STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE )
)
Petitioner, )
)
vs. ) CASE NO. 92-4948
) JORGE ARTURO FLORES, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on November 13, 1992, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Joseph Harrison, Esquire
Slepin, Harrison & Feurer
2500 North Military Trail, Suite 275 Boca Raton, Florida 33432
For Respondent: William Zei, Esquire
Wicker, Smith, Tutan, O'Hara, McCoy, Graham & Lane
One East Broward Boulevard, 5th Floor Post Office Box 14460
Fort Lauderdale, Florida 33302 STATEMENT OF THE ISSUES
Whether Respondent committed the offenses described in the Amended Administrative Complaint?
If so, what disciplinary action should be taken against him?
PRELIMINARY STATEMENT
On February 10, 1992, the Department of Professional Regulation (Department) issued an Amended Administrative Complaint alleging that Respondent "aided, assisted and advised unlicensed persons to practice medicine contrary to [Section 458.331(1)(f)], Florida Statutes, by interpreting patient studies for Health Imaging, Inc., an unlicensed pseudo medical facility," and that he violated Section 458.331(1)(m), Florida Statutes, by "fail[ing] to keep medical record of patient studies, which he interpreted for Health Imaging, Inc." Respondent denied the allegations of wrongdoing made in the Amended Administrative Complaint and requested a formal hearing. On August 14, 1992,
the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the formal hearing Respondent had requested.
At the formal hearing, the live testimony of four witnesses was presented: Respondent; Stanley Bernstein, M.D.; Marc Kaye, M.D.; and Irwin Boruchow,
The latter three witnesses, all of whom are Florida-licensed physicians, testified as experts. In addition to the live testimony of these four witnesses, a total of 11 exhibits were offered and received into evidence. Among these exhibits were the depositions of Warren Green, who along with his wife owned Health Imaging, Inc., and Thomas Tufts, M.D., a radiologist licensed to practice in the State of Florida. These depositions were presented in lieu of the witnesses' live testimony.
At the close of the evidentiary portion of the hearing on November 13, 1992, the Hearing Officer advised the parties on the record that post-hearing submittals had to be filed no later than 30 days following the Hearing Officer's receipt of the hearing transcript. On November 23, 1992, Respondent filed a written final argument. Thereafter, on December 9, 1992, the Hearing Officer received the hearing transcript. Nine days later, Petitioner filed a proposed recommended order. On January 7, 1992, Respondent also filed a proposed recommended order. No additional post-hearing submittals have been filed.
Respondent's written final argument and his proposed recommended order, respectively, have sections entitled, "Statement of the Facts" and "Statement of Undisputed Facts." Petitioner's proposed recommended order, similarly, contains, what are labelled as, "Proposed Findings of Fact." These portions of the parties' post-hearing submittals have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.
FINDINGS OF FACT
Based upon the evidence adduced at hearing, the parties' prehearing stipulation, and the record as a whole, the following Findings of Fact are made:
Respondent is now, and has been for approximately the past 15 years, a physician licensed to practice medicine in the State of Florida.
He specializes in internal medicine and cardiology and is board certified in these specialities.
He currently is the Chief of Cardiology and head of the Coronary Care Unit at North Ridge Hospital and has staff privileges at approximately five other hospitals in the Broward County area.
At all times material to the instant case, Health Imaging, Inc., (Health) was in the business of providing ultrasound imaging services in the State of Florida at the request of physicians, hospitals and members of the community at large.
The tests performed by Health were non-invasive studies that involved no health risks. They included echocardiograms, carotid ultrasounds and other studies of the heart and vascular system done with ultrasound equipment.
Unlicensed technicians operated the equipment and administered the tests.
Florida-licensed physicians interpreted the test results.
In August of 1987, Warren Green and his wife, the owners of Health, contacted Respondent and asked him if he would be interested in contracting with Health to provide such interpretive and diagnostic services.
