STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AMER ALANBARI, M. D., )
)
Petitioner, )
)
vs. ) CASE NO. 94-1595
)
BOARD OF MEDICINE, )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for hearing on May 27, 1994, in Tallahassee, Florida, before David M. Maloney, Hearing Officer of the Division of Administrative Hearings. Following the June 23, 1994, filing of the transcript of the hearing, Respondent, on July 5, 1994, filed a Proposed Recommended Order. Respondent's proposed findings of fact are addressed by number in the attached appendix.
APPEARANCES
For Petitioner: Amer Alanbari, M.D.
51 Layton Road
Sussex, New Jersey 07461
For Respondent: Gregory A. Chaires, Esquire
Allen R. Grossman, Esquire Assistant Attorneys General PL-01, The Capitol
Tallahassee, Florida 32399-1050 PRELIMINARY STATEMENT
By letter dated March 21, 1994, Counsel for the Board of Medicine referred this matter to the Division of Administrative Hearings for the assignment of a hearing officer. Attached to the letter is an order of the Board of Medicine signed by the Chairman of the Board on October 27, 1994, and rendered November 4, 1993. The order rules on Petitioner's application for licensure as a physician by endorsement. In denying the application, the order gives the following grounds:
You were less than truthful during the application process regarding your medical training and psychiatric condition. Your mental condition interferes with your ability to practice with skill and safety. You did not submit a new, complete and accurate application and you did not undergo the five-day inpatient evaluation through the Physicians Recovery Network. Section 458.313(1), (1) (a), and (7); 458.311(1)(a), (c), (d); 458.331(1)(a), (s), (gg) and (4) F.S.
The referral letter relates that at the informal proceeding requested by Petitioner to review the order, Dr. Alanbari began to dispute material facts. The informal proceeding was called to a halt, as appropriate under Section
, Florida Statutes. The matter was referred to this Division for a formal proceeding, "[a]lthough, Dr. Alanbari has not provided a petition stating which facts remain in dispute."
Pursuant to a motion to compel by the Board, Dr. Alanbari was ordered by this tribunal to file a petition by May 20, 1994, setting out the disputed issues of material fact. The order warned that failure to comply "may result in this case being dismissed." (emphasis supplied). The order was not received by Dr. Alanbari because he was obtaining his mail from the Board at his brother's address rather than at his own. Since he had not received the order, Dr.
Alanbari did not comply with the order in full. Nonetheless, he complied with that portion of the order requiring he set out the disputed issues of material fact when, at hearing, he orally adopted the statement in the Board's denial order of the grounds for denial, quoted above, as the disputed issues of material fact.
Following Dr. Alanbari's adoption of the denial order's grounds as the disputed issues, the Board claimed it was not prepared to proceed because it had not received, prior to hearing, a petition from Dr. Alanbari setting out the issues. The claim was made despite the Board's issuance of the order of denial setting out the grounds for denial six months earlier and despite Dr. Alanbari's statement on the record that the facts he disputed were completely contained within the Board's order. The disputed issues of material fact in the proceeding, therefore, were entirely framed by the Board and the outer limits of the scope of the issues had been clearly established at least since the rendition of the Board's own order. The possibility that Dr. Alanbari might not dispute some of the factual issues inhering in the grounds of the Board's denial order, thereby narrowing the scope of those issues, makes the claim of the Board that it could not or should not have been prepared to proceed without a petition no less disingenuous. Nor does the possibility excuse the Board, in the absence of a petition from Dr. Alanbari, from being prepared to proceed to defend the grounds the Board, itself, had commemorated in an order as the grounds for its intended action.
In short, Dr. Alanbari did nothing to expand the disputed issues of fact beyond those which the Board used in denying his application. The Board framed the issues in its statement of grounds in the denial order. The Board, clearly aware of its own grounds for denying the application, should have been prepared to defend its own statement of grounds in any case presented by the applicant. On the other hand, had Dr. Alanbari sought to expand the disputed issues of material fact beyond those confined within the four corners of the denial order, then it would have been appropriate to accommodate the Board in some way and the Board's claim of not being prepared as to issues added by Petitioner would have been honored.
This tribunal's order granting the Board's motion to compel provided the Board with no basis for claiming entitlement to an automatic dismissal of the case for non-compliance. It stated nothing more with regard to any failure of Petitioner to comply than that such failure created a mere possibility of dismissal. The order did not state, nor did it imply, that failure to comply would in and of itself unswervingly result in dismissal.
