STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN DAVID YOUNG, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 93-7146

)

BOARD OF MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

On July 14, 1994, a formal administrative hearing was held in this case in Tallahassee, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Paul Watson Lambert

2851 Remington Green Circle, Suite C Tallahassee, Florida 32308-3749

For Respondent: Gregory A. Chaires, Esquire

Department of Legal Affairs Administrative Law Section PL-01, The Capitol

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner is entitled to licensure, by endorsement, to practice medicine.

PRELIMINARY STATEMENT

The Petition for Formal Hearing in this case was referred to the Division of Administrative Hearings (DOAH) on December 21, 1993. The case was set for final hearing in Tallahassee on May 16, 1994, but the Petitioner moved for a continuance, and final hearing was continued to July 14, 1994. The parties filed a Prehearing Stipulation on July 13, 1994.

At the final hearing, the parties had Joint Exhibits 1 (the Petitioner's license application file) and 2 admitted in evidence. The Petitioner also had Petitioner's Exhibit 1 admitted in evidence. The Petitioner testified in his own behalf, and Gary Edwin Winchester, M.D., Chairman of the Board of Medicine, testified for the Respondent.

The Respondent ordered the preparation of a transcript of the final hearing, and the parties requested 30 days from the filing of the transcript in which to file proposed recommended orders. The transcript was filed on July 27, making proposed recommended orders due to be filed by August 26, 1994. (They were filed on August 29, 1994.)

Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the attached Appendix to Recommended Order, Case No. 93-7146.

FINDINGS OF FACT

1. The application of Petitioner, John David Young, M.D., for licensure by endorsement initially was filed on March 13, 1991. The initial application was not completed within one year and, under F.A.C. Rule 61F6-22.016, was not acted upon by the Board of Medicine. The Petitioner reapplied on September 1, 1992, and his application was denied by Respondent's Order rendered on November 4, 1993.

   
   

2. The basis of denial stated in the November 4, 1993, Order is:

   
   

   You failed to show a medical education as that term is used in Chapter 458 in Sections 458.313(1)(a) and 458.311(1)(f) and have failed to show medical practice as required

   by Section 458.313(1)(c). Additionally, you have misrepresented your education. Sections 458.313(1)(a) and (7); 458.311(1)(c) and (d);

   458.331(1)(a) and (gg), F.S.

   
   

   Medical Education

   
   

3. Dr. Young received his Doctorate of Medicine Degree from Grace University School of Medicine, St. Kitts, Nevis, West Indies, June 4, 1986.

   
   

4. Grace University is registered with the World Health Organization.

   
   

5. Dr. Young began his medical education on May 5, 1981, at the Universidad de Mundial, Dominican Republic, where he completed one year as reflected by the transcripts found at Joint Exhibit 1, page 195.

   
   

6. Dr. Young transferred to CETEC, Dominican Republic, because of his concerns that Universidad de Mundial would close within a few years. The transfer to CETEC occurred in late December, 1981.

   
   

7. CETEC allowed Dr. Young to take pathology and physiology at the University of Southern California on the condition that CETEC would administer exams on those subjects before they would give him credit. The University of Southern California did not give credit for the courses, which was not a concern to Dr. Young because he was seeking credit from CETEC upon taking the CETEC examination.

   
   

8. CETEC attempted to establish a liaison with Orange State University School of Medicine in Southern California whereby students could take courses at Orange State and receive credit by CETEC. Dr. Young completed his basic science course work at Orange State as reflected by the transcript at Joint Exhibit 1, page 193, for which CETEC gave him credit. Melvin A. Shiffman, M.D., was

   temporary dean at Orange State University and submitted a letter to the Board of Medicine confirming Dr. Young's attendance from May through August, 1982, and that Dr. Young took the CETEC final examinations on all the subjects taught at Orange State for which they gave credit.

   
   

9. Dr. Young began his clinical rotations upon completion of his basic sciences as follows: Basic Medicine at Pine Ridge Indian Health Hospital, Pine Ridge, South Dakota, from August 31, 1982 to September 30, 1982; surgery at Oral Roberts University School of Medicine from October 4, 1982 to December 22, 1982; surgery at Fitkin Hospital, Swaziliand, South Africa, in 1983; basic medicine at Pine Ridge Indian Hospital, Pine Ridge, South Dakota, from April 18, 1983 to May 29, 1983.