After looking into the matter and satisfying himself that Health's equipment was of good quality and that its technicians were well qualified, Respondent entered into a written agreement (Agreement) with Health, the body of which provided as follows:
This agreement made and entered into this 18 day of August 1987 by and between Health Imaging, having its principal business address at 6278 North Federal Highway, Suite 372, Ft. Lauderdale, Florida, hereinafter referred to as "HEALTH" and Jorge Flores, M.D., having his principal business address at 5700 N. Federal Highway, Ft. Lauderdale, Florida, hereinafter referred to as "DOCTOR" is made with reference to the following:
WHEREAS, HEALTH is engaged in business throughout the Florida area providing ultrasound and vascular services to hospitals, physician offices and the community. DOCTOR is engaged in the business of providing medical services to his patients and patients of other doctors and hospitals in the Ft. Lauderdale, Florida area. Health desires to contract from DOCTOR for certain diagnostic interpretation services for its
own patients and patients of other doctors and hospitals in the Florida area.
NOW THEREFORE, HEALTH AND DOCTOR AGREE AS FOLLOWS:
Equipment. HEALTH agrees to provide all necessary equipment and supplies to perform the services according to the schedule set forth on Exhibit A, attached hereto.
Personnel. Health shall provide qualified technologists to operate the equipment for the services set forth on Schedule A, attached hereto.
Solicitation of Employees. DOCTOR shall not during the term of this agreement nor a period of One (1) year after its termination, solicit for employment or employ, whether as employee or independent contractor, any person who is or has been employed by HEALTH during the term of this agreement without the prior written consent of HEALTH.
Physician Interpretation Personnel. DOCTOR agrees to provide necessary qualified physicians for interpretations.
Payment. For and in consideration of the services and promises contained herein by DOCTOR, HEALTH agrees to pay DOCTOR in accordance with the fee schedule set forth on Schedule A, attached hereto. All fees are to be paid in advance or at time of interpretation.
Default. In the event of the default of any payment this contract may be terminated by DOCTOR.
Term, Termination. The term of this agreement is for one (1) year. After Thirty
(30) days either party may terminate this agreement, without cause, by giving Thirty
(30) days written notice provided that in no event may HEALTH terminate this agreement unless all monies owing to DOCTOR under the terms hereof are paid in full.
Compliance with Law. Both parties agree to comply with all municipal, state and federal laws and regulations.
Governing Law. This agreement shall be construed under the laws of the State of Florida.
Independent Contractor. DOCTOR is performing the service and duties required hereunder as an independent contractor and not as an employee, agent, partner, or joint venturer with HEALTH.
Entire Agreement. This instrument shall be deemed to contain the entire agreement between HEALTH and DOCTOR and supercedes [sic] any prior or existing agreements, understandings, arrangements, terms, conditions, negotiations, or representations, oral or written, made by either party concerning or affecting the subject matter hereof. No modification of this agreement may be made except in writing, signed by HEALTH and DOCTOR.
Schedule A, which was referenced in and appended to the Agreement, read as follows:
INTERPRETATION FEE SCHEDULE
Community, Corporate, Club and Association Screening Program Fee Schedule.
EXAM: Echocardiography only
FEE: One thousand dollars (1,000.00) per month for 400 studies in any thirty (30) day period. Five dollars ($5.00) per study for all studies exceeding four Hundred (400) studies in any given thirty (30) day period.
Community, Corporate, Club and Association Screening Program Fee Schedule.
EXAMS: (Any combination of the following)
Carotid Ultrasound with Doppler and Periorbital Doppler
Echocardiography
Upper and Lower Extremity Doppler Study
FEE: Three thousand dollars ($3,000.00) per month for any combination of the above studies, not to exceed 1,500 studies in any thirty (30) day period. Any combination of the above studies will be at a rate of Five Dollars ($5.00) per study in any given thirty
(30) day period.
Hospital and Physician offices fee Schedule: (Any studies performed in a hospital or Physician office, ordered by a physician)
EXAMS
Carotid ultrasound with doppler $65.00
Echocardiography $65.00
Abdominal ultrasound $65.00
Holter monitoring $65.00
Peripheral arterial examination $35.00
Peripheral venous examination $35.00
The Agreement and Schedule A were drafted by the Greens without the assistance of an attorney.
Respondent furnished Health with interpretive and diagnostic services under the Agreement for approximately 18 months. He provided Health with no other services.
Respondent was compensated $1,000 per month the first four months and
$3,000 per month the remaining 14 months for his services.
