STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HORACE MacVAUGH III, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 90-4815

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on November 20, 1990, at Tallahassee, Florida.

APPEARANCES

For Petitioner: Roger Lutz, Esquire

Robin Uricchio, Esquire HOLLAND & KNIGHT

Post Office Box 1526 Orlando, Florida 32802

For Respondent: Allan Grossman, Esquire

The Capitol, Suite 1602 Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUES

Whether the Petitioner is qualified for licensure as a medical doctor in Florida by examination.

PRELIMINARY STATEMENT

By Petition dated July 20, 1990, Horace MacVaugh III, M.D., Petitioner, requested an administrative hearing to challenge the Department of Professional Regulation, Board of Medicine, Respondent's, order denying Petitioner's application for licensure as a medical doctor in Florida. As grounds for the denial it is alleged that Petitioner has been involved in nineteen (19) malpractice civil actions, that nine (9) such actions have been filed against him in the last three years, and that two (2) of those cases resulted in settlements paid on behalf of Petitioner, leaving several unresolved. These malpractice actions are alleged to evidence that Petitioner is unable to practice medicine with reasonable skill and safety.

At the hearing the Respondent's file on this application was admitted as Exhibit 1, the deposition of Irvin B. Boruchow, M.D., was admitted as Exhibit 2, the Affidavit of Patti Ellis was admitted as Exhibit 3 and Petitioner testified

on his own behalf. Proposed findings have been submitted by the parties. The facts here involved are largely undisputed; accordingly, all proposed findings are accepted except as reflected in the Appendix attached hereto and made a part hereof. Those not included herein were deemed unnecessary to the conclusions reached.

Having fully considered all evidence presented the following is submitted.

FINDINGS OF FACT

1. Petitioner graduated from the School of Medicine at the University of Pennsylvania in 1955, following which he did a rotating internship at Abington Memorial Hospital before reporting for active duty in the U.S. Navy. Upon release from active duty in the Navy in 1959 he entered a residency program in general surgery at Hospital of University of Pennsylvania followed by thoracic surgery which he completed in 1965.

   
   

2. Petitioner was certified by the American Board of Surgery in 1965 and by the Board of Thoracic Surgery in 1966.

   
   

3. From 1965 to 1986 Petitioner was engaged in the practice of general, cardiac, thoracic and vascular surgery. In the latter part of this period, he headed a cardiothoracic surgery team at Lankenau Hospital, Philadelphia, which performed some 700-800 open-heart surgeries per year. It was during this period that most of the malpractice suits were filed against Petitioner, the hospital and other doctors on his team. As head of the surgical team Petitioner did the definitive surgery (bypass grafts) while other members of the team opened and closed the chest cavity.

   
   

4. Petitioner is currently licensed to practice medicine in Pennsylvania, New York, New Jersey, Delaware and Arizona. At the time he first applied for licensure in Florida in 1988, he was licensed in Pennsylvania, New Jersey and Arizona. No licensing agency has brought any charges against Petitioner's license. Petitioner took and passed the FLEX examination in 1988 scoring 84 and

   83 on the two parts of the exam.

   
   

5. In the past twenty years, 19 malpractice suits have been filed against Petitioner. Of those suits 9, have been dismissed by Plaintiffs without any recovery from Petitioner, and two were settled on behalf of Petitioner, one in 1979 for $50,000 and one in 1989 for $25,000. Those settlements represented little more than nuisance value. The hospital defendant settled one case for

   $225,000 and another for $2,500.

   
   

6. Of the remaining eight suits the complete medical records of those cases were reviewed by another cardiothoracic and vascular surgeon who opined that five are without merit. For the remaining three, additional evidence is needed to fairly appraise the merits of those suits. This additional information will not be available until discovery is completed. Petitioner's testimony, that these remaining three cases did not involve a failure on his part to practice medicine with that level of care, skill, and treatment which is recognized by a reasonable prudent similar physician as being acceptable under similar conditions and circumstances, corroborates the Affidavit of the risk manager (Exhibit 3) and letters in the file (Exhibit 1) stating those cases are deemed to be without merit and will be vigorously defended.

7. All of these suits were brought in Pennsylvania where the backlog of civil cases is such that civil cases are not scheduled for trial until approximately seven years after the suit is filed. Furthermore, the complaints filed in these cases contain general allegations that the Respondent's negligence, inattention, failure to adequately apprise the plaintiff of possible complications of the surgery, along with the negligence of the hospital and others involved with the surgery, directly resulted in the plaintiff's death, injury, etc. These are catch- all allegations and the specific nature of the malpractice claim cannot be discerned from these pleadings.

   
   

8. Cardiothoracic and vascular surgery is a high risk field of medicine in that the patients are frequently very sick and elderly. Accordingly, the success rate for this type surgery is lower than for most surgeries, and this leads to a higher incidence of suits alleging malpractice. Many of these earlier suits were brought before the doctors began paying attention to documenting that they fully explained the risks of the surgery to the patient and thereafter the patient gave informed consent to the operation. Petitioner has been more assiduous in this regard in recent years than he was several years ago. This practice will have the effect of reducing the incidence of malpractice suits against surgeons. It is noted that several of the suits alleged the plaintiffs were not adequately advised regarding the risks involved and, therefore, they did not give informed consent to the surgery.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceeding.