   
   

10. While at Pine Ridge Indian Hospital the second time, Dr. Young was asked to leave by the acting hospital administrator, on the allegation that he was attending CETEC, which was not an approved school, which in fact it was. In shock at being asked to leave based on those allegations, Dr. Young travelled to Kansas City to stay with relatives to study for the Educational Commission for Foreign Medical Graduates (ECFMG) examination required for all foreign medical graduates. The Petitioner took and passed the ECFMG examination on July 27, 1983.

    
    

11. Upon completion of the examination, Dr. Young continued his clinical rotations as follows: Psychiatry at Bay Front Medical Center, University of South Florida, St. Petersburg, Florida; medicine at University of Natal, Republic of South Africa, from September 26, 1983 to January 1, 1984; obstetrics/gynecology at Addington Hospital, University of Natal, Republic of South Africa, from January 3, 1984 to March 4, 1984; pediatrics from March 12 to May 13, 1984 at Addington Hospital; University of Natal; and surgery from May 13, 1984 to July 16, 1984 at Addington Hospital, University of Natal.

    
    

12. In late May or early June, 1984, while Dr. Young was in the surgery rotation, he learned, upon calling home and speaking to his mother, that CETEC closed as of March 4, 1984. Dr. Young was shocked at learning of the closing, but decided to complete the surgery rotation, since he was working with a well known professor, and to return to the U.S. after that to try to find another medical school.

    
    

13. Dr. Young registered at the University of Health Science in Antigua in September, 1984. The University of Health Science required Dr. Young to take their exams for credit of his basic sciences course work, which he took in December, 1984. Because the transcripts from CETEC were not available, Dr. Young produced to the University of Health Sciences cancelled checks showing payment for his tuition, which was accepted. The University of Health Sciences, therefore, required Dr. Young to pass their examinations for the basic science courses in lieu of the CETEC transcript. Dr. Young found the exams to be suspicious in that they seemed to be random photocopies of medical text book pages. Accordingly, Dr. Young went to the U.S. Embassy at Antigua to discuss the medical school and was advised to change schools because of problems they were having with the school. Dr. Young learned later that 30 former students filed suit in federal court against the school for the irregularities.

    
    

14. Upon completion of the examinations, Dr. Young continued his rotations.

    
    

15. He did a rotation in cardiology at Bay Pines Veterans Hospital, St. Petersburg, Florida from December 18, 1984 to January 31, 1985.

16. He did a rotation in internal medicine at Metropolitan General Hospital, Pinellas Park, Florida from February 1, 1985 to April 30, 1985.

    
    

17. He did a rotation in pediatrics with Dr. DeGall at All Childrens Office in St. Petersburg, Florida from May 1 to July 29, 1985.

    
    

18. Dr. Young then enrolled in Grace University Medical School, St. Kitts, Nevis, West Indies, in December, 1985. Grace University gave Dr. Young credit for course work done for previous medical schools approved by the World Health Organization, but told him that he would be required to take validation exams for that course work and would probably need to take some additional clerkships. This was explained to the Board of Medicine by the Vice President and CEO of Grace University, J.P. McNaughton-Louden, M.D., by letter dated February 20, 1991, found at Joint Exhibit 1, page 103. In that letter, Dr. Louden also confirms that CETEC was approved by the World Health Organization, that CETEC closed while Dr. Young was taking rotations in South Africa, that students at University of Health Sciences in Antigua were advised by the U.S. Consul authorities to transfer because of problems, that Dr. Young would be given credit for studies done at medical schools approved by the World Health Organizations co-validated by examinations at Grace University, and that Dr. Young's clerkships had been accepted and that he graduated on June 4, 1986. The transcripts of Grace University found at Joint Exhibit 1, page 104, shows that Dr. Young was admitted in March, 1984, even though his actual enrollment was December, 1985, because the school dated the admission retroactively to the date that CETEC closed. Dr. Young listed what he considered to be his accurate date of enrollment on his application for licensure as December 21, 1985.

    
    

19. Dr. Young did the following additional rotations for Grace University: pediatrics with Dr. DeGall in St. Petersburg, from December 29, 1985 to February 26, 1985; and general medicine and emergency medicine at a refugee camp under the auspices of the United States and Christian Missionary Life from March 3 to April 30, 1985.

