STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VLADIMIR ROSENTHAL, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 93-1631F

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Respondent. )

)

FINAL ORDER

Pursuant to stipulation of the parties, formal hearing in this case was waived and the case was submitted for decision by the Hearing Officer, Michael

M. Parrish, on the basis of a stipulated record. Appearances for the parties in this case were as follows:

APPEARANCES

For Petitioner: Rafael A. Centurion, Esquire

1100 Northeast 125th Street, Suite 106 North Miami, Florida 33161

For Respondent: Francesca Plendl, Esquire

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUE

This is a proceeding pursuant to the Florida Equal Access To Justice Act, Section 57.111, Florida Statutes, in which the only disputed issue is whether the agency was substantially justified in the initiation of disciplinary proceedings against the Petitioner, a licensed physician, in DOAH Case No. 91- 2815, DPR Case No. 89-10153.

PRELIMINARY STATEMENT

Following the Board of Medicine's dismissal of all charges against Petitioner on December 29, 1992, in Department of Professional Regulation v. Vladimir Rosenthal, M.D., DOAH Case No. 91-2815 (DPR Case No. 89-10153), Petitioner timely filed a Petition For Attorney's Fees and Costs on March 29, 1993.

Respondent filed a Motion to Dismiss the Petition on March 30, 1993.

Petitioner filed his Response to the Motion to Dismiss on April 19, 1993, and simultaneously filed a Motion for Summary Final Order. The Motion to Dismiss and the Motion for Summary Final Order were denied on April 29, 1993. On May 7,

1993, Respondent filed its Response to the Petition For Attorney's Fees and Costs and requested a formal hearing.

A formal hearing was scheduled by the Division of Administrative Hearings for September 8, 1993. However, the parties, by stipulation, agreed to waive the hearing and to present the case for decision by the Hearing Officer on the basis of an agreed record. Along with their stipulation the parties filed the following joint exhibits with the Hearing Officer: 1/

1. The Probable Cause Panel transcript dated February 22, 1991, at which DPR Case Number 89-10153 was considered; and

   
   

2. The materials considered by the Probable Cause Panel in DPR Case No. 89-10153. These materials consist of:

   
   

   1. The proposed Administrative Complaint.

   2. Correspondence between the Department and Department expert Herman Epstein, M.D.

   3. Licensure Certification

   4. Correspondence between the Department and Department expert Pierre Bouis, M.D.

   5. Correspondence from Respondent's attorney

   6. DPR investigative report and exhibits, including 12 interviews and 28 exhibits.

The stipulation further provided that the parties would submit their proposed final orders by October 5, 1993. Thereafter both parties served timely proposed final orders containing proposed findings of fact and conclusions of law. The parties' proposals have been carefully considered during the preparation of this Final Order. Specific rulings on all proposed findings of fact submitted by all parties are contained in the Appendix hereto.

On October 8, 1993, the Respondent filed Respondent's Response To Petitioner's Proposed Final Order And Motion To Strike. On October 15, 1993, the Petitioner filed Petitioner's Motion To Strike Respondent's Response To Petitioner's Proposed Final Order And Motion To Strike. The Respondent's motion to strike is denied. The Petitioner's motion to strike is granted and the entire response and motion filed by the Respondent on October 8, 1993, is hereby stricken from the record. 2/

FINDINGS OF FACT

1. Following the entry of a Final Order of the Board of Medicine dismissing the administrative action previously filed against him, the Petitioner filed the pending request for an award of attorney's fees and costs, pursuant to Section 57.111, Florida Statutes. Following the filing and disposition of motions, the Respondent, Department of Business and Professional Regulation, 3/ Board of Medicine (Department), filed a response which included the following:

   
   

   1. This matter is properly filed pursuant to Section 57.111, Florida Statutes and Rule 60Q-2.035

      (formerly Rule 22I-6.035), Florida Administrative Code.

      * * *

      1. Respondent would agree that the action in Department of Professional Regulation v. Vladimir Rosenthal, M. D., DOAH Case No. 91-2815, DPR Case

         No. 89-10153, was initiated by the Department of Professional Regulation, a state agency, and there- fore the Department is not a nominal party only.

      2. On the basis of his counsel's representation in paragraph two of the Petition, Respondent would admit that Petitioner qualifies as a small business

         party as defined by Section 57.111, Florida Statutes.

      3. Respondent would admit that Petitioner prevailed in the underlying case, DPR v. Vladimir Rosenthal, DOAH Case No. 91-2815 in that the Board of Medicine, on March 3, 1992, [sic] dismissed the Administrative Complaint.

      4. Respondent would admit that Petitioner's claimed attorney's fees and costs appear reasonable but asserts that the statutory cap of $15,000.00 is applicable.

      5. At this time Respondent is unaware of any special circumstances which would make the award of attorney's fees and costs unjust.

      6. Respondent does assert that at the time this action was initiated there was reasonable basis in law and fact for the Agency's actions and that the proceedings were substantially justified. . . .

