STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0249

)

MARTA GARCIA-LAVIN, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on April 11, 1990, in Miami, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Mary Radkins

Senior Attorney

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Julio C. Codias

The Four Ambassadors

825 South Bayshore Drive Tower 3, Suite 1243

Miami, Florida 33131 STATEMENT OF THE ISSUES

The central issue in this case is whether Respondent is guilty of the violations alleged in the administrative complaint; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on October 20, 1989, when the Department of Professional Regulation, Board of Medicine (Department) filed an administrative complaint against the Respondent and alleged five violations of Chapter 458, Florida Statutes. Specifically, the Department alleged: that Respondent had violated Section 458.331(1)(f), Florida Statutes, by aiding, assisting, procuring or advising any unlicensed person to practice medicine; that Respondent had violated Section 458.331(1)(aa), Florida Statutes, by presigning blank prescription forms; that Respondent had violated Section 458.331(1)(w), Florida Statutes, by 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; that Respondent had violated Section 458.331(1)(z), Florida Statutes, by procuring, aiding or abetting in the procuring of, an unlawful termination of pregnancy; and that Respondent had violated Section 458.331(1)(e), Florida Statutes, by failing to report to the Department any person who the licensee knows is in violation of Chapter 458 or the rules of the Department or the Board of Medicine. All of the alleged violations were to have taken place from December, 1987, through March, 1988, while the Respondent was associated with the Roga Medical Center, in Miami, Florida.

On December 7, 1989, Respondent executed an election of rights which disputed the allegations of fact and requested an administrative review of the charges. The case was forwarded to the Division of Administrative Hearings for formal proceedings on January 16, 1990.

The Department filed a motion to take official recognition together with exhibits on April 2, 1990. On April 9 and 10, 1990, Respondent filed a motion for judgment on the pleadings, a motion for sanctions, and a motion to suppress evidence that had, allegedly, been obtained through an unreasonable search and seizure. At the beginning of the hearing, the Department's motion to take official recognition was granted. The Respondent's motion for sanctions was rendered moot. Rulings on Respondent's motion for judgment on the pleadings and the motion to suppress were reserved. Upon review of the record, both motions are hereby denied.

At the hearing, the Department presented the testimony of the following witnesses: Georgina Jorge, an investigator employed by the Department; Sandra Owen, area office supervisor for the Department of Health and Rehabilitative Services, Office of Licensure and Certification; Dennis McGuire, supervisor of the forensic identification section for the Metro-Dade Police Department Crime Laboratory; and Myriam Royle, a detective with the Metro-Dade Police Department. The Department's exhibits numbered 1 through 9 were admitted into evidence.

After the hearing, the transcript of the proceedings was filed on May 1, 1990. The Department filed a response to the motion to suppress, the Respondent filed a reply to the response, and both parties filed proposed recommended orders which have been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made:

1. The Department is the state agency charged with the responsibility of regulating and disciplining the practice of medicine pursuant to Chapters 455 and 458, Florida Statutes.

   
   

2. At all times material to the allegations of the administrative complaint, Respondent was a licensed physician in the State of Florida, license number ME 0029621.

   
   

3. On or about March 1, 1988, Respondent was associated with a clinic in Miami, Florida, known as the Roga Medical Center. Respondent's exact employment status with the Roga Medical Center is not known; however, medical

   documents, including a certificate from the DEA, bearing the Respondent's name were displayed for public view within the Roga Center. Further, Respondent has admitted that she worked at the Roga Center two days a week from December, 1987 through some portion of March, 1988.

   
   

4. During the month of March, 1988, individuals known as Edgar Gonzalez and Conchita Chaves were also present at the Roga Center. Neither of these individuals was licensed to practice medicine within the State of Florida. In fact, Mr. Gonzalez' license to practice medicine had been revoked by the Board of Medicine on February 21, 1983.

   
   

5. As a result of a complaint received by the Department, an investigation of the Roga Center was commenced in March, 1988. Georgina Jorge, an investigator employed by the Department, and Juan Espinosa, a detective employed by the Metro- Dade Police Department, posed as a married couple and went to the Roga Center to inquire as to whether an abortion could be obtained at the clinic.

   
   

6. At all times material to this case, the Roga Center was not licensed to perform early terminations of pregnancies by the Department of Health and Rehabilitative Services.

   
   

7. During their first visit at the Roga Center, on Friday, March 25, 1988, Investigator Jorge and Detective Espinosa met with Ms. Chaves (who is also known as Dr. Conchita). Ms. Chaves greeted the couple in the waiting area and escorted them into an adjacent office to discuss their medical situation.

