STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALI A. AZIMA, M. D., )

)

Petitioner, )

)

vs. ) CASE NO. 93-4130F

) AGENCY FOR HEALTH CARE ) ADMINISTRATION, )

)

Respondent. )

)

FINAL ORDER

Upon due notice, the Division of Administrative Hearings by its duly assigned Hearing Officer, William R. Cave, held a formal hearing in the above- captioned case on April 25, 1994, in Tallahassee, Florida.

APPEARANCE

For Petitioner: James W. Linn, Esquire

Carson, Linn, and Adkins

2873-A Remington Green Circle Tallahassee, Florida 32308

For Respondent: Francesca Plendl, Esquire

Agency For Health Care Administration 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUE

1. Whether Petitioner is entitled to attorney's fees and costs under Section 57.111, Florida Statutes, the Florida Equal Access To Justice Act.

   
   

2. Whether Petitioner is entitled to attorney's fees under Section 120.57(1)(b)5., Florida Statutes.

PRELIMINARY STATEMENT

The Petitioner's Petition For Attorneys' Fees And Costs Pursuant To Florida Equal Access To Justice Act was filed with the Division of Administrative Hearings (Division) on July 26, 1993. On August 9, 1993, the Respondent Department of Business and Professional Regulation (Department) filed a Motion To Dismiss, Or In The Alternative, Response To, Petition For Attorney Fees and Costs. The basis for the motion was that the Petitioner had failed to timely file his petition in accordance with Section 57.111(4)(b)2., Florida Statutes.

By order dated August 18, 1993, the Motion To Dismiss was denied. In its response to the petition, the Department requested an administrative hearing. A hearing in this matter was scheduled for January 10, 1994. However, due to discovery problems the parties agreed to a continuance. The matter was

continued and rescheduled for hearing on April 25, 1994. On April 22, 1994, the Petitioner filed an Amended Petition For Attorney's Fees And Costs. The amended petition alleged that the Department's exceptions to the Recommended Order issued in Department of Professional Regulation v. Ali A. Azima, M. D., Case No. 91-3149 were filed for an "improper purpose" within the meaning of Section 120.57(1)(b)5., Florida Statutes, and that an award of attorney's fees incurred by Petitioner in responding to the exceptions was warranted. The amendment was addressed at the beginning of the hearing. Without objection from the Respondent, but with the understanding that should the Respondent need to present evidence at a later time on that portion of the petition dealing with the filing of a pleading for an "improper purpose" under Section 120.57(1)(b)5., Florida Statutes, it would be allowed to do so, the amendment to the petition was granted. At the hearing Petitioner testified on his own behalf but presented no other witness. Petitioner offered a series of letters concerning public records requests to the Department and the responses to those requests as Petitioner's Composite Exhibit 1. The exhibit was rejected as not being relevant to this processing. The Petitioner then made a proffer of the exhibit. After reviewing the record, it is still my decision that Petitioner's Composite Exhibit 1 is not relevant to this proceeding. The Petitioner offered no other exhibit. The Department presented the testimony of Lynne Pennock, Jean Clyne and Larry McPherson. Department's exhibits 1, 2 and 3 were received as evidence. The Department late filed affidavits regarding Petitioner's Composite

1 on the issue of attorney's fees under Section 120.57(1)(b)5., Florida Statutes, from Mary B. Radkins and Michael Blazicek

The transcript of the April 25, 1994, hearing was filed with the Division on May 26, 1994. The parties timely filed their proposed final orders with the Division. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Final Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. The action in this case was initiated by the Department, a state agency. The Department was not a nominal party.

   
   

2. The Petitioner was the prevailing party in the administrative proceeding brought against his license by the Department in Department of Professional Regulation v. Ali A. Azima , M. D., Case No. 91-3149.

   
   

3. The Petitioner incurred attorney's fees and costs in excess of

   $46,000 in defending the administrative proceeding brought against him in Department of Professional Regulation v. Ali A. Azima, M. D., Case No. 91-3149. There is no dispute as to the reasonableness of the attorney's fees and costs.

   
   

4. There are no special circumstances which would make an award of attorney's fees and costs unjust.

   
   

5. The Petitioner's medical practice was organized as a professional association in February, 1991, on a fiscal year basis, ending June 30. The Petitioner is the sole owner of the professional association. The Petitioner received all fees for his professional services through his professional association.

