STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, BOARD OF ) MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3479

)

RAUL A. TAMAYO, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case at Hollywood, Florida, on May 6, 1993, 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: Francesca Plendl, Esquire

Senior Attorney

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Steven R. Ballinger, Esquire, and

Morton J. Morris, Esquire

2500 Hollywood Boulevard, Suite 212

Hollywood, Florida 33020 STATEMENT OF THE ISSUES

This is a license discipline case in which the Petitioner seeks to have disciplinary action taken against the Respondent on the basis of allegations that the Respondent has violated paragraphs (f), (w), and (aa), of Section 485.331(1), Florida Statutes, by aiding, assisting, procuring or advising an unlicensed person to practice medicine, by delegating professional responsibilities to a person when the licensee knew such person was unlicensed, and by presigning blank prescription forms.

PRELIMINARY STATEMENT

At the hearing on May 6, 1993, the Petitioner offered six exhibits, all of which were received in evidence. The Petitioner also presented the testimony of two witnesses, DPR Investigator Georgina Jorge and Simon Hajje, M.D. The Respondent offered two exhibits, both of which were received in evidence. The

Respondent also offered the testimony of three witnesses, Hernan Cicero, M.D., Benito Lago, M.D., and Jorge Pizarro, M.D.

At the conclusion of the hearing the parties were allowed ten days from the filing of the transcript within which to file their proposed recommended orders. The transcript was filed with the Division of Administrative Hearings on May 17, 1993. Thereafter, both 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 proposed findings of fact submitted by the parties are contained in the appendix to this Recommended Order.

FINDINGS OF FACT

Stipulated facts

1. The Respondent, Raul A. Tamayo, M.D., is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued license number ME0051659.

   
   

2. At all times material hereto, the Respondent worked on a part-time basis, solely as an employee, at Westchester Clinic.

   
   

3. The Respondent was neither an owner nor a principal of Westchester Clinic, nor was he an employer of Simon Hajje.

   
   

4. The Respondent has had no prior discipline against his license to practice medicine in the State of Florida.

   
   

   Facts proved at hearing

   
   

5. From early April of 1990 until November 16 of 1990, Dr. Simon Hajje also worked as an employee of the Westchester Clinic. During the time he worked for the Westchester Clinic, Dr. Simon Hajje was not licensed as a medical doctor in the State of Florida. During the time he worked for the Westchester Clinic, Dr. Simon Hajje's job title was "medical assistant." During the period that Dr. Hajje and the Respondent were employed at the Westchester Clinic, there were also numerous other physicians who worked there on a part-time basis on many different work schedules.

   
   

6. On November 15, 1990, a Department investigator named Ms. Georgina Jorge went to the Westchester Clinic where, using the assumed name of Megalyn Guzman, she pretended to be a patient in need of medical attention. On that day Ms. Jorge was taken to an examination room where she met Dr. Simon Hajje. Thereupon, Dr. Hajje, acting as if he were a licensed medical doctor, took a medical history from Ms. Jorge, examined Ms. Jorge, and then wrote two prescription forms which he ultimately gave to Ms. Jorge. As she was leaving the clinic, Ms. Jorge asked the receptionist for the name of the doctor and she was given a card on which the name "Dr. Hajje-Tamayo" was written.

   
   

7. On the following day, November 16, 1990, Ms. Jorge returned to the Westchester Clinic, again using the assumed name of Megalyn Guzman, and asked to see "Dr. Hajje-Tamayo." Ms. Jorge again saw Dr. Simon Hajje, whereupon she told him that she had lost one of the prescriptions. Dr. Simon Hajje thereupon wrote and delivered to Ms. Jorge another prescription to replace the allegedly lost prescription from the previous day.

8. The prescription forms given to Ms. Jorge on November 15 and 16, 1990, were on prescription forms that had the name, address, and telephone number of the Westchester Clinic Center printed at the top. Those prescription forms also had a manuscript signature at the bottom that appeared to read "R. Tamayo, M.D."

   
   

9. With regard to the two prescription forms given to her on November 15, 1990, Ms. Jorge observed that the prescription forms were signed before Dr. Simon Hajje started filling them out. She was unable to make such an observation regarding the prescription form given to her on November 16, 1990.