      
      

   2. In view of the above-quoted portions of the Department's response, the sole issue to be decided is whether the actions of the Department were "substantially justified" within the meaning of Section 57.111, Florida Statutes, when it initiated the underlying disciplinary action.

      
      

   3. In response to complaints about certain conduct at the Petitioner's facility, the Department embarked upon an extensive investigation of various aspects of the Petitioner's medical practice. Those investigative efforts resulted in an investigative report which consisted of 333 pages, including 12 interviews and 28 exhibits. The medical records of Patient #1 were later added to the report.

      
      

   4. These materials were sent to two expert physicians for their review. One found Petitioner's care of Patient #1 to be satisfactory, and the other found him to have been below the standard of care in certain respects and believed certain medical records had been falsified.

      
      

   5. Prior to the Probable Cause Panel meeting of February 22, 1991, the Department forwarded to the panel members the following materials to be reviewed before the meeting: a proposed Administrative Complaint, written expert opinions of Department experts Herman Epstein, M.D. and Pierre Bouis, M.D., licensure certification, and the entire DPR investigative report.

      
      

   6. In addition, Dr. Rosenthal had previously submitted an expert opinion from Richard Litt, M.D., to the Department on April 24, 1990, which was made a part of the investigative file presented to the Panel. Dr. Litt opined that Dr. Rosenthal had met the appropriate standard of care.

      
      

   7. Each panel member received and reviewed the materials prior to the Probable Cause Panel meeting. The materials provided to the members of the Probable Cause Panel contained information which was sufficient to indicate that the violations alleged against the Petitioner had in fact occurred. 4/

   8. Present at the February 22, 1991, Probable Cause Panel meeting were panel members George P. Vitale, Fuad S. Ashkar, M.D., and Margaret Skinner, M.D. Also present were Catherine Lannon, Assistant Attorney General and counsel for the Probable Cause Panel for the Board of Medicine; Carlos Ramos, Larry McPherson, and Susan Lingard, attorneys for the Department of Professional Regulation.

      
      

   9. Prior to the consideration of any cases, Ms. Lannon advised the Panel members that any questions concerning the interpretation of the law or rules, or what the Panel's duties were, should be directed to her. Ms. Lannon also advised the Panel that questions about the facts of the case, or the recommendation should be directed to the Department attorney. Ms. Lannon advised the Panel members that they needed to discuss the case enough to show that they were bringing their independent judgment to the matter. The Department, represented by Carlos Ramos, Staff Attorney, recommended that probable cause be found and that an administrative complaint be filed against the Petitioner.

      
      

   10. The Panel discussion of the case reveals that all three members were adequately familiar with the circumstances of the case as specific issues were addressed by the Panel and their counsel. The Panel discussed each of the proposed charges.

       
       

   11. The Panel requested that paragraph 24 of the Administrative Complaint be redrafted, but otherwise agreed that the proposed Administrative Complaint covered the issues which needed to be charged. The Panel voted unanimously to find probable cause, and directed an Administrative Complaint be filed against Petitioner.

       
       

   12. The finding of probable cause was recorded by the Memorandum of Finding of Probable Cause. Probable cause was found to exist that Petitioner violated the following statutory provisions: Sections 458.331(h), (i), (k), (m), and (t), Florida Statutes.

       
       

   13. Vladimir Rosenthal, M.D., is a licensed physician in the State of Florida, having been so licensed since approximately 1984.

       
       

   14. On or about March 6, 1991, the Respondent initiated action against the Petitioner's license to practice medicine, as directed by the Probable Cause Panel of the Board in DPR Case No. 89-10153, through the filing of an Administrative Complaint. The Administrative Complaint in DPR Case NO. 89-10153 charged Petitioner with five counts in violation of the Medical Practice Act.

       
       

   15. Petitioner sought relief by requesting a formal hearing, and the formal hearing was held on September 4 and 5, 1991, at Miami, Florida, before Michael M. Parrish, Hearing Officer for the Division of Administrative Hearings. On October 2, 1992, the Hearing Officer issued a Recommended Order in which he recommended that all charges against Petitioner be dismissed. On December 29, 1992, the Board of Medicine issued a Final Order which, with minor amendments, adopted the Recommended Order and dismissed all charges against the Petitioner. The Petitioner thereafter filed a timely petition seeking an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes.

       CONCLUSIONS OF LAW

       
       

   16. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Sections 57.111 and 120.57(1), Florida Statutes.

       
       

   17. Pertinent to this case, the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes, provides:

       
       

       (4)(a) Unless otherwise provided by law, an award of attorney's fees and costs shall be made to a prevailing small business party in any

       adjudicatory proceeding or administrative proceeding pursuant to chapter 120 initiated by a state agency, unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust. [Emphasis added].

       
       

   18. In this case, the Department has, by its response to the petition, conceded that Petitioner is a small business party, that the underlying action was initiated by the Department, that Petitioner prevailed in the underlying case, and that the claimed attorney's fees and costs are reasonable, although limited to $15,000 by law, and that no special circumstances exist which would make the award unjust. Accordingly, an award of attorney's fees and costs is appropriate in the instant case absent the Department's establishment, by a preponderance of the evidence, that its actions were "substantially justified." Section 57.111(4)(a), Florida Statutes, and Department of Professional Regulation v. Toledo Realty, Inc., 549 So.2d 715 (Fla. 1st DCA 1989).

