STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 93-3804

) EDWARD NEIL FELDMAN, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on October 27, 1993, in Tampa, Florida.

APPEARANCES

For Petitioner: Britt Thomas, Staff Attorney

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Thomas Saieva, Esquire

800 West DeLeon Street Tampa, Florida 33606-2722

STATEMENT OF THE ISSUES

Whether Respondent violated a rule of the Board of Medicine or the Department by advertising in a deceptive or misleading manner, thereby violating a provision of Chapter 458, Florida Statutes, which makes a licensee subject to disciplinary action if found guilty of violating a rule of the Board or Department.

PRELIMINARY STATEMENT

By Administrative Complaint filed June 3, 1993, the Department of Business and Professional Regulation, Petitioner, seeks to discipline the medical license of Edward N. Feldman, Respondent. As grounds therefore it is alleged in Count I that Respondent administered unnecessary diagnostic tests to Patient #1 in violation of Section 458.333(1)(g), Florida Statutes; in Count II that he exploited Patient #1 for financial gain in violation of Section 458.331(1)(n), Florida Statutes; and that, in Count III that he violated a rule of the Board in advertising himself as a Diplomate of the American Academy of Neurological and Orthopedic Surgeons on his office stationary when the American Academy of Neurological and Orthopedic Surgeons is not recognized by the Board as an approved specialty board.

Respondent disputed the allegations in the Administrative Complaint, requested a formal hearing to challenge these allegations and these proceedings followed.

At the commencement of the hearing Petitioner withdrew Counts I and II leaving only the allegation of wrongful advertising. Thereafter, Petitioner called one witness, Respondent testified in his own behalf and ten exhibits were offered into evidence. Objection to exhibits 7 and 8 as being unauthenticated hearsay was sustained.

There is little dispute regarding the operative facts here involved.

Accordingly, proposed findings submitted by the parties are accepted except as noted in the Appendix hereto. Having fully considered all evidence presented, I submit the following.

FINDINGS OF FACT

1. Respondent has been licensed as a physician by the Florida Board of Medicine since 1976 and holds license number ME0026906. He has completed a residency program in his speciality of orthopedics but has not been Board certified in this speciality by a member board of the American Board of Medical Specialists.

   
   

2. Respondent identifies himself as a diplomate of the Academy of Neurological and Orthopedic Surgeons on letterhead on correspondence mailed from his office. He has been so designated by this Academy since 1980.

   
   

3. Respondent also identified himself as a diplomate of the Academy of Neurological and Orthopedic Surgeons on various correspondence disseminated to Associated Insurance Brokers Claims Management in regard to patient E.S.

   
   

4. Although Respondent contends that he did not intend his identification on his letterhead as a diplomate to be advertising, he did acknowledge that such designation enhances his stature as an orthopedic surgeon.

   
   

5. Many insurance carriers approve for payment higher patient charges assessed by various specialists.

   
   

6. Respondent testified that in order to be designated as a diplomate of the American Academy of Neurological and Orthopedic Surgeons he had to pass a rigorous examination; however, no evidence was submitted from which a comparison could be made between this designation and a similar designation from a Board approved by the American Board of Medical Specialists (ABMS).

   
   

7. The American Academy of Neurological and Orthopedic Surgeons is not now and never has been a member of the American Board of Medical Specialties. Nor has it ever pertitioned the Florida Board of Medicine for recognition as a speciality board.

   
   

8. The American Federation of Medical Accreditation, which recognizes the American Academy of Neurological and Orthopedic Surgeons, has never been a member board of the American Board of Medical Specialists; nor has the Federation ever petitioned the Florida Board of Medicine for approval as a recognizing agency for medical specialties.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

10. Section 458.331(1)(d), Florida Statutes, provides that false, deceptive, or misleading advertising by a physician constitutes grounds for disciplinary action. Section 458.331(1)(x), Florida Statutes, provides that violation of a rule of the Board or of the department by a physician constitutes grounds for disciplinary action.