6. At all times material to this proceeding, the Petitioner and the Petitioner's professional association combined employed less than 25 employees.

   
   

7. At no time material to this proceeding, did the Petitioner and Petitioner's professional association combined have a net worth in excess of two million dollars.

   
   

8. The original letter of complaint which ultimately led to the filing of an administrative complaint against Petitioner in Department of Professional Regulation v. Ali A. Azima, M. D., Case No. 91-3149 was written by Dr. Swor on May 25, 1988. In his letter, Dr. Swor expressed concern regarding the level of care being rendered by Petitioner to Petitioner's patients. The letter was received by the Department's Complaint Section and assigned Department's Case Number 010064. Petitioner was notified of the substance of Dr. Swor's complaint in a letter from the Department's Investigator, Jean Clyne, dated August 25, 1988.

   
   

9. Dr. Swor was unable to give the Investigator any specifics regarding Petitioner's patients or the level of care provided by Petitioner to his patients that was the basis of his allegations. However, Dr. Swor referred the Investigator to Charles Matthews, M. D., Director, Sarasota Memorial Hospital. It is clear from the Investigator's notes that neither Dr. Matthews nor anyone else was able to supply any information to support Dr. Swor's allegations against Petitioner.

   
   

10. However, Dr. Matthews did report to the Investigator that on July 8, 1988, Patient K. Z. was brought into the emergency room of Sarasota Memorial Hospital after a failed forceps delivery at Petitioner's clinic, and that the patient was in acute distress which required immediate surgery.

    
    

11. The patient's records from the Sarasota Memorial Hospital and from the Petitioner, including those records from the clinic, were obtained by the Investigator. The patient's records revealed the following:

    
    

    1. Patient K. Z. was an 18 year old carrying her first child. K. Z. received prenatal care from Petitioner, beginning in her 22nd week, based on information from the patient concerning her last menstrual period. The records do not indicate what care, if any, the patient was receiving prior to her first visit with the Petitioner. No records were requested for this period. The Petitioner saw the patient on nine office visits.

    2. On April 27, 1988, the patient's fundal measurement and gestational age (as calculated by Petitioner) indicated either an incorrect due

       date or problems with the pregnancy. The patient's records do not reflect why the Petitioner did not order an ultrasound at this time. An ultrasound was ordered on July 6, 1988.

    3. On June 28, 1988, Petitioner signed a permit for delivery of Patient K. Z. at the birthing center operated by Petitioner. "Dr. Azima and nurse" were listed on the permit as those who would provide services at labor and delivery.

    4. The Department of Health and Rehabilitative Services (HRS) Pre-Term Delivery Risk Scoring Form filled out by Petitioner on April 27, 1988, and June 28, 1988, scored Patient K. Z. as a low risk patient. However, Petitioner failed to score the patient on many of the factors listed on the HRS Form, including the patient's age, socioeconomic status and marital status. This form is used to determine whether a patient is a candidate for a birthing center.

    5. On July 8, 1988, the patient went into labor and presented at the birthing center at 11:50 a.m., 2cm dilated and 100 percent effaced. The Petitioner was the attending physician.

    6. Labor progressed and the patient dilated to

       9 cm. The bulging membranes ruptured at 5:27 p.m. The timing of the contractions were not recorded in the records. No fetal monitor was employed.

    7. At 7:00 p.m. the contractions were noted to be irregular. Pitocin was started and was monitored by the nurse. The fetal heart rates were recorded in the records once an hour.

    8. At 7:30 p.m. the cervix was fully dilated with the fetal head at 0 station. At 9:00 p.m. the station was 1-2 and Petitioner transferred the patient to the procedure room. The patient

       was prepped and local anesthetic was administered. After a period of time had elapsed and the patient had not delivered, Petitioner made the decision to use forceps to assist in delivery. Before attempting to use the forceps, the Petitioner performed an episiotomy. Petitioner's forceps delivery failed

       as did Fundal pressure.

