STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JORGE ARTURO FLORES, M.D., )
)
Petitioner, )
)
vs. ) CASE NO. 93-2632F
) DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )
BOARD OF MEDICINE, )
)
Respondent. )
)
FINAL ORDER
Pursuant to the request of the parties, no formal hearing has been conducted in this case. The findings set forth herein are based upon the stipulated record the parties submitted to the Hearing Officer on October 1, 1993.
APPEARANCES
For Petitioner: William Zei, Esquire
Peterson, Bernard, Vandenberg, Zei, Geisler & Martin
707 Southeast Third Avenue Suite 500, Blackstone Building Fort Lauderdale, Florida 33302
For Respondent: Francesca Plendl, Esquire
Department of Business and Professional Regulation
1940 North Monroe Street Tallahassee, Florida 32399-0792
STATEMENT OF THE ISSUE
Whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, for fees and costs he incurred as a result of his participation in the administrative proceeding Respondent initiated against him in DPR Case Numbers 01-11408 and 89-07347 (DOAH Case No. 92-4948)?
PRELIMINARY STATEMENT
On May 12, 1993, following the entry of a final order by Respondent adopting the Hearing Officer's recommendation in DOAH Case No. 92-4948 that the Board of Medicine dismiss in its entirety the Amended Administrative Complaint issued against Petitioner, Petitioner filed a petition with the Division of Administrative Hearings requesting that he be awarded attorney's fees and costs pursuant to Section 57.111, Florida Statutes, for fees and costs he had incurred
in successfully defending against the formal charges Respondent had filed against him. On June 1, 1993, Respondent filed a motion seeking the dismissal of the petition on the ground that Petitioner had not alleged sufficient facts to demonstrate that he is a "small business party," within the meaning of Section 57.111, Florida Statutes.
On June 3, 1993, the Hearing Officer issued an order dismissing the petition because, contrary to the requirements of Rule 60Q-2.035(1)(d), Florida Administrative Code, it did not
State where the small business party's domicile and principal office are, how many employees the small business party has, whether the petitioner is a sole proprietor of an unincorporated business, and if so, whether the petitioner's net worth exceeds
$2,000,000, whether the small business party is a partnership or corporation, including a professional practice, and, if so, whether the small business party's net worth exceeds
$2,000,000.00.
The dismissal was "without prejudice to Petitioner filing an amended petition [meeting] the requirements of Rule 60Q-2.035, Florida Administrative Code, within 30 days of the date of this order."
Petitioner filed an amended petition on June 18, 1993. With respect to the issue of his status as a "small business party," within the meaning of Section 57.111, Florida Statutes, he alleged the following in his amended petition:
Further, he [Petitioner] clearly falls under the definition of . . . "small business party" as defined by the statute.
Petitioner, JORGE ARTURO FLORES, M.D.,
resides at 2840 NE 35th Court, Fort Lauderdale, Broward County, Florida, with his principal place of business at Suite 2, 5700 North Federal Highway, Fort Lauderdale, Broward County, Florida. Dr. Flores is a sole practitioner who performs medical services at the above stated office as a professional association. Neither Dr. Flores individually nor his professional association have [a] net worth separately or combined which exceed[s] two million dollars.
On June 29, 1993, Respondent (hereinafter also referred to as the "Department") filed a response to the amended petition. In its response, the Department conceded that "the actions in DPR Case Nos. 0111408 and 8907347 were initiated by the Department of Professional Regulation, a state agency and therefore the Department [was] not only a nominal party" in the underlying proceeding; that Petitioner's claimed attorney's fees and costs ($22,546.00 for attorney's fees, $4,750.00 for expert witness fees, and $2,521.34 for other costs) at this point appear reasonable" (although the Department did note that the "statutory cap of $15,000.00 [established by Section 57.111(4)(d)2., Florida Statutes] applies"); that "Petitioner prevailed in the underlying case, Department of Professional Regulation v. Jorge Arturo Flores, M.D., DOAH Case
No. 92-04948, DPR Case Nos. 0111408 and 8907347, in that a Final Order dismissing the charges against the Petitioner was entered by the Board of Medicine on April 26, 1993;" and that it was "unaware at this time of any special circumstances which would make an award of attorney's fees and costs unjust." The Department, however, contended that such an award should not be made inasmuch as "at the time this action was initiated there was a reasonable basis in law and fact for the [Department's] actions and . . . the proceedings were [therefore] substantially justified." The Department thus requested "an evidentiary hearing to determine the issues raised, including but not limited to, whether [the Department's] actions were substantially justified." 1/
Such a hearing was scheduled. On October 1, 1993, however, the parties filed the following signed stipulation in which they expressed their shared view that an evidentiary hearing was no longer necessary in the instant case:
COMES NOW, the undersigned, the Petitioner and the Respondent, by and through their undersigned attorneys, and stipulate and agree as follows:
That Respondent withdraws its request for a formal hearing. Accordingly, the case
shall proceed before the Hearing Officer on the issues set forth as follows:
Whether there was a reasonable basis in law and fact for the agency's actions and whether the underlying proceedings were substantially justified.
Whether the Petitioner qualifies as a small business party.
Respondent's Request for Admissions, Interrogatories, and Request for Production of Documents are withdrawn.
The Exhibits set forth below are true and correct and authentic copies of the items listed below and are admissible into evidence in the above styled matter for the purposes of findings of facts.
