STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS ) AND PROFESSIONAL REGULATION, ) BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5408

)

JOSE FELIPE IGLESIA, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on December 8, 1992, in Miami, Florida.

APPEARANCES

For Petitioner: Carlos J. Ramos, Esquire

Senior Attorney

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Manuel F. Fente, Esquire

1835 West Flagler Street, Suite 201

Miami, Florida 33135 STATEMENT OF THE ISSUES

Whether Respondent, a medical doctor licensed to practice in the State of Florida, committed the offenses set forth in the Administrative Complaint and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent, a physician licensed to practice medicine in the State of Florida. The gravamen of the Administrative Complaint is that Respondent had violated the provisions of Section 458.331(1)(c), Florida Statutes, by pleading nolo contendre to certain crimes which directly relate to the practice of medicine or to the ability of the Respondent to practice medicine. Respondent did not contest that he had entered the plea alleged in the Administrative Complaint, and he did not contest the facts which underlie the criminal plea.

At the formal hearing, Petitioner offered 15 exhibits, each of which was accepted into evidence. Petitioner presented the testimony of the Respondent and of Andy Moya, a law enforcement investigator with the Florida Department of Insurance's Division of Insurance Fraud. Respondent offered two exhibits, both of which was accepted into evidence, and presented the additional testimony of Dr. Antonio Ramirez, a physician who is Respondent's current employer and supervisor.

A transcript of the proceedings has been filed. The proposed findings of fact submitted by Petitioner are adopted in material part by the Recommended Order. Respondent did not file a post-hearing submittal.

FINDINGS OF FACT

1. Respondent has been licensed by Petitioner as a physician in the State of Florida and has, at all times pertinent to this proceeding, held license number ME0030090.

   
   

2. Andy Moya, a law enforcement investigator with the Division of Insurance Fraud of the Florida Department of Insurance, conducted an investigation of Respondent's billings to insurance companies. As a result of this investigation, Mr. Moya executed a probable cause affidavit that led to Respondent's arrest on multiple counts, including four counts of grand theft. Grand theft is a third degree felony.

   
   

3. On June 12, 1991, Respondent was arrested pursuant to the arrest warrant that had been obtained by Mr. Moya. On October 8, 1991, Respondent freely and voluntarily entered a plea of nolo contendre to four counts of grand theft. The presiding circuit judge accepted Respondent's plea of nolo contendre, withheld adjudication of guilt, placed the Respondent on probation for a period of five years, and ordered Respondent to pay the Department of Insurance the sum of $1,000.00 and the State Attorney's office the sum of

   $750.00. A condition of Respondent's probation was that under no circumstances could he bill insurance companies for services he performed. All billings to insurance companies would have to be done by someone over whom Respondent had no control.

   
   

4. A plea of nolo contendre to four counts of grand theft for billing insurance carriers for services not rendered is directly related to the practice of medicine. The following facts underlie the criminal charges to which Respondent entered a plea of nolo contendre.

   
   

   PATIENT #1 AND PATIENT #2

   
   

5. Patient #1 and #2 were in a car accident in Hialeah, Florida, and subsequently were referred to Respondent by attorney Richard H. Reynolds.

   
   

6. Respondent billed U.S. Security Insurance Company, Inc., a total of

   $1,995.00 for treating Patient #1 on 41 different dates from January 17, 1990, through May 2, 1990. Patient #1 later testified that she had been treated by Respondent on no more than ten different dates. Respondent assigned to Patient #1 a disability rating of five to six percent permanent/partial impairment.

   Patient #1 later denied under oath that any disability resulted because of the accident.

7. Respondent billed U.S. Security Insurance Company, Inc., a total of

   $2,195.00 for treating Patient #2 on 46 different dates from January 17, 1990, through May 7, 1990. Patient #2 later testified that she had been treated by Respondent on no more than ten different dates. Respondent assigned to Patient #2 a disability rating of five to six percent permanent/partial impairment.

   Patient #2 later denied under oath that any disability resulted because of the accident.

   
   

8. On October 25, 1990, Respondent authenticated his medical records and billings on Patient #1 and Patient #2 and affirmed to Mr. Moya that these documents were correct. Respondent's medical records and billings for Patient #1 and Patient #2 were fraudulent.

   
   

   PATIENT #3

   
   

9. On July 13, 1990, Patient #3 was in a car accident. On July 27, 1990, an attorney referred Patient #3 to Respondent. Several days after July 27, 1990, Patient #3 visited Respondent (or any other doctor following the accident) for the first time. Respondent subsequently billed U.S. Security Insurance, Inc., for services rendered to Patient #3 on July 20, 23, 25, and 27, 1990. These billings, in the approximate amount of $300.00, were fraudulent in that they were for services purportedly rendered on dates before Respondent first saw this patient.

