STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) ADMINISTRATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 94-1471

)

PETRU ORASAN, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on July 13, 1994, at Hollywood, Florida, before Michael M. Parrish, a Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Alex D. Barker, Esquire 1/

Agency for Health Care Administration 7960 Arlington Expressway, Suite 230

Jacksonville, Florida 32211-7466

For Respondent: Petru Orasan, M.D., pro se

2005 Van Buren Street Hollywood, Florida 33020

STATEMENT OF THE ISSUES

This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Petitioner on the basis of alleged violations of the Medical Practice Act, Chapter 458, Florida Statutes. In an eight-count Amended Administrative Complaint, the Respondent has been charged with four violations of Section 458.331(l)(m), Florida Statutes, and four violations of Section 458.331(l)(t), Florida Statutes.

PRELIMINARY STATEMENT

At the formal hearing in this case the Petitioner presented the testimony of three witnesses and also offered ten exhibits which were received in evidence. The Respondent testified on his own behalf, but did not call any other witnesses. The Respondent also offered thirty-eight exhibits, of which twenty were received in evidence and eighteen were rejected. 2/

At the conclusion of the hearing the parties were allowed until September 25, 1994, within which to serve their respective proposed recommended orders. 3/ On July 25, 1994, the transcript of the proceedings at hearing was filed with the Hearing Officer. On September 26, 1994, the Petitioner filed a proposed recommended order containing proposed findings of fact and conclusions

of law. As of the date of this Recommended Order the Respondent has not filed a proposed recommended order or any similar document. 4/ All proposed findings of fact submitted by the Petitioner are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The Respondent is, and has been at all times material to this proceeding, a licensed physician in the State of Florida. His license number is ME0022079.

   
   

   Facts regarding Patient #1

   
   

2. The Respondent provided medical treatment to Patient #1 from April 20, 1987, through April 12, 1988. During the period of that treatment Patient #1 was approximately 92 years old and was diagnosed as having organic brain syndrome.

   
   

3. Respondent obtained a brief past medical history of the patient and failed to document the patient's current complaints or review any prior medical records of the patient.

   
   

4. On May 26, 1987, Respondent diagnosed the patient with pedal edema and ordered Hygroton 25 mg., but failed to document in the medical records the number of times per day the patient was to take the medication or the dosage for the medication.

   
   

5. On June 6, 1987, the patient presented with shortness of breath and a blood pressure of 110/80. Respondent did not perform any tests or examinations to determine the cause of the symptoms.

   
   

6. On July 14, 1987, and September 22, 1987, the patient again presented with shortness of breath and pedal edema and Respondent only recorded the lungs as clear and took her blood pressure. Respondent did not perform any other tests or examinations to determine the cause of the symptoms.

   
   

7. On October 26, 1987, when the patient presented with shortness of breath, Respondent noted an arrhythmia and blood pressure of 136/82. However, Respondent did not perform any tests or examinations to determine the course of the symptoms.

   
   

8. When the patient presented with arrhythmia, the applicable standard of care 5/ required Respondent to perform an EKG, to check her digoxin levels, and monitor her electrolytes and renal functions.

   
   

9. Respondent's medical records for the patient did not meet the applicable record-keeping standards 6/ because the records were incomplete, inadequate, and illegible. Specifically, the records did not have diagnoses, did not have a plan of treatment, and did not include thorough examinations or histories, making it impossible to determine the appropriate treatment for the patient.

   
   

   Facts regarding Patient #2

   
   

10. Respondent provided treatment to Patient #2 from July 11, 1978, until September 13, 1988. Patient #2, a male, was seventy-one years old when such treatment began.

11. The patient had a history of gastric ulcers. Nevertheless, Respondent prescribed nonsteroidal anti-inflammatory medications which exacerbate or increase difficulties with gastric ulcers and bleeding without obtaining a complete history or conducting a full examination.

    
    

12. Respondent's medical records did not document whether Respondent assessed the risk to the patient, discussed the risk with the patient, or made any determinations that the risks outweighed the benefits for the patient.

    
    

13. In 1978, the patient presented with a chronic cough and chronic bronchitis. However, Respondent did not perform any chest x-rays to determine the origin of the cough or to rule out lung carcinoma.

    
    

14. Over the years, the cough persisted and in 1982-1983, the patient experienced shortness of breath and increased ankle edema. Respondent prescribed diuretics without determining the etiology of the edema and without conducting renal status or electrolyte monitoring.

    
    

15. In 1985, the patient was hospitalized with severe ankle swelling. Respondent did not aggressively treat the possibility of deep vein thrombosis or cellulitis, nor did he treat the patient with anticoagulants to lessen the risk of a blood clot going to the lung. The applicable standard of care required anticoagulant treatment under these circumstances.