    
    

    FLEX Exam

    
    

20. Dr. Young took and passed the Federation of State Medical Boards' Licensing Examination (known as "FLEX") on the first attempt in December, 1988.

Residency

21 Dr. Young completed one year of residency in internal medicine at Marshall University on January 31, 1989. Maurice A. Mufson, M.D., Dr. Young's professor and Chairman of the Department of Internal Medicine, submitted an evaluation of the residency to the Board of Medicine recommending him as qualified and competent.

1. After completion of the one year residency in internal medicine, Dr. Young realized that in order to fulfill his desire to practice missionary medicine, he would need a broader education. Accordingly, he changed his residency to family practice. Marshall University gave Dr. Young seven months credit from his one year of internal medicine residency towards his family practice residency which was completed in June, 1991. Robert B. Walker, M.D., Dr. Young's professor and Chairman of the Department of Family and Community Health, submitted to the Board of Medicine and evaluation of Dr. Young's family practice residency recommending him as qualified and competent.

2. The AMA physician profile on Dr. Young, submitted to the Board of Medicine by the AMA, shows that Dr. Young completed the family practice residency and one year of internal medicine residency. However, the AMA profile mistakenly shows Dr. Young's internal medicine residency as from 2/87 to 1/88, instead of the accurate dates of 2/88 to 1/89. Dr. Young brought this error to the attention of the AMA which did not correct it. Letters recommending Dr. Young for licensure were sent to the Board of Medicine by: Stephen Petrany, M.D., Dr. Young's former Director of the Family Medicine Residency at Marshall University; and Jack Ditty, M.D., a Board certified dermatologist in Kentucky who was adjunct professor at University of Kentucky and Marshall University (who writes that Dr. Young is of high moral character and has knowledge and experience which would be necessary to practice medicine in Florida.)

   
   

   Post-Residency

   
   

3. After completion of his residency in 1991, Dr. Young became licensed to practice medicine in West Virginia. Since his licensure, there have been no complaints or probable cause determinations made against his license, and no malpractice claims have been filed against him.

   
   

4. Since completion of his residency, he has served as Assistant Professor of Clinical Medicine at the University of West Virginia and as Adjunct Professor of Medicine at Marshall University School of Medicine. He also has worked as a ship's doctor for a cruise line, worked as Assistant Professor of Medicine at University of West Virginia, moonlighted as an emergency room doctor in Beckley, West Virginia, lectured extensively in the Republic of South Africa on sexually transmitted diseases, and has worked as an emergency room doctor for the U.S. Military in Arizona.

ECFMG Certification

1. The Educational Commission for Foreign Medical Graduates (ECFMG) verifies the medical education of each person to whom it awards a certificate following passage of its examination.

   
   

2. The ECFMG's investigation of Dr. Young's medical education took several years, because of allegations involving a Mr. Pedro de Mesones falsifying information from some medical schools in the Dominican Republic, including CETEC, on behalf of some applicants to various state medical boards. Dr. Young never met nor spoke with Pedro de Mesones nor was he involved with him in any way. The ECFMG advised Dr. Young of this investigation by letter dated June 7, 1984, found at Joint Exhibit 1, page 167. Further complicating the ECFMG investigation of Dr. Young's medical education was the closing of CETEC. The Dominican Republic government established an agency known as CONES to assist in getting transcripts of students who attended CETEC. Dr. Young wrote to CONES in an attempt to obtain his CETEC transcript from CONES. Even though Dr. Young was unable to obtain transcripts of CETEC from CONES, ECFMG verified all of Dr. Young's medical education, clinical rotations, and residency.

   
   

3. The ECFMG investigation of Dr. Young's medical education concluded with no irregularities in his credentials having been found. The ECFMG issued its certificate to Dr. Young on October 13, 1987; it is valid indefinitely.

   Specialty Board Certification

   
   

4. Dr. Young is certified as a diplomate of the American Board of Family Practice for the period of 1992 - 1999.

   
   

5. The certificate from the American Board of Family Practice indicates: that Dr. Young met the requirements to be certified as a Diplomate of the Board; that he has completed a 3-year residency; and that the American Board verified Dr. Young's medical education and found it to be authentic.

