STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-0395

)

1. LEONARD VIGDERMAN, D.O., )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on April 11, 1991, in Tampa, Florida. The following appearances were entered:

   
   

   APPEARANCES

   
   

   For Petitioner: Mary B. Radkins, Esquire

   Department of Professional Regulation Northwood Centre

   1940 North Monroe Street, Suite 60

   Tallahassee, Florida 32399-1750

   
   

   For Respondent: John R. Feegel, Esquire

   Thomas Sabella, Jr., Esquire

   401 South Albany Avenue Tampa, Florida 33606

   
   

   STATEMENT OF THE ISSUES

   
   

   Whether disciplinary action should be taken against the Respondent's license based on the alleged violations of Section 459.015(1), Florida Statutes, and Rule 21R-20, Florida Administrative Code, as set forth in the Administrative Complaint:

   
   

   1. By fraudulently misrepresenting that he met the criteria for exemption from demonstrating financial responsibility.

      
      

   2. By failing to demonstrate his financial responsibility to pay claims for medical care.

      
      

   3. By falsely swearing on his Physician's License Renewal form.

      
      

   4. By violating a term of the Final Order of the Board of Osteopathic Medical Examiners dated August 22, 1988.

PRELIMINARY STATEMENT

On December 12, 1990, Petitioner filed a four count Administrative Complaint against Respondent D. Leonard Vigderman, D.O., alleging that he violated various portions of Section 459.015(1), Florida Statutes. By an executed Election of Rights form Respondent requested a formal hearing on these matters. This hearing followed.

At the hearing, Petitioner presented the testimony of Ms. Rosemary Gazverde, retired Department of Professional Regulation Investigator, and seven exhibits were received into evidence, including the deposition of Adriane G. Tinsley. Respondent presented the testimony of John Eloian, D.O., and the Respondent. Petitioner's Motion to Take Official Recognition of the prior Order of the Board of Osteopathic Medical Examiners pertaining to Respondent was granted, as was the disciplinary guidelines contained in Rule 21R-19, Florida Administrative Code. The hearing officer denied Petitioner's Motion for Summary Final Order or to Relinquish Jurisdiction. Petitioner withdrew a Motion for an order compelling discovery.

The transcript was filed with Clerk of the Division on April 22, 1991.

Petitioner filed its proposed findings of fact and conclusions of law on May 2, 1991. Respondent filed his proposals on April 26, 1991. Both proposals have been given careful consideration. My specific rulings on each proposed finding are contained in the Appendix attached hereto.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating the practice of osteopathic medicine pursuant to Section 20.30, Florida Statutes, and Chapters

   455 and 459, Florida Statutes.

   
   

2. Respondent is and has been at all times material hereto licensed to practice osteopathic medicine in the State of Florida, having been issued license number OS 0001663. Respondent's practice is in Tampa, Florida.

   
   

3. Respondent was employed, in his capacity as an osteopathic physician, as an independent contractor at a walk-in clinic owned and operated by Dr. J. Eloian followed by Mitchell D. Checkver, D.O., which office is currently located at 7211 N. Dale Mabry, #100, Tampa, Florida, from 1984 through 1990.

   
   

4. Respondent's license to practice osteopathic medicine was in a probationary status from August of 1988, until June 15, 1990, pursuant to a Final Order filed by the Board of Osteopathic Medical Examiners (Board) on August 2, 1988, regarding case numbers 0055173, 0038979 and 00372994.

   
   

5. As a condition of probation Respondent was to comply with all state and federal statutes, rules and regulations pertaining to the practice of osteopathic, including Chapters 455 and 459, Florida Statutes and the Florida Administrative Code.

   
   

6. As a condition of probation, Respondent was to pay the Board a total administrative fine of $3,000, which was said.

7. About a year before Dr. John Eloian retired in August 1988, he discussed the possibility of utilizing the exemption for part time physicians (in Section 459.0085, Florida Statute) with other doctors in his office, including Respondent.

   
   

8. A condition of renewing an active license to practice osteopathic medicine in the State of Florida, is compliance with Section 459.0085, Florida Statutes. The licensee must demonstrate financial responsibility or meet the criteria for exemption.