   
   

10. On November 16, 1990, Ms. Jorge also retrieved six other presigned blank prescription forms that had the name, address, and telephone number of the Westchester Clinic Center printed at the top and had the manuscript signature of the Respondent at the bottom.

    
    

11. None of the medications on the prescription forms given to Ms. Jorge by Dr. Simon Hajje were controlled substances.

    
    

12. Dr. Hajje found the presigned prescription forms described above on a desk in one of the examination rooms at the Westchester Clinic. The Respondent never gave Dr. Hajje permission to take any of the presigned prescription forms and give them to Ms. Georgina Jorge. Dr. Hajje never told the Respondent that he was going to write prescriptions on the presigned forms and give them to Georgina Jorge. Dr. Hajje never told the Respondent that he was going to take the presigned prescription forms and write prescriptions for any patient. Dr. Hajje never said anything to the Respondent and never did anything that would cause the Respondent to expect that Dr. Hajje would write prescriptions on the presigned forms and give the prescription forms to Georgina Jorge.

    
    

13. On November 19, 1990, Ms. Jorge interviewed the Respondent at the Respondent's private practice office located at 9473 West Flagler, Miami, Florida. Ms. Jorge had never seen the Respondent prior to the November 19, 1990, interview, nor had she spoken to him prior to the interview. During the course of the interview on November 19, 1990, Ms. Jorge showed the Respondent the prescription forms Dr. Hajje had issued to her and also showed him the other presigned blank prescription forms she had retrieved from the Westchester Clinic.

    
    

14. Upon being told what had happened, the Respondent became very emotional and stated that he did not realize that Dr. Hajje had issued any prescriptions. The Respondent was very shocked and very surprised that Dr. Hajje had issued the prescriptions in question. The Respondent denied any knowledge of Dr. Hajje's actions in this regard and explained to Ms. Jorge that he might have left some presigned prescription forms behind at the Westchester Clinic because, as a matter of convenience and efficiency, he sometimes presigned blank prescription forms in order to save time while with his patients. In the course of this explanation, the Respondent showed Ms. Jorge a prescription pad he had in his possession that had two blank prescription forms that had been presigned by the Respondent. The presigned prescription forms the Respondent showed to Ms. Jorge on November 19, 1990, were different from the ones she saw on November 15 and 16, 1990, at the Westchester Clinic, because the ones on November 19 had printed at the top the Respondent's name and the addresses of the Respondent's private offices.

    
    

15. On November 19, 1990, when Ms. Jorge showed the Respondent the prescription forms she had received from Dr. Hajje and the six blank presigned prescription forms she had retrieved on November 16, 1990, the Respondent

    examined those prescription forms and acknowledged that the signatures on all of those prescription forms appeared to be his signature.

    
    

16. Prior to the interview on November 19, 1990, the Respondent did not realize that the act of presigning blank prescription forms was (and still is) prohibited by statute. The Respondent studied medicine in Havana, Cuba, in the early 1970's and also practiced in Cuba before coming to this country. Due to the heavy case loads that are common for physicians practicing in Cuba, it was common for such physicians to develop the habit of presigning documents such as prescription forms and having a physician's assistant fill out the prescriptions pursuant to instructions from the physician.

    
    

17. Dr. Simon Hajje's activities on November 15 and 16, 1990, described above, led to his arrest on charges of engaging in the unlicensed practice of medicine. Those activities were also made known to the Board of Medicine when Dr. Hajje applied for a license to practice medicine in the State of Florida. Nevertheless, Dr. Hajje was licensed in due course and continues to be licensed to practice medicine in the State of Florida.

    
    

18. The Respondent is well respected, both personally and professionally, by physicians in the medical community in which he practices. Physicians who know him well regard the Respondent as an honest and honorable individual who is an excellent and dedicated physician.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

20. In a license discipline proceeding of this nature the Petitioner bears the burden of proving its charges by clear and convincing evidence. See Ferris

    v. Turlington, 510 So.2d 292 (Fla. 1987). The nature of clear and convincing evidence has been described as follows in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983):

    
    

    We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    See also, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), which, at page 958, quotes with approval the above- quoted language from Slomowitz. The Smith case also includes the following at page 958:

    
    

    "Clear and convincing evidence" is an intermediate standard of proof, more than the "preponderance of the evidence" standard used in most civil cases, and less than the

    "beyond a reasonable doubt" standard used in criminal cases. See State v. Graham, 240 So.2d 486 (Fla. 2d DCA 1970).