    
    

16. In 1987, the patient suffered a severe weight loss with the chronic cough. The Respondent's records do not reveal any attempt to make a diagnosis.

    
    

17. On December 15, 1987, the patient complained of abdominal problems, which could have related to the steroidal anti-inflammatory medications prescribed. The Respondent's records fail to document any laboratory tests or examinations by Respondent to determine the cause of the complaints.

    
    

18. Respondent breached the applicable standard of care by failing to perform an EKG on the patient when he presented with dizziness, light-headedness or syncopal episodes from September 1987, until July 12, 1988.

    
    

19. When the patient presented on August 30, 1988, and September 13, 1988, with very serious complaints of precordial chest pain, shortness of breath, and palpitations, a reasonably prudent physician would have suspected that the patient was having a heart attack. Despite the symptoms, Respondent made a psychiatric diagnosis, rather than fully evaluating the heart and cardiac status.

    
    

20. Respondent's medical records for the patient did not comply with the applicable record-keeping standards in that they did not contain thorough examinations or histories, and did not have diagnoses or plans of treatment for the patient.

    
    

    Facts regarding Patient #3

    
    

21. Respondent provided care to Patient #3 from November 17, 1987, until May 16, 1989. Patient #3, a female, was eighty-five years old when such treatment began. Respondent should have been aware from the patient's initial presentation, that the patient did not qualify to reside in an adult congregate living facility and should have taken steps to have her admitted to a skilled

    nursing facility. Respondent's failure to do so is a breach of the applicable standard of care.

    
    

22. Respondent's initial examination of the patient was limited and Respondent failed to conduct an EKG to reveal the origin of the patient's pedal edema or irregular heartbeat. Respondent also failed to diagnose, treat, or refer the patient for a consult to evaluate her vision and hearing loss.

    
    

23. Even though the diagnosis was not made in the Respondent's records, it is apparent from the medications prescribed by Respondent that the patient was being treated for congestive heart failure. She also had pedal edema, shortness of breath, and cardiac arrhythmia. Respondent failed to perform or conduct the appropriate tests and examinations to make a diagnosis of the patient's condition or to provide effective treatment.

    
    

24. The patient had frequent episodes of high blood pressure for which Respondent prescribed diuretics. Respondent's prescribing of Tenormin violated the applicable standard of care and subjected the patient to serious cardiac risks.

    
    

25. Respondent's medical records for the patient were illegible for the most part and in many instances omitted information about the diagnosis and course of treatment. For these reasons the records failed to comply with applicable record-keeping standards.

    
    

    Facts regarding Patient #4

    
    

26. Respondent provided treatment to Patient #4 from April 1985 until January 5, 1988. Patient #4, a male, was seventy-four years old when such treatment began.

    
    

27. When the patient originally presented to Respondent, he was on cardiac medications, had complaints of possible arrhythmias, and had a history of organic brain syndrome and tardive dyskinesia. Respondent was required by the applicable standard of care to evaluate the patient's cardiac condition, renal status, and potassium level. Respondent breached the standard of care by failing to conduct these evaluations and examinations.

    
    

28. On October 1, 1985, the patient presented with back pain. Rather than conducting a physical exam to determine the source of the pain, Respondent violated the standard of care and treated the pain symptomatically.

    
    

29. The patient was prescribed an anti-psychotic drug, Mellaril, and throughout Respondent's care exhibited side effects, including falls with resulting abrasions. Respondent failed to discontinue the drug or take appropriate measures to determine the extent of the patient's condition and implement a course of treatment. On July 23, 1987, Respondent prescribed an amount of Dalmane considered excessive for geriatric patients. These inappropriate prescriptions constitute a departure from the applicable standard of care.

    
    

30. Respondent's medical records for the patient were replete with omissions of physical exams, diagnoses, and plans of care, and were inadequate as to patient history and justification for course of treatment. For these reasons the records failed to comply with applicable record-keeping standards.

    Facts regarding prior discipline

    
    

31. Respondent has been the subject of prior disciplinary action by the Board of Medicine. The prior disciplinary action was based on deficiencies in Respondent's record-keeping. The prior disciplinary action does not appear to have improved Respondent's record-keeping in any significant way.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

33. In a license disciplinary proceeding of this nature, the Petitioner bears the burden of proving its charges by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). The nature of clear and convincing evidence has been described as follows in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983):

    
    

    We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as

    to the facts in issue. The evidence must be of such weight that it produces in the mind

    of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    See also, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), which, at page 958, quotes with approval the above- quoted language from Slomowitz. The Smith case also includes the following at page 958:

    
    

    "Clear and convincing evidence" is an intermediate standard of proof, more than the "preponderance of evidence" standard used in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases. See State v. Graham, 240 So.2d 486 (Fla. 2nd DCA 1970).