   
   

9. Two years later, on November 6, 1989, Respondent submitted a Board of Osteopathic Medical Examiners' Physician's License Renewal Form, and signed a sworn affidavit as to the veracity of the information provided therein. A sign was posted announcing to the patients that no malpractice insurance was carried by Respondent and Dr. Eloian.

   
   

10. Within the License Renewal Form, Respondent represented that he was exempt from demonstrating financial responsibility based on his meeting all of the criteria listed.

    
    

11. The exemption which the Respondent attempted to utilize had criteria which included the condition that the Respondent has not been subject, within the past ten (10) years of practice, to a fine of $500.00 or more for a violation of Section 459, Florida Statutes. The form specifies that a regulatory agency's acceptance of a stipulation, in response to filing of administrative charges against a licensee, shall be construed as action against a licensee.

    
    

12. The exemption also had criteria which specified that the Respondent had maintained a part time practice of no more than 1,000 patient contact hours per year.

    
    

13. Based on Respondent's submission to the Board of Osteopathic Medical Examiners of this Physician's Licensure Renewal Form in November 1989, and the information given therein, his license to practice osteopathic medicine was renewed through 1991.

    
    

14. Subsequently, Respondent acknowledged he was ineligible for the exemption and obtained medical malpractice insurance, effective July 1, 1990.

    
    

15. Respondent read, or should have read, the Physician's License Renewal form sufficiently to be aware of the language therein.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

    
    

17. Pursuant to Section 459.015(2), Florida Statutes, the Board of Osteopathic Medical Examiners is empowered to revoke, suspend or otherwise discipline the license to practice osteopathic medicine of any osteopathic physician in the State of Florida found guilty of the acts enumerated in Section 459.015(1), Florida Statutes (1989).

18. In a disciplinary action, the burden of proof is on the Department to establish the facts upon which its allegations of misconduct are based by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

19. Section 459.0085, Florida Statutes, pertaining to financial responsibility provides in pertinent part:

    
    

    459.0085 Financial responsibility.

    1. As a condition of licensing and prior to the issuance or renewal of an active license or reactivation of an inactive license for the practice of osteopathic medicine, an applicant shall by one of the following methods demonstrate to the satisfaction of the board and the department financial respon- sibility to pay claims and costs ancillary thereto arising out of the rendering of, or

       the failure to render, medical services: . . .

       * * *

       (5) The requirements of subsections (1), (2) and (3) shall not apply to: . . .

       1. Any person holding an active license under this chapter who meets all of the following criteria:

          1. The licensee has held an active license to practice in this state or another state or

             some combination thereof for more than 15 years.

          2. The licensee has either retired from the practice of osteopathic medicine or maintains a part-time practice of osteopathic medicine of no more than 1,000 patient contact hours per year.

          3. The licensee has had no more than two claims for medical malpractice resulting in an indemnity exceeding $10,000 within the previous 5-year period.

          4. The licensee has not been convicted of, or pled guilty or nolo contendere to any criminal violation specified in this chapter or the prac- tice act of any other state.

          5. The licensee has not been subject within the last 10 years of practice to license revo- cation or suspension for any period of time, probation for a period of 3 years or longer, or a fine of $500 or more for a violation of this chapter or the medical practice act of another jurisdiction. The regulatory agency's acceptance of an osteopathic physician's relinquishment of a license, stipulation, consent order, or other settlement, offered

       in response to or in anticipation of the filing of administrative charges against the osteopathic physician's license, shall be con-

       strued as action against the physician's license for the purpose of this paragraph.

20. The Board of Osteopathic Medical Examiners' Physician's License Renewal form complies with the requirements of Rule 21R-20.003, Florida Administrative Code, which states, in part:

    
    

    . . . each licensee is responsible for re- viewing the full and exact requirements for each method of compliance or delineation of exemption and for determining his compliance or eligibility based on the complete statutory language.

    
    

21. The language of the statute and rule is mandatory and does not provide for the excuse of inadvertence, mistake or lack of intent to defraud or misrepresent. Rule 21R-20.003(2)(a), Florida Administrative Code.

    
    

22. Rule 21R-20.003(4), Florida Administrative Code states:

    
    

    The failure to document compliance with or exemption from the financial responsibility law upon request, the furnishing of false or misleading information, or the failure to timely notify the Board of a change in status shall be grounds for disciplinary action up to and including license revocation.

