STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LUIS I. ARIAS, M. D., )

)

Petitioner, )

)

vs. ) CASE NO. 90-3932F

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Respondent. )

) MARTIN S. BELLE, M. D., )

)

Petitioner, )

)

vs. ) CASE NO. 90-3933F

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Respondent. )

)

FINAL ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, on January 3, 1991, in Miami, Florida.

APPEARANCES

For Petitioners: Paul Watson Lambert, Esquire

2851 Remington Green Circle, Suite C Tallahassee, Florida 32308-3749

For Respondent: Mary B. Radkins, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUE

The issue is whether Doctors Arias and Belle are entitled to recover attorneys fees and costs from the Department of Professional Regulation, Board of Medicine under the Florida Equal Access to Justice Act for the successful defense of disciplinary actions filed against them.

PRELIMINARY STATEMENT

Both Doctors Arias and Belle filed Petitions seeking awards of attorneys fees and costs incurred in defense of related actions which had been filed against them by the Department of Professional Regulation, Board of Medicine (Department). The underlying cases were Department of Professional Regulation

1. Arias, DOAH Case No. 87-2389, DPR Case No. 68951 and Department of Professional Regulation v. Belle, DOAH Case No. 87-2484, DPR Case No. 68950. The Petitions for attorneys fees were consolidated.

   
   

   In the response to the petition for attorneys fees, the Board agreed that Doctors Arias and Belle met certain threshold requirements of the Equal Access to Justice Act, Section 57.111, Florida Statutes (the Act). It is undisputed that the doctors were parties in the underlying disciplinary actions, that they prevailed, that they qualify as prevailing small business parties under the Act, that they had incurred attorney's fees and costs in excess of the $15,000 statutory cap and that the fees incurred were reasonable under the circumstances. The Department argues that the prosecutions were substantially justified, because there was a reasonable basis in law and fact for the disciplinary proceedings at the time they were initiated.

   
   

   At the formal hearing, the doctors offered their own testimony, and the testimony of Mr. Stanley Kaplan and Mr. Peter Fleitman, both of whom are attorneys. The Department offered the testimony of Albert Rourke, a medical quality assurance investigator for the Department. The doctors offered exhibits A-P, which were received in evidence, the Department objected to exhibits O and P, the depositions of attorneys Steven Slepin and Michael Schwartz. Those depositions are the subject of a separate order and have been admitted. The Department offered thirteen exhibits, all of which were received in evidence.

   The parties filed proposed final orders on April 1, 1991. Rulings on proposed findings of fact are made in the Appendix to this Final Order.

   
   

   FINDINGS OF FACT

   
   

   1. Luis Arias, M. D. was, at all times material to this proceeding, a licensed physician in Florida. Similarly, Martin Belle, M. D. was, at all times material to this proceeding, a licensed physician in Florida.

      
      

   2. Doctors Arias and Belle maintained their practices in Dade County and practiced from the same office, Suite 300, 1444 Biscayne Boulevard, Miami, Florida 33132.

      
      

   3. The Department of Professional Regulation performs a computerized review of prescriptions written by Florida physicians for Schedule II drugs (this is know as the EPSON survey) to identify physicians who may be engaging in inappropriate practices in prescribing those drugs. If a questionable pattern is detected by the program, it identifies the drug, prescribing physician, the patient, the pharmacy at which the prescription was filled, and the date of the prescription.

      
      

   4. The survey revealed that patient R. F. had received prescriptions for

      400 tablets of Dexedrine and 200 tablets of Seconal written by Dr. Belle during the period from June 13 to August 30, 1985, and one prescription each for 100 tablets of Dexedrine and Seconal written by Dr. Arias during that period. At the time of the investigation R. F. was an eighty-year-old man. Since 1945 he was treated for lack of energy by New York physicians with Dexedrine during the day and Secanol at night to help him sleep. He began to see Dr. Arias in 1970,

      and Dr. Bell in 1983. R. F. had tried to cut down his use of Dexedrine in 1986, but found he was mentally slow and foggy without it, and unable to perform his work as a marketing director for a large Miami real estate agency. For a man of his age, R. F. was remarkably active.