       
       

   19. A proceeding is "substantially justified" if "it had a reasonable basis in law and fact at the time it was initiated by a state agency." Section 57.111(3)(e), Florida Statutes. Stated otherwise, "to sustain a probable cause determination there must be some evidence considered by the panel that would reasonably indicate that the violations alleged had indeed occurred." Kibler v. Department of Professional Regulation, 418 So.2d 1081, 1084 (Fla. 4th DCA 1982).

       
       

   20. As noted in the findings of fact, the evidence before the Probable Cause Panel in the underlying proceeding was sufficient, if credited at formal hearing, to indicate that the violations alleged had actually occurred. Accordingly, there was a reasonable basis in law and fact for the Department's actions at the time the underlying proceeding was initiated and the Department's actions were, therefore, substantially justified. Department of Professional Regulation v. Toledo Realty, 549 So.2d 715 (Fla. 1st DCA 1989).

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

ORDERED that the Petitioner's application for an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, is DENIED.

DONE AND ORDERED this 31st day of October 1994 in 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 31st day of October 1994.

ENDNOTES

1/ In addition to the joint exhibits submitted with the parties' stipulation, the stipulation also provided: "Petitioner and Respondent may submit additional supporting documents by September 20, 1993. Said submissions are subject to objection by the other party." On September 20, 1993, the Petitioner filed a Notice of Submission Of Documents, which was accompanied by several documents itemized in the notice. On September 22, 1993, the Respondent filed a Response to Petitioner's Notice of Submission of Documents, seeking to exclude the documents filed by Petitioner on September 20, 1993. The relief sought in the Response of September 22, 1993, is denied.

2/ More recently the Respondent filed a notice of filing supplemental authority, to which the Petitioner filed a prompt response. The supplemental authority has been disregarded as irrelevant and inapplicable to the issues in this case.

3/ The functions of the Department of Business and Professional Regulation related to regulation of the practice of medicine have since been reassigned to the Agency for Health Care Administration.

4/ In this regard, attention is especially directed to Dr. Epstein's letter of November 6, 1990, to the medical records concerning the treatment of the patient

B. F., and to the letter and memo of September 7, 1989, concerning conditions at the Petitioner's clinic.

APPENDIX

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

Findings submitted by the Petitioner

Paragraphs 1, 2, 3, and 4: Accepted in substance, with some details modified in the interest of clarity and accuracy and some irrelevant details omitted.

Paragraph 5: First sentence accepted. Second sentence rejected as a misleading or incorrect characterization of the Probable Cause Panel discussions.

Paragraph 6: Rejected as constituting an inference that is not warranted by the evidence.

Paragraphs 7 and 8: Accepted in substance.

Paragraph 9: Rejected as subordinate and unnecessary details. Paragraphs 10 and 11: Accepted in substance.

Paragraphs 12 and 13: Rejected as incorrect or misleading analysis of the import of Dr. Epstein's opinions. (The proposal takes a number of details out of context and omits a number of significant details. Although Dr. Epstein's opinion letter was not a model of clarity, it did reveal that he was of the opinion that the Petitioner had deviated from the applicable standard of care in more than one particular.)

Paragraph 14: The introductory clause (first three lines) of this paragraph is rejected as based on an incorrect thesis. It is accepted that the Probable Cause Panel recommended that probable cause be found against the Petitioner.

Paragraph 15: Rejected as irrelevant because all of the opinions did not conclude that the Petitioner met all of the applicable standards of care.

Paragraph 16: The first sentence is accepted. The second sentence is rejected as based on a presumption that is not shown by the evidence to be warranted. The last sentence is rejected as incorrect, because the members of the Probable Cause Panel did not ignore all of the expert opinions. To the contrary, they relied on opinions in Dr. Epstein's opinion letter as the basis for their decision to find probable cause.

Paragraph 17: Rejected as subordinate and unnecessary details that do not support the inference suggested. The inference suggested is not warranted by the evidence.

Findings submitted by Respondent

Paragraphs 1, 2, 3, 4, and 5: Accepted in substance, but with many details omitted as subordinate and unnecessary.

Paragraph 6: Accepted, as far as it goes, but with additional details added in the interest of clarity and accuracy.

Paragraph 7: Accepted in substance, but with some unnecessary details omitted.

Paragraphs 8 through 20: Accepted in substance, with some subordinate and unnecessary details omitted and some additional details in the interest of clarity and accuracy.

COPIES FURNISHED:

Rafael A. Centurion, Esquire Suite 106

1100 Northeast 125th Street North Miami, Florida 33161

Francesca Plendl, Esquire

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jack McRay, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Dr. Marm Harris, Executive Director Board of Medicine

1940 North Monroe Street Tallahassee, Florida 32399-0792

George Stuart, Secretary Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

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 Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court 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 30 days of rendition of the order to be reviewed.

Docket for Case No: 93-001631F

Orders for Case No: 93-001631F