STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LOUIS JOHN TSAVARIS, )
)
Petitioner, )
)
vs. ) CASE NO. 90-7157
)
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 formal hearing in the above- styled case on May 21 and 22, 1991, at Tampa, Florida.
APPEARANCES
For Petitioner: Louis John Tsavaris, pro se
Post Office Box 733 Tarpon Springs, FL 34689
For Respondent: Ann Cocheu, Esquire
Suite 1603, The Capitol Tallahassee, FL 32399-1050
STATEMENT OF THE ISSUES
Whether Louis John Tsavaris should be relicensed to practice medicine in this state.
PRELIMINARY STATEMENT
By Amended Petition for Formal Hearing forwarded to the Division of Administrative Hearings on November 20, 1990, Louis John Tsavaris, Petitioner, seeks reinstatement of his license to practice medicine in Florida.
Petitioner's application for reinstatement was denied by the Florida Board of Medicine order dated August 8, 1990, on grounds that Petitioner failed to demonstrate he is currently able to practice medicine with skill and safety to patients, and failed to provide evidence of his rehabilitation with respect to those charges which led to the revocation of his license in 1982.
At the hearing, Petitioner called 19 witnesses, including himself, and 17 exhibits were admitted into evidence. Respondent called no additional witnesses.
Treatment accorded proposed findings submitted by the parties is reflected in the Appendix attached hereto and made a part hereof.
Having considered all evidence presented, I submit the following:
FINDINGS OF FACT
By Final Order entered October 20, 1982, the Florida Board of Medical Examiners revoked Petitioner's license to practice medicine in this state. Although there were numerous charges in the Administrative Complaint and Amended Administrative Complaint upon which the hearing proceeded, the Hearing Officer found, and the Board adopted these findings, that Petitioner herein, Respondent in those proceedings, was guilty of two technical violations of Chapter 458, Florida Statutes, and one serious violation.
The technical violations found in those proceedings was: (1) The failure to check one block in his drug authorization renewal application to authorize dispensing Class II drugs, which resulted in Respondent dispensing Class II drugs without proper authorization to do so, although no evidence was presented that any of these drugs were improperly prescribed; and (2) The issuance of a prescription for a Class IV drug in the name of Respondent rather than his office. No evidence was presented at that hearing that Dr. Tsavaris used that drug (Nortec) himself or allowed its misuse by any patient. At this hearing, uncontradicted evidence was presented that the failure to renew his DEA license to prescribe Schedule II drugs was an office oversight, and the one prescription in Petitioner's name was for one Class IV drug to dispense to suicidal patients from the office.
The violation of Chapter 458 found by the Hearing Officer and the Board to justify revocation of this Petitioner's license was the conviction of Dr. Tsavaris of the crime of manslaughter which was found by the Hearing Officer to be a violation of Section 458.331(1)(c), Florida Statutes (1980), which proscribes being found guilty of a crime directly relating to the practice of medicine or the ability to practice medicine. Dr. Tsavaris was found guilty in 1981 of gross negligence in the death of a former patient whose apartment he visited in 1975 near midnight in response to her telephone call for help, and he was sentenced to imprisonment for 15 years.
Petitioner was incarcerated at the Avon Park Correctional Institute (APCI) and served 2 1/2 years of his sentence before being paroled in July 1984. He is currently on probation until 1997. Petitioner's probationary supervision has been reduced to require him to report to his probation officer only once every six months. Evidence was presented that parolees are usually released from all probation shortly after their reporting interval is changed to six months.
Evidence was presented, and unrebutted, that the jury found the cause of death of the victim Petitioner was charged with killing, was not proven. Further, the jury found the lesser included offense of manslaughter based upon Tsavaris' testimony that he had stopped for ice cream in route to the deceased apartment. The jury concluded that had he not stopped, the alleged victim may not have died. The jury found this act to constitute gross negligence under the circumstances.
