STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 94-4292

)

LEROY A. SMITH, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on April 5, 1994, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kevin W. Crews, Esquire

Albert Peacock, Esquire

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

Tallahassee, Florida 32399-0792

For Respondent: Thomas T. Grimmett, Esquire

633 South Federal Highway, Suite 400 Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUES

1. Whether Respondent committed the violations alleged in the Amended Administrative Complaint?

   
   

2. If so, what disciplinary action should be taken against him?

PRELIMINARY STATEMENT

On May 27, 1994, the Department of Business and Professional Regulation (hereinafter referred to as the "Department") issued a six-count Amended Administrative Complaint against Respondent, a Florida-licensed medical doctor specializing in orthopedics, alleging that he violated: (Count One) Section 458.331(1)(w), Florida Statutes, in that he "delegated responsibilities to a person not qualified by licensure to perform them by referring patients to Deborah F. Cowart, an unlicensed psychologist for biofeedback and psychotherapy" at the Center for Psychological and Diagnostic Services; (Count Two) Section 458.331(1)(h), Florida Statutes, in that he "filed false reports in the practice of medicine by billing for unnecessary biofeedback and psychotherapy treatments for Patient #1's [W.K.'s] lumbosacral and cervical strain;" (Count Three) Section 458.331(1)(t), Florida Statutes, in that he "failed to practice medicine

with an acceptable level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances [inasmuch as his] course of treatment, biofeedback therapy, [of W.K.] proved unnecessary;" (Count Four) Section 458.331(1)(n), Florida Statutes, in that he "exploited Patient #1 for financial gain by facilitating Ms. Cowart's provision of concurrent intensive and unnecessary psychotherapy sessions for Patient #1's back injury with Patient #1's biofeedback therapy;" (Count Five) Section 458.331(1)(v), Florida Statutes, in that he "practiced beyond the scope of his professional responsibilities as an orthopedist [by] functioning as a psychological center's medical director, and, thereby, supervised the psychotherapy and biofeedback treatments Ms. Cowart provided to Patient #1;" and (Count Six) Section 458.331(1)(i), Florida Statutes, in that he "received a kickback for patients referred to a provider of health care goods and services when he referred patients to Ms. Cowart for biofeedback therapy and psychotherapy." In the Amended Administrative Complaint, the Department indicated that it was "request[ing] that the Board of Medicine enter an Order imposing one or more of the following penalties: revocation or suspension of the Respondent's license, restriction of the Respondent's practice, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, and/or any other relief that the Board deems appropriate."

Respondent denied the allegations of wrongdoing made against him in the Amended Administrative Complaint and requested a formal hearing. On August 2, 1994, the Department's successor, the Agency for Health Care Administration (hereinafter referred to as the "Agency"), 1/ referred the matter to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the formal hearing Respondent had requested.

The hearing was held on April 5, 1995. 2/ At the hearing, a total of five witnesses testified: Lucille Markowitz, an Investigator Specialist II with the Agency; Howard Rothwell, a large loss specialist with Cigna Insurance Company; Deborah F. Cowart, Ph.D., the psychologist referenced in the Amended Administrative Complaint; John Mahoney, M.D., a Florida-licensed physician, board-certified in orthopedic surgery, who gave expert testimony on behalf of Respondent; and Respondent. In addition to the live testimony of these five witnesses, the parties offered a total of ten exhibits into evidence (Petitioner's Exhibits 1 through 8 and Respondent's Exhibits 1 and 2).

Petitioner's Exhibit 2 was rejected. The remaining exhibits were received into evidence. Among these exhibits were the transcripts of two depositions taken of Jeffrey S. Penner, M.D., who, like Respondent's expert, Dr. Mahoney, is a Florida-licensed physician, board-certified in orthopedic surgery. These transcripts were offered in lieu of Dr. Penner's live expert testimony at hearing.