      
      

   5. A pharmacy consultant, Lee Pat Strickland, reviewed the EPSON printout and requested further investigation to determine whether Doctors Arias or Belle were inappropriately prescribing excessive quantities of Scheduled II drugs for

      R. F by filing a complaint with the Department.

      
      

   6. The information from Mr. Strickland was provided to Medical Quality Assurance Investigator Albert Rourke on March 27, 1986. Upon investigation, Mr. Rourke found another prescription for 100 tablets of Seconal written by Dr. Arias for the patient during the period at issue, June 16 through August 30, 1985. These nine prescriptions provided the patient 500 tablets of Dexedrine and 400 tablets of Seconal within 75 days.

      
      

   7. Mr. Rourke notified Doctors Arias and Belle of the investigation and interviewed them separately at their offices on April 10, 1986.

      
      

   8. Both doctors were cooperative during investigation. The patient, R. F., was not interviewed. The Department believes that patients who receive large quantities of drugs often are addicted to them and will not cooperate in an investigation, because it could lead to a cut-off of their source of drugs. While this explains why R. F. was not interviewed, there was no evidence that the patient was, in fact, addicted to either drug. The investigator was merely following a more generalized departmental procedure. The Department thereafter subpoenaed the medical records of patient R. F. This was done without the knowledge or consent of the patient, but by statute such knowledge or consent is unnecessary.

      
      

   9. After receipt, the medical records were sent to a consulting physician, Dr. John V. Handwerker, who had been used over a long period of time by the Department to review patient records. Dr. Handwerker has a reputation among members of the Bar who defend license disciplinary matters as a tough consultant who commonly made recommendations for the prosecution of physicians under investigation. Dr. Handwerker also had a reputation for being fair, and would not review a case if he felt that he could not be fair. His opinions often were accepted by probable cause panels of the Board of Medicine in determining whether or not to prosecute a physician.

      
      

   10. Dr. Handwerker received the sealed medical records of R. F. from Investigator Rourke on May 27, 1986. Dr. Handwerker indicated that he knew who Dr. Arias and Belle were, but this would not color his opinion when he reviewed

       R. F.'s records. The office records for R. F. were contained in a single chart which both Doctors Arias and Belle used at their office.

       
       

   11. Dr. Handwerker wrote a brief report for the Board of Medicine on June 2, 1986, which consist of three one sentence paragraphs. He determined that the administration of Dexedrine in the quantities prescribed by the doctors were justified but did not explain his reasoning. He gave no opinion as to the appropriateness of prescribing the Seconal, either alone, or in combination with the Dexedrine. Dr. Handwerker did state that he had known Doctors Arias and Belle "personally and professionally for a number of years and their reputations are impeccable." The brief report crosses the line from the tolerably terse to the intolerably mute because it provides a conclusion but no analysis. The Department's investigative files for Doctors Arias and Belle were sent to

       members of the probable cause panel of the Board of Medicine on July 7, 1986. The files contained the EPSON survey materials, copies of the prescriptions, copies of the medical records for R. F., the statements of Doctors Arias and Belle taken by Investigator Rourke, Dr. Handwerker's opinion, and a recommendation from the Department of Professional Regulation that the matter be dropped.

       
       

   12. The cases were considered by a probable cause panel of the Board composed of Dr. Emilio Echevarria, the Board chairman, and Mr. Roger Lutz, an attorney, on July 17, 1986. The panel members were assisted by counsel to the panel, Assistant Attorney General Catherine Lannon, and the case was presented by attorneys for the Department, Stephanie Daniel and Bruce Lamb. Department's prosecutors recommended that a closing order be entered and the investigation closed, and they submitted proposed closing order to the panel. Probable cause panels commonly accept a prosecutor's recommendation of no probable cause, and issue closing orders in 80 to 85% of such cases. That did not happen here.