During his stay at APCI, Petitioner participated in a variety of self- help programs aimed at rehabilitation. William Pivnick, Chief of Rehabilitative Services at APCI during the time Petitioner was there, holds a Ph.D. degree in psychology and was accepted as an expert in rehabilitation. Pivnick opined that Petitioner is eminently qualified as a psychiatrist, and to the extent rehabilitation is applicable to the offense of which Petitioner was convicted, that Petitioner was rehabilitated and most unlikely ever to commit a similar offense or be a danger to society. Pivnick also gave Petitioner high marks for his assistance to, and relations with, other prisoners at APCI.
When Petitioner was released from APCI in 1984, he was given a job in Tsavaris' Construction Company where he worked for one or two years. Thereafter, he was involved in developing mobile home parks and recently has begun managing a chiropractic office.
Petitioner has become involved in a project to resolve questions regarding human longevity and has devoted considerable time to this study.
For the past two years, Petitioner spent two or three days per month in a medical clinic in Perry, Florida, observing procedures and discussing these procedures with the clinic's owner and director. The clinical director, Dr. Euliogio Vizarra, at Petitioner's request, arranged for Petitioner to be evaluated by Dr. Paul Leone, forensic psychiatrist at the State Hospital at Chattahoochee, Florida. Objection to the introduction of the report of Dr. Leone of this evaluation was sustained.
Petitioner was examined and tested by Dr. Vesley, a retired psychiatrist whose medical license is current. Dr. Vesley found Petitioner to be current in his medical knowledge and capable of practicing medicine with reasonable skill and safety to his patients.
Petitioner was given a battery of tests by Dr. Merin, a psychologist who is board-certified in clinical psychology, in professional neuro-psychology, behavioral medicine, and medical psychotherapy. After some five hours of testing plus some 15 hours of additional tests given by others and interpreted by Dr. Merin, Dr. Merin found Petitioner to be very intelligent and fully able to practice medicine with skill and safety to his patients.
Dr. Walter Afield is board-certified in adult psychiatry, child psychiatry, and mental health administration; and has been a senior member of the American Board of Psychiatry and Neurology for the past 21 years. Dr. Afield opined that Petitioner is competent and able to practice medicine with safety to patients. If Petitioner's license is restored under the condition he be supervised by another psychiatrist, Dr. Afield would be willing to assume that supervision.
With respect to the professional ability of Petitioner to practice psychiatry after a 10 year hiatus, the evidence submitted leads to the conclusion that, although there has been a substantial change in the field of psychiatry, that change has been toward a greater use of chemical treatment with little or no change in analytical techniques. Petitioner's forte while practicing psychiatry was in his treatment of patients by analysis and group therapy.
Although a psychiatrist who has not practiced his profession for some
10 years would not be expected to be current on psychotropic drugs presently being used, uncontradicted evidence was presented that a psychiatrist could become current in the use of psychotropic drugs in a two weeks training period.
Petitioner testified that he had taken some continuing medical education courses from time to time since his release from prison, but submitted no documented evidence to support this testimony. He did submit evidence of completing 22 CME credits within the past year.
Apart from the medical evidence submitted regarding Petitioner's knowledge of his field and his ability to resume practice with skill and safety to patients, several former patients of Petitioner testified to the excellent treatment and help they received from Petitioner and that if his license is restored, they would not hesitate to engage his services, if needed, or refer family members to him for treatment.
It has been the practice of the Board of Medicine not to reinstate the license of a physician while the physician is on parole or probation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Section 458.331(4), Florida Statutes, 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.
Pursuant to Section 458.309, Florida Statutes, the Board of Medicine has adopted Rule 22M-20.003, Florida Administrative Code, which provides in part:
No license to practice medicine in Florida which was revoked after June 5, 1983, or which was involuntarily relinquished after July 1, 1988, shall be subject to reinstatement unless
leave to petition for reinstatement was specifi- cally authorized in the final order. A physician whose license was revoked or relinquished may, however, apply for relicensure unless, in the case of relinquishment, the physician explicitly agreed never to reapply for licensure.