Dr. Alanbari's answer as to failure to comply with the order was that perhaps his mail had gone to his brother's address at which he had received the notice of hearing. He did not give any other reason for not having received the order. In any event, he did not receive it. Whether his failure to comply with the order was excusable neglect or not, any failure, culpable or otherwise, was
harmless in light of his oral adoption of the Board's grounds for denial as the issues in the case. Under the circumstances, no sanction was appropriate for any non-compliance with the order.
Furthermore, Dr. Alanbari had traveled from New Jersey to Tallahassee in the company of his wife and their young children, to participate in the hearing without representation by counsel. He was kept waiting for the commencement of the hearing for two hours because neither a representative of the Board nor counsel for the Board appeared at hearing at the time noticed for commencement. The Board was represented at hearing only because the office of the counsel for the Board was contacted to inquire about its absence. The Board's counsel of record being in Miami, substitute counsel was drummed up. The hearing commenced at 12 noon as opposed two hours earlier at 10 a.m., as noticed. Had substitute counsel at the hearing requested a continuance because of whatever the problem was in counsel's office, a continuance would have been granted, provided Dr.
Alanbari's expenses were covered. But, substitute counsel selected another tack.
Despite Dr. Alanbari's announcement at the commencement of the hearing that he disputed no issues of fact outside the grounds stated in the Board's order, the Board moved ore tenus in the hearing to dismiss the proceeding for his failure to comply with the order and because the Board felt "extremely prejudiced to have to proceed at this point with him having failed to respond." (Tr. 9.) The motion was promptly denied. Still, substitute counsel for the Board resisted the ruling as evidenced by four full pages of the transcript in the proceeding. (Tr. 11- 14.) Counsel for the Board in its Proposed Recommended Order filed by the Board makes reference, again, to the Petitioner's failure to comply with the order and the ruling denying the Board's ore tenus motion to dismiss. Upon further reflection in the interim since the hearing, the motion to dismiss remains as patently meritless today as at hearing.
Petitioner testified on his own behalf at hearing and offered two exhibits both of which were accepted into evidence initially. The first exhibit, Petitioner's No. 1, consisting of three pages of letters from Dr. Alanbari to the Board, objected to by the Board on the basis of hearsay and lack of authenticity, was subsequently stricken from the record. That part of Dr.
Alanbari's testimony identical in sum and substance to the contents of Petitioner's No. 1, however, was received in evidence. Petitioner's No. 2 remained in evidence.
Respondent presented no witnesses but offered four exhibits, all of which were accepted in evidence.
FINDINGS OF FACT
Answers on the Application
Amer Alanbari, M.D., applied to the Board of Medicine for licensure as a physician by endorsement on February 19, 1992.
The application form he filled out and submitted asks two questions on page 4 under no. 8: "Are you now or have you ever been emotionally/mentally ill?" and "Have you ever received psychotherapy?" To both questions, Dr. Alanbari answered "No."
Under "POSTGRADUATE TRAINING," Dr. Alanbari listed "[f]rom 7/1/88 to 6/30/89: No training."
The application form also asked, "Have you ever had to discontinue practice for any reason for a period of one month or longer?" To this question, Dr. Alanbari answered "No."
Events Prior to the Application
Amer Alanbari, M.D., naturalized in Newark, New Jersey, as a citizen of the United States on August 29, 1989, was born in Damascus, Syria in 1958. He received his medical degree in the same city on September 7, 1982, from the University of Damascus.
Within a month he began specialty training in pulmonary diseases at the University of Nancy, Centre Hospitalier Regional de Nancy, in Nancy, France.
His attendance in the program in France was from October 1, 1982 until July 30, 1984,
From August 1984 until November 1986 he resided in Prospect Park, New Jersey, where he has family, a time during which he received no medical training.
For the next year and one-half, approximately, from December 1, 1986, until June 30, 1988, Dr. Alanbari enjoyed an Internship in Internal Medicine at The University of Toronto, The Toronto Western Hospital in Toronto, Ontario, Canada. He completed training in Core Internal Medicine on June 30, 1988, and left the program in good standing.
Sometime shortly before completing the training in Internal Medicine in Toronto, Dr. Alanbari suffered a crisis brought on by serious family and financial problems following the death of his father. The chief resident at The Toronto Western Hospital arranged for Dr. Alanbari to see a psychiatrist.
The psychiatrist's diagnosis of Dr. Alanbari's condition was "depression"; an anti-depressant medication was prescribed. Dr. Alanbari took the medication for three weeks. After the three weeks, not convinced that he was suffering from depression and having received some training in psychiatry, himself, Dr. Alanbari ceased the medication. He has not seen a psychiatrist since.