Joint Exhibit 1- transcript of the Probable Cause Panel meeting at which this cause was considered on January 28, 1991
Joint Exhibit 1A- the documents that were submitted to the Probable Cause Panel whose consideration of the documents is set forth in the transcript in Exhibit 1
Joint Exhibit 2- transcript of the Probable Cause Panel meeting at which this cause was considered on October 3, 1991
Joint Exhibit 2A- the documents that were submitted to the Probable Cause Panel whose consideration of the documents is set forth in the transcript in Exhibit 2
Joint Exhibit 3- the Administrative Complaint filed in this matter
Joint Exhibit 4- the Memorandum of Finding of Probable Cause filed in this matter
Joint Exhibit 5- the Amended Administrative Complaint filed in this matter
Joint Exhibit 6- Final Order of the Board filed in this matter
Joint Exhibit 7- Minutes from meeting of the Rules Committee of the Florida Board of Medicine held on September 25, 1993
Joint Exhibit 8- Income tax returns filed by the Petitioner, Dr. Jorge A. Flores, for the tax years 1991 and 1992
Respondent is not opposed to Petitioner filing Joint Exhibit 8 on or before October 8, 1993.
Petitioner and Respondent reserve the right to make argument regarding the relevancy of the exhibits listed above.
Petitioner and Respondent may submit additional supporting documents by October 8, 1993. Said submissions are subject to objection by the other party.
The parties propose and agree on November 5, 1993 as the deadline for the submission of proposed orders. However, the parties hereby request that the Hearing Officer establish a reasonable amount of additional time, if additional supporting documents are filed by either party.
The parties agree to execute whatever further pleadings, agreements, or documents which may be required to carry out the intents and purposes of this stipulation.
Accompanying the parties' stipulation were documents appearing to comprise Joint Exhibits 1 through 7 that were referenced in the stipulation.
On October 6, 1993, the Hearing Officer issued an order accepting the parties' stipulation, which provided as follows:
The parties' stipulation is accepted.
Joint Exhibit 8 will not be considered by the Hearing Officer in issuing his final
order in this case unless it is filed with the Hearing Officer on or before October 8, 1993.
Petitioner and Respondent may submit to the Hearing Officer any additional documents that they wish to be included in the evidentiary record in this case by October 8, 1993. If any such additional documents are filed, the opposing party will have until October 18, 1993, to file written objections to these documents.
Proposed final orders shall be filed no later than November 5, 1993. In their proposed orders the parties may address, among other things, the weight, if any, to be given the documents that comprise Joint Exhibits 1 through 8.
The November 5, 1993, deadline for the submission of proposed final orders will be extended only upon written request and a showing of good cause. Any request for such an extension should indicate whether or not the non-requesting party opposes the request.
Neither party has filed any additional documents to supplement the evidentiary record. Accordingly, the evidentiary record in the instant case consists of those joint exhibits accompanying the parties' stipulation, to wit: Joint Exhibits 1 through 7.
On November 4 and November 8, 1993, respectively, the parties filed their proposed final orders. These proposed final orders each contain what are labelled as "findings of fact." These "findings of fact" proposed by the parties have been carefully considered and are specifically addressed in the Appendix to this Final Order.
FINDINGS OF FACT
Based upon the stipulated evidentiary record, consisting of Joint Exhibits
1 through 7, the following Findings of Fact are made:
Facts Found in DOAH Case No. 92-4948
Petitioner 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., (hereinafter referred to as "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 Petitioner 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, Petitioner entered into a written agreement (hereinafter referred to as the "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.
Petitioner furnished Health with interpretive and diagnostic services under the Agreement for approximately 18 months. He provided Health with no other services.
Petitioner 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 Petitioner 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 Petitioner. 2/
Petitioner prepared a signed, written report of his findings for each test taker. 3/ 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. 4/
Petitioner 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. 5/
The Greens had assured Petitioner at the outset, however, that they would maintain these records and make them available to Petitioner upon his request should he need them for some reason. The Greens were true to their word. Whenever Petitioner asked to see a copy of a report or test materials, 6/ the Greens complied with his request.
The Greens still have in their possession copies of the reports Petitioner had prepared and transmitted, as well as the related test materials.
While Petitioner 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 Petitioner's complaint by discontinuing the advertisement.
A short time thereafter, upon the suggestion of a Department investigator who warned Petitioner "to stay away from these people," Petitioner 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.
The Department's Investigation
On or about January 1, 1989, the Department received a complaint concerning a newspaper advertisement ran by Health.
The complaint was assigned a Department case number, DPR Case Number 01-11408 and a Department investigation into the matter was commenced.
As part of her investigation, the Department investigator working on the case, Jeane Clyne, interviewed Theresa Green and then Petitioner.
Thereafter, she prepared a written investigative report (hereinafter referred to as "Clyne's investigative report") summarizing what had transpired during the interviews.
With respect to the Green interview, Clyne stated the following in her report:
On 3/30/89 the above was interviewed at Sheraton Harbor Place, Ft. Myers, Fl. Green identified herself as President and owner of Health Imaging. Green stated she has a Bachelor of Science degree in Kinesiology from the University of California at Los Angel[e]s and is Registered by Registry of Diagnostic Medical Sonographers (RDMS) as a technologist. Green stated she employs technologists who are RDMS certified or eligible.
Green stated the technologists perform the diagnostic ultra sound tests. Green stated that the patient is given a copy of the pictures and an explanation of what the pictures are. Green stated no interpretation is given by the technicians, all interpretations are done by Board Certified Cardiologists licensed and practicing in Florida. Green stated the primary physician being used at present is Jorge Flores, M.D.