Following the conclusion of the evidentiary portion of the hearing, the Hearing Officer, on the record, established a deadline for the filing of post- hearing submittals. The deadline set by the Hearing Officer was 10 days from the date of the Hearing Officer's receipt of the transcript of the hearing.

The Hearing Officer received the hearing transcript on April 24, 1995. The Agency filed a proposed recommended order ten days later on May 4, 1995.

Respondent filed a proposed recommended order the following day.

The proposed recommended orders submitted by the parties each contain, what have been labelled as, "proposed findings of fact." These "proposed findings of fact" are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. The Agency is a state government licensing and regulatory agency.

   
   

2. Respondent is now, and has been since approximately 1968 or 1969, a physician licensed to practice medicine in the State of Florida. He holds license number ME 0014162. 3/

   
   

3. Since the completion of his residency in December of 1971, Respondent has specialized in orthopedics. He currently is chief of orthopedics at Broward General Hospital.

   
   

4. Respondent has not had any training in psychotherapy other than that which he received in a psychiatry class that he was required to take in medical school.

   
   

5. His training in biofeedback is limited to that which he received during his residency over a period of three or four years as a result of his involvement in the treatment, with biofeedback, of approximately 15 or 20 patients.

   
   

6. Deborah F. Cowart has a M.S. degree in counseling/guidance that she received from Nova University in 1981 and a Ph.D. degree in clinical psychology that she received from Kensington University in California in 1985.

   
   

7. Although she is now, and has been since January 31, 1991, licensed as a mental health counselor in the State of Florida, at no time material to the instant case did Dr. Cowart hold a license to engage in mental health counseling or any profession regulated by the state.

   
   

8. In 1986, Dr. Cowart opened the Center for Psychological and Diagnostic Services (hereinafter referred to as the "Center") in Fort Lauderdale.

   
   

9. The Center provided pain management counseling and biofeedback services to those suffering from chronic pain. (Biofeedback is recognized in the medical community as an acceptable therapeutic modality for the treatment of chronic pain.)

   
   

10. Dr. Cowart was the operator and sole owner, through a professional association, of the Center. In addition to her administrative duties, she worked at the Center as a therapist directly providing pain management counseling and biofeedback services to patients.

    
    

11. At all times material to the instant case, Respondent was the Center's medical director. Initially, he served in this capacity pursuant to an oral agreement that he had with Dr. Cowart. In or around the latter part of 1990, the agreement was reduced to writing.

12. As medical director, Respondent was a member of the Center's pain management team. He did orthopedic consultations. In addition, he conferred with the Center's two therapists, Dr. Cowart and Philip Schmidt, concerning the progress of their patients and, based upon the information they furnished him, determined, with regard to each patient discussed, whether the course of treatment and therapy the patient was receiving was medically appropriate and necessary and should continue. In this respect, Respondent "supervised" Dr. Cowart and Schmidt. At no time, however, did Respondent ever advise Dr. Cowart or Schmidt as to how they should perform the pain management counseling and biofeedback services they provided their patients, nor was he physically present when these services were rendered.

    
    

13. Respondent himself never provided such services to any of the Center's patients.

    
    

14. In his role as the Center's medical director, Respondent was not required to, nor did he, perform any task he was not qualified to perform.

    
    

15. When Dr. Cowart first approached Respondent about becoming the Center's medical director, she offered to pay him a "stipend" of $1,000.00 a month for his services. Dr. Cowart, however, subsequently determined that she was not able to pay Respondent that large a stipend. She and Respondent thereafter agreed that she would pay him whatever she deemed to be appropriate, given the number of hours Respondent devoted to his medical director duties and her ability to pay him. 4/

    
    

16. In 1988 and 1989, Dr. Cowart paid Respondent $2,970.00 and $7,475.00, respectively, for serving as the Center's medical director.

    
    

17. During the time that he was the Center's medical director, Respondent referred orthopedic patients of his to the Center.