Most of the individuals whose test results Respondent interpreted during his 18-month association with Health were self-referred. The remainder of the test takers were referred by physicians. None had any prior professional relationship with Respondent. 1/
Respondent prepared a signed, written report of his findings for each test taker. 2/ He sent the report, along with the materials that he had reviewed in making his findings, to Health, which in turn provided the report to the test taker or to the referring physician, if there was one. 3/
Respondent did not consider the test takers to be his patients. He therefore did not keep copies of the reports he had prepared and sent to Health or the test materials upon which these reports had been based. 4/
The Greens had assured Respondent at the outset, however, that they would maintain these records and make them available to Respondent upon his request should he need them for some reason. The Greens were true to their word. Whenever Respondent asked to see a copy of a report or test materials, 5/ the Greens complied with his request.
The Greens still have in their possession copies of the reports Respondent had prepared and transmitted, as well as the related test materials.
While Respondent was aware that Health advertised to generate business, he was not asked to assist in any way, either as a consultant or otherwise, in the preparation or placement of any of Health's advertisements. Indeed, the first time he saw one of these advertisements was approximately five or six months after he began his association with Health. The advertisement was in a local newspaper that he happened to be reading. Some months later he saw another advertisement in the same newspaper. He found the contents of this particular advertisement to be "totally unacceptable." He therefore telephoned the Greens and complained about the advertisement. The Greens responded to Respondent's complaint by discontinuing the advertisement.
A short time thereafter, upon the suggestion of a Department investigator who warned Respondent "to stay away from these people," Respondent severed his relationship with Health. He did so, not because he believed that he had done anything wrong, but because the Department, through its investigator, had expressed its concerns regarding the matter.
CONCLUSIONS OF LAW
The Board of Medicine (Board) is statutorily empowered to take disciplinary action against a physician licensed to practice medicine in the State of Florida based upon any of the grounds enumerated in Section 458.331(1), Florida Statutes.
Where the disciplinary action sought is the revocation or suspension of the physician's license, the proof of guilt must be clear and convincing. See Section 458.331(3), Fla. Stat.; Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Pic N' Save v. Department of Business Regulation, 601 So.2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation, 592 So.2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So.2d 500 (Fla. 3d DCA 1991). "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." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).
Where the discipline does not involve the loss of licensure, the physician's guilt need be established by only a preponderance of the evidence. See 458.331(3), Fla. Stat.; Allen v. School Board of Dade County, 571 So.2d 568, 569 (Fla. 3d DCA 1990).
Regardless of the disciplinary action taken, it may be based only upon the violations specifically alleged in administrative complaint. See Kinney v. Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).
Furthermore, in determining whether Section 458.331(1), Florida Statutes, has been violated in the manner charged in the administrative complaint, one "must bear in mind that it is, in effect, a penal statute. . . This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations, 348 So.2d 923, 925 (Fla. 1st DCA 1977).
The Amended Administrative Complaint issued in the instant case charges Respondent with committing two separate violations of Section 458.331(1), Florida Statutes.
Count One of the Amended Administrative Complaint alleges that Respondent violated 458.331(1)(m), Florida Statutes, by "fail[ing] to keep medical records of patient studies, which he interpreted for Health Imaging, Inc."
Section 458.331(1)(m), Florida Statutes, authorizes the Department to discipline a Florida-licensed physician for "[f]ailing to keep written medical records justifying the course of treatment of the patient." 6/
The duty imposed by Section 458.331(1)(m), Florida Statutes, to maintain medical records therefore applies only to a physician who administers "treatment" to a patient. If there is no course of treatment prescribed, then there is nothing for which the physician needs written justification under Section 458.331(1)(m), Florida Statutes. See Breesmen v. Department of Professional Regulation, 567 So.2d 469 (Fla. 1st DCA 1990).
In the instant case, it has not been established by even a preponderance of the evidence that Respondent was the treating physician of any test taker at the time he interpreted that individual's test results pursuant to his written agreement with Health. Absent such a showing that any test taker was then under Respondent's care and treatment, the evidence must be deemed insufficient to prove the allegation made in Count One of the Amended Administrative Complaint that Respondent violated Section 458.331(1)(m), Florida Statutes, by "fail[ing] to keep medical records of patient studies, which he interpreted for Health Imaging, Inc." 7/
Count Two of the Amended Administrative Complaint alleges that Respondent "aided, assisted, and advised unlicensed persons to practice medicine contrary to [Section 458.331(1)(f)], Florida Statutes by interpreting patient studies for Health Imaging, Inc., an unlicensed pseudo medical facility."