* * *
In order to demonstrate the ability to safely engage in the practice of medicine, a
licensee shall show compliance with all terms of the final order and may, in addition, pre- sent evidence of additional matters, including, but not limited to:
Completion of continuing education courses approved by the Board;
Participation in medical education programs, including postgraduate training, internships, residences, or fellowships;
Submission of reports of mental or physical examination by appropriate professionals;
Completion of treatment within a program designed to alleviate alcohol, chemical, or
drug dependencies, including after care measures or a plan for continuing such treatment, as appropriate;
Other factors not enumerated, which would demonstrate the physician's ability to safely engage in the practice of medicine.
Here Petitioner's license was revoked in 1982 by Final Order entered October 20, 1982. No conditions were placed on the revocation.
By Order entered August 5, 1990, the Board denied Petitioner's request for reinstatement on grounds that Petitioner had failed to demonstrate that he is currently able to practice medicine with skill and safety. The Order included the statement that Petitioner had failed to present any evidence of current ability to practice with reasonable skill and safety. The Order included as a reason for denial, Petitioner's failure to address rehabilitation from the offenses of prescribing Schedule II drugs without a DEA license, the self-prescribing of controlled substances, and his delegation of professional responsibilities. The Hearing Officer found at the initial proceeding, and this finding was adopted by the Board, that Petitioner was not guilty of delegating professional responsibilities to unlicensed personnel; the violation pertaining to the DEA license and office prescription were technical violations; and the gravamen of the charges leading to revocation was the conviction of the crime of manslaughter which related to the practice of medicine. However, the Hearing Officer found that Petitioner had permitted an unlicensed and unqualified individual to assist him in the treatment of mental conditions of patients during group therapy sessions. This did not constitute the offense of delegating professional responsibility to unlicensed persons. Accordingly, as to rehabilitation, the above findings relate predominantly to Petitioner's rehabilitation from the acts which led to his conviction of manslaughter.
Since Petitioner was found guilty of gross negligence which led to a death, several witnesses called by Petitioner in these proceedings questioned how someone can be rehabilitated from negligence. These same witnesses concurred that, insofar as Petitioner's negligence in 1975 related to the exercise of poor judgment, that he has been rehabilitated from the exercise of poor judgment.
As a party seeking reinstatement of his license, Petitioner has the burden to prove his entitlement thereto by a preponderance of the evidence. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977); Florida Department of Transportation v. J.W.C. Co. Inc., 396 So.2d 778 (Fla. 1st DCA 1981).
To be entitled to reinstatement, the applicant must prove that he is capable of practicing medicine with safety to his patients.
Here, to demonstrate the ability to safely engage in the practice of medicine, Petitioner presented the testimony of several expert witnesses that he has the requisite medical knowledge to practice psychiatry with skill and safety to patients, and that he is morally and psychologically qualified to do so. Petitioner has been subjected to numerous psychological tests which demonstrate rehabilitation from the offenses that led to his license revocation. While the
10 year hiatus in his practice of medicine automatically raises questions about Petitioner's current knowledge in what has been a rapidly changing medical world in the past decade, Petitioner's primary emphasis in his practice was in analysis and group therapy which have changed little. The big change in psychiatry has been the trend toward chemical treatment or psychotropic medicine. Although it is recognized that one could quickly become non-current in this field if absent therefrom for even a relatively short period, evidence was presented that one can be brought up to date on these medications in the relatively short period of two weeks.
With respect to the practice of the Board of Medicine to not reinstate a physician's license while the physician is on parole, unless the conditions for parole would impinge on his ability to practice medicine without restriction, there is no logical basis for denying relicensure on this ground. This is particularly true here where Dr. Tsavaris' reporting requirements have been extended to six-month intervals, and evidence was presented that the practice of the Parole Commission is to remove all probation shortly after changing to a six-month reporting interval.