    
    

18. He did not receive a kickback from Dr. Cowart for making these referrals.

    
    

19. While Dr. Cowart made payments to Respondent, these payments were made to compensate Respondent for performing his duties as the Center's medical director, not for referring patients to the Center.

    
    

20. One of the patients that Respondent referred to the Center was W.K., a thirty-year old man suffering from arm, neck and back pain as a result of an on- the-job injury.

    
    

21. W.K. had been referred to Respondent by his employer's workers' compensation insurance carrier "for a second opinion."

    
    

22. Respondent first saw W.K. on April 8, 1986. On this initial visit, he took a history from W.K. and examined him. Respondent's impression was that

    W.K. had an "acute cervical sprain resolving" and "acute lumbar sprain resolving."

    
    

23. Respondent referred W.K. to the Center on May 20, 1986, after determining that W.K.'s problem was more of a "psychological" one and that there was little, if anything, that he was able to do orthopedically to help W.K.

24. Respondent made the referral, not for his own or Dr. Cowart's personal gain, but because he reasonably believed that it was in W.K.'s best interest to receive the services that the Center provided.

    
    

25. At the time he made the referral, as well as at all other times material to the instant case, Respondent did not know, nor did he have reason to believe, that Dr. Cowart was not qualified, by training, experience or licensure, to perform these services. 5/

    
    

26. Pursuant to Respondent's authorization, Dr. Cowart held a total of approximately 111 or 116 pain management counseling and biofeedback therapy sessions with W.K., for which she sought and received payment from Cigna Insurance Company.

    
    

27. With Respondent's permission, Dr. Cowart put Respondent's Florida medical license number on the insurance claim forms she submitted to Cigna.

    
    

28. In filling out the claim forms, Dr. Cowart used the procedure code for "psychotherapy," 90844, to bill for the pain management counseling services provided W.K. She believed that, in so doing, she was using the correct procedure code to describe these services. 6/

    
    

29. Respondent did not have any reason to believe that any of the information on the forms Dr. Cowart filled out was false.

    
    

30. Throughout the period that W.K. received treatment at the Center, Dr. Cowart and Respondent conferred on a regular basis to discuss W.K.'s case.

    
    

31. Based upon what Dr. Cowart told him about the progress W.K. was making and what he knew about W.K. as a result of his contact with the patient, Respondent authorized the continuation of the pain management counseling and biofeedback therapy W.K. was receiving at the Center.

    
    

    CONCLUSIONS OF LAW

    
    

32. The Board of Medicine (hereinafter referred to as the "Board") is statutorily empowered to take disciplinary action against a physician licensed to practice medicine in the State of Florida based upon any of the grounds enumerated in Section 458.331(1), Florida Statutes.

    
    

33. Where the disciplinary action sought is the revocation or suspension of the physician's license, the proof of guilt must be clear and convincing. See Section 458.331(3), Fla. Stat.; Nair v. Department of Business and Professional Regulation, 20 FLW D983 (Fla. 1st DCA April 21, 1995); Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Pic N' Save v. Department of Business Regulation, 601 So.2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation, 592 So.2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So.2d 500 (Fla. 3d DCA 1991). "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." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

34. Where the discipline does not involve the loss of licensure, the physician's guilt need be established by only a preponderance of the evidence. See 458.331(3), Fla. Stat.; Allen v. School Board of Dade County, 571 So.2d 568, 569 (Fla. 3d DCA 1990).

35. Regardless of the disciplinary action taken, it may be based only upon the violations specifically alleged in the administrative complaint. See Klein

    v. Department of Business and Professional Regulation, 625 So.2d 1237, 1238 (Fla. 2d DCA 1993); Celaya v. Department of Professional Regulation, Board of Medicine, 560 So.2d 383, 384 (Fla. 3d DCA 1990); Kinney v. Department of State,

    501 So.2d 129, 133 (Fla. 5th DCA 1987); Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So.2d 1324, 1325 (Fla. 1st DCA 1985); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).

