that

1. Respondent's license to practice medicine is REPRIMANDED for his violation of Section 458.331(1)(b), Florida Statutes.

   
   

2. Respondent's license is restricted to require that he continue to maintain his license good standing in both Colorado and Virginia and that he comply with his contract in Virginia for its entire term. The Virginia Physician's Health and Effectiveness Committee is asked to immediately notify the Florida Board of Medicine if he fails to remain in full compliance with that contract.

3. In addition, Respondent's license to practice medicine in Florida is restricted in that if he comes to Florida to practice medicine, he must enroll in and comply with requirements of the Florida Physician's Recovery Network.

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

DONE AND ORDERED this 19th day of December, 1991.

BOARD OF MEDICINE

ZACHARIAH P. ZACHARIAH, M.D. CHAIRMAN

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF PROFESSIONAL REGULATION AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN THIRTY (30) DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Ted G. Avner, M.D., Medical Arts Center, Suite F, Blacksburg, Virginia 24060, and Wilson Jerry Foster, Attorney at Law,

227 East Virginia Street, Tallahassee, Florida 32301; by U.S. Mail to Diane K. Kiesling, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; and by interoffice delivery to Larry G. McPherson, Jr., Chief Medical Attorney, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 at or before 5:00 P.M., this 8th day of January, 1991.

DOROTHY J. FAIRCLOTH

Docket for Case No: 89-005275

Orders for Case No: 89-005275