With respect to her interview with Petitioner, Clyne stated the following in her report:
On 3/30/89 the above was interviewed by telephone. Flores stated he looks at the films, interprets the tests, fills out a form report and signs the report. Flores stated that these are not his patients and he does not give any medical advice. If a problem is seen on the film, Flores stated he tells the patient to . . . take the report and pictures to their family physician. Flores stated if the patient has no family physician, he will accept and treat the patient as any other patient.
Flores stated Green hires experienced technologists and all patients are given forms indicating no medical advice will be given by the technologists.
On April 5, 1989, Clyne received a letter, dated April 4, 1989, from Michael Davidson, Health's Vice President and General Counsel. In his letter, Davidson stated the following:
Regretfully, we must acknowledge that one of our employees recently erroneously stated that we provided test interpretations at the test site. As I am sure you are satisfied, this statement was erroneous and we do not indulge in that practice. I trust that we can consider your investigation complete and the matter closed.
I have counseled the employee in question, as well as all our other employees, stressing that only licensed medical doctors can properly interpret results and that viewing the test photos does not and should not be represented to constitute an interpretation of these tests.
We invite you to visit any of our test sites on any occasion you wish and will extend every courtesy to you should you decide to do so.
During the course of its investigation, the Department also received a letter, dated April 24, 1989, from Henry McIntosh, M.D., Past President of the American College of Cardiology, expressing his concern regarding the "imaging racket." In his letter, McIntosh stated the following:
Another problem which deserves attention is the imaging racket. There are increasing numbers of patients who are being told that they have prolapse of the mitral valve and are becoming quite overly concerned.
Clearly, these studies without appropriate
consultation are of little value. Is there anything we can do to get them regulated?
The American College of Cardiology has attempted to do something about controlling it, simply because it is said that it is read by a "Fellow of the American College of Cardiology." We do not have any authority to police that use of the reference, however.
Accompanying the letter was an advertisement that Health had run in the Lakeland Ledger.
The Department also received a letter, dated May 5, 1989, from Robert Slayton, M.D., in which he expressed the view, in reaction to the "latest advertisement place[d] by Health . . . in the Fort Myers News Press," that "something has to be done to stop this cheap traveling medicine show from preying on an innocent but concerned health conscious public." A copy of the advertisement accompanied the letter.
Both McIntosh's and Slayton's letters were placed in the investigative file in DPR Case Number 01-11408.
Another letter complaining about an advertisement ran by Health was received by the Department in late May of 1989. The letter was dated May 17, 1989, and written by Luis Serentill, M.D. It read as follows:
Enclosed, you will find a newspaper advertisement of Health Imaging Incorporated. This is not signed by any physician or group I know. I have been asked by many of my patients about these tests, regarding their faith in the reading and accuracy of these tests. Also, other doctors in the community have asked me what can be done about this, since we do not have any way of knowing the quality of control.
I believe I talked with you about this before. I really do not know who these people are. Please, can you follow through and let me know what information you find? Thank you very much for your attention to this matter.
Accompanying the letter was an advertisement that Health had run in the Charlotte Sun Herald.
As a result of Serentill's letter, the Department opened a new case, DPR Case Number 89-07347, and assigned another of its investigators, J.A. Lammert, to investigate the matter.
By letter dated August 16, 1989, Lammert (a) advised Petitioner that the Department had received a "complaint alleg[ing] that [he had] engaged in false, deceptive, or misleading advertising and violated a rule of the Board of Medicine, specifically provisions of Rule 21M-24.002, Florida Administrative Code," and (b) offered Petitioner an opportunity to respond to the complaint.
Subsequently, on August 21 and 23, 1989, respectively, Lammert received telephone calls from Petitioner and Davidson.
Subsequently, Lammert received a letter from Petitioner, dated August 23, 1989. In his letter, Petitioner stated, among other things, the following:
I was first contracted by Health Imaging at the end of 1987 only to interpret vascular tests including 2-D Echocardiograms, Carotid Studies and Arterial and Venous Studies which I feel very comfortable since that is part of my training. Besides they spons[o]red one meeting about peripheral vascular disease in San Diego last February 1988. Therefore I believe the quality of their studies are compet[e]nt to do so. That is the reason I have accepted to continue interpreting their studies for a fee that I am paid on a monthly basis. On the other hand as far as the advertising in question I have been unaware of the marketing techniques of Health Imaging and I am not responsible whatsoever [for] their contents as I have never been consulted about it [and] I have never been wanting to be part of that. They have some marketing consultants to produce those ads. My name does not appear in those ads. I have never been asked to do it and on the other hand I am not aware that was a requirement of th[ese] mentioned advertisements, although I see similar ads in this area in which the name[s] of the physicians are not included.
On the other hand I would not like my name included as I am not an employee, an officer, or a shareholder of Health Imaging. I am hired only to interpret the test results as I mentioned before. Once I interpret the test I send the reports immediately to Health Imaging and I am told they send them by mail to the patient[s] who are encouraged to take them to their physician[s] so they can take some action. I do not keep any records of reports I just interpret them. Therefore I cannot respond to the patient's request for interpretation although they are usually referred to Health Imaging to obtain results. As far as I am aware the people are told in lay terms the meaning of their results. On rare occasions I receive a call from their physicians in which case I have never denied and I discuss with them readily the results of the test and even give advice about it, usually by telephone conversation. But it is out of control to have discussion with the patients who are not primarily my own since I don't know anything about their medical history or other medical background.