    
    

36. Furthermore, in determining whether Section 458.331(1), Florida Statutes, has been violated in the manner charged in the administrative complaint, one "must bear in mind that it is, in effect, a penal statute. . . This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations, 348 So.2d 923, 925 (Fla. 1st DCA 1977).

    
    

37. In the instant case, because the Amended Administrative Complaint seeks, among other penalties, the revocation or suspension of Respondent's medical license, the Agency had the burden of proving Respondent's guilt of the violations specifically alleged in the Amended Administrative Complaint by clear and convincing evidence.

    
    

38. Count One of the Amended Administrative Complaint alleges that Respondent violated Section 458.331(1)(w), Florida Statutes, in that he "delegated responsibilities to a person not qualified by licensure to perform them by referring patients to Deborah F. Cowart, an unlicensed psychologist for biofeedback and psychotherapy" at the Center.

    
    

39. At all times material to the instant case, Section 458.331(1)(w), Florida Statutes, has authorized the taking of disciplinary action against a Florida-licensed physician for "[d]elegating professional responsibilities to a person when the licensee delegating such responsibilities knows or has reason to know that such person is not qualified by training, experience, or licensure to perform them."

    
    

40. While the evidence establishes that Respondent referred patients of his for supportive psychotherapy and biofeedback services to Dr. Cowart, a psychologist who at the time was unlicensed, the Agency has failed to clearly and convincingly demonstrate that, at the time he made these referrals, Respondent knew or had reason to believe that Dr. Cowart was not qualified by training, experience, or licensure to perform these services. Accordingly, Count One of the Amended Administrative Complaint should be dismissed.

    
    

41. Count Two of the Amended Administrative Complaint alleges that Respondent violated Section 458.331(1)(h), Florida Statutes, in that he "filed false reports in the practice of medicine by billing for unnecessary biofeedback and psychotherapy treatments for Patient #1's [W.K.'s] lumbosacral and cervical strain."

42. At all times material to the instant case, Section 458.331(1)(h), Florida Statutes, has authorized the taking of disciplinary action against a Florida-licensed physician for "[m]aking or filing a report which the licensee knows to be false," where the report is "signed in the [physician's] capacity as a licensed physician."

    
    

43. While the evidence establishes that Respondent let his medical license number be used on the bills referenced in Count Two of the Amended Administrative Complaint, the Agency has failed to clearly and convincingly demonstrate that it was Respondent who filed or submitted these bills or that Respondent knew that any of the information on these bills was false. Accordingly, Count Two of the Amended Administrative Complaint should be dismissed.

    
    

44. Count Three of the Amended Administrative Complaint alleges that Respondent violated Section 458.331(1)(t), Florida Statutes, in that he "failed to practice medicine with an acceptable level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances [inasmuch as his] course of treatment, biofeedback therapy, [of W.K.] proved unnecessary."

    
    

45. At all times material to the instant case, Section 458.331(1)(t), Florida Statutes, has authorized the taking of disciplinary action against a Florida-licensed physician for "[g]ross 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."

    
    

46. The Agency has failed to present clear and convincing evidence that any of the biofeedback therapy Respondent authorized for W.K. was unnecessary. Accordingly, Count Three of the Amended Administrative Complaint should be dismissed. 7/

    
    

47. Count Four of the Amended Administrative Complaint alleges that Respondent violated Section 458.331(1)(n), Florida Statutes, in that he "exploited Patient #1 [W.K.] for financial gain by facilitating Ms. Cowart's provision of concurrent intensive and unnecessary psychotherapy sessions for Patient #1's back injury with Patient #1's biofeedback therapy."

    
    

48. At all times material to the instant case, Section 458.331(1)(n), Florida Statutes, has authorized the taking of disciplinary action against a Florida-licensed physician for "[e]xercising influence on a patient or client in such a manner as to exploit the patient or client for financial gain of the licensee or of a third party, which shall include, but not be limited to, the promoting or selling of services, goods, appliances, or drugs."