    
    

21. Section 458.311(1), Florida Statutes (1990 Supp.), reads as follows in pertinent part:

    
    

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

       ***

       (f) Aiding, assisting, procuring, or advising any unlicensed person to practice medicine contrary to this chapter or to a rule of the department or the board.

       ***

       (w) Delegating professional responsibilities to a person when the licensee delegating such responsibilities knows or has reason to know that such person is not qualified by training, experience, or licensure to perform them.

       ***

       (aa) Presigning blank prescription forms.

       
       

22. In Count One of the Administrative Complaint the Respondent is charged with presigning blank prescription forms in violation of Section 458.331(1)(aa), Florida Statutes (1990 Supp.). As noted in the findings of fact, the evidence in this case is sufficient to establish that on at least two occasions the Respondent presigned blank prescription forms. One of those occasions was shortly before November 15 and 16, 1990, when the Respondent left the presigned prescription forms at the Westchester Clinic which were discovered and misused by Dr. Simon Hajje. The act of presigning those forms is a clear violation of Section 458.331(1)(aa), Florida Statutes (1990 Supp.), and that act is clearly charged as a violation in the Administrative Complaint.

    
    

23. The other occasion on which the evidence shows that the Respondent presigned prescription forms was on November 19, 1990, when the Respondent showed presigned forms to the Department's investigator. That even, however, cannot form the basis for disciplinary action against the Respondent because it is not charged as a violation in the Administrative Complaint. The law in this state is well settled that regulatory agencies cannot take disciplinary action against licensees on the basis of facts that are not alleged in the administrative complaint. See Wray v. Dept. of Professional Regulation, Bd. of Medical Examiners, 435 So.2d 312 (Fla. 1st DCA 1983); Sternberg v. Dept. of Professional Regulation, Bd. of Medical Examiners, 465 So.2d 1324 (Fla. 1st DCA 1985).

    
    

24. Paragraph 7 of the Administrative Complaint also alleges: "During the period of about November 1988, to November 1990, on numerous occasions, the Respondent presigned blank prescriptions." There is no clear and convincing evidence in this record that the Respondent presigned blank prescriptions on "numerous occasions"; only that he did so in November of 1990 as described above. Accordingly, although the evidence is sufficient to prove a violation of Section 458.331(1)(aa), Florida Statutes (1990 Supp.), the magnitude of the violation proved in much less than the magnitude of the violation charged.

25. Count Two of the Administrative Complaint charges the Respondent with a violation of Section 458.331(1)(f), Florida Statutes (1990 Supp.), alleging that "Respondent aided, assisted, procured or advised an unlicensed person to practice medicine contrary to Florida law when Respondent presigned prescriptions for an unlicensed person to issue." The evidence is insufficient to establish the violation charged in Count Two because there is no evidence of any act by the Respondent for the purpose of aiding, assisting, procuring, or advising any unlicensed person to practice medicine contrary to Florida law. To the contrary, the persuasive evidence is to the effect that the Respondent was shocked and surprised when he was told that Dr. Simon Hajje was making improper use of prescription forms the Respondent had presigned and left at the Westchester Clinic. The persuasive evidence is also to the effect that the Respondent was totally without knowledge of any unlawful medical practice by Dr. Simon Hajje until Dr. Hajje's conduct was brought to the Respondent's attention by the Department's investigator. Such being the case, the proof is inconsistent with the violation charged in Count Two, and the violation charged in Count Two should be dismissed.

    
    

26. Count Three of the Administrative Complaint charges the Respondent with a violation of Section 458.331(1)(w), Florida Statutes (1990 Supp.), alleging that "Respondent has delegated professional responsibilities to a person when the licensee delegated [sic] such responsibilities knows or has reason to know that such person is not licensed when Respondent delegated professional responsibilities to an unlicensed person, the ability to issue or give pre-signed prescriptions." The evidence is insufficient to establish the violation charged in Count Three because there is no evidence of any act by the Respondent that constitutes a delegation of professional responsibilities to Dr. Simon Hajje. To the contrary, the persuasive evidence is to the effect that the Respondent did not authorize Dr. Hajje to take any of the presigned prescription forms and did not authorize Dr. Hajje to give any of the presigned prescription forms to any patients.