    
    

34. Pursuant to Section 458.331(2), Florida Statutes, the Board of Medicine is empowered to revoke, suspend, or otherwise discipline the license to practice medicine of any physician found guilty of the acts itemized in Section 458.331(1), Florida Statutes, which include:

    
    

    (m) Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered;

    and reports of consultations and hospitalizations.

    * * *

    (t) Gross or repeated malpractice or the failure

    to practice medicine with that level of care, skill,

    and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.

    
    

35. Rule 59R-9.003, Florida Administrative Code, sets forth the "Standards for Adequacy of Medical Records" for all physicians as follows:

    
    

    1. Medical records are maintained for the following purposes:

       1. To serve as a basis for planning patient care and for continuity in the evaluation of the patient's condition and treatment.

       2. To furnish documentary evidence of the course of the patient's medical evaluation, treatment, and change in condition.

       3. To document communication between the practitioner responsible for the patient and

          any other health care professional who contributes to the patient's care.

       4. To assist in protecting the legal interest of the patient, the hospital, and the practitioner responsible for the patient.

    2. A licensed physician shall maintain patient medical records in a legible manner and with sufficient detail to clearly demonstrate why the course of treatment was undertaken or why an apparently indicated course of treatment was not undertaken.

    3. The medical record shall contain sufficient information to identify the patient, support the diagnosis, justify the treatment and document

       the course of treatment accurately, by including, at a minimum, patient histories; examination results; test results; records of drugs prescribed,

       dispensed, or administered; reports of consultations and hospitalizations; and copies of records or reports or other documentation obtained from other health care practitioners at the request of the physician and relied upon by the physician in determining the appropriate treatment of the patient.

       
       

36. Patient records must contain a sufficient amount of information so that "neutral third parties can observe what transpired during the course of treatment of a patient." Robertson v. Dept. of Professional Regulation, Board of Medicine, 574 So.2d 153, 156 (Fla. 1st DCA 1990).

    
    

37. Petitioner has proved by clear and convincing evidence that Respondent has violated Section 458.331(l)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances as to all four of the patients as charged in the Amended Administrative Complaint.

    
    

38. Petitioner has proved by clear and convincing evidence that Respondent has violated Section 458.331(l)(m), Florida Statutes, by failing to keep written medical records justifying the course of treatment of the patient, including but not limited to, patient histories, examination results, test results, records of

drugs prescribed, dispensed, or administered, and reports of consultations and hospitalizations as to all four of the patients as charged in the Amended Administrative Complaint.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine issue a final order in this case to

the following effect:

1. Concluding that the Respondent is guilty of four counts of violations of Section 458.331(l)(m), Florida Statutes, and four counts of violations of Section 458.331(l)(t), Florida Statutes, as charged in the Amended Administrative Complaint; and

   
   

2. Imposing administrative penalties consisting of all of the following:

(a) an administrative fine in the total amount of $4,000.00 (representing a

$500.00 fine for each of the eight counts); (b) a one-year period of suspension of the Respondent's license; and (c) a one-year period of probation following the suspension, during which probation period the Respondent shall be required to have his records reviewed by a supervising physician approved by the Board, such supervising physician to provide quarterly reports to the Board regarding the sufficiency of the Respondent's record-keeping.

DONE AND ENTERED this 2nd day of February 1995 in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 February 1995.

ENDNOTES

1/ The Hearing Officer has been advised that Mr. Barker no longer represents the Petitioner. Inasmuch as there has been no appearance by successor counsel for the Petitioner, an information copy of this Recommended Order is also being furnished to Larry McPherson, Esquire.

2/ The reasons for rejection are all memorialized in the transcript of the formal hearing.

3/ The Respondent requested that the parties be given until late September within which to submit their proposed recommended orders because he had made plans for travel which began shortly after the hearing.

4/ Since the deadline for the filing of the parties' proposed recommended orders the Respondent has written several letters towards the end of obtaining copies of some of the exhibits and portions of the transcript. The letters imply an intention on the part of the Respondent to at some unspecified time in the future to file a response or rebuttal to the Petitioner's proposed recommended order. The Respondent has not filed a motion seeking leave to file a response or rebuttal, nor has he filed a motion seeking leave to file a late proposed recommended order. By letter dated November 15, 1994, the Respondent was advised that the Hearing Officer had not received a proposed recommended order from the Respondent. That letter also advised the Respondent that "the applicable procedural rules envision the filing of simultaneous proposed recommended orders by all parties and makes no provision for further rebuttal or reply documents."