Lammert prepared a written investigative synopsis (hereinafter referred to as "Lammert's investigative synopsis") in which he made the following references to Petitioner's letter, as well as the telephone conversations he had had with Petitioner and Davidson:
Response was received from Subject [Petitioner] by telephone on August 21, 1989, to the effect that he was only under contract with Health Imaging to interpret tests and had nothing whatever to do with any advertising. Subsequently, on August 23rd a telephone call was received from Mr. Davidson of Health Imaging. Mr. Davidson also stated Subject had nothing to do with any advertising and represented he would write us to this effect.
On August 29, 1989, written confirmation of the earlier conversation was received from Subject; however, no further communication has been received from Mr. Davidson to date. Therefore, this file was forwarded to Legal.
On or about March 9, 1990, Lynne Quimby-Pennock, a Department attorney assigned to assist in the processing of DPR Case Numbers 01-11408 and 89-07347, wrote to Connie Cheren, the Director of the Department of Health and Rehabilitative Services' Office of Licensure and Certification, requesting that she respond in writing to the following five questions:
Question 1: Can a licensed laboratory offer a medical test to an individual without a referral from a physician?
Question 2: Who could order the tests? Question 3: What tests can be ordered?
Question 4: Could an individual ask for
any study whether or not the study is indicated?
Question 5: Are there any prohibitions
against laboratories contracting with individuals to provide test results directly to the individual?
By letter dated March 20, 1990, Cheren responded to these questions as follows:
This is in response to your letter of March 9 regarding examination and reporting of clinical laboratory tests. I believe your questions are clearly answered in the law and rules with the exception of question 3 and question 4. References are as follows:
Question 1: S483.181(1)&(2) Florida Statutes S483.308(2) Florida Statutes
A laboratory 7/ may not perform tests without a requisition from a
licensed practitioner of the healing arts.
Question 2: Same as above.
Question 3: There are no restrictions on
the number and nature of tests which may be ordered.
Question 4: The individual may request the
physician to order the test but the laboratory should not perform
a test requested by the patient without the physician's knowledge and consent.
Question 5: S483.181(2) Florida Statutes
S483.308(2) Florida Statutes
S10D-41.88(2) Florida Administrative [Code]
The laboratory may provide results to the patient under restricted conditions, by written authorization of the physician.
There is some leeway for screening procedures and health fairs under Chapter 483, Florida Statutes, Part II.
The January 28, 1991, Meeting of the Probable Cause Panel
A three-member Board of Medicine probable cause panel met on January 28, 1991, to consider DPR Case Numbers 01-11408 and 89-07347.
The members of the panel were James Burt, M.D., David Wertheimer, M.D., and Pamela Campbell.
M. Catherine Lannon, the Chief of the Attorney General's Administrative Law Section, served as the panel's legal advisor. She advised the panel members as to what their legal obligations were under the law.
Also present at the meeting were Lynne Quimby-Pennock and two other Department attorneys, Larry McPherson and Susan Lingard.
Prior to the meeting the panel members had reviewed various documents they had been furnished by the Department in connection with DPR Case Numbers 01-11408 and 89-07347, including the following: McIntosh's, Slayton's and
Serentill's letters of concern; the newspaper advertisements that had been sent along with these letters; Petitioner's August 23, 1989, letter to Lammert; and Lammert's investigative synopsis.
During the meeting they were also made aware of the existence of Quimby-Pennock's March 9, 1990, letter to Cheren and Cheren's March 20, 1990, written response, as well as the written opinion of an "expert" that Health's advertising was "misleading."
The panel, acting reasonably given the information available to it and the language of the pertinent statutory and rule provisions, voted unanimously to find probable cause and directed that an Administrative Complaint be issued against Petitioner. Its finding was memorialized in a Memorandum of Finding of Probable Cause.
On March 7, 1991, the Department issued an Administrative Complaint as directed by the probable cause panel.
The Administrative Complaint alleged that Petitioner should be held responsible for Health's false, misleading or deceptive advertising and, accordingly, found guilty of violating Section 458.331(1)(d), Florida Statutes (Count One), Rule 21M-24.001(2), Florida Administrative Code, and Section 458.331(1)(x), Florida Statutes (Count Two) and Section 458.331(1)(k), Florida Statutes (Count Four). The remaining count of the Administrative Complaint, Count Three, alleged that Petitioner violated Section 458.331(1)(m), Florida Statutes, by "fail[ing] to keep medical reports and records of patient studies, which he interpreted for Health Imaging, Inc."
Petitioner's Deposition
On July 1, 1991, an attorney for the Department deposed Petitioner.
During the deposition, Petitioner was asked questions relating to the formal charges that had been filed against him.
In his responses, Petitioner indicated, among other things, the following: that he had known, early on in his relationship with Health, that Health advertised to attract business; that, in his view, the advertisements contained some claims that were medically "debatable;" that he had received
$3,000.00 a month from Health for performing his duties under the Agreement, except for the first few months when he had received $1,000.00 a month; that he had been aware, at the time he signed the Agreement, that the Agreement referred to the persons whose tests he would be interpreting as Health's "patients;"
that he had known that Health's technicians followed the "common practice" of administering the tests with no physician present; and that, although he had been told that he was not going to be the only physician interpreting test results for Health, he did not know the name of any other physician with whom Health had contracted to perform these services.