It is true that during the 10 year hiatus Petitioner has not completed the CME hours he would have been required to complete had he been licensed, nevertheless, it is not practical to say Petitioner should earn those 10 years of CME credits before being relicensed. It would appear more sensible to require a doubling of CME required credits for the first year or two after his licensed is restored.
Another question raised by Petitioner's long absence from the practice of medicine can be resolved by requiring Petitioner to work under the supervision of a qualified psychiatrist for a definite period before full restoration of his license. It is not practical to require Petitioner to complete further postgraduate training, internships, residences or fellowships as it is unlikely that a 60 year old physician can successfully compete with a much younger physician for a residency or fellowship.
From the foregoing it is concluded that Petitioner has shown by a preponderance of the evidence that he can now safely engage in the practice of medicine.
It is recommended that the license of Louis John Tsavaris as a medical doctor be restored upon the following conditions:
That he work under the direct supervision of a psychiatrist acceptable to the Board of Medicine for a period of one year.
That Dr. Tsavaris take an intensive course in the use of psychotropic medicine.
That for the next two years Dr. Tsavaris complete annually the CME credit hours required by other physicians biannually.
ENTERED this 2nd day of July, 1991, in Tallahassee, Florida.
K. N. AYERS 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 2nd day of July, 1991.
APPENDIX
Proposed findings submitted by Petitioner are accepted, except as noted below. Those not included in the Hearing Officer's findings were deemed unnecessary to the results reached.
7. Ultimate sentence rejected. Dr. Leone's report was not admitted into evidence.
16. Rejected as legal conclusion.
27. Rejected as irrelevant.
29. First sentence accepted only as Dr. Tsavaris' testimony. See HO #15.
Accepted only as unrebutted testimony of Dr. Tsavaris.
Rejected as irrelevant.
Proposed findings submitted by Respondent are accepted, except as noted below. Those proposed findings not included in the Hearing Office findings were deemed unnecessary to the results reached.
Third sentence rejected. CME courses of approximately
25 hours were documented. Dr. Tsavaris testified he attended other CME courses for which he had no documentation. Sixth sentence rejected as conclusion.
Ultimate sentence rejected as conclusion.
Ultimate sentence rejected. The court held that evidence was presented to support a finding that Tsavaris accidently strangled the victim and, if so, under the circumstances this would constitute culpable negligence and thereby support the jury's verdict of manslaughter.
Rejected as unsupported by credible evidence.
First sentence rejected. Tsavaris acknowledges that his judgment was faulty in the acts that led to his conviction of manslaughter. Last two sentences rejected. Although Dr. Tsavaris grew up in Tarpon Springs, he was practicing in Tampa when the incident arose which led to the revocation of his license.
COPIES FURNISHED TO:
Louis John Tsavaris Post Office Box 733
Tarpon Springs, FL 34689 Ann Cocheu, Esquire Suite 1603, The Capitol
Tallahassee, FL 32399-1050
Dorothy Faircloth Executive Director Department of Professional
Regulation Northwood Centre
1940 North Monroe Street Suite 60
Tallahassee, FL 32399-0792
Jack McRay General Counsel
Department of Professional Regulation
Northwood Centre
1940 North Monroe Street Suite 60
Tallahassee, FL 32399-0792
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AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICINE
LOUIS JOHN TSAVARIS
Petitioner,
Case No. 90-7157
vs.
DEPARTMENT OF PROFESSIONAL REGULATION,
Respondent.
/
FINAL ORDER
The Board of Medicine of the Department of Professional Regulation, after having reviewed the Recommended Order entered in this case by K.N. Ayers, Hearing Officer of the Division of Administrative Hearings, on July 2, 1991 (Exhibit A), the Exceptions to the Recommended Order filed by the Respondent, the Exceptions to the Exceptions filed by the Petitioner, the complete record, and after hearing oral argument of the Parties and being otherwise fully advised in the premises, enters the following Final Order:
This matter came before the Board of Medicine on September 20, 1991. The Petitioner represented himself and the Respondent was represented by M. Catherine Lannon, Assistant Attorney General.