       
       

   13. Before the discussion on all the cases under consideration that day began, Ms. Lannon cautioned the panel members that any questions concerning applicable laws, rules, or the duties of the panel should be directed to her, and any questions concerning the facts of the case or investigation should be directed to the prosecuting attorneys for the Department, that if any documents were defective copies would be provided, and if clear copies were unavailable the case could be passed until the panel members were provided with everything they needed to consider. She also asked both panel members if they had received the materials in time to review them before the meeting and both Doctor Echevania and Mr. Lutz said that they had. The panel first considered the case of Dr. Arias, and Mr. Lutz stated

       
       

       MR. LUTZ: I tell you what I thought on that one. The consultant says he's a good friend of this guy. It looks like to me we need an independent consultant before we can close it. We'll probably end up closing it, but I don't like closing it based on the guy saying he's my long and personal friend. He's supposed

       to be a consultant that knows what he's doing, too, we've had him [before?]. I hope you all don't pay him, for God sake, he shouldn't take a job being a consultant on his pal.

       
       

       DR. ECHEVANIA: So what are you suggesting?

       
       

       MR. LUTZ: Get another consultant. I'm sure we're going to close it but it just looks bad. (Joint exhibit 2, page 6.)

       
       

   14. When the panel later considered the case of Dr. Belle, Mr. Lutz recognized it as a companion case to that of Dr. Arias and requested that a new expert also review that case. There was no evidence from which Mr. Lutz reasonably could have concluded that Dr. Handwerker was a good friend of either Dr. Arias or Dr. Belle. All that the report of Dr. Handwerker suggests is that he had been acquainted with them. As the Hearing Officer found in the underlying case, Doctors Arias and Belle did not know Dr. Handwerker except on a casual basis, they would say hello while passing in the halls of Mercy Hospital where they practiced, but they did not socialize with each other or refer patients to one another.

   15. The probable cause panel of the Board did not request that staff inquire of Dr. Handwerker what he meant in his letter when he wrote that he had both personal and professional knowledge of Drs. Arias and Belle. The Department did not independently undertake to make that determination during the nine months intervening before the next meeting of the probable cause panel at which the cases of Doctors Arias and Belle were reconsidered. Ultimately, however, these cases did prompt a change in Department policy, so that the reviewing physician-consultant would be asked, before giving an opinion, whether the consultant was acquainted with the doctor whose conduct was under review, and if so, how well. In fairness and logic that same inquiry should have been made of Dr. Handwerker. Although this is, to some extent, second guessing both the members of the probable cause panel, and the investigative staff of the Department, such an inquiry would have been consistent with the Department policy ultimately adopted. The policy should have been followed in this instance.

       
       

   16. The transcript of the probable cause panel meeting on July 17, 1986, does not disclose any discussion or analysis of the patient's medical records upon which Dr. Handwerker determined that there was no violation of the Medical Practice Act. The panel members focussed only on Dr. Handwerker's disclosure that he was acquainted with Doctors Arias and Belle.

       
       

   17. The medical records which had been subpoenaed and all materials reviewed by Dr. Handwerker were then sent to Dr. Laurence Neufeld of Tampa, Florida, on December 3, 1986. Dr. Neufeld is not a specialist, he is engaged in family practice.

       
       

   18. Dr. Neufeld was never told that the cases had been previously been to a probable cause panel, nor did he know of Dr. Handwerker's opinion.

       
       

   19. The three page opinion written by Dr. Neufeld on January 25, 1987, is internally inconsistent. It states that the medical records for patient R. F. "support the use of longterm Seconal for sleep in this patient," but also that the prescription of Seconal was inappropriate. (Portions of his report are set out below.) Dr. Neufeld also relied, in his opinion, on the statements which the investigator attributed to Doctors Arias and Belle that the patient "had been treated for severe depression for the prior twenty years and was given Dexedrine to relieve his symptoms." I find that Doctors Arias and Belle never made such a statement to Mr. Rourke. The Investigator must have misunderstood something the doctors said. The patient was never severely depressed.

       
       

   20. Dr. Neufeld also claims to have found, from the medical records, that the patient "developed hypertension while being treated with Dexedrine." The patient was not hypertensive.