Petitioner's deposition was transcribed.
Appended to the transcript of the deposition were copies of the following three exhibits that were produced at the deposition: Petitioner's curriculum vitae; an interpretive and diagnostic report that Petitioner had prepared for one of Health's "patients;" and the Agreement with Schedule A.
Bernstein's Correspondence
By letter dated July 8, 1991, Stanley Bernstein, M.D., who subsequently testified as an expert witness at the final hearing in DOAH Case No. 92-4948, responded to a request for advice and information made by William Nickell, the Department attorney assigned to prosecute the Administrative Complaint that had been issued against Petitioner.
In his letter, Bernstein stated the following:
In regard to the allegations made about this subject [Petitioner] I shall respond as follows:
The subject is unknown to me.
In terms of the conditions and complaints of these patients from these laboratory tests, it is virtually impossible
for the subject to give medical advi[c]e based upon these tests without a full history and examination of each individual patient. In fact the subject does state that he does not give any medical advi[c]e but only interprets the tests in a general way.
The advertisements are obviously misleading. They feed on the anxieties of patients by indicating that these tests will detect all sorts of medical conditions related to the vascular system. The tests described are only adjuncts in the diagnosis of these various conditions and are never used as a primary screening tests.
These tests are only necessary in specific instances when physicians feel they can contribute to the care given in any instance.
Ultra sound scans and Electrocardiograms are only indicated after physicians have examined patients.
Exploitation of the patient for financial gain by the subject appears obvious since the ads clearly play toward patient anxieties
about physical illness.
If the subject is interpreting such tests, adequate records should be kept of the follow-up of such patients.
The subject was hired to read these tests purely for financial reasons since he made no examination, no diagnosis and offered no treatment in most instances.
This exploitation of patients['] fears by the misleading ads obviously was for financial gain.
The subject never even bothered to verify the technicians['] aptitude.
The technicians appeared not to be practicing medicine.
These scans are used in the practice of medicine.
Records of the interpretation of these scans must be kept.
It is obvious to me that this is an attempt by non physicians to exploit various tests that are now available to ai[d] in the diagnosis of vascular disease. Any well qualified and Board Certified Physician should
be enjoined from reading such test in a vacuum.
On or about August 20, 1991, Department attorney Arthur Skafidas, who had taken over Nickell's caseload, sent Bernstein a letter asking him to respond to a series of questions.
Bernstein responded to Skafidas' request in a letter dated August 20, 1991, in which he stated the following:
I shall attempt to answer the questions you have raised regarding Jorge Flores, M.D., DPR Case #89-07347 and 0111408.
Since Dr. Flores was not an officer or owner of Health Imaging he was not required to determine that their advertisements were false, deceptive, or misleading from a legal point of view. However, from a moral and ethical point of view physicians are urged to refrain from associating themselves with false, deceptive, or misleading advertisements. This is an ethical issue and should be addressed.
There is no evidence that Dr. Flores instigated or engaged in these false, deceptive, or misleading advertisements.
Dr. Flores did have a moral and ethical obligation to make sure that the qualifications, licensure, and competency of the technicians operating the testing equipment were up to the standards of the community.
Dr. Flores['] obligation and record keeping, as all physicians involved in this type of service, included his knowledge that records with his signature were available to patients or other health professionals and easily obtainable.
Dr. Flores did not violate the record keeping [requirements] by sending the results back to Health Imaging.
There is no evidence that Dr. Flores represented himself deceptively or fraudulently.
Dr. Flores used Health Imaging to obtain patients who did not have their own physician and therefore was in somemways responsible to make sure that Health Imaging attracted these patients in an ethical manner.
There is no evidence that Dr. Flores advised or assisted unlicensed persons in the practice of medicine.
The October 3, 1991, Meeting of the Probable Cause Panel
By memorandum dated September 5, 1991, Skafidas asked the probable cause panel that had initially considered DPR Case Numbers 01-11408 and 89-07347 to "reconsider the original decision to file an Administrative Complaint and instead direct the closing of the case without further prosecution."
Skafidas gave the following explanation in the memorandum as to why he was making such a request:
Dr. Bernstein, [the Department's expert] did not have access to [Petitioner's] deposition when he rendered his initial report on July
8, 1991. Upon receipt of the deposition, Dr. Bernstein was asked to re-evaluate his previous opinion. On August 20, 1991, Dr.
Bernstein opined that Dr. Flores was not responsible for the advertisements, did not violate record keeping by sending the results back to Health Imaging, and did not represent himself deceptively or fraudulently.
A supplemental investigation was requested to attempt to locate Health Imaging, Inc. The investigation revealed that Health Imaging has been defunct for over one (1) year.
Without testimony from Health Imaging, Inc., it will be impossible to controvert Dr.
Flores' testimony and to successfully prosecute this case. Dr. Bernstein's expert opinion rendered on August 20, 1991, states that Dr. Flores should ethically refrain from associating himself with false, deceptive, or misleading advertisements.
Pursuant to Skafidas' request, the probable cause panel met on October 3, 1991, to reconsider DPR Case Numbers 01-11408 and 89-07347.
The members of the panel were James Burt, M.D., Gopal Basisht, M.D., and Pamela Campbell.
M. Catherine Lannon served as the panel's legal advisor. As she had done at the January 28, 1991, meeting, Lannon advised the panel members as to what their legal obligations were under the law.
Also present at the meeting was Department attorney Lynne Quimby- Pennock.