   
   

   Board of Medicine Investigation

   
   

6. As part of the routine investigation of Dr. Young's application for licensure filed with the Board of Medicine, the Board staff wrote to CONES requesting confirmation of the CETEC education and received a response dated March 6, 1992, by letter found at Joint Exhibit 1, page 87, stating that Dr. Young was not found on their lists and that they could not process the Board's request until they had Dr. Young's student registration number. However, an earlier certification by CONES dated May 12, 1987, found at Joint Exhibit 1, pages 9 and 10, shows that CONES did have Dr. Young's student identification number and had a file on him. Paul L. Allyn, M.D. also confirmed to the Board of Medicine by letter dated June 30, 1993, found at Joint Exhibit 1, page 88, that Dr. Young did attend CETEC. The transcript of the Credentials Committee Meeting at Joint Exhibit 2 shows that the committee focused on the March 6, 1992, letter rather than the May 12, 1987, letter.

   
   

7. The Board staff contacted the University of Health Sciences to confirm Dr. Young's attendance and received a letter from its President dated October 21, 1991, found at Joint Exhibit 1, page 99. That letter states that Dr. Young did not receive credit for his previous medical education, that he attended the institution from September 19, 1984 to July 11, 1985, that he did not leave the institution in good standing, and that he was dismissed because he was unable to provide the school with official transcripts from the previous medical school he attended. Dr. Young had not seen that letter until a few months before hearing while reviewing the Board's file on him in preparation for the hearing. Dr. Young takes issue with the statements in the letter because the school did give him credit for the rotations he completed while enrolled at Universidad de Mundial and because he never had been told that he left the institution in poor standing. Dr. Young left the University upon advice of the U.S. Consulate in Antigua. The transcript of the Credentials Committee Meeting at Joint Exhibit 2 shows that the committee focused on this letter rather than Dr. Young's affidavits submitted with his application which contradict the letter.

   
   

8. The Board obtained and reviewed the ECFMG file on Dr. Young in considering his application. In the ECFMG file at Joint Exhibit 1, page 230, is a letter to the ECFMG from John Casken, Quality Assurance Coordinator, Department of Health, Education, and Welfare, dated May 15, 1985, relating to Dr. Young's second clinical rotation at Pine Ridge Indian Health Hospital in 1983. In the letter, Mr. Casken states: that a closer look at Dr. Young's credentials after he presented himself for the second time showed that he had basically no medical education; that Dr. Young was asked to leave; and that, had they known in 1982 when he appeared for his first rotation what they knew in 1983, they would not have taken on Dr. Young as a m edical student. Dr. Young first saw that letter a few months before the hearing while preparing for trial. Dr. Young disagrees with that letter in that the schools he was attending, Universidad de Mundial, and after that, CETEC, were both approved by the World Health Organization. Further, a letter written on April 18, 1985, by Leonard L.

   Finger, Hospital Administrative Officer, Department of Health, Education, and Welfare, to the ECFMG, found at Joint Exhibit 1, page 231 , verifies Dr. Young's rotation without adverse comment. Further, the ECFMG found no problem with Dr. Young's education or with the rotations at Pine Ridge. The transcript of the Credentials Committee Meeting at Joint Exhibit 2 shows that the committee focused on Dr. Caskin's letter rather than Mr. Finger's letter and the fact that all of Dr. Young's medical schools were approved by the World Health Organization.

   
   

   Board of Medicine Practice and Policy

   
   

9. The Board of Medicine has licensed individuals who have attended CETEC.

   
   

10. The Board of Medicine and its staff rely upon the ECFMG certifications of applicants as verification of their education.

    
    

11. The certification by the American Board of Family Practice complies with the requirement of Rule 61F6-22.004(2) and 61F6-22.018(3)(d).

    
    

12. The ECFMG certificate complies with the requirements of Section 458.311(1)(f), (2), and (3), Florida Statutes;

    
    

13. There is nothing in the rules of the Board or Chapter 458, and no Board policy or practice, which prohibits an applicant from going to more than one university or medical school, from going to more than one medical school and failing out of one, or from going to a school that later goes out of business.