    
    

11. Rule 61F-24.001(2), Florida Administrative Code, provides in pertinent part:

    
    

    No physician shall disseminate or cause the dissemination of any advertisement or advertising which is any way false, deceptive, or misleading. Any advertisement or advertising shall be deemed by the board to be false, deceptive, or misleading if it:

    * * *

    (f) states or implies that the physician has received formal recognition as a specialist

    in any aspect of the practice of medicine unless he has in fact received such recognition and such recognizing agency is approved by the Board. For purpose of this rule, the Board approves the specialty boards of the American Board of Medical Specialties as a recognizing agency, and such other recognizing agencies as may receive future approval by the board.

    
    

12. By placing the information on his letterhead and on some invoices sent to payors that he is a diplomate of the American Academy of Neurological and Orthopedic Surgeons, Respondent is advertising.

    
    

13. By stating that he has received formal recognition as a diplomate of the American Academy of Neurological and Orthopedic Surgeons, a speciality board not recognized by the American Board of Medical Specialists or any other recognizing agency approved by the Board, Respondent has violated Rule 61F6- 24.001(2), Florida Administrative Code.

    
    

14. Rule 61F-20.001 establishes a range of penalties and disciplinary guidelines for violation of various provisions of Section 458.331(1), Florida Statutes. The recommended penalty for violation of a rule of the Board ranges from reprimand to revocation or denial, and an administrative fine of $250.00 to

$5,000.00.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That a final order be entered finding Edward Neil Feldman guilty of violation of Sections 458.331(1)(d) and (x), Florida Statutes; and that he be given an official reprimand and fined $2,000.00.

DONE AND RECOMMENDED this 20th day of December, 1993, in Tallahassee, Leon County, Florida.

K. N. AYERS 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 Hearing this 20th day of December, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3804

Proposed findings submitted by Petitioner are accepted.

Proposed findings submitted by Respondent are accepted except as noted below:

1. Accepted as testimony of Dr. Feldman. However, no evidence was submitted comparing this test to the test given by a speciality board approved by the ABMS.

2. Second sentence rejected. By stating he is a diplomate, Respondent implies certain recognition.

1. Rejected as irrelevant.

2. Rejected as irrelevant.

3. Rejected as irrelevant.

4. Rejected as irrelevant.

5. Rejected. See Hearing Officer #5 and #6.

6. See Hearing Officer #5 and #6.

7. Rejected as irrelevant.

15. Respondent's attempt to equate the notice on letterhead that Respondent was a diplomate to an entry in a curriculum vitae (c.v.) is misplaced. A c.v. is similar to a professional life history and is totally inapt for advertising. The same cannot be said when the achievement is placed on a letterhead.

18. Rejected.

COPIES FURNISHED:

Britt Thomas, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Thomas Saieva, Esquire SAIEVA & WALSH, P.A.

800 West DeLeon Street Tampa, Florida 33606-2722

Jack McRay, Acting General Counsel Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Dr. Marm Harris, Executive Director Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION BOARD OF MEDICINE

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Petitioner,

vs. DBPR CASE NO. 92-01175

DOAH CASE NO. 93-3804 EDWARD NEIL FELDMAN, M.D., LICENSE NO. ME 002690

Respondent.

/

FINAL ORDER

THIS MATTER was heard by the Board of Medicine (hereinafter Board) pursuant to Section 120.57(1)(b)10., Florida Statutes, on February 5, 1994, in Tampa, Florida, for consideration of the Hearing Officer's Recommended Order (Attached as App. A) in the case of Department of Business and Professional Regulation v. Edward Neil Feldman, M.D. At the hearing before the Board, Petitioner was represented by Larry G. McPherson, Jr., Chief Medical Attorney. Respondent appeared before the Board with Thomas Saieva, Esquire. Upon consideration of the Hearing Officer's Recommended Order after review of the complete record and having been otherwise fully advised in its premises, the Board makes the following rulings, findings and conclusions:

RULINGS ON EXCEPTIONS

Respondent filed thirteen (13) numbered exceptions (Attached as App. B) to the Recommended Order filed by the Hearing Officer. Pursuant to Rule 61F6- 18.004(2) and (3), F.A.C. the Board reviewed each exception and ruled explicitly on each exception. Oral argument was permitted by the parties only as to exception number 11. The Board ruled as follows:

1-2. Rejected because there is competent substantial evidence in the record to support the factual findings in paragraphs 5. and 12. of the Recommended Order.