5/ The applicable standard of care is the statutory standard described in Section 458.331(l)(t), Florida Statutes.

6/ The applicable record-keeping standards are the statutory standards described in Section 458.331(l)(m), Florida Statutes, and the rule standards found at Rule 59R-9.003, Florida Administrative Code.

APPENDIX

The following are the specific rulings on all proposed findings of fact submitted by the parties:

Findings proposed by Petitioner:

Paragraph 1: Rejected as being a conclusion of law, rather than a proposed finding of fact. (It is a correct conclusion of law, but is a conclusion nevertheless and does not belong in the findings of fact.)

Paragraph 2: Accepted.

Paragraph 3: First sentence rejected as subordinate and unnecessary details. Second sentence rejected as an oversimplification.

Paragraphs 4 through 34: The proposed findings in these paragraphs have all been accepted in substance, with the omission of a few subordinate and unnecessary details and the omission of a few unnecessary editorial comments.

Paragraphs 35 and 36: These two paragraphs are rejected as constituting argument about the quality of portions of the evidence, rather than proposed findings relevant to the material issues raised by the Administrative Complaint.

Findings proposed by Respondent: (None proposed)

COPIES FURNISHED:

Alex D. Barker, Esquire

Agency for Health Care Administration 7960 Arlington Expressway, Suite 230

Jacksonville, Florida 32211-7466

Petru Orasan, M.D., pro se 2005 Van Buren Street Hollywood, Florida 33020

Dr. Marm Harris, Executive Director Board of Medicine

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Tom Wallace, Assistant Director Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Larry McPherson, Esquire

Agency for Health Care Administration 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.

================================================================= AGENCY FINAL ORDER

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

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION BOARD OF MEDICINE

AGENCY FOR HEALTH CARE ADMINISTRATION, BOARD OF MEDICINE,

Petitioner,

AHCA CASE NO: 01-01133

1. DOAH CASE NO: 94-1471

   LICENSE NO: ME 0022079

   PETRU ORASAN, 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 7, 1995, in Ft.

   Lauderdale, Florida, for consideration of the Hearing Officer's Recommended Order, Respondent's Exceptions and Petitioner's Response thereto (Attached as App. A, B. and C., respectively) in the case of Agency for Health Care Administration, Board of Medicine v. Petru Orasan, M.D. At the hearing before the Board, Petitioner was represented by Larry G McPherson, Jr., Chief Medical Attorney. Respondent was present and not represented by counsel. Upon consideration of the Hearing Officer's Recommended Order, the Exceptions and Responses filed thereto, and after review of the complete record and having been otherwise fully advised in its premises, the Board makes the following findings and conclusions:

   
   

   PRELIMINARY MATTERS

   
   

   Pursuant to the requirements of Chapter 120, Florida Statutes, which limits the Board's consideration of Recommended Orders to the record of trial, the Board rejected the written submissions of Respondent, filed after the formal hearing and not part of the record of this case, except those exhibits labeled: B-B1, E-El and E2. Exhibit B is a patient medical record and patient identification has been redacted.

   
   

   RULINGS ON RESPONDENT'S EXCEPTIONS TO THE FINDINGS OF FACT

   
   

   1. Respondent's Exception to paragraph 3 of the Findings of Fact of the Recommended Order, is rejected. The resolution of factual conflict is solely within the province of the Hearing Officer and it is not a proper matter for the Board to reweigh the evidence. Gershanik v. DBPR, 458 So.2d 302 (Fla. 3rd DCA 1984); Goss v. District School Bd. of St. Johns County, 601 So.2d 1232 (Fla. 5th DCA 1992); Cenac v. Florida State Board of Accountancy, 399 So.2d 1013 (1981). The board should not reject findings of fact entered by the Hearing Officer unless the Board finds there is no competent, substantial evidence to support those findings of fact. McDonald v. Debt. of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). The finding of fact of the Hearing Officer in paragraph 3 is supported by competent, substantial evidence.

      
      

   2. Respondent's Exception to paragraph 4 of the Findings of Fact of the Recommended Order, is rejected. The Respondent's proposed finding is not supported by evidence of record. Further, resolution of factual conflict is solely within the province of the Hearing Officer and it is not a proper matter for the Board to reweigh the evidence. The board should not reject findings of fact entered by the Hearing Officer unless the Board finds there is no competent, substantial evidence to support those findings of fact. The finding of fact of the Hearing Officer in paragraph 4 is supported by competent, substantial evidence.