   
   

10. As grounds for denying Petitioner's application the Board of Medicine found Petitioner did not meet the requirements for licensure set forth in Section 458.311(1)(d) via 458.331(1)(t) and furthermore that he does not meet the requirements of Section 458.301 and 458.331(4), Florida Statutes which requires the applicant to be able to practice medicine with reasonable skill and safety.

    
    

11. Section 458.311 establishes requirements for licensure by examination and subsection (1)(d) provides:

    
    

    [The applicant] Has not committed any act or offense in this or any other jurisdiction which would constitute the basis for disciplining a physician pursuant to 458.331.

    
    

12. Section 458.331(1) provides in pertinent part:

    
    

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

    * * *

    (t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. As used in this paragraph "repeated malpractice" includes, but is not limited to, three or

    more claims for medical malpractice within the previous 5-year period resulting in indemnities paid in excess of $10,000 each to the claimant in a judgment or settlement and which incidents involved negligent conduct by the physician...

    
    

13. Section 458.301 states the primary purpose of this chapter is to ensure that every physician practicing in this state meets minimum requirements for safe practice; and Section 458.331(4) provides:

    
    

    The board shall not reinstate the license of a physician, or cause a license to be issued to a person it deems or has deemed unqualified, until such time as it is satisfied that he has complied with all the terms and conditions set forth in the final order and that such person is capable of safely engaging in the practice of medicine.

    
    

14. Here the burden is on the Petitioner to prove, by a preponderance of the evidence, that he is qualified for licensure. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

    
    

15. The sole basis for the denial of this application is the existence of nineteen malpractice claims filed against Petitioner since 1979, eight of which are still pending. Petitioner is board certified in general surgery and cardiothoracic and vascular surgery and he recently passed the FLEX examination-

    -no small feat for a physician 35 years out of medical school.

    
    

16. The question remains whether the board is justified in denying certification based upon the inference of malpractice resulting from the filing of claims. Normally, this could be an issue on which the board's expertise should be given great weight. Wilton v. St. Johns County, 123 So.2d 527 (Fla. 1929); City of Hollywood v. Florida Public Employees Relations Commission, 476 So.2d 1340 (F1a. 1st DCA 1985); McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977).

    
    

17. Although there are twelve licensed physicians on the board which denied this application, no evidence was presented that any of these members are surgeons or cardiothoracic surgeons or that the board reviewed the medical records in these cases. Nevertheless, they would qualify as experts in the field of medicine and their expertise in any particular field would weigh heavily in determining the weight to give their opinions in that field. This is somewhat significant here where the only expert evidence (other than Petitioner's opinion which is largely disregarded due to his clear interest in the outcome of these proceedings) was by a cardiothoracic surgeon who found no merit whatsoever in five of the remaining eight unsettled claims. In order to fully evaluate the three remaining claims he would need additional evidence. The only rebuttal of his testimony is the action of the board in denying this application. This is not evidence. Absent further evidence regarding the merits of the eight pending cases the issue becomes a question of law: Is the fact that 19 malpractice claims have been filed against Dr. MacVaugh and eight are still pending, standing alone, sufficient grounds for denying MacVaugh licensure in Florida?

    In deciding this issue it is noted that the states of New York and Delaware licensed MacVaugh while his application for licensure was pending in Florida.

18. It is further significant that no state in which Petitioner is licensed has brought disciplinary proceedings against him. The fact that malpractice claims have been filed against a doctor does not raise an inference or presumption that the doctor is guilty of malpractice or is unable to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Such facts certainly present no prima facie disqualification for licensure. Absent some evidence that the malpractice claims filed against Petitioner have a valid factual basis showing Petitioner is likely to create a risk to the residents of Florida if he is licensed in the state, the evidence that such claims have been filed, standing alone, does not provide a basis for disqualification from licensure.

    
    

19. From the foregoing, it is concluded that Petitioner has presented competent and substantial evidence that by his board certification and passing the FLEX examination, he is qualified for licensure in Florida. The mere fact that eight malpractice claims are pending against Petitioner, standing alone, does not rebut the evidence of his qualification.

RECOMMENDATION

It is RECOMMENDED that Horace MacVaugh III be granted a license to practice medicine in Florida.

DONE and ENTERED this 19th day of December, 1990, in Tallahassee, Leon County, Florida.

K. N. AYERS 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 19th day of December, 1990.

APPENDIX

Petitioner's proposed findings are accepted, except:

8. Accepted only insofar as consistent with HO #5 and 6.

15. Rejected. No evidence was presented in this regard.

Respondent's proposed findings are accepted except:

17. Second and third sentences rejected as not supported by any competent evidence.

COPIES FURNISHED:

Roger Lutz, Esquire Robin Uricchio, Esquire HOLLAND & KNIGHT

Post Office Box 1526 Orlando, Florida 32802

Allan Grossman, Esquire The Capitol, Suite 1602

Tallahassee, Florida 32399-1050

Dorothy Faircloth, Executive Director Florida Board of Medicine

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0750

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792

Docket for Case No: 90-004815

Orders for Case No: 90-004815