       
       

   21. The report goes on to state:

       
       

       When [the patient] developed hypertension, the Dexedrine and other stimulants should have been discontinued. The patient should have been referred to a psychiatrist for further evaluation and treatment of his depression.

       Dexedrine should be used very cautiously in an elderly patient and should not be used in order to control symptoms of fatigue. I do not feel that they adequately tried to use

       therapeutic doses of antidepressants to control the patient's depression. The patient appeared to be extremely manipulative and the doctors continued to prescribe Dexedrine and Seconal to this patient. It appears that the patient is addicted to Dexedrine and Seconal. The Dexedrine in large doses is more likely to cause fatigue and mental depression.

       
       

       * * *

       
       

       I do not feel that the use of Seconal on a longterm basis is in the best interest of the patient. It is addicting and tolerance rapidly develops to this medication.

       
       

       Both Doctors Belle and Arias prescribed controlled substances to the above patient in excessive and inappropriate amounts.

       
       

   22. The new probable cause panel met on April 27, 1987, who was made up on Dr. Joseph O'Bryan, Board Chairman, Dr. Armando Santelices and a lay member, Ms. Ernestine Cooper. Also present were counsel for the Board of Medicine, Catherine Lannon, and a new prosecutor for the Department of Professional Regulation, Leslie Brookmeyer.

       
       

   23. Ms. Lannon again reminded the new panel that questions concerning their legal duties and responsibilities, or the laws and rules that might apply should be directed to her but that questions concerning the facts of the case, or why a certain recommendation was made should be directed to the Department prosecutor. Ms. Lannon also cautioned members to discuss each case in sufficient detail to show that they were exercising independent judgment in reaching their decision on whether to find probable cause to prosecute the case. There was specific discussion of the reasons why the members found probable cause. The panel found Dr. Neufeld's opinion letter persuasive.

       
       

       THE CHAIRMAN: A-2 is two physicians.

       Dr. Luis Arias, 0068951, and Dr. Arias was allegedly inappropriately prescribing controlled substances, including Dexedrine and Seconal and did not properly refer a patient who was probably depressed. There was some disagreement among the consultants, but I favored the consultant who agreed they (sic) were enough allegations to advise an Admini- strative Complaint and I agree.

       
       

       MS. COOPER: Cooper, and I agree also. I read the report.

       
       

       THE CHAIRMAN: Dr. Santelices?

       
       

       DR. SANTELICES: I just have a question before I say whether I agree or not. Was

       Dr. Handwerker, Jr.'s letter requested by us?

       THE CHAIRMAN: Yes, he (sic) one of our experts.

       
       

       MS. BROOKMEYER: He's on of our experts. Yes. You're referring to the fact that there's not a letter requesting his evalua- tion?

       
       

       DR. SANTELICES: Well, the thing is this --

       
       

       MS. BROOKMEYER: He's basically saying they're friends of mine and I know them.

       
       

       DR. SANTELICES: And it says that they're justified, that the administration is justi- fied. So if it was requested by us we have a consultant who is telling us that it was justified. If it wasn't requested by us it

       just means the other doctor had a friend write a letter on his behalf.

       
       

       MS. BROOKMEYER: No. I'm pretty sure he was requested by Mr. Wood (phonetic) to write the letter, but the fact that he stated that he had known these people and their reputation is why it was put out to a second expert.

       
       

       We ask our experts in evaluating cases if they know or feel like they have such an intimate relationship with them -- once he identified it then we went on to a second expert.

       
       

   24. The attorney expert witnesses for Doctors Arias and Belle believed that the probable cause panel should have reviewed the medical records themselves and come to their own conclusions based upon review of the records, which those attorney-experts contend would have confirmed Dr. Handwerker's opinion and caused the panel to disbelieve the report of Dr. Neufeld. That opinion testimony is rejected as unpersuasive. It is not necessary for the probable cause panel to go behind the opinions of consultants hired by the Department, and to make independently their own examination of records, duplicating the evaluation of the consultant. If they must do so, there is little purpose in retaining consultants to review cases and little utility in having lay members of probable cause panels. Neither is it necessary, when a probable cause panel sees there is a disagreement among their consultants, to submit the case to a third expert to act as a sort of arbitrator to resolve the differences among the consultants. Members of a probable cause panel are not required to be skeptical of the conclusions reached by consultants. Were that so, the Board would have had as much reason to question the brief and unenlightening letter from Dr. Handwerker as the discursive report of Dr. Neufeld.