      
      

   3. Respondent's Exception to paragraph 5 of the Findings of Fact of the Recommended Order, that the correct date should be "6-9-87," is accepted, however, the remainder of the Exception is rejected. The resolution of factual conflict is solely within the province of the Hearing Officer and it is not a proper matter for the Board to reweigh the evidence. The board should not reject findings of fact entered by the Hearing Officer unless the Board finds there is no competent, substantial evidence to support those findings of fact. The finding of fact of the Hearing Officer in paragraph 5, other than the date, is supported by competent, substantial evidence.

   4. Respondent's Exception to paragraph 6 of the Findings of Fact of the Recommended Order, is rejected. The resolution of factual conflict is solely within the province of the Hearing Officer and it is not a proper matter for the Board to reweigh the evidence. The board should not reject findings of fact entered by the Hearing Officer unless the Board finds there is no competent, substantial evidence to support those findings of fact. The finding of fact of the Hearing Officer in paragraph 6, is supported by competent, substantial evidence.

      
      

   5. Respondent's Exception to paragraph 7 of the Findings of Fact of the Recommended Order, that the correct date should be "10-6-87," is accepted.

      
      

   6. Respondent's Exception to paragraph 8 of the Findings of Fact of the Recommended Order, is rejected. The resolution of factual conflict is solely within the province of the Hearing Officer and it is not a proper matter for the Board to reweigh the evidence. The board should not reject findings of fact entered by the Hearing Officer unless the Board finds there is no competent, substantial evidence to support those findings of fact. The finding of fact of the Hearing Officer in paragraph 8, is supported by competent, substantial evidence.

      
      

   7. Respondent's Exception to paragraph 9 of the Findings of Fact of the Recommended Order, is rejected. The resolution of factual conflict is solely within the province of the Hearing Officer and it is not a proper matter for the Board to reweigh the evidence. The board should not reject findings of fact entered by the Hearing Officer unless the Board finds there is no competent, substantial evidence to support those findings of fact. The finding of fact of the Hearing Officer in paragraph 9, is supported by competent, substantial evidence.

      
      

   8. Respondent's Exception to paragraph 11 of the Findings of Fact of the Recommended Order, is rejected. The resolution of factual conflict is solely within the province of the Hearing Officer and it is not a proper matter for the Board to reweigh the evidence. The board should not reject findings of fact entered by the Hearing Officer unless the Board finds there is no competent, substantial evidence to support those findings of fact. The finding of fact of the Hearing Officer in paragraph 11, is supported by competent, substantial evidence.

      
      

   9. Respondent's Exception to paragraph 12 of the Findings of Fact of the Recommended Order, is rejected. The resolution of factual conflict is solely within the province of the Hearing Officer and it is not a proper matter for the Board to reweigh the evidence. The board should not reject findings of fact entered by the Hearing Officer unless the Board finds there is no competent, substantial evidence to support those findings of fact. The finding of fact of the Hearing Officer in paragraph 12, is supported by competent, substantial evidence.

      
      

   10. Respondent's Exception to paragraph 13 of the Findings of Fact of the Recommended Order, is rejected. The resolution of factual conflict is solely within the province of the Hearing Officer and it is not a proper matter for the Board to reweigh the evidence. The board should not reject findings of fact entered by the Hearing Officer unless the Board finds there is no competent, substantial evidence to support those findings of fact. The finding of fact of the Hearing Officer in paragraph 13, is supported by competent, substantial evidence.

   11. Respondent's Exception to paragraph 14 of the Findings of Fact of the Recommended Order, is rejected. The resolution of factual conflict is solely within the province of the Hearing Officer and it is not a proper matter for the Board to reweigh the evidence. The board should not reject findings of fact entered by the Hearing Officer unless the Board finds there is no competent, substantial evidence to support those findings of fact. The finding of fact of the Hearing Officer in paragraph 14, is supported by competent, substantial evidence.

       
       

   12. Respondent's Exception to paragraph 15 of the Findings of Fact of the Recommended Order, is rejected. The resolution of credibility of witnesses and factual conflict is solely within the province of the Hearing Officer and it is not a proper matter for the Board to reweigh the evidence or reassess the credibility of witnesses. The board should not reject findings of fact entered by the Hearing Officer unless the Board finds there is no competent, substantial evidence to support those findings of fact. The finding of fact of the Hearing Officer in paragraph 15, is supported by competent, substantial evidence.