Prior to the meeting the panel members had reviewed various documents they had been furnished by the Department in connection with the cases under review, including the following: McIntosh's, Slayton's and Serentill's letters of concern; the newspaper advertisements that had been sent along with these letters; Davidson's April 4, 1989, letter to Clyne; Clyne's investigative report; Petitioner's August 23, 1989, letter to Lammert; Lammert's investigative synopsis; the Administrative Complaint that had been issued against Petitioner; the transcript of Petitioner's July 1, 1991, deposition, with exhibits attached; Bernstein's July 8, 1991, letter to Nickell; and Bernstein's August 20, 1991, letter to Skafidas.
The issues raised in DPR Case Numbers 01-11408 and 89-07347 were discussed and debated at length by the panel members at the meeting.
Lannon and Quimby-Pennock also participated in the discussion and debate.
On several occasions during the meeting, Quimby-Pennock expressed the opinion that there was insufficient proof available for the Department to prevail in an administrative hearing on the charges against Petitioner that were under consideration.
The panel voted unanimously to direct that the Administrative Complaint that had been issued against Petitioner be amended in such a manner as to delete the advertising-related charges 8/ and add the charge that Petitioner, in his dealings with Health and their "patients," violated Section 458.331(1)(f), Florida Statutes. In directing that this charge be added to the Administrative Complaint and that the alleged Section 458.331(1)(m) recordkeeping violation remain, the panel acted reasonably given the information available to it and the language of the statutory provisions in question.
On February 10, 1992, an Amended Administrative Complaint was issued alleging that Petitioner 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." (Count One) and that he "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" (Count Two).
Petitioner 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. The matter was docketed as DOAH Case No. 92-4948.
The formal hearing in DOAH Case No. 92-4948 was held on November 13, 1992.
The Hearing Officer issued his Recommended Order in DOAH Case No. 92- 4948 on January 13, 1993.
The Hearing Officer recommended that the Board of Medicine dismiss both counts of the Amended Administrative Complaint.
Count One of the Amended Administrative Complaint was addressed in Conclusions of Law 27 through 30 of the Recommended Order, which read as follows:
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."
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." 9/
Count Two of the Amended Administrative Complaint was addressed in Conclusions of Law 31 through 38 of the Recommended Order, which read as follows:
Count Two of the Amended Administrative Complaint alleges that Respondent [Petitioner in the instant case] "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.
The Department filed exceptions to the Recommended Order.
In the Final Order it issued on April 13, 1993, the Board of Medicine disposed of these exceptions in the following manner:
[The Department'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.
[The Department's] Exception Number 2, which is to paragraphs 36 and 37, is REJECTED.
The Board "approved and adopted" the Hearing Officer's Findings of Fact and "incorporated" them in its Final Order.
With respect to the Hearing Officer's Conclusions of Law, the Board stated the following in its Final Order:
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 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.
Notwithstanding that the Board rejected the Hearing Officer's Conclusion of Law 30, in which the Hearing Officer concluded that the evidence was "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.,'" it nonetheless, without any further explanation in its Final Order, "accepted and adopted" the Hearing Officer's recommendation that both counts of the Amended Administrative Complaint, including Count One, be dismissed.
The Board's Final Order was filed with the Clerk of the Department on April 26, 1993.
CONCLUSIONS OF LAW
Petitioner is seeking an award of attorney's fees and costs in the instant case pursuant Section 57.111, Florida Statutes, subsection (4)(a) of which provides as follows:
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.
A party seeking such an award of "attorney's fees and costs" 10/ has the initial burden of proving that it is a "small business party," within the meaning of the statute, which had prevailed in an earlier "adjudicatory proceeding or administrative proceeding pursuant to chapter 120 initiated by a state agency." Once such proof has been submitted, the burden shifts to the agency to establish by a preponderance of the evidence that its actions in initiating the proceeding "were substantially justified or special circumstances exist which would make the award unjust." See Department of Professional Regulation, Division of Real Estate v. Toledo Realty, Inc., 549 So.2d 715, 717-
18 (Fla. 1st DCA 1989). An agency meets its burden of demonstrating that its actions were "substantially justified" by showing that the proceeding "had a reasonable basis in law and fact at the time it was initiated." Section 57.111(3)(e), Fla. Stat.; Gentele v. Department of Professional Regulation, Board of Optometry, 513 So.2d 672 (Fla. 1st DCA 1987).
No award made pursuant to Section 57.111, Florida Statutes, may exceed
$15,000.00. Section 57.111(4)(d)2., Fla. Stat.
Furthermore, no award may be made in any amount "in any case in which the state agency was a nominal party." Section 57.111(4)(d)1., Fla. Stat.
In the instant case, the parties have stipulated that the only issues in dispute are the following:
Whether there was a reasonable basis in law and fact for the agency's actions and whether the underlying proceedings were substantially justified.
Whether the Petitioner qualifies as a small business party.
This stipulation is binding on the parties and the Hearing Officer as well. See Principe v. Mount Sinai Hospital, 156 So.2d 385, 387 (Fla. 1963); Sanders v. Bureau of Crimes Compensation, 474 So.2d 410, 411 (Fla. 5th DCA 1985); Lotspeich Company v. Neogard Corporation, 416 So.2d 1163, 1165 (Fla. 3d DCA 1982); Gandy v. Department of Offender Rehabilitation, 351 So.2d 1133, 1134 (Fla. 1st DCA 1977).