       
       

   25. The memorandum filed by the probable cause panel on April 27, 1987, against Dr. Arias and the separate memorandum finding probable cause against Dr. Belle had charged both physicians with prescribing schedule II drugs (Dexedrine) for unauthorized reasons, inappropriately prescribing Dexedrine in the presence of hypertension, inappropriately prescribing Seconal, not keeping medical records justifying the use of steroids, and practicing below the applicable

       standard of care because they did not refer R. F. to a psychiatrist for evaluation and treatment of severe depression. The material submitted to the probable cause panel was sufficient for its members to believe that there was some evidence which, if believed at final hearing, would justify the imposition of discipline against Doctors Arias and Belle. After a full evidentiary presentation the Hearing Officer found that the facts were not as the investigator and Dr. Neufeld supposed them to be. The outcome of the prosecutions ultimately confirmed the opinion of Dr. Handwerker that there was no dereliction on the part of Doctor Arias or Doctor Belle.

       
       

   26. After the prosecution began, the attorney for the Department sent the matter back to a probable cause panel for additional review on two occasions. The attorney for the Department believed that the evidence would not sustain the allegations of the Administrative Complaint at the requisite level of proof. This was based, in part, on the opinion of an additional expert, Dr. Martin Cohn of the Mt. Sinai Hospital Sleep Disorder Center. Dr. Cohn had given the Department an opinion that the continued prosecution of Doctors Arias and Belle was ill-considered because they had appropriately treated the patient, R. F., for the sleep disorder of narcolepsy.

       
       

       CONCLUSIONS OF LAW

       
       

   27. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

       
       

   28. Attorneys fees and costs may be awarded to a prevailing small business party in an adjudicatory proceeding which had been initiated by a state agency. Section 57.111(4)(a), Florida Statutes (1989). There are two situations in which the statute does not require that the private party be reimbursed fees and costs:

       
       

       1. If the actions of the state agency were substantially justified, even though they were not ultimately sustained, or

          
          

       2. If special circumstances exist which would make a fee award unjust.

          
          

   29. The only issue here is whether the actions of the agency were substantially justified. The Act defines "substantially justified" in this way:

       
       

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

       at the time it was initiated by a state agency. Section 57.111(3)(e), Florida Statutes (1989).

       
       

   30. The text of this statutory definition is significant, because while the Florida Equal Access to Justice Act is generally similar to the Federal Equal Access to Justice Act, 5 U.S.C. Section 504, it is not identical. A Florida law is usually subject to the same construction as a similar Federal Act, Gentele v. Department of Professional Regulation, Board of Optometry, 513

       So.2d 672 (Fla. 1st DCA 1987). The Federal Act does not focus on whether the position of the Federal Government was substantially justified at the time the underlying proceeding was initiated. The Federal Act provides:

       
       

       whether or not the position of the agency was substantially justified shall be determined on the basis of the administrative record, as a whole, which is made in the adversary adjudi- cation for which fees or other expenses are sought.

       
       

       5 U.S.C. Section 504(a)(1).

       
       

   31. See, Alphin v. National Transportation Safety Board, 839 F.2d 817 (D.C. Cir. 1988). The Florida Act does not permit an inquiry into whether the agency persisted in maintaining a prosecution after it reasonably should have concluded that it would not succeed. The testimony of Mr. Fleitman about attempting to return the matter to a third probable cause panel for authorization to terminate the prosecution has no bearing on whether Doctors Arias and Belle may recover their attorneys fees because the language chosen by the Florida Legislature focuses the inquiry on whether there was a reasonable basis in law and in fact for filing the administrative complaints as of the time they were filed. Department of Professional Regulation v. Toledo Realty, Inc., 549 So.2d 715 (Fla. 1st DCA 1989) at 719.