Upon leaving Toronto, Dr. Alanbari returned to Prospect Park, New Jersey. On November 18, 1989, Dr. Alanbari entered the Internal Medicine Program at the Department of Veterans Affairs Medical Center in Wilkes-Barre, Pennsylvania. He entered the program as a first year medical resident even though he had completed a first year residency earlier because, for whatever reason, he was unable to obtain a second year residency. Dr. Alanbari was not given an official letter from the VA facility informing him of the status of his training because it was an unusual time of the year to begin training. He was told by the VA Medical Center that he could remain until June and then his status would be determined. Dr. Alanbari, however, did not remain at the facility until June. He left the Medical Center on April 18, 1989, under the affectation that his ulcer had begun bleeding.
Although Dr. Alanbari had an ulcer at the time, it was, in fact, not bleeding. In truth, Dr. Alanbari left the program because of difficulties in an engagement to be married. Dr. Alanbari did not reveal the true nature of the basis of his departure from the Wilkes-Barre VA facility because the issue of difficulties in his personal relationship with his fiancee was sensitive to him
at least, in part, because of the Syrian culture in which he was raised. Moreover, he did not want to suffer a suggestion from supervisory medical personnel at the VA facility, as had been made earlier at the Toronto facility, that he see a psychiatrist again. He resisted such a suggestion because he felt he was capable of solving the problem himself.
Dr. Alanbari's fiancee, a Syrian woman residing in New York, wanted to return to Syria while Dr. Alanbari was intent on conducting the practice of medicine in the United States. Forced to choose between his fiancee and his career, a decision with at least the potential for affecting the remainder of his life, Dr. Alanbari returned to Prospect Park, New Jersey, in order to make a decision free of the pressures of residency and the practice of medicine.
For several months, Dr. Alanbari lived with family in New Jersey. In July of 1989, less than three months after leaving the Wilkes-Barre VA facility, Dr. Alanbari moved to New York and entered a first-year residency for the third time, again in Internal Medicine, but this time at the Methodist Hospital at 506 Sixth Street in Brooklyn, New York.
At the time Dr. Alanbari submitted his application in February of 1992, he had completed the first two years of his residency at the Methodist Hospital in Brooklyn and was in the second half of his third year of residency in internal medicine.
Events after the application's submission
During the processing of Dr. Alanbari's application, the Board received a profile from the American Medical Association revealing the training Petitioner received at the Wilkes-Barre VA hospital. The contradiction between the profile and Dr. Alanbari's application led the Board to inquire further.
On May 24, 1992, two months after the filing of the application, Dr. Alanbari appeared in the office of the Board to discuss problems with his application. The visit was followed by letters from Dr. Alanbari to the Board less than one month later. Although copies of the letters were stricken from the record, Dr. Alanbari testified at hearing that he informed the board by letter of the crisis he had suffered following his father's death shortly before leaving Toronto, the single visit to a psychiatrist at the suggestion of the Chief Resident, the psychiatrist's diagnosis of depression and the prescription of the anti-depressant. Dr. Alanbari answered "No," to the question on the application as to whether he had ever been emotionally or mentally ill because he was not convinced that he suffered from depression, was hesitant to reveal matters that were private and was not sure he could obtain a report from the psychiatrist because of his limited treatment. Dr. Alanbari also related to the Board in the same letter that he had started training at the Wilkes-Barre VA facility in December of 1988 but left in April of 1989 because of serious problems in his marital engagement.
In November of 1992, Dr. Alanbari appeared before the Board's Credentials Committee. The meeting's minutes relate:
After receiving testimony, it was determined that Dr. Alanbari has been less than truthful not only during the application process, but during his medical training and the independent psychiatric evaluation which was arranged
through PRN. Dr. Alanbari stated that he was very hesitant to give details about his personal
problems because he feels it is a matter of privacy.
The minutes go on to reflect that Dr. Goetz of the Physicians Recovery Network recommended that Dr. Alanbari undergo a five-day inpatient evaluation through the Physicians Recovery Network. After a discussion with Dr. Goetz outside the Committee's meeting room, the minutes report, "Dr. Alanbari stated that he is agreeable to undergoing the five-day evaluation through PRN as suggested by Dr. Goetz." Motion was made, seconded and carried unanimously to retain jurisdiction until no later than the March, 1993, meeting to allow Dr. Alanbari to undergo evaluation through PRN and to complete a new, complete and accurate application.