Accordingly, if the Hearing Officer determines that Petitioner should prevail on both issues remaining in dispute, he must issue an award in favor of Petitioner and against the Department in the amount of the statutory maximum of
$15,000.00 inasmuch as there is no dispute that Petitioner was the prevailing party in the underlying administrative proceeding, that the proceeding was initiated by a state agency, that the Department was not a nominal party in the proceeding and that Petitioner incurred more than $15,000.00 in reasonable attorney's fees and costs as a result of his participation in the proceeding.
An examination of the evidentiary record in this case, however, reveals that Petitioner should not prevail on either of these issues.
A "small business party," as that term is used in Section 57.111, Florida Statutes, is defined in subsection (3)(d) of Section 57.111 as follows:
The term "small business party" means:
1.a. A sole proprietor of an unincorporated business, including a professional practice, whose principal office is in this state, who is domiciled in this state, and whose
business or professional practice has, at the time the action is initiated by a state agency, not more than 25 full-time employees or a net worth of not more than $2 million, including both personal and business investments; or
b. A partnership or corporation, including a professional practice, which has its principal office in this state and has at the time the action is initiated by a state agency not more than 25 full-time employees or a net worth of not more than $2 million; or
2. Either small business party as defined in subparagraph 1., without regard to the number of its employees or its net worth, in any action under s. 72.011 or in any
administrative proceeding under that section and s. 120.575(1)(b) to contest the legality of any assessment of tax imposed for the sale or use of services as provided in chapter
212, or interest thereon, or penalty therefor.
The proof submitted in the instant matter is insufficient to establish Petitioner's status as a "small business party," as that term is defined in subsection (3)(d) of Section 57.111, Florida Statutes, inasmuch as it reveals neither the number of full-time employees Petitioner had, nor the amount of Petitioner's net worth, at the time of the initiation of the underlying administrative proceeding.
Because he failed to meet his burden of proving that he falls within the foregoing statutory definition of "small business party," Petitioner is not entitled to an award of attorney's fees and costs in any amount under Section 57.111, Florida Statutes. See Department of Professional Regulation, Division of Real Estate v. Toledo Realty, Inc., 549 So.2d 715, 716 (Fla. 1st DCA 1989); Thompson v. Department of Health and Rehabilitative Services, 533 So.2d 840, 841 (Fla. 1st DCA 1988).
Furthermore, the evidentiary record affirmatively establishes that the formal charges filed against Petitioner at the direction of the probable cause panel in DPR Case Numbers 01-11408 and 89-07347 had a reasonable basis in law and fact at the time they were filed, notwithstanding that the probable cause panel's view of the law and the evidence before it may not have been the only, or even, in the opinion of the Hearing Officer, the most preferable, view possible. C.f. Edward J. Seibert, Architect and Planner, P.A., v. Bayport Beach and Tennis Club Association, 573 So.2d 889, 892 (Fla. 2d DCA 1990)("[w]hen an agency with the authority to implement a statute construes the statute in a permissible way, that interpretation must be sustained even though another
interpretation may be possible"); Gentele v. Department of Professional Regulation, Board of Optometry, 513 So.2d 672, 673 (Fla. 1st DCA 1987)("DPR's determination to prosecute essentially turned on a credibility assessment of the investigator's testimony and, as such, had a reasonable basis in law and fact"); Humhosco v. Department of Health and Rehabilitative Services, 476 So.2d 258, 261 (Fla. 1st DCA 1985)("[w]hen an agency committed with authority to implement a statute construes the statute in a permissible way, that interpretation must be sustained even though another interpretation may be possible or even, in the view of some, preferable").
Therefore, even if Petitioner qualified as a "small business party," he would still not be entitled to an award of attorney's fees and costs under Section 57.111, Florida Statutes, for fees and costs he incurred in defending against these formal charges. See Gentele v. Department of Regulation, Board of Optometry, 513 So.2d 672 (Fla. 1st DCA 1987).
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
ORDERED that Petitioner's application for an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, is DENIED.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of December, 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 8th day of December, 1993.
ENDNOTES
1/ The Department did not address at all in its response the allegations made by Petitioner relating to the issue of his status as a "small business party."
2/ After taking the test and receiving the interpreted test results, approximately four or five of the test takers contacted Petitioner's office to make arrangements to see Petitioner and subsequently became Petitioner's patients. Petitioner maintained records on these patients following the onset of their physician-patient relationship.
3/ Where the test that had been taken was an echocardiogram, Petitioner 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.
4/ In those cases where Petitioner 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.
5/ In this regard, Petitioner 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.
6/ Petitioner 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. Petitioner 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.
7/ A "clinical laboratory," as defined in Section 483.041(1), Florida Statutes, is "a laboratory where examinations are performed on materials or specimens taken from the human body to provide information or materials for use in the diagnosis, prevention, or treatment of a disease or the assessment of a medical condition." The testing done by Health did not involve the examination of any "materials or specimens taken from the human body" and therefore its testing facilities were not "clinical laboratories," within the meaning of Section 483.041(1), Florida Statutes.
8/ Subsequently, at its September 25, 1992, meeting, the Board of Medicine's Rules Committee agreed that the following language should be added to the Board's advertising rule, Rule 21M-24.001, Florida Administrative Code:
Any duly licensed physician who solicits patients personally or through an agent shall be responsible for any advertising used to solicit such patients. For purposes of this rule and Section 458.331(1)(l), F.S., soliciting patients through an agent shall
include accepting patients who are referred by an [sic] corporate or business entity with whom the licensee has an employment or contractual relationship to perform medical services or to perform medical diagnosis.