       
       

   32. I have accepted the testimony of Doctors Arias and Belle that they never told the medical quality assurance investigator that they were treating R.

       F. for severe depression. Finding 19. It is more likely that the investigator misunderstood references to milder transitory depression as severe depression. That shortcoming in the investigatory process may have lead Dr. Neufeld to opine that the patient should have been referred for psychiatric help, which was contrary to the facts. The panel's decision to find probable cause based upon the error of the investigator does not mean that the panel lacked a reasonable basis in fact to find probable cause. Panels are not required to engage in

       mini-hearings to determine the accuracy of statements in investigative reports when making probable cause determinations. Gentele, supra. The EPSON program had correctly determined that the patient had obtained prescriptions for 900 tablets of controlled substances within 45 days. The medical records disclosed longstanding usage of drugs. While one expert concluded, without elaboration, that he found no fault with the care rendered by Doctors Arias and Belle, another believed they were prescribing excessive quantities of drugs or prescribing drugs in an inappropriate manner. Were that so, the law would make the doctors liable to discipline. This formed a reasonable basis for the probable cause panel to conclude that discipline should be imposed if the facts in the report were true, and that a hearing should be held on the allegations. That process was initiated by the filing of the administrative complaints.

       
       

   33. No doubt Doctors Arias and Belle are outraged that they have spent significant resources to defend themselves against allegations of professional shortcomings or misconduct which were not well-founded and experienced anxiety over the prosecutions. In determining whether their attorneys fees should be reimbursed the statutory inquiry, however, is a very narrow one. It does not reach questions of whether the Department's investigation could have been carried out more carefully, whether the opinions of the consultants obtained by the Department could have been stated more elegantly, or whether additional opinions would have been helpful to the probable cause panel in deciding whether or not to initiate a prosecution by finding probable cause.

   34. The Department has demonstrated that there was a reasonable basis in law and fact at the time the probable cause panel met to file the complaints, even though the Hearing Officer ultimately determined that Doctors Arias and Belle had engaged in no wrongdoing.

ORDERED

It is ordered that the Petitions for Attorneys Fees filed by Doctors Arias and Belle be dismissed, as the Department had a reasonable basis in law and fact for finding probable cause and initiating the prosecution. The action of the Department in bringing the prosecution was substantially justified at the time it was filed.

DONE and ORDERED this 1st day of July, 1991, at Tallahassee, Florida.

WILLIAM R. DORSEY, JR.

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 1st day of July, 1991.

APPENDIX TO FINAL ORDER, CASE NOS. 90-3932F AND 90-3933F

Rulings on findings proposed by Petitioners:

1. See Preliminary Statement.

2. Adopted in Finding 1.

3. Adopted in Finding 1.

4. Adopted in Finding 2.

5. Rejected as unnecessary.

6. Rejected as unnecessary.

7. Rejected as unnecessary.

8. and 9. Rejected as unnecessary. See Preliminary Statement.

1. Subordinate to Finding 25. See also, Preliminary Statement.

2. and 12. Rejected as unnecessary. It is undisputed that the Department filed unsuccessful disciplinary proceedings against Doctors Arias and Belle.

13. - 16. Rejected as unnecessary. The Department agreed that Doctors Arias and Belle are prevailing small business parties. See Preliminary Statement.

17. - 19. Rejected; the prosecutions were substantially justified by the information available to the probable cause panel.

1. Generally adopted in Findings 3, 4, and 5.

2. The first sentence is rejected as Mr. Slepin is not a physician and both doctors used a common chart disclosing the medication prescribed. Second sentence is adopted in Finding 19.

3. First sentence is adopted in Finding 6. Second sentence is adopted in Finding 8. Third sentence is adopted in Finding 8.

4. Adopted in Findings 8 and 9.

5. Adopted in Finding 9.

6. Adopted in Finding 9.

7. Adopted in Finding 10.

8. Adopted in Finding 19.

9. and 29. Rejected as unnecessary.