       
       

   13. Respondent's Exception to paragraph 16 of the Findings of Fact of the Recommended Order, is rejected. The resolution of factual conf 1 percent is solely within the province of the Hearing Officer and it is not a proper matter for the Board to reweigh the evidence. The board should not reject findings of fact entered by the Hearing Officer unless the Board finds there is no competent, substantial evidence to support those findings of fact. The finding of fact of the Hearing Officer in paragraph 16, is supported by competent, substantial evidence.

       
       

   14. Respondent's Exception to paragraph 17 of the Findings of Fact of the Recommended Order, is rejected. The resolution of factual conflict is solely within the province of the Hearing Officer and it is not a proper matter for the Board to reweigh the evidence. The board should not reject findings of fact entered by the Hearing Officer unless the Board finds there is no competent, substantial evidence to support those findings of fact. The finding of fact of the Hearing Officer in paragraph 17, is supported by competent, substantial evidence.

       
       

   15. Respondent's Exception to paragraph 18 of the Findings of Fact of the Recommended Order, is rejected. The resolution of factual conflict is solely within the province of the Hearing Officer and it is not a proper matter for the Board to reweigh the evidence. The board should not reject findings of fact entered by the Hearing Officer unless the Board finds there is no competent, substantial evidence to support those findings of fact. The finding of fact of the Hearing Officer in paragraph 18, is supported by competent, substantial evidence.

       
       

   16. Respondent's Exception to paragraph 19 of the Findings of Fact of the Recommended Order, is rejected. The resolution of factual conflict is solely within the province of the Hearing Officer and it is not a proper matter for the Board to reweigh the evidence. The board should not reject findings of fact entered by the Hearing Officer unless the Board finds there is no competent, substantial evidence to support those findings of fact. The finding of fact of the Hearing Officer in paragraph 19, is supported by competent, substantial evidence.

       
       

   17. Respondent's Exception to paragraph 19 of the Findings of Fact of the Recommended Order, is rejected. The resolution of factual conflict is solely

       within the province of the Hearing Officer and it is not a proper matter for the Board to reweigh the evidence. The board should not reject findings of fact entered by the Hearing Officer unless the Board finds there is no competent, substantial evidence to support those findings of fact. The finding of fact of the Hearing Officer in paragraph 19, is supported by competent, substantial evidence.

       
       

   18. Respondent's Exception to paragraph 20 of the Findings of Fact of the Recommended Order, is rejected. The resolution of factual conflict is solely within the province of the Hearing Officer and it is not a proper matter for the Board to reweigh the evidence. The board should not reject findings of fact entered by the Hearing Officer unless the Board finds there is no competent, substantial evidence to support those findings of fact. The finding of fact of the Hearing Officer in paragraph 20, is supported by competent, substantial evidence.

       
       

   19. Respondent's Exception to paragraph 21 of the Findings of Fact of the Recommended Order, is rejected. The resolution of credibility of witnesses and factual conflict is solely within the province of the Hearing Officer and it is not a proper matter for the Board to reweigh the evidence or reassess the credibility of witnesses. The board should not reject findings of fact entered by the Hearing Officer unless the Board finds there is no competent, substantial evidence to support those findings of -fact. The finding of fact of the Hearing Officer in paragraph 21, is supported by competent, substantial evidence.

       
       

   20. Respondent's Exception to paragraph 22 of the Findings of Fact of the Recommended Order, is rejected. The resolution of factual conflict is solely within the province of the Hearing Officer and it is not a proper matter for the Board to reweigh the evidence. The board should not reject findings of fact entered by the Hearing Officer unless the Board finds there is no competent, substantial evidence to support those findings of fact. The finding of fact of the Hearing Officer in paragraph 22, is supported by competent, substantial evidence.

       
       

   21. Respondent's Exception to paragraph 23 of the Findings of Fact of the Recommended Order, is rejected. The resolution of factual conflict is solely within the province of the Hearing Officer and it is not a proper matter for the Board to reweigh the evidence. The board should not reject findings of fact entered by the Hearing Officer unless the Board finds there is no competent, substantial evidence to support those findings of fact. The finding of fact of the Hearing Officer in paragraph 23, is supported by competent, substantial evidence.

       
       

   22. Respondent's Exception to paragraph 24 of the Findings of Fact of the Recommended Order, is rejected. The resolution of credibility of witnesses and factual conflict is solely within the province of the Hearing Officer and it is not a proper matter for the Board to reweigh the evidence or reassess the credibility of witnesses. The board should not reject findings of fact entered by the Hearing Officer unless the Board finds there is no competent, substantial evidence to support those findings of fact. The finding of fact of the Hearing Officer in paragraph 24, is supported by competent, substantial evidence.