The Credentials Committee reconvened on March 19, 1993. Minutes of this second meeting show that,
On March 10, 1993, a letter was received from Dr. Alanbari stating that he could not afford the cost of the PRN evaluation.
Motion was made, seconded and carried unanimously to recommend denial of application based on his testimony at the November, 1992 Committee meeting, attempting to obtain a license by fraud and misrepresentation, failure to comply with the Board's request that he undergo five-day inpatient evaluation through PRN and failure to submit a new, complete and accurate application.
The minutes also show, apparently, that an inde- pendent evaluation, an evaluation other than the five-day inpatient evaluation the board had requested Dr. Alanbari to undergo, had been conducted of Dr. Alanbari. Dr. Goetz of the Physicians Recovery Network opined to the board that "he felt Dr. Alanbari had not been forthright during the independent evaluation . . ." Dr.
Goetz did not testify at the hearing. There was, therefore, no foundation laid for the opinion; nor, was it elaborated upon or explained by Dr. Goetz.
No evidence was introduced as to who conducted the evaluation, of what it consisted or anything else about it.
On November 4, 1993 the Order of the Board denying Dr. Alanbari's application was rendered. There is nothing of record to indicate what, if anything, relevant to this case transpired during the eight month period between the March meeting of the Credentials Committee and the Board's order. In the order's statement of grounds for the denial is the following, "Your mental condition interferes with your ability to practice medicine with skill and safety." Although nothing was produced by the Board at hearing to show what happened between March of 1993 and November of 1993, the minutes of the Credentials Committee contain the grounds found by the committee in support of a recommendation to the Board that the application be denied. Dr. Alanbari's "mental condition" as "interference with his ability to practice medicine" was
not among the Credential Committee's grounds supporting the recommendation to the Board formulated in March of 1993.
The hearing.
Following Dr. Alanbari's explanation at hearing of the reasons for filling out his application as he had, the Board presented no witnesses to support its action in entering the denial order. The remainder of the Board's case was comprised of four exhibits: (1) Dr. Alanbari's application; (2) A letter from Robert A. Bear, M.D., stating that Dr. Alanbari left the program at the University of Toronto "in good standing. He did not break a contract. He was not offered a contract to continue training"; (3) the Credential Committee's minutes from its November 1992 meeting, and; (4) the Credential Committee's minutes from its March 1993 meeting.
Aside from the four exhibits, the Board's case for denial rests on the "admission" under oath by Dr. Alanbari that his replies on the application were false, an "admission" made by an unrepresented applicant under withering cross- examination by substitute counsel for the board:
Q . . . First of all, I want to establish, is it not true that you stated on your application to the Board of Medicine that you have never had any mental illness or been treated with any psychotherapy?
A Yes, it was true, and that's why --
Q Doctor, however, isn't it also true that, in fact, you were seen by a psychiatrist and given medication?
A Only once and I gave all the details, that's why I made my trip from New Jersey to meet
with higher authorities to explain that special situation. It's my privacey [sic].
Q Doctor, that was after you said no, isn't that correct?
A Yes.
Q You keep talking about privacy here. Do you believe that you have a right to give a false answer on your application because you believe it to be a private matter.
A It was delicate situation, I tried to deal with it with honesty, that's why I made my trip to Florida. I wanted to speak to someone.
Q Doctor, was your answer on the application honest? A Yes.
Q When you said no on the application, was that an honest answer?
A If you asked me if any question on the application was honest, yes.
Q No, I asked you if your answer on the application was honest, your answer to the question about psychotherapy and you said no.
A The honest question, I don't know. Not yes, not no. Q But you answered no, didn't you, Doctor?
A It was a very delicate situation and I presented the events as they happened and I left it to you to appreciate --
Q Doctor, did you submit such an explanation with your application when you said no?
A No.
Q You didn't, did you? A No.
Q Now, did you honestly answer that question as to whether or not you had psychotherapy?
A Initially, I said no, but --
Q Is that an honest answer, Doctor? A No, its not.
Q Thank you. Do you believe, Doctor, that you have a right to tell a lie about something just because you consider it to be private?
A I don't believe in telling lies. Q But you did, Doctor, didn't you?
A I initially wrote down this, but again, the issue was very delicate, there was no good answer to this. Not a yes, not a no.
Q Doctor, the truthful answer to that question was yes, wasn't it?
A No.
Q Doctor, did you receive psychotherapy? A No, sir.