   
   

8. Investigator Jorge had a urine specimen from a pregnant police officer in her purse so that when Ms. Chaves completed the medical history and asked her to provide a sample for testing, she went to a bathroom and used the specimen she had brought together with a portion of her own urine.

   Consequently, the testing performed by Ms. Chaves indicated positive for pregnancy. Since both Investigator Jorge and Detective Espinosa claimed the pregnancy was undesired, Ms. Chaves advised them of the availability of an abortion and its cost.

   
   

9. Investigator Jorge indicated her nervousness concerning an abortion and suggested that she would require something to relax her in order to go through with the procedure. In the couple's presence, Ms. Chaves lifted the desk blotter to reveal what were presumed to be prescription forms; however, a prescription was not given to Investigator Jorge at that time.

   
   

10. Ms. Chaves offered to perform a pelvic examination (which would be required prior to the procedure) but the parties decided to wait for the doctor who would perform the abortion (who was not there at that time). Respondent was not present at the Roga Center during this visit.

    
    

11. The next day, Investigator Jorge telephoned the Roga Center and spoke with an individual who identified himself as Dr. Gonzalez. Based upon their discussion, Investigator Jorge was to return to the clinic on Monday, March 28, 1988, for the abortion, the cost of which was quoted to be $450.00.

    
    

12. On March 28, 1988, Investigator Jorge and Detective Espinosa returned to the Roga Center. They were accompanied by police backup who monitored their conversations from a vehicle stationed outside the clinic.

13. The couple was once again shown into the office adjacent to the waiting area and met Dr. Gonzalez. At that time he described the procedure and the expected results. Ms. Chaves handed a hospital gown to Investigator Jorge who was to have a pelvic examination followed by the abortion, and the foursome walked down a hallway to the presumed examination/procedures room. En route, Detective Espinosa identified himself as a police officer, placed Ms. Chaves and Dr. Gonzalez under arrest, and called for the police backup to enter the clinic.

    
    

14. After assisting the police backup team, Investigator Jorge went back to the office where she had met with Ms. Chaves and Dr. Gonzalez and obtained her medical file from the desk top. She also lifted the desk blotter and removed three blank prescription forms. The forms retrieved from under the blotter had been presigned by the Respondent.

    
    

15. The police conducted a sweep throughout the clinic offices to verify no patients were present, and closed the office. Respondent was not present at the clinic during the activities of March 28, 1988.

    
    

16. After exiting the Roga Center on March 28, 1988, Investigator Jorge met a woman in the parking area who had gone to the clinic for a prescription renewal. Subsequently, Investigator Jorge obtained the prescription forms that had been used by that patient as well another female who had been treated at the clinic. Prescription forms obtained by Investigator Jorge from pharmacies bore Respondent's signature.

    
    

17. On April 27, 1988, in the presence of her attorney, the Respondent was interviewed regarding the activities conducted at the Roga Medical Center. Respondent admitted that she had been contacted to work at the Roga Center because the doctor who had been there had died. Respondent admitted that she knew Ms. Chaves and Dr. Gonzalez from a prior time in Cuba.

    
    

18. Also during the interview of April 27, 1988, Respondent admitted that Chaves had called her to advise her that prescriptions had been signed using Respondent's name, after she left the clinic (reportedly March 25, 1988), because they needed to give them to patients.

    
    

19. On January 28, 1988, Respondent executed a stipulation of settlement for consent order regarding an administrative complaint which had been filed by the Department against Respondent on February 11, 1987. That administrative complaint alleged, in part, that Respondent had aided, assisted, procured or advised an unlicensed person to practice medicine in the State of Florida. The stipulation stated that "4. Respondent admits the matters of fact alleged in the Administrative Complaint." It can reasonably be inferred that on or about March 1, 1988, Respondent was cognizant of the impropriety of assisting unlicensed persons to practice medicine.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

   
   

2. Section 458.331, Florida Statutes, provides, in pertinent part:

   
   

   1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

      * * *

      (f) Aiding, assisting, procuring, or advising any unlicensed person to practice medicine contrary to this chapter or to a rule of the department or the board.

      * * *

      (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.

      * * *

      (z) Procuring, or aiding or abetting in the procuring of, an unlawful termination of pregnancy.

      (aa) Presigning blank prescription forms.

      * * *

   2. When the board finds any person guilty of any of the grounds set forth in subsection (1), including conduct that would constitute a substantial violation of subsection (1) which occurred prior to licensure, it may enter an order imposing one or more of the following penalties:

      * * *

      1. Revocation or suspension of a license.

      2. Restriction of practice.

      3. Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.

      4. Issuance of a reprimand.

      5. Placement of the physician on probation for a period of time and subject to such conditions as the board may specify, including, but not limited to, requiring the physician to submit to treatment, to attend continuing education courses, to submit to reexamination, or to work under the supervision of another physician.