Section 458.331(1)(f), Florida Statutes, authorizes the Department to discipline a Florida-licensed physician for "[a]iding, assisting, procuring, or
advising any unlicensed person to practice medicine contrary to this chapter or to a rule of the department or the board."
To establish a violation of Section 458.331(1)(f), Florida Statutes, the Department, as a threshold requirement, must prove that the unlicensed person(s) identified in the administrative complaint actually engaged in the "practice of medicine," as that term is defined in Section 458.305(3), Florida Statutes, which provides as follows:
"Practice of medicine" means the diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical or mental condition.
In the instant case, the unlicensed persons that, according to the Amended Administrative Complaint, Respondent allegedly "aided, assisted and advised" were Health and its staff, specifically its technicians.
The Department, however, has failed to demonstrate by even a preponderance of the evidence that these persons engaged in any activity falling within the definition of the "practice of medicine" set forth in Section 458.305(3), Florida Statutes.
While Health's technicians may have administered tests used to evaluate the test taker's physical condition, in so doing they did not engage in the "practice of medicine," within the meaning of Section 458.305(3), Florida Statutes, given the nature of these tests. See Lambert v. State ex rel. Mathis,
77 So.2d 869 (Fla. 1955); Rush v. City of St. Petersburg, 205 So.2d 11 (Fla. 2d DCA 1967).
In its proposed recommended order, the Department argues that the technicians did more than merely administer these tests. It contends that they also exercised discretion requiring medical expertise "in selecting which tests to employ and on whom" and thereby "engaged in the unlicensed practice of medicine." The record, however, is devoid of any persuasive, competent substantial evidence that would support a finding that the technicians were in any way involved in the test selection process.
In view of the foregoing, Respondent may not be found guilty of the violation alleged in Count Two of the Amended Administrative Complaint.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the Board of Medicine enter a final order dismissing the Amended Administrative Complaint in its entirety.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of January, 1993.
STUART M. LERNER
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 January, 1993.
ENDNOTES
1/ After taking the test and receiving the interpreted test results, approximately four or five of the test takers contacted Respondent's office to make arrangements to see Respondent and subsequently became Respondent's patients. Respondent maintained records on these patients following the onset of their physician-patient relationship.
2/ Where the test that had been taken was an echocardiogram, Respondent used a form which contained a checklist that he filled in to indicate whether the test showed any abnormalities and, if so, what they were. Above the checklist appeared the following advisement:
An echocardiogram examination was performed to look inside the heart, its muscles, valves and chambers for detection of structural or pathological abnormalities. The test uses ultrasound to visualize the heart in motion and in two dimensions.
The physician interpreted results are indicated below. Upon receipt of the results of the test, you are strongly urged to consult your physician if there is any evidence of abnormality. If you have any persistent symptoms that have not been attributed to information obtained from this test, you are strongly urged to consult your physician.
3/ In those cases where Respondent felt an emergency situation existed, he so advised Health and gave instructions that the test taker be contacted immediately and urged to see a physician.
4/ In this regard, Respondent acted no differently than do physicians on hospital panels that interpret the results of echocardiograms and similar tests that are administered by technicians on staff at the hospital.
5/ Respondent occasionally received an inquiry from a test taker's physician regarding his findings. Upon receiving such an inquiry, he contacted the Greens and asked them to produce a copy of the report in question and the related test
materials for his examination so that he would be able to respond to the physician's inquiry in an informed manner. Respondent also asked for copies of the reports and related test materials pertaining the test takers who became his patients after taking the test and receiving the interpreted test results.
6/ The 1987 version of this statutory provision provided as follows:
The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results, and test results.
Effective February 8, 1988, it was amended to read as follows:
The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results, test results, records of drugs prescribed, dispensed, or administered, and reports of consultations and hospitalizations.
No subsequent changes have been made by the Legislature.
7/ Moreover, the record reflects that Respondent did reduce his findings to writing, that copies of the reports he prepared are still in existence and that Respondent has ready access to these reports, notwithstanding that they may not now be in his actual possession.