(Tr. 40-43, emphasis supplied).
At hearing, Dr. Alanbari was also asked in light of the fact that he had discontinued the practice of medicine for more than a month on several questions why he had answered "no," to the question on the application, "Have you ever had to discontinue practice for any reason for a period of one month or longer?" (emphasis supplied). From his testimony, it was apparent that Dr. Alanbari believed "no" to be a correct answer because although he had ceased to practice medicine for more than a month on several occasions after graduation, he had never been forced by a licensing authority or anyone else to cease practicing medicine. Whenever he had lapses in practice of more than a month they were always by choice. He, therefore, had never had to discontinue practice, the precise question posed by the application. Dr. Alanbari's testimony on this subject squares with the remainder of his application from which it is obvious that he informed the board from the moment he first applied that he had not practiced for several periods of more than one month's duration subsequent to his graduation from medical school. This included a period from August of 1984 until November of 1986 and the time that he did not practice between July of 1988 and June of 1989 that preceded and followed his practice at the VA Medical Center.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to this case and the subject matter of the proceeding pursuant to Section 120.57, Florida Statutes.
The ability to practice medicine in the State of Florida is subject to regulation under the State's police powers. Boedy v. Department of Professional Regulation, 463 So.2d 215 (Fla. 1985). As such, the Board of Medicine has discretion in deciding whether to certify to the Department of Business and Professional Regulation applicants for licensure when the Board finds the applicant "guilty of any of the grounds set forth in [Section 458.331(1),
Florida Statutes], including conduct that would constitute a substantial violation of subsection (1) which occurred prior to licensure . . ." Section 458.331(2), Florida Statutes. (emphasis supplied). Among the grounds in subsection (1) of Section 458.331, for turning down the application, although not necessarily described in the text of the Board's order, are:
Attempting to obtain . . . a license to practice medicine by . . . fraudulent misrepresentations . . .
(s) Being unable to practice medicine with reasonable skill and safety to patients by reason of . . . any mental . . . condition.
(gg) Misrepresenting or concealing a material fact at any time during any phase of a licensing
. . . process or procedure.
Furthermore, seeking to obtain a license by endorsement as Dr. Alanbari does in this proceeding, an applicant must comply with paragraphs (b)-(f) of Subsection 458.311(1), Florida Statutes. Subsection (1)(a) of Section 458.313, F.S., (the "licensure by endorsement" statute). None of the text of the statement of grounds in the denial order makes reference in any way to them, but, two provisions of Section 458.311(1) made applicable to licensure by endorsement are also cited in the denial order in this case:
458.311 . . . The Department shall examine each applicant whom the board certifies:
* * *
Is of good moral character.
Had 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.
And the licensure by endorsement statute also states that "[w]hen the board finds that an individual has committed an act or offense in any jurisdiction which would constitute the basis for disciplining a physician . . . then the board may enter an order," id. subsection (7), of refusal, "to certify the department an application for licensure . . .," id., subsection (8).
Curiously, the licensure by endorsement statute does not expressly require that an applicant meet the qualifications of submitting a "[c]ompleted application form" imposed expressly on applicants for licensure by examination in paragraph
(a) of subsection (1) of Section 458.311, Florida Statutes. But the requirement of completeness is implied in the licensure by endorsement statute simply by requiring a demonstration of qualification "upon applying to the department" for licensure by endorsement.
The general rule applying to Administrative Procedure Act cases since Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977), is that the burden of proof, apart from statute, is on the party asserting the affirmative of the issue. Irvine v. Duval County Planning Commission, 466 So.2d 357, 360 (Fla. 1st DCA 1985). Normally, in cases in which the denial of an application for a license or permit is subject to proceedings under Section 120.57, Florida Statutes, the burden of proof rests on the applicant. Astral Liquors v. State Department of Business Regulation, 432 So.2d 93, 94 (Fla. 3rd DCA (1983). While there are exceptions dependent on the statute governing the substantive permit or license application law, see e.g., Young v. Department of Community Affairs, 625 So.2d 831, 835 (Fla. 1993), Balino
has been recognized as the general rule by the Florida Supreme Court when the substantive statute is silent about burden of proof. Young, above, at 834.
Such a rule has been applied consistently in professional licensing contexts, see, e.g., Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA). Dr. Alanbari has the burden of ultimate persuasion in this proceeding. And it rests with him through all of the proceedings of whatever nature until final action has been taken by the agency.