    9. An ambulance was called to transfer the patient to the hospital. The Pitocin was discontinued. The Petitioner did not suture the episiotomy before the patient was transferred to the ambulance for transport to the hospital. During transport, the Emergency Medical Technicians (EMT's) became concerned over

       the patient's vaginal bleeding and presented the patient at the emergency room of the nearest hospital. The patient was not treated at this hospital but was transported to the Sarasota Memorial Hospital, notwithstanding that the patient was initially to be transported to a hospital other than Sarasota Memorial Hospital.

    10. Upon delivery to Sarasota Memorial Hospital, the patient diagnosed with cephalopelvic disproportionment. Cesarean section was performed and the baby delivered at 11:34 p.m. Subsequently, the episiotomy was repaired. The patient and the baby progressed satisfactorily, and were discharged from the hospital.

        
        

12. The Department did not give the Petitioner written notice that the investigation had now gone beyond Dr. Swor's complaint and was focused on the incident concerning Patient K. Z., which occurred after Dr. Swor's complaint.

13. On March 16, 1989, Janet Marley, M. D. rendered a written report after reviewing the medical records for the patient wherein she expressed concern over: (a) birthing centers in general; (b) Petitioner's supervision of two birthing centers that were not immediately accessible to an acute care facility;

    (c) Petitioner's attempt to perform a "high forceps delivery"; (d) the patient not being a proper candidate for a birthing center and; (e) Petitioner's failure to timely transfer the patient to an acute care facility. Dr. Marley summarized by stating that Petitioner had failed to practice medicine with the level of care, skill and treatment that is recognized as acceptable. The letter from Dr. Marley became a part of the Investigator's report.

    
    

14. On December 6, 1989, Petitioner was interviewed by the Investigator regarding his treatment of Patient K. Z. and his remarks became part of the Investigator's report.

    
    

15. On December 28, 1989, the investigation was completed and the case was forwarded to the Department's Legal Section in Tallahassee, Florida.

    
    

16. Before an Administrative Complaint was filed against the Petitioner, the Department presented its case to the Probable Cause Panel (PCP) of the Board of Medicine on three different occasions.

    
    

17. The case was first presented to a PCP in February, 1990. Although the Department has been unable to produce a transcript of the February, 1990, meeting, the transcript of the November 6, 1990, PCP meeting shows that the case was previously considered by the PCP in February, 1990.

    
    

18. At its February, 1990, meeting, the PCP would have had before it the complete and final Investigator's Report, including, but not limited to, Patient

    K. Z.'s medical records and the letter from Department's expert, Dr. Janet Marley.

    
    

19. At the time of the February, 1990, PCP meeting, cases were placed into three categories:

    
    

    1. Cases in which an Administrative Complaint was definitely warranted, in the judgment of the Department's Legal Office;

    2. Cases in which an Administrative Complaint was definitely not warranted and;

    3. Cases in which additional information, investigation or expert opinion, was needed.

       
       

20. Petitioner's case fell into the third category, and a second expert opinion was obtained from Robert Brauner, M. D. by the Department. Dr. Brauner is Board Certified in obstetrics and gynecology, his credentials have been reviewed by the Board of Medicine, and he has been approved to review cases as an expert for the Department.

21. On August 7, 1990, Dr. Brauner issued a written expert opinion. The opinion letter discussed Dr. Brauner's concerns regarding Petitioner's treatment of Patient K. Z. as follows:

    
    

    1. The clinic's lack of proximity to a obstetrics unit;

    2. Petitioner's procedure for dating of Patient K. Z.'s pregnancy;

    3. The pre-labor assessments performed on Patient K. Z., by the Petitioner;

    4. Petitioner's notes regarding failure of the infant to descend do not make sense;

    5. Petitioner's notes regarding the head crowning do not make sense in light of the inability to deliver with forceps.

    6. The Petitioner's use and monitoring of Pitocin;

    7. The Petitioner's failure to use fetal monitoring;

    8. The timeliness of Petitioner's attempt to deliver with forceps;

    9. The appropriateness of forceps delivery at a birthing center;

    10. The timeliness of Petitioner's transfer of the patient to the hospital;

    11. The decision of the Petitioner not to suture the episiotomy before transferring the patient to a hospital and;

    12. The apparent lack of justification in the medical records for the course of treatment.

        
        

22. It was Dr. Brauner's opinion that Petitioner had provided substandard care and demonstrated poor judgment.

    
    

23. The PCP considered Petitioner's case for the second time on November 6, 1990, and had before it for consideration Dr. Brauner's expert opinion, a draft Administrative Complaint and the complete Investigator's file. Additionally, these documents had been forwarded to the PCP members before the meeting. Each of the members indicated that they had received and reviewed these documents before the PCP meeting on November 6, 1990.