    
    

    CONCLUSIONS OF LAW

    
    

14. Section 458.313, Fla. Stat. (1993), provides in pertinent part:

    
    

    1. The department shall issue a license by endorsement to any applicant who, upon applying to the department and remitting a fee not to exceed $500 set by the board, demonstrates to the board that he:

       1. Has met the qualifications for licensure in s. 458.311(1)(b)-(f);

       2. Has obtained a passing score, as established by rule of the board, on the licensure examination of the Federation of State Medical Boards of the United States, Inc. (FLEX), the United States Medical Licensing Examination (USMLE), or the examination of the National Board of Medical Examiners, or on a combination thereof, provided that said examination or combination of examinations required shall have been so taken within the 10 years immediately preceding the filing of his application for licensure under this section; and

       3. Shows evidence of the active licensed practice of medicine in another jurisdiction, for at least

          1. of the immediately preceding 4 years, or

             completion of board-approved postgraduate training within the year preceding the filing of an application for licensure.

             
             

             (Emphasis added.)

             
             

15. In this case, the Petitioner has passed the FLEX exam. The issues are whether he has shown "evidence of the active licensed practice of medicine in another jurisdiction, for at least 2 of the immediately preceding 4 years, or completion of board-approved postgraduate training within the year preceding the filing of an application for licensure" under s. 458.313(1)(c) and whether he"has met the qualifications for licensure in s. 458.311(1)(b)-(f)."

    
    

16. Section 458.311, Fla. Stat. (1993), provides in pertinent part:

    
    

    1. Any person desiring to be licensed as a physician shall apply to the department to take the licensure examination. The department shall examine each applicant whom the board certifies:

       * * *

       1. Is of good moral character.

       2. Has not committed any act or offense in this or any other jurisdiction which would constitute the basis for disciplining a physician pursuant to s. 458.331.

       * * *

       (f) Meets one of the following medical education and postgraduate training requirements:

       * * *

       1. Is a graduate of a foreign medical school registered with the World Health Organization and certified pursuant to s. 458.314 as having met the standards required to accredit medical schools in

       the United States or reasonably comparable standards;

       1. If the language of instruction of the foreign medical school is other than English, has demonstrated competency in English through presentation of the Educational Commission on Foreign Medical Graduates English proficiency certificate or by a satisfactory grade on the Test of Spoken English of the Educational Testing Service or a similar test approved by rule of the board; and

       2. Has completed an approved residency of at least

       1 year.

       3.a. Is a graduate of a foreign medical school which has not been certified pursuant to s. 458.314;

       1. Has had his medical credentials evaluated by the Education Commission on Foreign Medical Graduates, holds an active, valid certificate issued by that commission, and has passed the examination utilized

          by that commission; and

       2. Has completed an approved residency of at least

       1 year; however, after October 1, 1992, the applicant shall have completed an approved residency of at least

       3 years in one specialty area. (Emphasis added.)

17. In this case, the Petitioner is "a graduate of a foreign medical school registered with the World Health Organization" but not of one that is "certified pursuant to s. 458.314 as having met the standards required to accredit medical schools in the United States or reasonably comparable standards." (There is no evidence that any foreign medical schools have been so certified.) However, he has "had his medical credentials evaluated by the Education Commission on Foreign Medical Graduates, holds an active, valid certificate issued by that commission, and has passed the examination utilized by that commission."

    
    

18. On the issue whether the Petitioner has "completed an approved residency of at least 3 years in one specialty area" under Section 458.311(1)(f)3.c., Fla. Stat. (1993), F.A.C. Rules 61F6-22.004 and 61F-22.018 are pertinent.

    
    

19. F.A.C. Rule 61F6-22.004 provides:

    
    

    (2) An approved residency of at least three years in one specialty area constitutes three progressive years in a course of study and train- ing in a single program as long as each year is

    accepted by the American Board of Medical Special- ties in that specialty for a period of not less than thirty-six months by a person holding a degree as a medical doctor. The hospital and the program in which the medical doctor is participating must be approved for the training and teaching of physicians by the Accreditation Council on Graduate Medical Education (ACGME) and the medical doctor must be assigned to one of the allocated positions

    or slots approved by the ACGME. Fellowship training or residence training in a non-slotted position shall be considered approved residency training

    only in the instance when the fellowship or residency training has been recognized and accepted for that applicant toward completion of requirements for specialty board certification by a specialty board listed by the American Board of Medical Specialties.