But the burden of ultimate persuasion is to be distinguished from the burden of going forward with evidence as the case develops at hearing. The burden of going forward with evidence may shift from the applicant to the agency, see Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, at 787, (Fla. 1st DCA 1981). In this case, the burden of going forward with evidence shifted to the Board following Dr. Alanbari's presentation and testimony. With regard to most of the grounds stated in the denial order, the Board did not carry its burden of going forward with evidence sufficiently to support a recommendation that its order of denial be sustained.
Truthfulness during the application process regarding medical training and psychiatric condition.
1. Medical Training.
28. Two conclusions may be reached with regard to Dr. Alanbari's listing "No training," on his application from "7/1/88," until "6/30/89." The first, advanced by the Board, is that Dr. Alanbari received medical training at the Wilkes-Barre, Pennsylvania Veterans Administration facility during this period and failed to reveal it. Underlying these facts, is the Board's theory that Dr. Alanbari did not reveal the training on his application because of fear that it would lead to a discovery that he left the VA Hospital residency program troubled emotionally or mentally. The second, in support of Dr. Alanbari, is that although enrolled in the program, he left before he finished it and before he could receive any credit for it. His participation, therefore, ultimately amounted to no training and thus to list "no training" is not untruthful. Which of these conclusions to draw depends on whether Dr. Alanbari had any psychiatric condition that he was trying to keep from the Board.
2. Psychiatric Condition.
Dr. Alanbari's explanation for not revealing the diagnosis by the Canadian psychiatrist and the prescription of an anti-depressant render innocent the negative answer to the question "Have you ever been emotionally/mentally ill?" No expert testimony established that Dr. Alanbari was ever emotionally or mentally ill. And no such inference can be drawn from a single session with a psychiatrist in which a diagnosis of depression and concomitant prescription of an anti-depressant that the patient ceased taking after three weeks under the belief that he was not clinically depressed. Nor, under these circumstances, was Dr. Alanbari required to answer "yes" to the question. Bolstering this conclusion is that the patient, himself, had received some training in psychiatry, has never seen another psychiatrist on any occasion and has never received any other therapy.
The appropriate answer with regard to whether Dr. Alanbari had ever received psychotherapy is a closer question. The only testimony about whether his treatment constituted "psychotherapy" came from Dr. Alanbari when he answered "no" to the question of counsel at hearing as to whether he had received psychotherapy. At the same time, Dr. Alanbari answered one time to the
numerous questions asked at hearing on the subject, that his answer to the psychotherapy question was not honest. The Board, however, presented no evidence of Dr. Alanbari's treatment, other than Dr. Alanbari's candid statement that he had been prescribed an anti-depressant. The treating psychiatrist was not deposed. The psychiatrist's records were not introduced. No testimony from an expert was offered with regard to whether a single prescription of an anti- depressant following financial problems and difficulty of a young resident due to the recent death of his father constituted "psychotherapy."
Despite the board's slim case on the subject, it seems that receiving a prescription for depression and taking an anti-depressant for three weeks constitutes receiving psychotherapy. Dr. Alanbari should have answered "yes" to the question. The question remains, however, given Dr. Alanbari's testimony that he did not believe he ever received psychotherapy, the short time during which he was medicated and single session leading to the therapy, whether he was being truthful on the application or not. In Gentile v. Department of Professional Regulation, Board of Medical Examiners, 448 So.2d 1087, 1090, (Fla. 1st DCA 1984), the court implied that for the Board to deny an applicant licensure because of a false answer the applicant must have "intentionally" falsified the application at the level of perjury. "If an applicant perjures himself by intentionally falsifying his application or untruthfully responding to Board inquiries, this is a valid ground for denying him . . .", (emphasis supplied). Id. Following Dr. Alanbari's testimony, the burden shifted to the Board to establish that Dr. Alanbari intentionally falsified his application. The Board failed in offering any such proof. The Board offered no witnesses to contradict Dr. Alanbari's explanation. Instead, the Board attempted to construct a network of circumstantial evidence that leads to a conclusion of deliberate falsification of the application. But the Board's case is simply too weak. The only evidence that the Board offered as to its inquiry beyond the face of the application was that it had discovered Dr. Alanbari's training in Wilkes-Barre through an AMA profile. From the evidence presented at hearing, Dr. Alanbari revealed to the Board the crisis he suffered in Toronto and the true reason he left the Wilkes-Barre program as opposed to the reason offered his employee. The weakness of the Board's construction in the face of Dr. Alanbari's credible explanation of his motives and his prompt disclosure of the actual reasons supporting decisions he made, disclosure that was obviously distressing to Dr. Alanbari, defeat the conclusions the Board hopes to see drawn from the facts.