    
    

49. While the evidence establishes that Respondent "facilitat[ed]" Dr. Cowart's provision of supportive psychotherapy and biofeedback therapy to W.K., the Agency has failed to clearly and convincingly demonstrate that he did so for anyone's benefit other than W.K. Accordingly, Count Four of the Amended Administrative Complaint should be dismissed.

    
    

50. Count Five of the Amended Administrative Complaint issued in the instant case alleges that Respondent violated Section 458.331(1)(v), Florida Statutes, in that he "practiced beyond the scope of his professional responsibilities as an orthopedist [by] functioning as a psychological center's

    medical director, and, thereby, supervised the psychotherapy and biofeedback treatments Ms. Cowart provided to Patient #1 [W.K.]."

    
    

51. At all times material to the instant case, Section 458.331(1)(v), Florida Statutes, has authorized the taking of disciplinary action against a Florida-licensed physician for "[p]racticing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities which the licensee knows or has reason to know that he is not competent to perform."

    
    

52. While the evidence establishes that Respondent "supervised the psychotherapy and biofeedback treatments Ms. Cowart provided to [W.K.]," to the extent that he determined, from a medical perspective, whether these treatments were appropriate and should continue, the Agency has failed to clearly and convincingly demonstrate that, in providing such supervision or in undertaking any other task in connection with his care and treatment of W.K., he performed any act that he knew or had reason to believe was beyond the scope of his competence. Accordingly, Count Five of the Amended Administrative Complaint should be dismissed.

    
    

53. The final count of the Amended Administrative Complaint, Count Six, alleges that Respondent violated Section 458.331(1)(i), Florida Statutes, in that he "received a kickback for patients referred to a provider of health care goods and services when he referred patients to Ms. Cowart for biofeedback therapy and psychotherapy."

    
    

54. At all times material to the instant case, Section 458.331(1)(i), Florida Statutes, has authorized the taking of disciplinary action against a Florida-licensed physician for "[r]eceiving any commission, bonus, kickback, or rebate, or engaging in any split-fee arrangement in any form whatsoever with a physician, organization, agency, or person, either directly or indirectly, for patients referred to providers of health care goods and services, including, but not limited to, hospitals, nursing homes, clinical laboratories, ambulatory surgical centers, or pharmacies. The provisions of this paragraph [of Section 458.331(1), Florida Statutes, however, may] not be construed to prevent a physician from receiving a fee for professional consultation services."

    
    

55. While the evidence establishes that Respondent referred patients of his to Dr. Cowart and that he received payments from Dr. Cowart, the Agency has failed to clearly and convincingly demonstrate that these payments were for Respondent's referral of patients to Dr. Cowart or for anything else other than the services he provided as the Center's medical director. Accordingly, Count Six of the Amended Administrative Complaint should be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board of Medicine enter a final order dismissing the Amended Administrative Complaint issued against Respondent in its entirety.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of May, 1995.

STUART M. LERNER

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 23rd day of May, 1995.

ENDNOTES

1/ Effective July 1, 1994, pursuant to Chapter 93-129, Laws of Florida, the Agency was transferred the authority that the Department had previously possessed to regulate the practice of medicine in this state, including the licensure of those engaging in such practice. On that date, it therefore became the Department's successor in this proceeding.

2/ The hearing was originally scheduled to commence on January 12, 1995, but was rescheduled for April 5, 1995, at Respondent's request.

3/ Respondent also holds licenses to practice medicine in Indiana, Illinois, Texas, Nevada, and California, but these licenses are inactive. At no time has he ever had any medical license revoked.

4/ Respondent would have provided his services gratis as a favor to Dr. Cowart had she not offered to pay him.

5/ Dr. Cowart gave Respondent the impression that she was fully qualified to provide these services.

6/ Pain management counseling is considered a type of supportive psychotherapy.