    
    

24. The Department's attorney, Lynne Quimby-Pennock, discussed the specific facts of the case and reviewed each of he counts that the Department set forth in the draft Administrative Complaint.

    
    

25. During the PCP's consideration of Petitioner's case, Chairman Burt repeatedly referred to prior disciplinary proceedings involving the Petitioner. However, the panel members were advised by the PCP attorney, M. Catherine Lannon, that prior disciplinary proceedings were only relevant in the penalty phase.

    
    

26. On November 6, 1990, the PCP found probable cause to believe the Petitioner had violated Section 458.331(1), Florida Statutes. The PCP then directed the Department to make the suggested changes to the draft Administrative Complaint and further directed that such Administrative Complaint

    be issued. A Memorandum Of Finding Of Probable Cause was signed by Chairman Burt indicating that the PCP had probable cause to believe that Petitioner had violated Section 458.331(1)(m),(q),(t),(v), and (w), Florida Statutes:

    
    

    (m) - failing to maintain medical records which justify the course of treatment.

    (q) - failing to prescribe drugs in an appropriate manner.

    (t) - failure to practice medicine within the standard of care.

    1. - performing professional responsibilities which the licensee knew or had reason to know that he was not competent to perform.

    2. - delegating professional responsibilities to a person who the licensee knows is not qualified.

    
    

27. On January 28, 1991, the revised Administrative Complaint was reviewed by the PCP. In addition to the revised Administrative Complaint, the PCP had received and reviewed the entire Investigator's file, including all applicable medical records, and the written opinions of experts Dr. Marley and Dr. Brauner.

    
    

28. The Department's attorney, Lynne Quimby-Pennock, discussed the specific facts of the case and reviewed each of the counts with the PCP that the Department had set forth in the draft Administrative Complaint. The PCP agreed that the revised Administrative Complaint covered the issues needed to be charged and directed an Administrative Complaint be filed against Petitioner.

    
    

29. A Memorandum Of Finding Of Probable Cause was signed by the Chairman indicating that there was probable cause to believe that Petitioner had violated Section 458.331(1)(m),(q),(t),(v), and (w), Florida Statutes, as was found in the November 6, 1990, PCP meeting.

    
    

30. The Administrative Complaint was filed on February 6, 1991 and thereafter served upon Petitioner.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

32. Pertinent to this case, Section 57.111(4)(a), Florida Statutes, provides:

    
    

    Unless otherwise provided by law, an award of attorney's fees and costs shall be made to a prevailing small business party in an 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 exists which would make the award unjust.

33. Section 57.111(3) defines the following pertinent terms:

    
    

    1. The term "initiated by a state agency" means that the state agency:

       * * *

       3. Was required by law or rule to advise a small business party of a clear point of entry after some recognizable event in the investigatory or other free-form proceeding of the agency.

       * * *

    2. A small business party is a "prevailing small business party" when:

       1. A final judgment or order has been entered in favor of the small business party and such judgment or order had not been reversed on appeal or the time for seeking judicial review of the judgment or order has expired.

       * * *

    3. The term "small business party" means:

       * * *

       1.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 that 25 full-time employees or net worth of not more than

       $2 million, including both person and business investments. . .

       * * *

    4. A proceeding is "substantially justified" if it had a reasonable basis in law and fact at the time it initiated by a state agency.

    
    

34. In a case of this nature, Petitioner bears the initial burden to establish by a preponderance of the evidence that he has prevailed in the underlying action and that he is a small business party as defined by statute. Once this burden has been met, the burden shifts to the Department to establish that it was substantially justified in initiating the underlying action. Department of Professional Regulation v. Toledo Realty, 549 So.2d 715 (1 DCA Fla. 1989).