1. Rejected as being irrelevant and without support in the record.

   
   

2. Rejected because the Hearing Officer's ruling is a correct statement regarding the lack of evidence in the record.

5-7. Rejected because the Hearing Officer's ruling is correct as to relevance.

1. Rejected because the Hearing Officer's ruling was correct based upon the Hearing Officer's finding of fact in paragraph 12. which is supported by competent substantial evidence.

   
   

2. Rejected because the Hearing Officer's ruiing was correct based upon the Hearing Officer's finding of fact in paragraph 5. which is supported by competent substantial evidence.

   
   

3. Rejected because the Hearing Officer's ruling is correct as to relevance as set forth in Petitioner's responses to the exceptions. (Attached as App. C)

   
   

4. Rejected for the reasons set forth in Petitioner's responses to the exceptions. (Attached as App. C).

   
   

5. Rejected because there is competent substantial evidence to support the finding of fact adopted by the Hearing Officer.

   
   

6. Rejected as written for the reasons set forth in Petitioner's responses to the exceptions. (Attached as App. C)

FINDINGS OF FACT

1. The Hearing Officer's Recommended Findings of Fact are approved and adopted and are incorporated herein by reference as the findings of fact of the Board in this case.

   
   

2. There is competent, substantial evidence to support the Board's findings herein.

CONCLUSIONS OF LAW

1. The Board has jurisdiction over the parties and subject matter of this case pursuant to Section 120.57 and Chapter 458, Florida Statutes.

   
   

2. The findings of fact set forth above do establish that Respondent has violated Section 458.331(1)(d) and (x), F.S., as charged in the administrative complaint.

DISPOSITION

In light of the foregoing Findings of Fact and Conclusions of Law the Board hereby determines that pursuant to Rule 61F6-20, Florida Administrative Code, the penalty recommended by the Hearing Officer is not quite appropriate as set forth in the Recommended Order. The Board finds that the issuance of a reprimand may have unintended results for beyond any penalty appropriate in this case. Therefore, the Board finds that rather than having his license reprimanded, Respondent should receive a letter of concern.

WHEREFORE, it is found, ordered and adjudged that the Respondent has violated Section 458.331(1), F.S., and pursuant to Rule 61F6-20, F.A.C., Respondent shall pay an administrative fine of $2,000.00 to the Executive Director of the Board of Medicine within 30 days of the effective date of this Final Order, and Respondent shall be issued a letter of Concern by the Department of Business and Professional Regulation which letter shall address the actions of Respondent in this matter.

This Final Order becomes effective upon its filing with the Clerk of the Department of Business and Professional Regulaiion.

DONE and ORDERED this 5th day of April, 1994.

BOARD OF MEDICINE

RICHARD JAMES CAVALLARO, M.D. VICE-CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order and its attachments have been forwarded by U.S. Mail to Edward Neil Feldman,

M.D. c/o Thomas Saieva, Esquire, 800 W. Deleon Street, Tampa, Florida 33606-2722 and to K.N. Ayers, Hearing Officer, Division of Administrative Hearings, the DeSoto Building 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550, and by hand delivery to Larry G. McPherson, Jr., Chief Medical Attorney, Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 on this 11th day of April, 1994.

AMENDED CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Edward N. Feldman, M.D., 1011 N. MacDill Ave., Tampa, FL 33606, and to Thomas Saieva,Esq, 800 W. DeLeon St., Tampa, FL 33606-2722, and to K. N. Ayers, Hearing Officer, Division of Administrative Hearings, the DeSoto Bldg., 1230 Apalachee Pkwy, Tallahassee, FL, 32399-1550, and by interoff ice delivery to Larry G. McPherson, Jr., Chief Medical Attorney, Depar ment of Business and Professional Regulation, 1940 North Monroe St., Tallahasse FL 32399-0792 at or before 5:00 p.m., this 12th day of April, 1994.

NOTICE

The parties are hereby notified pursuant to Section 120.59(4), Florida Statutes, that an appeal of this Final Order may be taken pursuant to Section 120.68, Florida Statutes, by filing one copy of a Notice of Appeal with the Clerk of the Department of Business and Professional Regulation and one copy of a Notice of Appeal with the required filing fee with the District Court of Appeal within thirty (30) days of the date this Final Order is filed.

Docket for Case No: 93-003804

Orders for Case No: 93-003804