    
    

20. F.A.C. Rule 61F6-22.018 provides:

    
    

    1. Before any graduate of a medical school not accredited by the Liaison Committee on Medical Education, except a graduate of an accredited school in Canada, is admitted to take the written licensure examination or be

       licensed by endorsement, he or she must demonstrate that the core clerkships received in the United States as a part of the curriculum of the medical school was obtained either in a hospital affiliated with a medical school accredited by the Liaison Committee on Medical Education and the affiliation includes the provision of core clerkship training for that medical school in the relevant subject area

       or in a hospital which had, at the time the clerkship training was obtained, a residency program accredited

       by the Accreditation Council for Graduate Medical Education in the specialty area in which the clinical training was being obtained.

       * * *

       (3) An applicant to whom the provisions of subsection

       (1) would otherwise be applicable may be admitted to take the written licensure examination or be licensed by endorsement if he or she demonstrates one of the following:

       * * *

       (d) That the applicant has successfully completed three progressive years of approved residency training, (PGY I, II, and III) in one specialty area.

       
       

21. In this case, the Petitioner met the requirements to be certified as a Diplomate of the American Board of Family Practice, signifying that he has completed a three-year residency in compliance with F.A.C. Rules 61F6-22.004(2) and 61F6-22.018 (3)(d). He completed his three year residency in June, 1991, "within the year preceding the filing of" his initial application for licensure on March 13, 1991. This qualifies him for licensure by endorsement under Section 458.313(1)(c), Fla. Stat. (1993).

    
    

22. In addition, the Petitioner has been in the "active licensed practice of medicine in another jurisdiction, for at least 2 of the immediately preceding

    4 years" prior to his application. This also qualifies him for licensure by endorsement under Section 458.313(1)(c), Fla. Stat. (1993).

    
    

23. Even if the Petitioner were not qualified for licensure by endorsement under Section 458.313(1)(c), he would be qualified for licensure by endorsement, subject to up to one year of supervised practice. Section 458.313(4), Fla. Stat. (1993), provides:

If the applicant has not actively practiced medicine or been on the active teaching faculty of an accredited medical school within the previous 4 years, the board shall certify the application to the department of licensure by endorsement subject to the condition that the applicant work under the supervision of another physician for a period, not to exceed 1 year, as determined by the board based on its deter- mination of the licensee's ability to practice medicine.

This option is available when the applicant has had no probable cause determinations within the preceding three years.

1. The Board of Medicine has taken the position in this case that, by agency policy, it can and does go beyond the requirements of ECFMG certification under Section 458.311(1)(f)3.b., Fla. Stat. (1993), and make an independent assessment of the validity of an applicant's education. But agency policy cannot contradict statutory law. It is concluded that the Board of Medicine can investigate the validity of an applicant's ECFMG-certified foreign medical education only insofar as the investigation is relevant to Section 458.331(1)(a) and (gg), Fla. Stat. (1993).

2. Section 458.331, Fla. Stat. (1993), provides in pertinent part:

   
   

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

      1. Attempting to obtain, obtaining, or renewing a license to practice medicine by bribery, by fraudulent misrepresentations,

         or through an error of the department or the board.

         * * *

         (gg) Misrepresenting or concealing a material fact at any time during any phase of a licensing or disciplinary process or procedure.

         * * *

   2. When the board finds any person guilty of any of the grounds set forth in subsection (1), including conduct that would constitute a sub- stantial violation of subsection (1) which occurred prior to licensure, it may enter an order imposing one or more of the following penalties:

      1. Refusal to certify, or certification with restrictions, to the department an application for licensure, certification, or registration.

      2. Revocation or suspension of a license.

      3. Restriction of practice.

      4. Imposition of an administrative fine not

         to exceed $5,000 for each count or separate offense.

      5. Issuance of a reprimand.

      6. 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.

      7. Issuance of a letter of concern.

      8. Corrective action.

      9. Refund of fees billed to and collected from the patient.

         
         

         In determining what action is appropriate, the board must first consider what sanctions are necessary to protect the public or to compensate the patient. Only after those sanctions have been imposed may the disciplining authority consider and include in the order requirements designed to rehabilitate the physician. All costs associated with compliance with orders issued under this subsection are the obligation of the physician.