The Board has jurisdiction over this matter pursuant to Section 120.57(1), Florida Statutes, Section 455.213(3), Florida Statutes, and Chapter 458, Florida Statutes.
Rulings On Exceptions Filed By Respondent
Respondent's first exception is to the preliminary statement contained in the Recommended Order that "Petitioner's application for reinstatement was denied . . .". The Board adopts Respondent's first exception for the reasons stated therein, and finds that this finding was not based on competent substantial evidence in the record.
Respondent's second exception is to a portion of paragraph 3 of the Findings of Fact contained in the Recommended Order. The Board adopts Respondent's second exception for the reasons stated therein, and finds that the portion of paragraph 3 of the Findings of Fact set forth in the Second Exception are not based on competent substantial evidence in the record.
Respondent's third exception is to the use of the words "probation" and "probationary" in paragraph 4 of the Findings of Fact of the Recommended Order. The Board adopts the third exception filed by the Respondent for the reasons stated therein, and finds that the Hearing Officer's findings in paragraph 4 wherein the words "probation" and "probationary" are utilized, are not based upon competent substantial evidence in the record.
Respondent's fourth exception is to paragraph 5 of the Findings of Fact of the Recommended Order. The Board adopts the fourth exception filed by the Respondent for the reasons stated therein, and finds that the findings contained in paragraph 5 of the Findings of Fact of the Recommended Order are not based upon competent substantial evidence in the record.
Respondent's fifth exception is to the conclusion of the Law on page 8 of the Recommended Order as set forth in the exception. The Board adopts the fifth exception for the reasons stated therein, and finds that the conclusion referenced is not based on competent substantial evidence in the record and is not a correct interpretation of the law.
Respondent's sixth exception is to a conclusion of law on page 9 of the Recommended Order as set forth in said exception. The Board adopts Respondent's sixth exception for the reasons stated therein, and finds that this conclusion is not based on competent evidence in the record and is not a correct interpretation of the law.
Respondent's seventh exception is to a conclusion of law found on page
as set forth in said exception. The Board adopts Respondent's seventh exception for the reasons stated therein, and finds that the conclusion referenced is not based on competent substantial evidence and is not a correct interpretation of the law.
Respondent takes exception to a conclusion of law found on page 10 of the Recommended Order as set forth in said exception. The Board adopts the Respondent's tenth exception for the reason stated therein, and finds that the referenced conclusion is not based on competent substantial evidence and is not a correct interpretation of the law.
Respondent's ninth exception is to a finding or conclusion found on page 11 of the Recommended Order as referenced in said exception. The Board adopts Respondent's ninth exception in that the Hearing Officer's finding or conclusion is not based on competent substantial evidence and is not a correct interpretation of the law.
Respondent's tenth exception is to a finding or conclusion found on page 11 of the Recommended Order as referenced in said exception. The Board adopts Respondent's tenth exception for the reasons stated therein, and finds that this finding or conclusion is not based on competent substantial evidence in the record and is not a correct interpretation of the law.
Respondent's eleventh exception is to a finding or conclusion on page
of the Recommended Order as referenced in said exception. The Board adopts Respondent's eleventh exception for the reasons stated therein, and finds that the finding or conclusion referenced therein is not supported by competent substantial evidence in the record and is not a correct conclusion or interpretation of the statutes.
Respondent's twelfth exception is to the Recommendation of the Hearing Officer. Based upon the foregoing, the Board adopts the twelfth exception of the Respondent and for the reasons stated therein.
Findings of Fact
The Board of Medicine adopts those Findings of Fact not previously rejected, as being based on competent substantial evidence.