The Department presented the testimony of physicians who opined that, because copies of these reports were given for safekeeping to an "unlicensed pseudo medical facility" instead of a duly licensed health care facility, Respondent did not, as the Department put it in its proposed recommended order, "meet professional standards with reference to record keeping." These professional standards that, according to these expert witnesses, Respondent allegedly failed to meet, however, have not been codified in Section 458.331(1)(m), Florida Statutes, nor in any rule implementing that statutory provision that was in effect at the time of Respondent's alleged transgression . As the First District Court of Appeal recently stated in a case which also involved an alleged violation of Section 458.331(1)(m), Florida Statutes:
Basic due process requires that a professional or business license not be suspended or revoked without adequate notice to the licensee of the standard of conduct to which he or she must adhere. The opinions of expert witnesses offered by the parties cannot make certain, after the fact, those standards of conduct that are not clearly set forth in the statute or a rule.
Breesmen v. Department of Professional Regulation, 567 So.2d at 471-72; See also Robertson v. Department of Professional Regulation, 574 So.2d 153, 156-57 (Fla. 1st DCA 1990)(in determining whether there has been a violation of Section 458.331(1)(m), Florida Statutes, the "Florida statutory standard," not "a local or national standard," must be applied).
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-4948
The following are the Hearing Officer's specific rulings on the "Proposed Findings of Fact" set forth in the Department's proposed recommended order, the "Statement of the Facts" set forth in Respondent's written final argument and the "Statement of Undisputed Facts" set forth in Respondent's proposed recommended order:
The Department's "Proposed Findings of Fact"
First sentence: To the extent that this proposed finding state that Respondent "at all times [material hereto] was a licensed physician in the State of Florida, it has been accepted and incorporated in substance, although not necessarily repeated verbatim, in the Findings of Fact section of this Recommended Order. To the extent that it states that Respondent was "subject therefore to the jurisdiction of the Board of Medicine and the Department of Professional Regulation, and the provisions of Chapter 458, Florida Statutes," it has been rejected as a finding of fact because it is more in the nature of a conclusion of law than a finding of fact; Second sentence: Accepted and incorporated in substance.
First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected as a finding of fact because it is more in the nature of a summary of certain testimony adduced at hearing than a finding of fact based upon that testimony; Fourth sentence: Rejected as a finding of fact because it is more in the nature of argument regarding the credibility of certain testimony adduced at hearing than a finding of fact.
First, second and seventh sentences: Rejected because they are not germane to the issues in dispute in the instant case; Third sentence: Rejected as a finding of fact because it is more in the nature of a summary of certain testimony adduced at hearing than a finding of fact based upon that testimony; Fourth sentence, before comma: Rejected as a finding of fact because it is more in the nature of argument regarding the significance of certain testimony adduced at hearing than a finding of fact based upon such testimony; Fourth sentence, after comma, and fifth sentence: Rejected as findings of fact because they are more in the nature of summaries of certain testimony adduced during a deposition that was received into evidence at hearing than findings of fact based upon that testimony; Sixth sentence, before comma: Rejected because it is not supported by persuasive, competent substantial evidence and, in any event, even if it were true, it would have no bearing on the outcome of the instant case; Sixth sentence, after comma: Rejected as a finding of fact because it is more in the nature of a conclusion of law than a finding of fact.
Rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact.
First sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second through sixth sentences: Rejected as findings of fact because they are more in the nature of summaries of certain testimony adduced at hearing than findings of fact based upon that testimony; Seventh sentence: Rejected as a finding of fact because it is more in the nature of argument regarding the weight that should be given certain testimony adduced at hearing than a finding of fact.
Rejected as a finding of fact because it is more in the nature of a summary of certain testimony adduced at hearing than a finding of fact based upon that testimony.
Second and seventh sentences: Rejected as findings of fact because they are more in the nature of arguments regarding the credibility of certain testimony adduced at hearing than findings of fact; Remaining sentences: Rejected as findings of fact because they are more in the nature of summaries of certain testimony adduced at hearing than findings of fact based upon that testimony.
Rejected as a finding of fact because it is more in the nature of argument regarding the weight that should be given certain testimony adduced at a deposition that was received into evidence at hearing than a finding of fact based upon that testimony.
Respondent's "Statement of the Facts"
First unnumbered paragraph: Accepted and incorporated in substance.
Second unnumbered paragraph: Last sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Remaining sentences: Accepted and incorporated in substance.
