STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE )

)

Petitioner, )

)

vs. ) CASE NO. 92-1078

)

JOSE L. VAZQUEZ, M.D. )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice to all parties, a formal hearing was conducted in this case at Miami, Florida, on December 17, 1992, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner: Barbara Whalin Makant, Esquire

Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Harold M. Braxton, Esquire

Suite 400, One Datran Center 9100 South Dadeland Boulevard Miami, Florida 33156

STATEMENT OF THE ISSUES

The issue in this case concerns the determination of the appropriate administrative penalty to be imposed upon a physician who admits a violation of Section 458.331(1)(c), Florida Statutes.

PRELIMINARY STATEMENT

Prior to the formal hearing in this case the parties entered into a joint stipulation pursuant to which the parties stipulated to all facts alleged in paragraphs 1 through 5 of the Administra- tive Complaint and agreed that "the remaining facts to be determined at the formal hearing are those related to any aggravating or mitigating circumstances which affect the recommendation of a penalty." Consistent with the parties' stipulation, the evidence submitted at the formal hearing was addressed solely to the issue of the appropriate penalty to be imposed.

At the formal hearing the Petitioner offered two exhibits, both of which were admitted into evidence. The Petitioner did not call any witnesses. The

Respondent presented the testimony of seven witnesses, including the Respondent. The Respondent also offered two exhibits, both of which were admitted into evidence. At the conclusion of the hearing, the parties were allowed 10 days from the filing of the transcript within which to file their proposed recommended orders. A transcript of the proceedings was filed with the Hearing Officer on January 8, 1993. Thereafter, all parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. The parties' proposals have been carefully considered during the preparation of this Recommended Order. Specific rulings on all findings of fact proposed by the parties are contained in the appendix hereto.

FINDINGS OF FACT

Stipulated facts

1. Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 458, Florida Statutes.

   
   

2. Respondent is and has been at all times material hereto a licensed physician in the State of Florida, having been issued license number ME 0032352. Petitioner's last known address is 1520 S.W. 103rd Avenue, Miami, Florida 33174- 2772.

   
   

3. In or about 1989, Respondent was charged in the United States District Court, Southern District of Florida, by information Number 89-0137 Cr-Aronovitz, with one (1) count involving, but not limited to, Mail Fraud and Conspiracy to Defraud the United States Government.

   
   

4. The Information charged that the Respondent signed Medicare insurance forms indicating Respondent provided podiatric or medical services to patients whom Respondent had not seen, and mailed the forms to the Blue Cross Blue Shield insurance company for payment. Said charge directly related to the practice of medicine.

   
   

5. On or about September 14, 1989, the Respondent entered a plea of Guilty to Count One of the Information. The Court found the Respondent guilty of Count One and Ordered the Respondent to confinement which was suspended, and placed the Respondent on probation for a period of three (3) years. Additionally, the Respondent was ordered, as a condition of his probation, to pay $144.00 to the Department of Health and Human Services and to perform 250 hours of community service within his probation.

   
   

   Additional facts proved at hearing

   
   

6. The Respondent has completed the three-year period of probation imposed by the United States District Court.

   
   

7. The Respondent is active in his church and is well thought of in his social community, where he enjoys a reputation for being a person of honesty and integrity.

   
   

8. Among his professional colleagues the Respondent has a reputation for being a good, caring, and compassionate physician. He also enjoys a reputation for honesty and integrity amongst his professional colleagues, including physicians who practice in his community and the administrators of the clinics where he is employed.

9. The Respondent has been a medical doctor since 1959, when he graduated from the University of Havana in Cuba. The Respondent came to the United States in 1976 and he has practiced medicine in the State of Florida since his initial licensure in this state in 1978.

   
   

10. The Respondent feels remorseful and embarrassed with regard to the conduct which led to his criminal conviction. Following his arrest, he assisted the government in the prosecution of others. There is no evidence that the Respondent has been involved in any other misconduct.

    
    

11. The Respondent practices general medicine in a clinic setting, dividing his time between three different clinics. He is not responsible for billing for medical services at any of the clinics where he performs services.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57(1), Fla. Stat.

    
    

13. Based upon the stipulation of the parties that the facts contained in paragraphs 1 through 5 of the Administrative Complaint are true and correct, there is clear and convincing evidence that the Respondent entered a guilty plea to one count of mail fraud and conspiracy to defraud the United States Government. This constitutes a violation of Section 458.331(1)(c), Florida Statutes.