   
   

   PATIENT #4

   
   

10. Respondent billed Allstate Insurance Company for services that Respondent purportedly rendered to Patient #4 as follows: office visit on June 26, 1990, and physiotherapy treatments on June 26, 28, and 29, and July 3, 5, 6, and 9, 1990. These billings were fraudulent in that Patient #4 was hospitalized at Coral Gables Hospital from June 26, 1990, to July 11, 1990. Respondent did not provide the services for which he billed Allstate Insurance Company during June and July 1990. On February 6, 1991, Respondent signed an affidavit that provided, in pertinent part, as follows:

    
    

    I have read the attached medical report and bill for services rendered to [Patient #4]. I declare that the treatments indication on the attached medical report and bill for services were provided by me on the dates listed and that the treatment and services rendered were reasonable and necessary with respect to the bodily injury sustained.

    
    

11. Respondent's billings for Patient #4, in the approximate amount of

    $300.00, were fraudulent and the affidavit he signed on February 6, 1991, was untrue.

    
    

12. Respondent was born in Cuba and graduated from the University of Havana School of Medicine in 1962. Respondent testified at the formal hearing that he was born on May 26, 1919, but the application for licensure submitted by Respondent reflects that Respondent was born May 26, 1924. There was no explanation for this discrepancy. Respondent has been licensed as a physician in the State of Florida since 1977. There was no evidence that Respondent has been previously disciplined by Petitioner.

13. At the time of the formal hearing, Respondent was practicing medicine with Dr. Antonio Ramirez, M.D. Dr. Ramirez is a physician licensed to practice medicine in the State of Florida. Dr. Ramirez was also educated in Cuba, and had known Respondent since the 1970s. Dr. Ramirez is of the opinion that the services rendered by Respondent have been satisfactory. Respondent has no responsibility for submitting bills to patients or to insurance companies.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

15. Section 458.331, Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

       * * *

       1. Being convicted or found guilty of, or entering a plea of nolo contendre to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of medicine.

          * * *

    2. When the board finds any person guilty of any of the grounds set forth in subsection

       (1) ... it may enter an order imposing one or more of the following penalties:

       * * *

       1. Revocation or suspension of licensure.

       2. Restriction of practice.

       3. Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.

       4. Issuance of a reprimand.

       5. Placement of the physician on probation for a period of time and subject to such conditions as the board may specify, including, but not limited to, requiring the physician to submit to treatment, to attend continuing education courses, to submit to reexamination, or to work under the supervision of another physician.

       
       

16. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112 (Fla. 1st DCA 1989). In this proceeding, Petitioner has established by clear and convincing evidence that Respondent violated the provisions of Section 458.331(1)(c), Florida Statutes, thereby subjecting Respondent to discipline as provided in Section 458.331(2), Florida Statutes.

17. Rule 61F6-20.001, Florida Administrative Code, contains disciplinary guidelines adopted by Petitioner that are pertinent to this proceeding. For a violation of Section 458.331(1)(c), Florida Statutes, the recommended penalty ranges from the placement of the licensee on probation to the revocation of the licensee's license to practice medicine in the State of Florida. The recommended penalty also includes the imposition of an administrative fine ranging from $250.00 to $5,000.

    
    

18. The Board of Medicine may deviate from the penalty guidelines upon consideration of aggravating and mitigating factors pursuant to Rule 61F- 20.001(3), Florida Administrative Code, which provides, in pertinent part, as follows:

    
    

    (3) . . . The Board shall consider as aggravating or mitigating factors the following:

    1. Exposure of patient or public to injury or potential injury, physical or otherwise: none, slight, severe, or death;

    2. Legal status at the time of the offense: no restraints, or legal restraints;

    3. The number of counts or separate offenses established;

    4. The number of times the same offense or offenses have previously been committed by the licensee or applicant;

    5. The disciplinary history of the applicant or licensee in any jurisdiction and the length of practice;

    6. Pecuniary benefit or self-gain inuring to the applicant or licensee;

    7. Any other relevant mitigating factors.

    
    

19. The crimes to which Respondent entered his nolo contendre plea are crimes involving moral turpitude and bring into question whether Respondent possesses the good moral character necessary to practice medicine in the State of Florida. See, Section 458.311(1)(c), Florida Statutes.

    
    

20. In Zemour, Inc. v. Division of Beverage, 347 So.2d 1102, 1105 (Fla. 1st DCA 1977) the court discussed the meaning of moral character as follows:

    
    

    Moral character . . . means not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right conduct, and conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence.