Third unnumbered paragraph: First, second, fifth, sixth, seventh and ninth sentences: Accepted and incorporated in substance; Third and fourth sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer; Eighth sentence: Rejected as a finding of fact because it is more in the nature of a summary of certain testimony adduced during a deposition that was received into evidence at hearing than a finding of fact based upon that testimony.
Respondent's "Statement of Undisputed Facts"
First unnumbered paragraph: Rejected as a finding of fact because it is more in the nature of argument regarding the state of the evidentiary record than a finding of fact based upon record evidence.
Second unnumbered paragraph: Accepted and incorporated in substance.
Third unnumbered paragraph: Last sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Remaining sentences: Accepted and incorporated in substance.
Fourth and fifth unnumbered paragraphs: Accepted and incorporated in substance.
Sixth unnumbered paragraph: First, seventh and eighth sentences: Accepted and incorporated in substance; Second, fifth and sixth sentences: Rejected as findings of fact because they are more in the nature of summaries of certain testimony adduced at hearing than findings of fact based upon that testimony; Third sentence: Rejected as a finding of fact because it is more in the nature of argument regarding the state of the evidentiary record than a finding of fact based upon record evidence; Fourth sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Ninth, tenth and eleventh sentences: Rejected as findings of fact because they are more in the nature of summaries of certain testimony adduced during a
deposition that was received into evidence at hearing than findings of fact based upon that testimony.
Seventh unnumbered paragraph: Accepted and incorporated in substance.
Eighth unnumbered paragraph: First and second sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer; Third sentence: Rejected as a finding of fact because it is more in the nature of a summary of certain testimony adduced at hearing than a finding of fact based upon that testimony.
Ninth unnumbered paragraph: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Tenth unnumbered paragraph: First sentence: Rejected as a finding of fact because it is more in the nature of argument regarding the state of the evidentiary record than a finding of fact based upon record evidence; Second sentence: Rejected as a finding of fact because it is more in the nature of a summary of certain testimony adduced at hearing than a finding of fact based upon that testimony.
COPIES FURNISHED:
Joseph Harrison, J.D., Ph.D 2500 North Military Trail Suite 275
Boca Raton, Florida 33432
William Zei, Esquire
Wicker, Smith, Tutan, O'Hara, McCoy, Graham & Lane
One East Broward Boulevard 5th Floor
Post Office Box 14460
Fort Lauderdale, Florida 33302
Dorothy Faircloth, Executive Director Board of Medicine
Department of Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-0792
Jack McRay, Esquire 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 of time 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
=================================================================
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICINE
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner, DPR CASE NUMBERS: 01-11408 89-07347
vs. DOAH CASE NUMBER: 92-4948
LICENSE NUMBER ME 0030606
JORGE ARTURO FLORES, M.D.,
Respondent.
/
FINAL ORDER
This cause came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)10, Florida Statutes, on April 2, 1993, in Plantation, Florida, for the purpose of considering the Hearing Officer's Recommended Order, Petitioner's Exceptions to the Recommended Order, and Respondent's Response to Petitioner's Exceptions (copies of which are attached hereto as Exhibits A, B, and C, respectively) in the above-styled cause. Petitioner, Department of Professional Regulation, was represented by Larry G. McPherson, Jr., Attorney at Law.
Respondent was present and represented by William Zei, Attorney at Law.
Upon review of the Recommended Order, the argument of the parties, and after a review of the complete record in this case, the Board makes the following findings and conclusions.
RULINGS ON EXCEPTIONS
Petitioner's Exception Number 1, which is to paragraphs 29 and 30 of the Conclusions of Law is ACCEPTED as to paragraph 29. The Board finds that there was a physician-patient relationship between Respondent and the patients whose tests he read.
Petitioner's Exception Number 2, which is to paragraphs 36 and 37, is REJECTED.
FINDINGS OF FACT
Findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein.
There is competent substantial evidence to support the findings of fact.
CONCLUSIONS OF LAW
The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.
The Board, in its ruling on the Exception to paragraph 29, granted that exception and to that extent rejects the contrary Conclusion of Law by the Hearing Officer. Further, the Board finds that Section 458.331(1)(m), F.S., does not apply only to physicians who administer treatment to patients, but applies to all physicians who participate in the "course of treatment." The course of treatment includes the diagnostic phase of the practice of medicine. That this is so is evident if one reviews the entire statutory provision at issue rather than omitting the ending as the Hearing Officer did. At the relevant time period, Section 458.331(1)(m), F.S., provided, that a physician could be disciplined for "[f]ailing to keep medical records justifying the course of treatment, including, but not limited to, patient histories, examination results, and test results." Based on this reason, the Board rejects the Conclusion of Law set forth in paragraph 30 of the Recommended Order.
