STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARCUS EDWARD WARD, )

)

Petitioner, )

vs. ) CASE NO. 93-1671

)

BOARD OF MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, Don W. Davis, a duly designated Hearing Officer of the Division of Administrative Hearings, held a formal hearing in the above-styled case on September 7, 1993, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Steven W. Huss, Esquire

1017-C Thomasville Road Tallahassee, Florida 32303

For Respondent: Claire D. Dryfuss, Esquire

Office Of The Attorney-General PL-01 The Capitol

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUES

The primary issue for determination is whether Petitioner's application for licensure to practice medicine should be granted.

Determination of this issue requires resolution of other issues. Among those issues are whether Petitioner has a history of psychiatric problems and psychotherapy which previously affected his ability to practice medicine with skill and safety; whether Petitioner's current psychiatric and psychological evaluations indicate an obsessive compulsive disorder which interferes with intellectual abilities and has a potential to affect clinical abilities, as well as require continued medication and treatment with resultant side effects.

PRELIMINARY STATEMENT

By order filed on January 5, 1993, Petitioner was advised by Respondent that his application for licensure by endorsement to practice medicine in the State of Florida was denied. Subsequently, the matter was transferred to the Division Of Administrative Hearings for conduct of a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes.

At the final hearing, Petitioner presented the testimony of one witness and four evidentiary exhibits. Testimony of two witnesses and one evidentiary exhibit were presented on behalf of Respondent.

The transcript of the final hearing was filed with the Division of Administrative Hearings on October 12, 1993. The parties requested and were granted leave to file posthearing submissions more than 10 days after the filing of the transcript, and in accordance with Rule 60Q-2.031, Florida Administrative Code, waived provisions of Rule 28-5.402, Florida Administrative Code.

Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. On June 27, 1991, Petitioner applied for licensure in the State of Florida by endorsement as a physician. He is presently licensed in the states of Alabama, Louisiana and Wisconsin. He is board eligible in dermatology and is currently a house physician for New Orleans General Hospital in New Orleans, Louisiana.

   
   

2. On January 5, 1993, Respondent denied Petitioner's Florida application because of Petitioner's previous history of psychiatric problems and psychotherapy which affected his ability to practice medicine with skill and safety; his current psychiatric and psychological evaluations indicating an obsessive-compulsive disorder which could affect his abilities to practice with skill and safety; and the prior denial of his licensure application in 1987 as the result of material misrepresentations in the application.

   
   

3. On three separate occasions, Petitioner has applied for licensure in Florida. In addition to the current application, he applied on April 4, 1986 and on August 2, 1990. Following a formal hearing, the 1986 application was denied on December 22, 1987, as the result of misrepresentation in the application. An application for admission filed in 1990 was subsequently not timely completed and became void.

   
   

4. All of Petitioner's applications and materials submitted with regard to those applications are maintained by Respondent in one file, a normal practice for Respondent. Documents in that application file have been generated by Respondent or supplied by Petitioner.

   
   

5. Diagnosed in 1977 with an obsessive-compulsive disorder, obsessive- compulsive personality and dysthymia, Petitioner has been receiving treatment for his mental illness since 1979. He was hospitalized for a psychotic episode in 1987.

   
   

6. From 1988 until the present, Petitioner has been taking Sinequan and Mellaril. The daily dosage of 50 milligrams of Mellaril has not varied during that time period. The daily dosage of Sinequan initially was 150 milligrams per day, tapered to 40 milligrams each night at present. About three months ago, Petitioner began taking about a gram of Valproic acid each night. These medications have a sedating or hangover effect on Petitioner in the morning.

   
   

7. At one point in 1992, Petitioner temporarily switched to another drug, Anaframil, for a month to a month and a half. One of the reasons for the switch was that Petitioner was going to be reevaluated by a psychiatric expert, Dr. Dohn, at Respondent's request. Dr. Dohn's previous evaluation had expressed concerns about possible effects on Petitioner's clinical abilities as a result

   of medication side effects. After Dohn's second evaluation of Petitioner, Dohn was much more confident of Petitioner's abilities in view of the then change to Anaframil for treatment of Petitioner's obsessive-compulsive disorder.

   
   

8. Mellaril and Valproic acid are psychotropic medications which have confusion as a side effect. Sinequan can have confusion and sedation as a side effect. Valproic acid also has a sedating effect. The dosage of these medications as taken by Petitioner are sufficient to produce these side effects. The effects of the medications carry over to the following day, although taken the evening before.

   
   

9. Psychological evaluations of Petitioner dated October 7, 1991 and August 28, 1992, reflect that Petitioner's cognitive abilities have been affected by his mental condition, inclusive of the medications he takes. The 1991 evaluation documents Petitioner's difficulties with recall of verbal instructions and numbers presented verbally to him; completing eye-hand coordination tasks within the maximum time limit; distinguishing visual details; and a tendency to become stymied with anxiety. Further, the 1992 report indicates that certain symptoms of Petitioner's obsessive-compulsive disorder could conceivably interfere with his ability to perform surgery. The 1992 report was done following testing of Petitioner after his brief change to the drug, Anaframil.

   
   

10. Following Petitioner's 1992 evaluation by Dr. Dohn, conducted in close proximity to the August 1992 psychological evaluations, Petitioner quit taking Anaframil and resumed his previous medications of Mellaril and Sinequan.

    
    

11. At deposition following a recent psychiatric evaluation of Petitioner by Dr. Edward Foulks, Foulks opined that Petitioner's illness should not be a barrier to the practice of medicine. Foulks opinion is not credited in view of his lack of independent knowledge of Petitioner's medications or mental condition; his lack of knowledge of whether Petitioner's condition had stabilized; how the condition had been resolved; or how much further treatment Petitioner would likely require. Foulks' opinions were based in large part upon Petitioner's representations to him.