Conclusions Of Law
The Board of Medicine adopts the Conclusions of Law not previously rejected, as being correct statements of the law.
WHEREFORE, the Board of Medicine hereby orders that Petitioner be denied relicensure.
DONE AND ORDERED this 21st day of October , 1991 by the Board of Medicine.
ZACHARIAH P. ZACHARIAH, M.D.
Chairiman, Board of Medicine
NOTICE OF APPELLATE RIGHTS
PURSUANT to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this Final Order by filing one copy of the Notice of Appeal with the Clerk of the Agency and by filing the filing fee and a copy of the Notice of Appeal with the District Court of Appeal within thirty (30) days of the date this Final Order is filed, as provided in Chapter 120, Florida Statutes, and the Florida Rules of Appellate Procedure.
Copies furnished:
Louis John Tsavaris
P.O. Box 733
Tarpon Springs, Florida 34689
M. Catherine Lannon and Anne Cocheu Assistant Attorney General
Suite 1603, The Capital Tallahassee, Florida 32399-1050.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by certified mail to Louis John Tsavaris, P.O. Box 733 Tarpon Springs, Florida 34689 on or before 5:00 pm., this 1st day of November , 1991
DOROTHY J. FAIRCL0TH
| Issue Date | Proceedings |
|---|---|
| Jul. 02, 1991 | Recommended Order sent out. CASE CLOSED. Hearing held 5/21-22/91. |
| Jul. 02, 1991 | Letter to KNA from L. Tsavaris (& 2 att's TAGGED; re: CME credits) filed. |
| Jun. 28, 1991 | (Petitioner) Amended Motion to Strike filed. |
| Jun. 25, 1991 | Respondent's Proposed Recommended Order filed. (From Ann Cocheu) |
| Jun. 24, 1991 | Affidavit & Attachment filed. (From Annabelle Mitchell) |
| Jun. 24, 1991 | Notice of Filing of Proposed Recommended Order w/(unsigned) Proposed Recommended Order filed. (From Louis J. Tsavaris) |
| Jun. 17, 1991 | Transcript (Vols I&II) filed. |
| Jun. 13, 1991 | Petitioner's Motion to Defer Findings and Recommendations of Hearing Officer filed. (From Louise John Tsavaris) |
| Jun. 07, 1991 | Order Denying Motion to Strike sent out. |
| May 29, 1991 | Petitioners Motion to Strike filed. |
| May 01, 1991 | Notice of Deposition filed. (From Anmn Cocheu) |
| Apr. 10, 1991 | Notice of Deposition filed. (From Ann Cocheu) |
| Mar. 12, 1991 | Request for Continuance filed. |
| Mar. 07, 1991 | Order Cancelling Hearing and Amended Notice (motion GRANTED) sent out. (hearing set for 3/12/91; at 1:00pm; in Clrwtr) |
| Mar. 01, 1991 | (Respondent) Motion to Compel; Motion in Limine filed. |
| Mar. 01, 1991 | (Respondent) Motion for Continuance filed. |
| Jan. 29, 1991 | Notice of Substitution of Counsel; Respondent's Propounding of Interrogs. filed. |
| Jan. 07, 1991 | Notice of Hearing sent out. (hearing set for March 12, 1991, March 13, 14, and 15 has also been reserved: 1:00 pm: Clearwater) |
| Dec. 06, 1990 | Response of Petitioner filed. (From L. J. Tsavaris) |
| Nov. 21, 1990 | (Petitioner) Amended Petition for Formal Hearing filed. (From Louise J. Tsavaris) |
| Nov. 16, 1990 | Initial Order issued. |
| Nov. 08, 1990 | Agency referral letter; Amended Petition for Formal Hearing; Order (Board of Medicine); Petition for Reinstatement of License filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 21, 1991 | Agency Final Order | |
| Jul. 02, 1991 | Recommended Order | Petitioner presented evidence of rehabilitation sufficient to have license restored |