In all other respects, the conclusions of law set forth in the Recommended Order are approved and adopted and incorporated herein.
There is competent substantial evidence to support the conclusions of law by the Board.
DISPOSITION
Upon a complete review of the record in this case, the Board determines that the disposition recommended by the Hearing Officer be ACCEPTED and ADOPTED. WHEREFORE,
IT IS HEREBY ORDERED AND ADJUDGED that
The Administrative Complaint in this cause is DISMISSED.
This order takes effect upon filing with the Clerk of the Department of Professional Regulation.
DONE AND ORDERED this 13 day of April, 1993.
BOARD OF MEDICINE
EDWARD A. DAUER, M.D. VICE CHAIR
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Jorge Arturo Flores, M.D., 5700 North Federal Highway, Fort Lauderdale, Florida 33308 and William Zei, Attorney at Law, Wicker, Smith, et al., One East Broward Boulevard, 5th Floor, Post Office Box
14460, Ft. Lauderdale, Florida 33308 by U.S. Mail to Stuart M. Lerner, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; and by interoffice delivery to Larry G. McPherson, Jr., Chief Medical Attorney, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 at or before 5:00 P.M., this 26th day of April, 1993.
DOROTHY J. FAIRCLOTH
NOTICE OF RIGHT TO JUDICIAL REVIEW
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF PROFESSIONAL REGULATION AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT C0URT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN THIRTY (30) DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
| Issue Date | Proceedings |
|---|---|
| Apr. 27, 1993 | Final Order filed. |
| Jan. 15, 1993 | Recommended Order sent out. CASE CLOSED. Hearing held 11/13/92. |
| Jan. 07, 1993 | Proposed Recommended Order Submitted by Respondent, Jorge Arturo Flores, M.D. w/Final Argument filed. |
| Dec. 18, 1992 | (Petitioner) Proposed Recommended Order Submitted by Petitioner filed. |
| Dec. 09, 1992 | Transcript of Proceedings (Vols 1&2) filed. |
| Nov. 23, 1992 | Final Argument filed. (From William Zei) |
| Nov. 23, 1992 | Letter to SML from Joseph Harrison (re: Final Argument) filed. |
| Nov. 13, 1992 | CASE STATUS: Hearing Held. |
| Nov. 13, 1992 | CASE STATUS: Hearing Held. |
| Nov. 10, 1992 | (Petitioner) Notice of Taking Deposition filed. |
| Oct. 27, 1992 | (Respondent) Amendment to Answer to Include Demand for Attorney Fees filed. |
| Oct. 26, 1992 | Notice of Taking Deposition (3) filed. (From Joseph Harrison) |
| Oct. 26, 1992 | Jorge Arthuro Flores, M.C.`s Reply to Department of Professional Regulation`s Response to Motion to Shorten Time filed. |
| Oct. 23, 1992 | Petitioner`s Second and Supplemental Response to Respondent`s "Request to Produce" and "Motion to Shorten Time" filed. |
| Oct. 21, 1992 | (Respondent) Request to Produce; Motion to Shorten Time filed. |
| Oct. 19, 1992 | Petitioner`s Response to Respondent`s "Request to Produce" and "Motion to Shorten Time filed. |
| Oct. 01, 1992 | (Petitioner) Notice of Serving Answers to Interrogatories w/Answer to Interrogatories filed. |
| Sep. 10, 1992 | Notice of Taking Deposition filed. |
| Sep. 09, 1992 | Notice of Hearing sent out. (hearing set for 11-13-92; 9:00am; Fort Lauderdale) |
| Aug. 31, 1992 | Response to Initial Order filed. (From Joseph Harrison) |
| Aug. 20, 1992 | Initial Order issued. |
| Aug. 14, 1992 | Agency referral letter; Amended Administrative Complaint; Election of Rights filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 13, 1993 | Agency Final Order | |
| Jan. 15, 1993 | Recommended Order | Doctor who interpreted unltrasound tests did not aid in unlicensed practice of medicine; no requirement that Doctor maintain records of test results. |