         
         

         Section 458.331(1)(a) and (gg) relate to the requirement of Section 458.311(1)(c) that an applicant be of good moral character.

3. Despite some irregularities in the functioning of the foreign medical schools the Petitioner attended during his unorthodox and circuitous medical education, most of which occurred more than ten years ago, and the resulting difficulty the Petitioner had in accurately describing his medical education on his application, the evidence was that the Petitioner was not being dishonest, concealing or misrepresenting material facts, or trying to obtain his license through fraudulent representations.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration, Board of Medicine, enter a final order granting the Petitioner's application for licensure by endorsement.

RECOMMENDED this 30th day of September, 1994, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 30th day of September, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-7146

To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Accepted and incorporated.

2.-4. Accepted but subordinate and unnecessary. 5.-15. Accepted and incorporated.

16. The pediatrics rotation at Addington Hospital, University of Natal was from March 12 to May 13, 1984, and the surgery rotation was from May 13, 1984 to July 16, 1984. Otherwise, accepted and incorporated.

17.-30. Accepted and incorporated.

31.-37. Accepted but subordinate and unnecessary.

38. Accepted and incorporated to the extent not subordinate or unnecessary.

Respondent's Proposed Findings of Fact.

1.-4. Accepted and incorporated to the extent not subordinate or unnecessary.

1. Accepted but subordinate and unnecessary.

2. First sentence, rejected as being contrary to the greater weight of the evidence. Second sentence, accepted but subordinate and unnecessary.

7.-8. Accepted and incorporated to the extent not subordinate or unnecessary.

9.-10. Accepted and incorporated to the extent not subordinate or unnecessary. However, the lack of a credible Orange State transcript to support the Petitioner's testimony is more a reflection on Orange State's credibility than on the Petitioner's. Orange State was in existence for a short period of time, never was recognized by the State of California, and has been defunct for about ten years. It is understandable why the Petitioner has had difficulty getting a credible response from Orange State. The irregularities in the response from Orange State do not impugn the Petitioner's truthfulness in attempting to describe his unorthodox and circuitous medical education in his application for licensure.

1. Last sentence, rejected as contrary to the greater weight of the evidence. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. However, it is even more understandable why the Petitioner has had difficulty getting a credible response from CETEC. As with Orange State, CETEC was closed about ten years ago. In the case of CETEC, which was in the Dominican Republic, the closing was under allegations of misconduct and fraud. Records were unavailable for a period of time while the government of the Dominican Republic investigated. Later, records were destroyed. As with Orange State, the irregularities in the response from CETEC do not impugn the Petitioner's truthfulness in attempting to describe his unorthodox and circuitous medical education in his application for licensure.

2. Rejected as contrary to the greater weight of the evidence that the Respondent did not leave UHSA in good standing. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

3. Accepted but subordinate and unnecessary.

14.-16. Accepted and incorporated to the extent not subordinate or unnecessary.

1. Second sentence, rejected as contrary to the greater weight of the evidence. First sentence, accepted and incorporated.

2. Accepted and incorporated to the extent not subordinate or unnecessary.

3. Third and fourth sentences, rejected as contrary to the greater weight of the evidence. First two sentences, accepted and incorporated to the extent not subordinate or unnecessary.

20.-21. Accepted and incorporated to the extent not subordinate or unnecessary.

1. The city in South Africa was Durban, not Durham. CETEC was the affiliate until it closed in March, 1994. The rest is accepted and incorporated to the extent not subordinate or unnecessary.

2. First sentence, accepted. The rest is rejected as being contrary to the greater weight of the evidence.

24.-25. Accepted and incorporated.

25. Accepted but unnecessary. (No such finding was made.)

COPIES FURNISHED:

Paul Watson Lambert, Esquire 2851 Remington Green Circle Suite C

Tallahassee, Florida 32308-3749

Gregory A. Chaires Assistant Attorney General Department of Legal Affairs Administrative Law Section PL-01, The Capitol

Tallahassee, Florida 32399-1050

Dr. Marm Harris Executive Director Board of Medicine Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Harold D. Lewis, Esquire General Counsel

Agency for Health Care Administration

The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Board of Medicine 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 consult with the Board of Medicine concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 93-007146

Orders for Case No: 93-007146