    
    

12. Petitioner's evaluations from Lazarus S. Gerald of the University of Pennsylvania Department of Dermatology, dated August 21, 1990 and July 8, 1991; from the chief of the Dermatology Department of Lloyd Noland Hospital and Clinic in Fairfield, Alabama, dated August 21, 1990; and from Dr. Derek J. Cripps, Director of the Department of Dermatology of the University Station Clinics, University of Wisconsin, note Petitioner's psychiatric condition as a possible explanation for performance difficulties.

    
    

13. In 1986, Petitioner made numerous misrepresentations in his application for licensure. He answered "no" to the application question of whether he had a mental or emotional illness, although he had been ill since 1977 and had been treated from 1979 until 1986 by several psychiatrists. He also answered "no" to whether he had received psychotherapy. He was suspended from seeing patients during the last three months of residency at the University of Wisconsin, but answered "no" to the question of whether he had ever ceased practice for more than a month. He also answered "no" to the question of whether he had ever been denied hospital privileges or had such privileges acted against.

14. In his August 2, 1990 application, Petitioner again answered "no" to whether he had been denied hospital privileges or had his hospital privileges acted against. Later, recognizing that this was not an accurate representation, Petitioner forwarded an affidavit, dated May 16, 1991. In that affidavit, Petitioner changed his answer to "yes". While only receiving partial credit of three months for his residency at the University of Wisconsin, Petitioner listed the dates on the form so that it appeared that he had received one year's credit.

    
    

15. In his current application, dated June 27, 1991, Petitioner again failed to show that he only received partial credit for his residency at the University of Wisconsin. An affidavit dated November 21, 1991, was submitted by him regarding the residency program at Tulane University in which he was then participating. The affidavit failed to indicate that his participation in the residency program was conditioned upon his being in the impaired residents program and that the residency lasted 18 months, although he needed only six months to complete residency requirements for the dermatology board examination. Petitioner also failed to tell his supervising physician at Tulane, Dr. Shrum, of Petitioner's previous application for licensure in Florida or denial of that application for licensure, until after Shrum had been deposed regarding Petitioner's reputation for truthfulness.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.

    
    

17. Petitioner has experienced difficulties at various training programs as a result of his psychiatric problems. Current psychological evaluations also reflect negative cognitive effects from his mental condition and medications for that condition. Those effects could effect safety of Petitioner in the practice of medicine. Petitioner need not have harmed a patient as a result of his illness in order to deny licensure. Major v. Department of Professional Regulation, 531 So.2d 411 (Fla. 3rd DCA 1988).

    
    

18. Dr. Foulks' opinion that Petitioner is able to practice medicine is subject to question since Foulks was unaware of Petitioner's current status per his psychiatric condition, Petitioner's need or lack of need of future treatment, or medication taken by Petitioner.

    
    

19. Likewise, Dr. Dohn's second opinion as to Petitioner's fitness was based upon Petitioner's representation that he had changed medication and behavior by switching to Anaframil. Dohn's earlier opinion had held that Petitioner could practice medicine, but had not affirmed that Petitioner could practice with safety.

    
    

20. Petitioner's numerous instances of misstatements and lack of candor raise serious questions concerning his truthfulness and amount to a showing of poor moral character. Florida Board of Bar Examiners Re M.R.I., Case No. 81,093, Supreme Court of Florida, June 17, 1993. Reliance on a medical practitioner's truthfulness is essential. The absence of good moral character is a sufficient basis for licensure denial. Section 458.313(1)(a), Florida Statutes and Section 458.311(1)(c), Florida Statutes.

21. Petitioner's previous denial of licensure by Respondent's final order in 1987 constitutes a statutory basis for denial of a current application. Section 458.313(1)(a), Florida Statutes, Section 458.311(1)(d), Florida Statutes, and Section 458.331(1)(b), Florida Statutes. Particularly this is applicable where the previous denial was based on misrepresentation and the subsequent two applications have show continued misrepresentation of information.

    
    

22. Petitioner has not met his burden of establishing entitlement to the relief sought in this proceeding. Florida Department of Transportation v. J. W.

C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered denying the application for licensure by endorsement.

DONE AND ENTERED this 10th day of December, 1993, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 10th day of December, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1671

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

Petitioner's Proposed Findings. 1.-2. Accepted.

1. Rejected, weight of the evidence.

2. Rejected, cumulative.

3. Subordinate to HO findings.

4. Accepted.

5. Subordinate to HO findings. 8.-13. Accepted, but not verbatim.

14. Rejected, credibility. 15.-20. Rejected, unnecessary.

21.-25. Subordinate to HO findings.

26. Rejected, credibility. 27.-38. Rejected, credibility. 39.-45. Rejected, credibility.

46.-51. Rejected, subordinate to HO findings.

52. Rejected, relevancy. 53.-59. Rejected, credibility.

Respondent's Proposed Findings.

1.-13. Accepted, but not verbatim.

COPIES FURNISHED:

Claire D. Dryfuss, Esquire Department of Legal Affairs The Capitol, PL-01

Tallahassee, Florida 32399-1050

Steven W. Huss, Esquire 1017-C Thomasville Road Tallahassee, Florida 32303

Jack McRay General Counsel

Department of Business and Professional Regulation

The Northwood Centre 1940 North Monroe Street

Tallahassee, Florida 32399-0750

Dorothy Faircloth Board of Medicine

Department of Business and Professional Regulation

The Northwood Centre 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.ies, as well as require continued medication and treatment with resultant side effects.

Docket for Case No: 93-001671

Orders for Case No: 93-001671