    
    

23. In Count One of the Administrative Complaint, Respondent is charged with renewing his license to practice osteopathic medicine by fraudulent misrepresentation, a violation of Section 459.015(1)(a), Florida Statutes. Respondent's statement that he did not read the form before signing is contradicted by his selection of certain options on the form itself. Respondent falsely swore on his Physician's Licensure Renewal Form that he was eligible for the exemption of Subsection 459.0085(5)(f), Florida Statutes, by meeting all of the criteria therein listed. As Respondent clearly does not meet all the criteria, he has made a false statement of material fact knowing, or should have known, that the representation was false and with the intention that the Board rely on that information to renew his license, which in fact, the Board did.

    
    

24. Petitioner has proven this count by clear and convincing evidence.

    
    

25. In Counts Two, Three and Four Respondent is charged with failing to perform a statutory obligation placed upon him, as a licensed osteopathic physician to comply with the requirements of Section 459.0085(1), Florida Statutes, a violation of Section 459.015(1)(g), Florida Statutes; giving of false testimony in the course of an administrative proceeding relating to the practice of medicine; and with violating the lawful order of the Board of Osteopathic Medical Examiners issued in his prior cases which requires him to comply with all the state statutes, rules and regulations applicable to the practice of osteopathic medicine, a violation of Section 459.015(1)(cc), Florida Statutes. Each of these allegations are cumulative violations of Section 459.0085, Florida Statutes, and Rule 21R-20.003, Florida Administrative Code, and do not warrant additional discipline.

    
    

26. Respondent has been disciplined before by the Board for failing to adhere to the applicable standard of care and of record keeping violations, but has never been found to have committed the same violations as charged in this instance.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that Respondent be found guilty of violating Sections 459.015(1)(a), Florida Statutes. As punishment therefore Respondent should pay a fine of

$1,000, and he should be placed on probation by the Board of Osteopathic Medical Examiners with such reasonable terms and conditions as the Board may require.

RECOMMENDED this 13th day of May, 1991, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 13th day of May, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0395

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's proposed findings of fact:

Accepted in substance: paragraphs 1,3,4,5,6,7,8,9,10,11,12,13, 14,18

Rejected as irrelevant or as argument: paragraphs 2,15,16,17 Respondent's proposed findings of fact:

Accepted in substance: paragraphs 1 (in part), 4 (in part),

7 (in part), 9

Rejected: paragraphs 2 (in part, as against the greater weight of the evidence and as a conclusion of law), 3 (conclusion of

law), 5 (irrelevant), 6 (irrelevant), 7 (in part), 8 (irrelevant)

10 (irrelevant)

COPIES FURNISHED:

Mary B. Radkins, Esquire Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

John R. Feegel, Esquire Thomas Sabella, Jr., Esquire

401 South Albany Avenue Tampa, FL 33606

Bill Buckhalt Executive Director

Board of Osteopathic Medical Examiners Department of Professional

Regulation, Suite 60 1940 North Monroe Street

Tallahassee, FL 32399-0792

Jack McRay General Counsel

Department of Professional Regulation, Suite 60

Northwood Centre

1940 North Monroe Street Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

================================================================= AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF OSTEOPATHIC MEDICAL EXAMINERS

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. DOAH CASE NO. 91-0395

DPR CASE NO. 90-002102

1. LEONARD VIGDERMAN, D.O.,

   
   

   Respondent

   /

   FINAL ORDER

   
   

   THIS CASE came on to be heard before the Florida State Board of Osteopathic Medical Examiners at its duly noticed meeting on June 21, 1991, in Tallahassee, Florida, for consideration of the Recommended Order entered by Hearing Officer Daniel M. Kilbride, dated May 13, 1991.

   
   

   Appearance for Petitioner: Francesca Small, Esquire

   Department of Professional Regulation

   1940 North Monroe Street Tallahassee, Florida 32399-0792

   
   

   Appearance for Respondent: D. Leonard Vigderman, D.O.

   8710 Cove Court

   Tampa, Florida 33615 FINDINGS OF FACT

   No exceptions were filed relating to the findings of fact. The Board hereby ACCEPTS the findings of fact contained in the recommended order, and adopts the same as the Board's findings of fact.