At this same meeting, the Rules Committee also recommended that the following rule provision be adopted by the Board:
Physicians who interpret diagnostic imaging tests or procedures are responsible for the appropriateness and quality of the non- invasive diagnostic procedure, interpretation of the results, recommendation for care and treatment, diagnosis and maintenance of complete medical records.
9/ In a footnote to this Conclusion of Law, the Hearing Officer stated the following:
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 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 in effect at the time of Respondent's alleged transgression implementing that statutory provision. 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).
10/ "Attorney's fees and costs," as that term is used in Section 57.111, Florida Statutes, "means the reasonable and necessary attorney's fees and costs incurred for all preparations, motions, hearings, trials, and appeals in a proceeding."
APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2632
The following are the Hearing Officer's specific rulings on what are labelled as "findings of fact" in the proposed final orders submitted by the parties:
Petitioner's Proposed Findings
Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Final Order.
Rejected as a finding fact because it is more in the nature of a conclusion of law.
Accepted and incorporated in substance.
Rejected as a finding of fact because it is more in the nature of a conclusion of law.
5-6. Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second and third sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
To the extent that this proposed finding suggests that the Board, in its Final Order, approved and adopted all of the Hearing's Officer's Conclusions of Law, including his Conclusions of Law 29 and 30, it has been rejected because it is not supported by persuasive competent substantial evidence.
First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it constitutes unpersuasive argument.
The Department's Proposed Findings
1. First and third sentences: Accepted and incorporated in substance; Second sentence: Rejected as a finding of fact because it is more in the nature of a conclusion of law.
2-11. Accepted and incorporated in substance.
12-13. To the extent that these proposed findings state that "all [as opposed to some] of the items listed in the above paragraphs" were received and reviewed by the panel members prior to the January 28, 1991, probable cause meeting, they have been rejected because they are not supported by persuasive competent substantial evidence.
14. First sentence: To the extent that this proposed finding states that Gopal Basisht, M.D., not David Wertheimer, M.D., was one of the panel members, it has been rejected because it is not supported by persuasive competent substantial evidence; Second sentence: Accepted and incorporated in substance.
15-21. Accepted and incorporated in substance.
22. To the extent that this proposed finding states that Petitioner admitted in his deposition that he was aware of the specific contents of Health's advertisements "early on in his employment with Health" and that "there were claims made in the advertisements that were not true," as opposed to simply medically "debatable," it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.
23-39. Accepted and incorporated in substance.
COPIES FURNISHED:
William Zei, Esquire
Peterson, Bernard, Vandenberg, Zei, Geisler & Martin
707 Southeast Third Avenue Suite 500, Blackstone Building Fort Lauderdale, Florida 33302
Francesca Plendl, Esquire Department of Business and
Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-0792
Dorothy Faircloth, Executive Director Board of Medicine
Department of Business and Professional Regulation
1940 North Monroe Street Tallahassee, Florida 32399-0792
Jack McRay, Esquire General Counsel
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.
| Issue Date | Proceedings |
|---|---|
| Dec. 08, 1993 | CASE CLOSED. Final Order sent out. Hearing held October 1, 1993. |
| Nov. 08, 1993 | Respondent`s Proposed Final Order; Department`s Notice of Filing filed. |
| Nov. 04, 1993 | Proposed Recommended Order Submitted by Petitioner, Jorge Arturo Flores, M. D. filed. |
| Oct. 06, 1993 | Order sent out. (Re: Parties Stipulation Accepted) |
| Oct. 01, 1993 | (Joint) Stipulation w/cover ltr & joint exhibits filed. |
| Sep. 03, 1993 | Order sent out. (Re: Respondent`s Motion for Change of Venue Denied) |
| Aug. 27, 1993 | Petitioner`s, Response to Motion for Change of Venue filed. |
| Aug. 18, 1993 | (Respondent) Motion for Change of Venue filed. |
| Jul. 28, 1993 | Order Requiring Prehearing Stipulation sent out. |
| Jul. 28, 1993 | Notice of Hearing sent out. (hearing set for 9/30/93; 9:00am; Fort Lauderdale) |
| Jul. 07, 1993 | (DPR) Response to Order filed. |
| Jun. 30, 1993 | Order sent out. (Status report due within 15 days) |
| Jun. 29, 1993 | Petitioner`s Response to Amended Motion for Attorney Fees and Costs; Motion for Change of Venue filed. |
| Jun. 18, 1993 | (Respondent) Amended Motion for Attorney Fees and Costs) filed. |
| Jun. 03, 1993 | Order sent out. (Re: Dismissal of Petition) |
| Jun. 03, 1993 | (Respondent) Notice of Substitution of Counsel filed. |
| Jun. 01, 1993 | (Respondent) Motion to Dismiss, or in The Alternative, Response to Motion for Attorney Fees and Costs filed. |
| May 25, 1993 | (Respondent) Notice of Appearance filed. |
| May 24, 1993 | Letter to CAC from Joseph Harrison (re: not counsel of record) filed. |
| May 19, 1993 | Notification card sent out. |
| May 12, 1993 | Agency Referral Letter; Motion for Attorney Fees and Costs; Amended Affidavit of Attorney`s Fees and Costs filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 08, 1993 | DOAH Final Order | No right to fee award where Petitioner didn't show he was small business party ajd the filing of formal charges against Petitioner were sustantially justified at time of filing. |