    
    

27. With regard to the appropriate penalty to be imposed, for several reasons it appears that in this case a mild penalty is more appropriate than a harsh one. An important factor in this regard is that there is no showing that the Respondent intended any harm or that he had any improper purpose in mind. To the contrary, the evidence shows that the Respondent's violation was a good faith, although misguided, effort at greater efficiency in attending to his patients. Another important factor is that the Respondent has had no prior disciplinary history and, in the opinion of other physicians who know him well, is an excellent and dedicated physician.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the Board of Medicine issue a Final Order in this case to the following effect:

1. Dismissing the violations charged in Counts Two and Three of the Administrative Complaint on the grounds that the evidence is insufficient to prove the violations charged in those two counts;

   
   

2. Concluding that the Respondent is guilty of having, on at least one occasion, violated Section 458.331(1)(aa), Florida Statutes (1990), as charged in Count One of the Administrative Complaint; and

   
   

3. Imposing an administrative penalty consisting solely of a written reprimand.

DONE AND ENTERED this 15th day of December, 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 15th day of December, 1993.

APPENDIX

The following are the Hearing Officer's specific rulings on all proposed findings of fact submitted by all parties.

Findings submitted by Petitioner:

Paragraphs 1 through 7: Accepted in substance, with a number of details corrected or clarified to conform to the evidence.

Paragraph 8: Rejected as not supported by persuasive competent substantial evidence. (There is evidence that the Respondent presigned "some" prescription forms, but there is no clear evidence that he did so on "numerous occasions" and there is no clear evidence that he was doing so throughout a two-year period from November 1988 to November 1990.)

Paragraph 9: Rejected as not supported by persuasive competent substantial evidence and as contrary to the greater weight of the evidence. (There is no evidence that the Respondent intended for anyone other than himself to issue the prescription forms he presigned.)

Paragraph 10: Rejected as not supported by persuasive competent substantial evidence and as contrary to the greater weight of the evidence. (There is no evidence that the Respondent authorized Dr. Simon Hajje to issue prescriptions, that he delegated the issuance of prescriptions to Dr. Hajje, or that he even knew Dr. Hajje was issuing prescriptions.)

Findings submitted by Respondent:

Paragraph 1: Accepted.

Paragraphs 2 and 3: Rejected as subordinate and unnecessary historical or background details.

Paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20,

and 21: Accepted in substance, with a number of details corrected or clarified to conform to the evidence.

Paragraph 22: Rejected as subordinate and unnecessary details.

Paragraph 23: First sentence accepted in substance to the effect that the Respondent was very surprised and in a state of shock when he learned that Dr. Simon Hajje had issued prescriptions presigned by the Respondent. The remainder of this paragraph is rejected as consisting of subordinate and unnecessary details and legal arguments.

Paragraph 24: Accepted in substance.

Paragraph 25: Accepted in substance, but with a large number of unnecessary details omitted.

Paragraph 26: Rejected as constituting legal argument rather than proposed findings of fact.

Paragraphs 27, 28, and 29: Accepted in substance.

Paragraph 30: Rejected as constituting legal argument rather than proposed findings of fact.

Paragraph 31: Accepted in substance.

Paragraph 32: Accepted in substance, with exception of last sentence.

Last sentence is rejected as legal argument.

Paragraphs 33, 34, 35, and 36: Rejected as consisting of a combination of subordinate and unnecessary details and arguments about the sufficiency of the evidence.

Paragraphs 37, 38, 39, 40, 41, 42, 43, and 44: Accepted in substance, with a number of details corrected or clarified to conform to the evidence, and with other details simplified to the bare essentials.

COPIES FURNISHED:

Francesca Plendl, Esquire Senior Attorney

Department of Business and Professional Regulation

1940 N. Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Steven R. Ballinger, Esquire, and Morton J. Morris, Esquire

2500 Hollywood Boulevard

Suite 212

Hollywood, Florida 33020

Dorothy Faircloth, Executive Director Board of Medicine

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0750

Jack McRay, Esquire General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0750

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: 92-003479

Orders for Case No: 92-003479