       
       

   23. Respondent's Exception to paragraph 25 of the Findings of Fact of the Recommended Order, is rejected. The resolution of factual conflict is solely within the province of the Hearing Officer and it is not a proper matter for the Board to reweigh the evidence. The board should not reject findings of fact entered by the Hearing Officer unless the Board finds there is no competent,

       substantial evidence to support those findings of fact. The finding of fact of the Hearing Officer in paragraph 25, is supported by competent, substantial evidence.

       
       

   24. Respondent's Exception to paragraph 27 of the Findings of Fact of the Recommended Order, is rejected. The resolution of factual conflict is solely within the province of the Hearing Officer and it is not a proper matter for the Board to reweigh the evidence. The board should not reject findings of fact entered by the Hearing Officer unless the Board finds there is no competent, substantial evidence to support those findings of fact. The finding of fact of the Hearing Officer in paragraph 27, is supported by competent, substantial evidence, to include evidence that the patient was on the heart medication, Lanoxin.

       
       

   25. Respondent's Exception to paragraph 28 of the Findings of Fact of the Recommended Order, is rejected. The resolution of credibility of witnesses and factual conflict is solely within the province of the Hearing Officer and it is not a proper matter for the Board to reweigh the evidence or reassess the credibility of witnesses. The board should not reject findings of fact entered by the Hearing Officer unless the Board finds there is no competent, substantial evidence to support those findings of fact. The finding of fact of the Hearing Officer in paragraph 28, is supported by competent, substantial evidence.

       
       

   26. Respondent's Exception to paragraph 29 of the Findings of Fact of the Recommended Order, is rejected. The resolution of factual conflict is solely within the province of the Hearing Officer and it is not a proper matter for the Board to reweigh the evidence. The board should not reject findings of fact entered by the Hearing Officer unless the Board finds there is no competent, substantial evidence to support those findings of fact. The finding of fact of the Hearing Officer in paragraph 29, is supported by competent, substantial evidence.

       
       

   27. Respondent's Exception to paragraph 30 of the Findings of Fact of the Recommended Order, is rejected. The resolution of factual conflict is solely within the province of the Hearing Officer and it is not a proper matter for the Board to reweigh the evidence. The board should not reject findings of fact entered by the Hearing Officer unless the Board finds there is no competent, substantial evidence to support those findings of fact. The finding of fact of the Hearing Officer in paragraph 30, is supported by competent, substantial evidence.

       
       

   28. Respondent's Exception to paragraph 33 of the Findings of Fact of the Recommended Order, is rejected. The resolution of credibility of witnesses is solely within the province of the Hearing Officer and it is not a proper matter for the Board to reassess the credibility of witnesses. The board should not reject findings of fact entered by the Hearing Officer unless the Board finds there is no competent, substantial evidence to support those findings of fact. The finding of fact of the Hearing Officer in paragraph 33, is supported by competent, substantial testimonial evidence.

FINDINGS OF FACT

1. The Hearing Officer's Recommended Findings of Fact, as amended by reflecting the correct dates on patient records as stated above, 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, as amended, herein.

RULINGS ON RESPONDENT'S EXCEPTIONS TO THE CONCLUSIONS OF LAW

Respondent's Exceptions to the Conclusions of Law of the Recommended Order are rejected. The Conclusions of Law are supported by Findings of Fact which are based upon competent substantial evidence of record.

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 establish that Respondent has violated Section 458.331(1)(t) and (m) , Florida Statutes as charged in the Amended Administrative Complaint.

   
   

3. The Conclusions of Law of the Recommended Order are approved and adopted and incorporated herein.

DISPOSITION

Based upon the Recommended Findings of Fact and Conclusions of Law, the Hearing Officer recommended the following penalty:

1. That the Respondent is guilty of violating Sections 458.331(1)(t) and

1. Florida Statutes.

   
   

   In light of the foregoing Findings of Fact and Conclusions of Law the Board hereby determines that pursuant to Rule 59R-8, Florida Administrative Code, the penalty recommended by the Hearing Officer is appropriate as set forth in the Recommended Order.

   
   

   WHEREFORE, it is found, ordered and adjudged that the Respondent is guilty of violating Sections 458.331(1)(t) and (m) of the Amended Administrative Complaint and pursuant to Rule 59R-8, F.A.C., the Board of Medicine imposes the following penalty:

   
   

   1. Within 30 days of the filing of the Final Order in this cause, Respondent shall pay an administrative fine in the amount of four thousand dollars ($4,000.00) to the Board of Medicine.