Truthfulness with regard to Dr. Alanbari's negative answer to the question of whether he had ever "had" to discontinue the practice of medicine was not at issue in this proceeding because it was not among the grounds stated in the denial order. In any event, it is apparent that Dr. Alanbari, under a legitimate interpretation of the question, answered the question truthfully.
Inability to practice medicine with skill and safety.
One can only wonder as to the source of the second ground in the denial order. While Section 458.331, Florida Statutes, provides as a ground for refusal to certify to the Department of Business and Professional Regulation an application for licensure when the applicant is "unable to practice medicine with reasonable skill and safety to patients . . . as a result of any mental . .
. condition," Section 458.331(1)(s), F.S., there was not a single shred of evidence that Dr. Alanbari after graduating from medical school has been at any time unable to practice medicine with reasonable skill and safety.
Failure to submit a new complete and accurate application and to undergo the PRN inpatient evaluation.
Once Dr. Alanbari was confronted with the Board's need for more information about some of the answers on the application he should have amended the application. He may have thought that was what he had done when he visited Board staff in Tallahassee in May of 1992 and, soon thereafter, submitted the letter explaining the truth of his departure from both Toronto and the VA Hospital in Wilkes-Barre. In any event, the Credentials Committee minutes reveal that the committee recommended that Dr. Alanbari submit a new and complete application after the committee met in November. The minutes also show that he agreed to undergo the PRN five-day inpatient evaluation. Dr. Alanbari did not submit a new application. Furthermore, he failed to live up to the agreement with regard to submitting to the evaluation. Failure to undergo a PRN inpatient evaluation is not a ground for denying an application for licensure by endorsement. The licensure by endorsement statute, by implication (unlike the licensure by examination statute which does so expressly), requires a complete application. It was established that Dr. Alanbari submitted a complete application initially at least to the extent that he answered all the questions in the application. By requiring a new and complete application the Board apparently wanted more information from Dr. Alanbari although it did not state precisely what information was required.
Good Moral Character
Although the order of denial does not expressly state lack of good moral character as a ground in the text of the denial orders statement of grounds, the statement cites to Section 458.311(1)(c), Florida Statutes. This section requires the department to determine whether an applicant is of good moral character or not. Failure, at least in the context of pari-mutuel wagering-related activities, to expressly inform an applicant for a license that denial is predicated on lack of good moral character is not fatal to a finding of poor moral character and denial on that basis if the denial order cites to the statute and facts are established which support such a finding. Cohen v. Department of Business Regulation, 584 So.2d 1083 (Fla. 1st DCA 1991). Although practice of medicine and participating in pari- mutuel wagering are worlds apart, the requirement of good moral character in both licensing statutes have, at core, protection of the public as a goal. While one might argue that applicants for pari-mutuel occupational licenses are not entitled to the same due process rights as graduates of medical school who are applicants for licensure as physicians, surely physicians, unworthy of licensure, can do great injury to the public if wrongly licensed. And making false or misleading statements on an application for a license to practice medicine is relevant to whether an applicant is of good moral character. Gentile, above, at 1090.
The evidence presented by the Board following Dr. Alanbari's explanation, however, is not convincing enough to support a finding that he is of anything less than good moral character. To the contrary, Dr. Alanbari's taking leave of the practice of medicine when faced with personal problems, both when he departed from Toronto and left the residency program at the VA Hospital in Wilkes-Barre, indicate a concern for those he might have treated under circumstances where he was at less than full ability. That he told the VA Hospital personnel that he was leaving because of a bleeding ulcer rather than because of engagement difficulty, while perhaps not the preferable course of action, is not enough, quite simply, to establish poor moral character.
i. The Bottom Line
At bottom, the proof in this case showed nothing more than that the Board needs more information from Dr. Alanbari to evaluate his application. No evidence established that Dr. Alanbari falsified his application intentionally. No evidence established that Dr. Alanbari lacks the necessary skill to practice medicine safely because of a mental condition or even that Dr. Alanbari has ever had any mental condition that interfered with his ability to practice medicine. No evidence established that Dr. Alanbari is not of good moral character. Refusal to participate in the Physicians' Recovery Network five- day in patient evaluation is not a ground for refusal to issue a license by endorsement, or if it is, the board did not show it to be. See the Board's Proposed Recommended Order in which the refusal is not addressed and apparently dropped by the Board.