   
   

   CONCLUSIONS OF LAW

   
   

   No exceptions were filed relating to the conclusions of law. The Board hereby ACCEPTS the conclusions of law contained in the recommended order, and adopts the same as the Board's conclusions of law.

   
   

   PENALTY

   
   

   The Board ACCEPTS the penalty recommended by the Hearing Officer, therefore:

   
   

   1. Respondent is hereby FINED $1,000 to become due and payable within the probationary term imposed by this Order.

      
      

   2. Respondent's licensure to practice osteopathic medicine shall be placed on PROBATION for one (1) year. Said probationary term shall commence and run concurrently with, and under the same terms and conditions imposed, as the probationary term imposed in Case No. 90-4701 (DPR Case No. 0097524).

This Final Order becomes effective upon being filed with the Clerk of the Agency.

The parties are notified, pursuant to Section 120.68, Florida Statutes, that they may appeal this Final Order by filing, within 30 days of the filing date of this Order, a notice of appeal, accompanied by the filing fees prescribed by law, with the District Court of Appeal.

DONE and ORDERED this 8th day of August, 1991 by the Florida State Board of Osteopathic Medical Examiners.

SANDRA L. SCHWEMMER, D.O., CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been mailed by U.S. Mail to D. LEONARD VIGDERMAN, D.O., 8710 Cove Court, Tampa, Florida 33615 this 12th day of August, 1991.

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

CORRECTED AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF OSTEOPATHIC MEDICAL EXAMINERS

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. DOAH CASE NO. 91-0395

DPR CASE NO. 90-002102

1. LEONARD VIGDERMAN, D.O.,

   
   

   Respondent.

   /

   
   

   CORRECTED FINAL ORDER

   
   

   THIS CAUSE came on to be heard before the Board of Osteopathic Medical Examiners at its duly noticed meeting on June 21, 1991, in Tallahassee, Florida, for consideration of the Recommended Order entered by Hearing Officer Daniel M. Kilbride, dated May 13, 1991.

   
   

   Appearance for Petitioner: Francesca Small, Esquire

   Department of Professional Regulation

   1940 North Monroe Street Tallahassee, Florida 32399-0792

   Appearance for Petitioner: D. Leonard Vigderman, D.O.

   8710 Cove Court

   Tampa, Florida 33615 FINDINGS OF FACT

   No exceptions were filed relating to the findings of fact. The Board hereby ACCEPTS the findings of fact contained in the recommended order, and adopts the same as the Board's finding of fact.

   
   

   CONCLUSIONS OF LAW

   
   

   Petitioner takes exception to paragraph 8 of the Hearing Officer's conclusions regarding Counts 2,3, and 4 of the Administrative Complaint. The Hearing Officer did not Rule on these counts on the grounds that said counts were cumulative. The Board REJECTS that conclusion, and finds that the facts support a finding of guilt as to Counts 2,3, and 4. With this modification, the Board ACCEPTS the Conclusions of Law contained in the Recommended Order, and adopts the same as the Board's Conclusions of Law.

   
   

   PENALTY

   
   

   The Board ACCEPTS the penalty recommended by the Hearing Officer, therefore:

   
   

   1. Respondent is hereby FINED $1,000 to become due and payable within the probationary term imposed by this Order.

      
      

   2. Respondent's licensure to practice osteopathic medicine shall be placed on PROBATION for one (1) year. Said probationary term shall commence and run concurrently with, and under the same terms and conditions imposed, as the probationary term imposed in Case No. 90-4701 (DPR Case No. 0097524).

This Order took effect upon filing with the Clerk of the Department of Professional Regulation on August 12, 1991, and is being reissued to correct a scrivener's error in the conclusions of law.

DONE and ORDERED Nunc Pro Tunc, August 12,1991, by the Florida State Board of Osteopathic Medical Examiners.

SANDRA L. SCHWEMMER, D.O., CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Corrected Final Order has been mailed by U.S. Mail to D. LEONARD VIGDERMAN, D.O., 8710 Cove Court, Tampa, Florida 33615 this 22nd day of January, 1992.

Docket for Case No: 91-000395

Orders for Case No: 91-000395