      
      

   2. Upon filing of the Final Order in this cause, Respondent's license to practice medicine in the State of Florida shall be SUSPENDED for a period of one year.

      
      

   3. Respondent's license to practice medicine in the State of Florida shall be placed on PROBATION for a period of one year immediately following Respondent's one year suspension period. During said probation period Respondent shall be required to have his records reviewed by a supervising physician approved by the Board, such supervising physician to provide quarterly reports to the Board regarding the sufficiency of the Respondent's record- keeping.

This Final Order becomes effective upon its filing with the Clerk of the Agency for Health Care Administration.

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 Agency for Health Care Administration 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 11th DAY OF May, 1995.

BOARD OF MEDICINE

GARY E. WINCHESTER, 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 Petru Orasan, M.D., 2005 Van Buren Street, Hollywood, Florida 33020, Michael M. Parrish, 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, Agency for Health Care Administration, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 on this day of 15th day of May, 1995.

Marm Harris, Ed. D. Executive Directory

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DISTRICT COURT OPINION

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IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

PETRU ORASAN, M.D., NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

Appellant, DISPOSITION THEREOF IF FILED

v. CASE NO. 95-2062

DOAH CASE NO. 94-1471

AGENCY FOR HEALTH CARE ADMINISTRATION, BOARD OF MEDICINE,

Appellee.

/

Opinion filed February 28, 1996.

An appeal from Order of the Agency for Health Care Administration. Steven R. Ballinger, Ft. Lauderdale, for Appellant.

Kathryn L. Kasprzak of Agency for Health Care Administration, Tallahassee, for Appellee.

ALLEN, J.

The appellant challenges a final order of the Board of Medicine (the board) imposing sanctions for violations of sections 458.331(1)(m) & (t), Florida Statutes. Because the hearing officer erred in refusing to admit hearsay evidence that was offered to supplement the appellant1s testimony, we set aside the order.

The Department of Professional Regulation, predecessor to the Agency for Health Care Administration (the agency) charged the appellant in an amended administrative complaint with four counts of violating section 458.331,(1)(m) , Florida Statutes, and four counts of violating section 458.331(i) (t), Florida Statutes, in connection with the appellant's care and treatment of four patients. The appellant denied the allegations and the matter proceeded to a section 120.57(1), Florida Statutes, hearing before a Division of Administrative Hearings hearing officer. The appellant testified in his own behalf and also offered into evidence ten exhibits, consisting of excerpts from medical texts and treatises, to support his testimony. The agency objected to the admission of these exhibits on the basis that such hearsay was inadmissible to bolster the appellant's own testimony under section 90.706, Florida Statutes. The hearing officer sustained the objection and did not admit the exhibits.

The hearing officer subsequently issued a recommended order finding the appellant guilty on all counts, and recommending sanctions. With only minor alteration, the board adopted the recommended order and imposed the recommended sanctions.

We agree with the appellant that the hearing officer erred in refusing to admit the exhibits that the appellant offered to help explain his testimony.

Section 120.58(1)(a), Florida Statutes, relaxes the evidentiary standard in administrative cases with regard to hearsay evidence:

Hearsay may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.

It is clear from the record that the exhibits were offered for a permissible purpose under this statute, to supplement or explain the appellant's testimony. Accordingly, they should have been admitted. The agency does not suggest that they were properly excluded, but rather asserts that any error was harmless because the hearing officer chose to believe the testimony of the agency's expert witness over that of the appellant. But we are unable to conclude on this record that the improper exclusion of the exhibits did not impair "the fairness of the proceedings or the correctness of the action." s 120.68(8), Fla. Stats. We therefore must set aside the order and remand the case for further agency action.

With regard to the appellant's argument that the board erred in failing to promulgate separate disciplinary guidelines for each of the three types of violations described in section 458.331(1)(t) , Florida Statutes, as mandated by section 458.331(5), Florida Statutes (Supp. 1990), we note that this argument is raised for the first time on appeal and, in any event, all the conduct for which sanctions were imposed occurred before the October 1, 1990, effective date of the amendments requiring separate guidelines. Ch. 90-60, ss 4 - 5, Laws of Fla. (1990) Accordingly, the case was properly decided under the disciplinary guidelines in effect at the time of the alleged violations. See Willner v.

Department of Professional Regulation, Board of Medicine, 563 So.2d 805 (Fla. 1st DCA 1990), rev. Denied, 56 So.2d 295 (Fla. 1991)

The order is set aside, and this case is remanded for further agency action.

BARFIELD, J., and SHIVERS, SENIOR JUDGE, CONCUR.

Docket for Case No: 94-001471

Orders for Case No: 94-001471