The Board was right to be concerned about Dr. Alanbari's licensure by endorsement when it was discovered that facts were at variance with the representations made on Dr. Alanbari's application. But, the facts proven by the Board do not establish the grounds the Board used for denial. Of the evidence offered by the Board in support of its case, the most disturbing is that Dr. Goetz was of the opinion that Dr. Alanbari needed an extensive in- patient evaluation because Dr. Alanbari had not been forthright in another evaluation. What the first evaluation consisted of, who conducted it, and the reliability of Dr. Goetz' conclusion remain a mystery because the Board did not introduce any evidence concerning it. Nor did the Board call Dr. Goetz to testify to give the opinion the foundation it needs to enable it to support a conclusion that the incorrect answers in his application were intentionally false. The grounds stated in the Board's order of denial were not supported by the minimal evidence produced by the Board.
In the final analysis, more information is needed by the Board in order to evaluate fully his application. The Board should request Dr. Alanbari to submit additional information such as the name of the psychiatrist who treated him in Toronto, the psychiatrist's business address, and the records of the treatment including information identifying the medication prescribed for Dr. Alanbari. If Dr. Alanbari is unable to obtain the records of his treatment he should give the Board a release that would allow the Board the authority, at least, to request the records, if they exist, from the psychiatrist.
It is, accordingly, RECOMMENDED:
That Dr. Alanbari be requested to submit additional information to the Board; and,
That Dr. Alanbari's application be denied if he does not submit such additional information within 30 days of the request.
If the Board does not choose to request additional information to clarify Dr. Alanbari's application then Dr. Alanbari should be certified by the Board to the Department for licensure by endorsement.
DONE AND ENTERED this 21st day of September, 1994, in Tallahassee, Florida.
DAVID M. MALONEY
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 21st day of September, 1994.
APPENDIX
Petitioner did not submit a proposed recommended order. Respondent's proposed findings of fact Nos. 1, 2, 3, 5, 7, 8 have been adopted, in substance, insofar as material.
With respect to Respondent's proposed finding of fact No. 4, it was the Board which framed the issues of the hearing in its denial order. Dr. Alanbari adopted those issues. In all other respects the finding is accepted.
With respect to Respondent's proposed finding of fact No. 6, Petitioner's representation was not fraudulent.
With respect to Respondent's proposed finding of fact No. 9, the representation was not fraudulent.
With respect to Respondent's proposed finding of fact No. 10, the first sentence of the finding is accepted. The remainder of the finding is rejected. Although counsel stated at hearing that correspondence had been sent to Petitioner inquiring about the Wilkes-Barre program, there was no evidence presented of such correspondence. Nor was there evidence that Petitioner's participation in the program was anything other than temporary. His assertion, therefore, was not false.
With respect to Respondent's finding of fact No. 11, the finding is accepted. The finding is relevant only to Petitioner's credibility. As explained in the body of the Recommended Order, under Petitioner's legitimate interpretation of the question, his answer was not false.
COPIES FURNISHED:
Amer Alanbari, M.D.
51 Layton Road Sussex, NJ 07461
Gregory A. Chaires, Esquire Allen R. Grossman, Esquire Assistant Attorneys General PL-01, The Capitol
Tallahassee, Florida 32399-1050
Marm Harris, Executive Director Board of Medicine
Northwood Centre
1940 North Monroe Street Tallahassee, FL 32399-0792
Jack McRay
Acting General Counsel Northwood Centre
1940 North Monroe Street Tallahassee, FL 32399-0792
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Jul. 12, 1996 | Corrected Final Order filed. |
| Sep. 21, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held 05/27/94. |
| Jul. 05, 1994 | (Petitioner) Proposed Recommended Order filed. |
| Jun. 23, 1994 | Transcript filed. |
| May 13, 1994 | Order sent out. (Petitioner to file petition by 5/20/94) |
| May 04, 1994 | (Respondent) Motion to Compel Petitioner To File A Petition Which States The Disputed Issues of Material Fact filed. |
| Apr. 25, 1994 | Notice of Hearing sent out. (hearing set for 5/27/94; at 10:00am; inTalla) |
| Apr. 12, 1994 | (Petitioner) Joint Response to Initial Order filed. |
| Mar. 29, 1994 | Initial Order issued. |
| Mar. 23, 1994 | Agency Referral Letter; (DBPR) Order filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 26, 1995 | Agency Final Order | |
| Sep. 21, 1994 | Recommended Order | Denied applicant for physician license by endorsement found not to have intentionally falsified application. More information needed by board. |