1. Adopted in Findings 11 and 12.

2. Adopted in Finding 12.

3. Adopted in Finding 13.

4. Generally adopted in Finding 14.

5. Rejected as redundant to Finding 13.

6. Adopted in Finding 14.

7. Adopted in Finding 15.

8. Modified. See, Finding 16.

9. Modified in Finding 15.

10. Adopted in Finding 16.

11. Rejected. The discussion was meaningful.

12. First sentence is adopted in Finding 17. Second sentence is rejected as unnecessary.

13. Adopted in Finding 22.

14. Discussed in Findings 19 - 21.

15. Adopted in Finding 23.

16. Rejected for the reasons stated in Finding 24.

17. Rejected for the reasons stated in Finding 24.

18. Adopted as modified in Finding 15.

19. Rejected as unnecessary.

20. Rejected for the reasons stated in Finding 25.

21. Rejected as unnecessary.

22. Rejected. See, Finding 25.

23. Rejected as unnecessary. See, Finding 26.

24. Rejected as unnecessary.

Rulings on findings proposed by the Department:

1. Adopted in Finding 3.

2. Adopted in Finding 3.

3. Adopted in Finding 4.

4. Adopted in Finding 5.

5. Adopted in Finding 6.

6. Adopted in Finding 7.

7. Adopted as modified in Finding 8. The doctors were not told that the patient had been treated for severe depression.

8. Adopted in Finding 8.

9. Adopted in Finding 8.

10. Rejected as unnecessary.

11. Adopted in Finding 9.

12. Adopted in Finding 10.

13. Adopted in Finding 11.

14. Adopted in Findings 10 and 11.

15. Adopted in Finding 11.

16. Adopted in Finding 12.

17. Adopted in Finding 12.

18. Adopted in Finding 13.

19. Adopted in Finding 13.

20. Rejected as unnecessary.

21. Adopted in Finding 13.

22. Adopted in Finding 14.

23. Rejected as unnecessary.

24. Adopted in Finding 15.

25. Adopted in Finding 17.

26. Adopted in Findings 17 and 18.

27. Discussed in Findings 19 - 21.

28. Discussed in Finding 22.

29. Discussed in Finding 22.

30. Adopted in Finding 23.

31. Rejected as unnecessary.

32. Generally adopted in Finding 23.

33. Adopted in Finding 25.

34. Rejected as unnecessary.

35. Rejected as unnecessary.

COPIES FURNISHED:

Mary B. Radkins, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Paul Watson Lambert, Esquire 2851 Remington Green Circle Suite C

Tallahassee, Florida 32308-3749

George Stuart, Secretary

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Dorothy Faircloth, Executive Director Department of Professional Regulation Board of Medicine

1940 North Monroe Street Tallahassee, Florida 32399-0792

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 DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

================================================================= DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

MARTIN BELLE, M.D., and LUIS NOT FINAL UNTIL TIME EXPIRES TO ARIAS, M.D., FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED.

Appellants,

CASE NO. 91-2397

vs. DOAH CASE NO. 90-3932F

90-3933F

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICINE

Appellee.

/ Opinion filed March 23, 1992.

Appeal from an order of the Division of Administrative Hearings. Paul Watson Lambert of Tallahassee for appellants.

Lisa S. Nelson, Assistant General Counsel, Department of Professional Regulation, Tallahassee, for appellee.

PER CURIAM.

AFFIRMED.

SHIVERS, MINER and WOLF, JJ., concur.

MANDATE

From

DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT

To the Honorable William R. Dorsey, Jr., Hearing Officer

WHEREAS, in that certain cause filed in this Court styled: Division of Administrative Hearings

LUIS I. ARIAS, M.D.

v. Case No. 91-2397

DEPARTMENT OF PROFESSIONAL Your Case No. 90-3932F REGULATION, BOARD OF MEDICINE 90-3933F

The attached opinion was rendered on March 23, 1992.

YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.

WITNESS the Honorable James D. Joanos

Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 23rd day of April, 1992.

Clerk, District Court of Appeal of Florida, First District

Docket for Case No: 90-003932F

Orders for Case No: 90-003932F