    
    

21. In Florida Board of Bar Examiners v. G.W.L., 364 So.2d 454, 458 (Fla. 1987), the court discussed the meaning of good moral character as follows:

    
    

    In our view, a finding of a lack of "good moral character" should not be restricted to those acts that reflect moral turpitude. A more appropriate definition of the phrase

    requires an inclusion of acts and conduct which would cause a reasonable man to have substantial doubts about an individual's honesty, fairness, and respect for the rights of others and for the laws of the state and nation.

    
    

22. It is concluded that Respondent's plea to four counts of grand theft based on fraudulent billing, together with his false assignment of impairment ratings to patients and his false assertions to Mr. Moya during the investigation, establishes, clearly and convincingly, that Respondent lacks the good moral character necessary to practice medicine in the State of Florida.

    
    

23. Section 458.301, Florida Statutes, provides that the purpose of regulating the practice of medicine in the State of Florida includes the following:

    
    

    . . . It is the legislative intent that physicians who fall below minimum competency or who otherwise present a danger to the public shall be prohibited from practicing in this state.

    
    

24. In making the recommendation that follows, the undersigned has considered that at the time of the formal hearing, Respondent was successfully completing the probation imposed in the criminal proceedings, that he was providing satisfactory medical services while in the employ of Dr. Ramirez, and that he did not have any billing responsibilities. The age of the Respondent and the absence of any other discipline during the time he has practiced in Florida have also been considered. Notwithstanding those considerations, it is concluded that a physician who lacks good moral character presents a danger to the public and should not be permitted to practice medicine in the State of Florida. Respondent's license to practice medicine in the State of Florida should be revoked. In light of Respondent's age and the impact the recommended penalty will have on his livelihood, it is recommended that no separate administrative fine be imposed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order which finds that Respondent

committed the acts alleged in the Administrative Complaint and which revokes Respondent's license to practice medicine in the State of Florida.

DONE AND ORDERED this 7th day of February, 1994, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 7th day of February, 1994.

COPIES FURNISHED:

Carlos J. Ramos, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Manuel F. Fente, Esquire

1835 West Flagler Street, Suite 201

Miami, Florida 33135

Dr. Marm Harris, Executive Director Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0770

Jack McRay, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

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 ten 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.

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AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT BUSINESS OF AND PROFESSIONAL REGULATION

BOARD OF MEDICINE

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Petitioner,

vs. BPR CASE NO. 91-14302

DOAH CASE NO. 93-5408

JOSE FELIPE IGLESIA, M.D.,

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 April 9, 1994, in Ft.

Lauderdale, 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. Jose Felipe Iglesia, M.D. At the hearing before the Board, Petitioner was represented by Larry G. McPherson, Jr., Chief Medical Attorney. Respondent was not present but was represented by Sheldon Zilbert, 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 findings and conclusions:

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 cause.

   
   

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.

DISPOSITION

In light of the below listed mitigating facts, the Board hereby determines that pursuant to Rule 61F6-20, Florida Administrative Code, the penalty recommended by the Hearing Officer is not appropriate as set forth in the Recommended Order:

1. lack of exposure to danger of patients

2. no previous violations

3. Respondent's age

4. small amount of mis-billing

5. effect of revocation

WHEREFORE, it is found, ordered and adjudged that the Respondent has violated Section 458.331(1) and pursuant to Rule 61F6-20, the Respondent shall receive a reprimand from the Board of Medicine. Respondent's license to practice medicine in the State of Florida shall be SUSPENDED for two (2) years. However, said suspension shall be stayed eighteen (18) months. Upon reinstatement of licensure, Respondent's license shall be placed on probation for a period of five (5) years. The term and conditions of said probation shall be imposed at the time of reinstatement. Said probation shall include Risk Management review of billing practices.

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

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.

DONE and ORDERED this 26th DAY OF April, 1994.

BOARD OF MEDICINE

EDWARD A. DAUER, M.D. 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 Jose Felipe Iglesia, M.D., 3443 S.W. 112th Court, Miami, Florida 33165, Sheldon Zilbert, Esquire, Claude B. Arrington, Hearing Officer, 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

day of , 1994. (not dated on document filed)

Marm Harris, Ph.D. Executive Director

AMENDED CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Jose Felipe Iglesia, M.D., 3443 S.W. 112th Ct., Miami, Florida 33165, and to Manuel F. Fente, Esquire, 1835 W. Flagler St., Suite 201, Miami, Florida 33135, and to Claude B. Arrington, Hearing Officer, The DeSoto Bldg., 1230 Apalachee Pkwy, Tallahassee, Florida 32399- 1550, and by hand delivery to Larry G. McPherson, Jr., Chief Medical Attorney, Department of Business and Professional Regulation, 1940 N. Monroe St., Tallahassee, Florida 32399-0792 at or before 5:00 p.m., this 3rd day of May, 1994.

Marm Harris, Ed.D. Executive Director Board of Medicine

Docket for Case No: 93-005408

Orders for Case No: 93-005408