      
      

3. In order to impose the penalties of suspension or revocation of license, the Department must establish the grounds for disciplinary action by clear and convincing evidence. See Section 458.331(3), Florida Statutes, and Ferris v. Turlington, 510 So.2d 279 (Fla. 1987).

   
   

4. Rule 21M-20.001, Florida Administrative Code, sets forth the disciplinary guidelines for violations of Chapter 458, Florida Statutes. The recommended penalty range for a violation of Section 458.331(1)(f), Florida Statutes, aiding unlicensed practice, is from probation to revocation or denial, and an administrative fine from $250.00 to $5,000.00. The recommended penalty range for a violation of Section 458.331(1) (aa), Florida Statutes, presigning prescription forms, is from a reprimand to two (2) years probation, and an administrative fine from $250.00 to $5,000.00.

5. In the case at issue, the Department has established by clear and convincing evidence that Respondent aided unlicensed persons in the practice of medicine. During her association with the Roga Center it was incumbent upon Respondent to assure that persons did not utilize her medical credentials to administer medical examinations, treat patients, or to distribute prescription forms. The presigning of prescription forms is contrary to law and aided the practice of medicine at the clinic. Respondent knew, or should have known, that unlicensed persons were not permitted to render medical services. Based upon the foregoing, the Respondent is guilty of violating Sections 458.331(1)(f) and (aa), Florida Statutes.

   
   

6. The Department has not established by clear and convincing evidence the remaining allegations of the administrative complaint.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Department of Professional Regulation, Board of Medicine enter a final order suspending the Respondent's license to practice medicine for a period of two years and imposing an administrative fine in the amount of

$5000.00.

DONE and ENTERED this 25 day of July, 1990, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25 day of July, 1990.

APPENDIX TO CASE NO. 90-0249

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT:

1. Paragraphs 1 and 2 are accepted.

2. With regard to paragraph 3, it is accepted that Ms. Chaves was not a licensed physician and was not registered as a physician's assistant with Respondent being designated the supervising physician. No other facts related to her status is established by this record.

3. Paragraph 4 is rejected as unsupported by the record. Respondent's employment status at the clinic is unknown. By her admission she worked at the center 2 days a week during the period December, 1987 through March, 1988.

4. Paragraph 5 is rejected as hearsay or irrelevant.

   A complaint regarding terminations of pregnancies at the center was received. That the clinic was not licensed to perform abortions has been established. No other facts regarding the complaint are relevant.

5. Paragraphs 6,7,8 and 9 are accepted.

6. The first two sentences of paragraph 10 are accepted. The remainder of the paragraph is rejected as unsupported by the record or hearsay. There were evidences that Respondent practiced medicine at the clinic: her admission, her DEA certificate, etc.

7. Paragraphs 11 through 14 are accepted.

8. With regard to paragraph 15, it is accepted that Investigator Jorge advised Ms. Chaves that the doctor who would perform the abortion would do the pelvic otherwise, the paragraph is rejected as contrary to the weight of the evidence.

9. With regard to paragraph 16, see findings of fact paragraph 9,otherwise rejected as hearsay or contrary to the weight of the evidence.

10. Paragraph 17 is accepted.

11. With the exception of the third sentence, paragraph

    18 is accepted. The third sentence is rejected as contrary to the weight of the evidence.

12. The first sentence of paragraph 19 is accepted.

    The second sentence is rejected as contrary to the weight of the evidence.

13. Paragraph 20 is rejected as hearsay.

14. With regard to paragraph 21, it is accepted Respondent presigned the blank prescription forms. Otherwise rejected as unsupported by the record.

15. Paragraph 22 is accepted.

16. Paragraph 23 is accepted.

17. With regard to paragraphs 24 and 25, it is accepted that Investigator Jorge retrieved prescriptions from pharmacies which Respondent had signed. Otherwise rejected as hearsay or unsupported by the record.

18. Paragraph 26 is accepted.

19. Paragraph 27 is accepted.

20. Paragraphs 28 and 29 are accepted.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT:

Respondent has not submitted proposed findings of fact in a form which can be reviewed. Findings of Fact and Proposed Recommended Order submitted by the Respondent constitutes argument, or conclusions of law.

COPIES FURNISHED:

Dorothy Faircloth Executive Director Board of Medicine

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

Kenneth E. Easley General Counsel

Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

Mary B. Radkins Senior Attorney

Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

J.C. Codias

The Four Ambassadors

825 South Bayshore Drive Tower 3, Suite 1243

Miami, Florida 33131

Docket for Case No: 90-000249

Orders for Case No: 90-000249