    
    

14. Rule 21M-20.001(1)(c), Florida Administrative Code, provides that the penalty for violation of Section 458.331(1)(c), Florida Statutes, shall range from probation to revocation and an administrative fine from $250.00 to

    $5,000.00. Pursuant to Rule 21M-20.001(3), Florida Administrative Code, the parties are entitled to present evidence of aggravating and mitigating circumstances for consideration with respect to determining the appropriate penalty. In that regard the rule provides that the following circumstances may be taken into account:

    
    

    1. Exposure of patient or public to injury or potential injury, physical or otherwise: none, slight, severe, or death;

    2. Legal status at the time of the offense:

       no restraints, or legal constraints;

    3. The number of counts or separate offenses established;

    4. The number of times the same offense or offenses have been previously committed by the licensee or applicant;

    5. The disciplinary history of the applicant or licensee in any jurisdiction and the length of practice.

    6. Pecuniary benefit or self-gain inuring to the applicant or licensee;

    7. Any other relevant mitigating factors.

       
       

15. Consideration of all of the foregoing leads to the conclusion that the appropriate penalty in this case should be mitigated to something substantially less than the maximum penalties set forth in the applicable rule. In this regard it is first noted that the Respondent's conduct did not expose any

    patients to injury or the risk of injury. Further, there is no evidence in this case of any prior disciplinary action against the Respondent in the State of Florida or in any other jurisdiction. Other mitigating factors include the fact that only one offense was charged in the Administrative Complaint and that the Respondent appears to be truly remorseful. It appears unlikely that the Respondent would again engage in conduct similar to that which led to his criminal conviction.

    
    

16. The Petitioner proposes that the appropriate penalty should include a period of suspension from the practice of medicine. On the facts in this case, suspension from practice does not appear to be either necessary or appropriate. The charge in this case does not relate to the Respondent's ability to practice medicine and the evidence establishes that the Respondent is a competent, caring physician. Suspension of the Respondent's license would deprive the community in which he practices of the services of a competent, caring physician without providing any demonstrable benefit to the public.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the Board of Medicine enter a Final Order in this case concluding that the Respondent has violated Section 458.331(1)(c), Florida Statutes, as charged in the Administrative Complaint, and imposing an administrative penalty consisting of

(a) a reprimand, (b) a two- year period of probation during which period the Respondent shall also perform 100 hours of community service of a type to be determined by the Board, and (c) an administrative fine in the amount of two thousand five hundred dollars ($2,500.00). It is also recommended that the Final Order provide that during the period of probation any billing records that may be prepared by the Respondent be personally reviewed by either the administrators of the clinics at which the Respondent practices or by a physician designated by the Board.

DONE AND ENTERED this 4th day of February, 1993, at Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 4th day of February, 1993.

APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 92-1078

The following are my specific rulings on all proposed findings of fact submitted by all parties.

Findings submitted by Petitioner:

All six paragraphs of findings proposed by the Petitioner have been accepted and included in the Findings of Fact in this Recommended Order.

Findings submitted by Respondent:

Paragraphs 1 through 5: Accepted.

Paragraph 6: Rejected as constituting description of events at the formal hearing, rather than proposed findings regarding the issues at hand.

Paragraph 7: Accepted in substance that the Respondent has a reputation for integrity in his community and is active in his church, but the remainder is rejected as subordinate and unnecessary details.

Paragraphs 8 through 11: Accepted that the Respondent has a reputation among his colleagues as a good, caring, and compassionate physician, but most of the remainder is rejected as subordinate and unnecessary details.

Paragraph 12: Rejected as subordinate and unnecessary details or as irrelevant to the issues to be resolved.

Paragraph 13: First sentence is accepted in substance. The second sentence is rejected as not supported by persuasive evidence; the Respondent's testimony to the effect proposed here is not persuasive in light of other facts in this case.

COPIES FURNISHED:

Barbara Whalin Makant, Esquire Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Harold M. Braxton, Esquire Suite 400, One Datran Center 9100 South Dadeland Boulevard Miami, Florida 33156

Dorothy Faircloth, Executive Director Board of Medicine

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

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.

Docket for Case No: 92-001078

Orders for Case No: 92-001078