    
    

35. By filing the Administrative Complaint, a part of which advises Petitioner of a clear point of entry, the Department initiated an action against the Petitioner within the meaning of Section 57.111(3)(b), Florida Statutes. Likewise, there is no dispute that Petitioner was the "prevailing party". However, the Department contends that Petitioner is not a "prevailing small business party" because this proceeding was initiated against the Petitioner's medical license as an individual and not against the Petitioner's professional association. This contention is rejected. Such an interpretation of the term "small business party" would obviously lead to a result not intended by the legislature. Anthony Gentele, O. D. v. Department of Professional Regulation, Board of Optometry, DOAH Case No. 85-3857F, 9 F.A.L.R. 311, 322-323, Final Order issued June 20, 1986, appealed on other issues and affirmed in Gentele v. Department of Professional Regulation, Board of Optometry, 513 So.2d 672 (1 DCA Fla. 1987); William L. McCallister v. Department of State, Division of Licensing, 9 F.A.L.R. 4064, 4066-4069, Final Order issued June 15, 1987; S. G.

    v. Department of Health and Rehabilitative Services, Final order issued on

    February 12, 1992, appealed on other issues, affirmed in part and reversed in part in Department of Health and Rehabilitative Services v. S. G., 613 So.2d 1380 (1 DCA Fla. 1993).

    
    

36. While the Florida Equal Access To Justice Act (FEATJA) was patterned after the Federal Equal Access To Just Act (Federal Act), the construction placed on the FEATJA by the courts has been that it will take the same construction in the Florida courts as its prototype has been given in the federal courts insofar as such construction is harmonious with the spirit and policy of Florida legislation on the subject. Gentele, O. D. v. Department of Professional Regulation, Board of Optometry, 513 So.2d 672, 673 (Fla. 1st DCA 1987); Pasco County School Board v. Florida Public Employee Relations Commission

    353 So.2d 108, 116 (Fla. 1st DCA 1977.) Unlike the Federal Act. Section 57.111(4)(a), Florida Statutes, provides that an award of attorney's fees and costs shall be made unless the actions of the agency were substantially justified at the time they were initiated, not for subsequent aspects of a proceeding where the agency's position has been determined to be no longer justified. Frederick Mann, D.D.S. v. Department of Professional Regulation, Board of Dentistry, Case No. 91-7865F (April 10, 1992); Brown v. Department of Professional Regulation, Board of Psychological Examiners, 13 F.A.L.R. 3444, 3451 (August 2, 1991) Therefore, for the Department to show that it was substantially justified in bringing this action against the Petitioner, it must show that the Department had a reasonable basis in law and in fact at the time the PCP met and authorized the issuance of an Administrative Complaint. The Department has met its burden in this regard.

    
    

37. The Petitioner also contends that he is entitled to attorney's fees under Section 120.57(1)(b)5., Florida Statutes, in that he has alleged that the Department filed exceptions to the Recommended Order in Department of Professional Regulation v. Ali A. Azima, M.D., Case No. 91-3149 for an "improper purpose" Without commenting on whether the Department's exceptions were filed for an improper purpose or not, it is clear that at the time the exceptions were filed, the Division had relinquished jurisdiction and the matter was before the Board of Medicine. Having relinquished jurisdiction the Division is without authority to entertain Petitioner's request for attorney's fees under Section 120.57(1)(b)5., Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, accordingly,

ORDERED that Petitioner's request for an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, and Section 120.57(1)(b)5., Florida Statutes, is denied.

DONE AND ENTERED this 2nd day of November, 1994, in Tallahassee, Florida.

WILLIAM R. CAVE

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 2nd day of November, 1994.

APPENDIX TO FINAL ORDER, CASE NO. 93-4130F

The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case.

Petitioner, Proposed Findings of Fact:

1. Proposed findings of fact 1 through 17 are adopted in substance as modified in Findings of Fact 1 through 30 in the Final Order.

2. Proposed findings of fact 17 through 23 are neither material nor relevant.

Respondent, Department's Proposed Findings of Fact:

1. Proposed findings of fact 1 through 41 are adopted in substance as modified in Findings of Fact 1 through 30 in the Final Order.

COPIES FURNISHED:

James W. Linn, Esquire Carson, Linn and Adkins

2873-A Remington Green Circle Tallahassee, Florida 32308

Francesca Phendl, Esquire Agency For Health Care

Administration

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

George Stuart, Secretary Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jack McRay General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Dr. Marm Harris Executive Director Board of Medicine

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO APPEAL

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 Rule of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the agency clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 93-004130F

Orders for Case No: 93-004130F