7/ In its proposed recommended order, the Agency argues that Respondent violated Section 458.331(1)(t), Florida Statutes, by continuing to prescribe biofeedback therapy for W.K. "without actually examining the patient." The Amended Administrative Complaint, however, does not charge Respondent with any wrongdoing based on a failure to examine W.K. and therefore Respondent may not be found guilty of such wrongdoing.

APPENDIX TO RECOMMENDED ORDER

The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the parties in their proposed recommended orders:

The Agency's Proposed Findings

1-10. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

1. To the extent that this proposed finding states that Respondent either signed or allowed Dr. Cowart to use his medical license number on the bills submitted to Cigna Insurance Company for the pain management counseling and biofeedback therapy W.K. received at the Center, it has been accepted and incorporated in substance. To the extent that it states that Respondent billed and was paid by Cigna for these services, it has been rejected because it lacks sufficient evidentiary/record support.

2. To the extent that this proposed finding states that Dr. Cowart never performed supportive psychotherapy on W.K., it has been rejected because it lacks sufficient evidentiary/record support. To the extent that it states that Respondent never performed any psychotherapy on W.K., it has been accepted and incorporated in substance.

3. Accepted and incorporated in substance.

4. To the extent that this proposed finding states that Philip Schmidt was also unlicensed, it has been rejected because it is beyond the scope of the allegations set forth in the Amended Administrative Complaint. Otherwise, it has been accepted and incorporated in substance.

5. To the extent that this proposed finding states that Respondent billed Cigna for supportive psychotherapy and biofeedback sessions, it has been rejected because it lacks sufficient evidentiary/record support. To the extent that this proposed finding states that the Center billed Cigna for supportive psychotherapy and biofeedback sessions, it has been accepted and incorporated in substance.

6. Accepted and incorporated in substance.

7. To the extent that this proposed finding states that Dr. Cowart ordered additional pain management counseling and biofeedback therapy for W.K. based only on what Dr. Cowart told him about W.K.'s progress, it has been rejected because it lacks sufficient evidentiary/record support. To the extent that it states that Respondent ordered such services based, in part, on what Dr. Cowart told him about W.K.'s progress, it has been accepted and incorporated in substance.

8. To the extent that this proposed finding states that Respondent ordered excessive biofeedback therapy for W.K., it has been rejected because it lacks sufficient evidentiary/record support. To the extent that it states that Respondent ordered such therapy without examining W.K., it has been rejected because it is beyond the scope of the allegations set forth in the Amended Administrative Complaint.

9. Rejected because it lacks sufficient evidentiary/record support.

Respondent's Proposed Findings

1-2. Accepted and incorporated in substance.

3. Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact.

4-5. Accepted and incorporated in substance.

1. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact.

3. Rejected as a finding of fact because it is more in the nature of a summary of evidence adduced at hearing and argument regarding the significance thereof than a finding of fact.

4. Rejected as a finding of fact because it is more in the nature of a summary of evidence adduced at hearing than a finding of fact.

5. First sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact; Second and third sentences: Accepted and incorporated in substance.

11-12. Accepted and incorporated in substance.

1. First sentence: Accepted and incorporated in substance; Second sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact.

2. Rejected as a finding of fact because it is more in the nature of a summary of evidence adduced at hearing and argument thereon than a finding of fact.

3. Rejected as a finding of fact because it is more in the nature of a summary of evidence adduced at hearing than a finding of fact.

16-17. Accepted and incorporated in substance.

1. First sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact; Second sentence: Accepted and incorporated in substance.

2. First sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact; Last sentence: Accepted and incorporated in substance; Remaining sentences: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

3. Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact.

4. Accepted and incorporated in substance.

5. First sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact; Second sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

6. Accepted and incorporated in substance.

7. First sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact; Second sentence: Accepted and incorporated in substance.

8. Rejected because, even if true, it would not affect the outcome of the instant case.

9. Accepted and incorporated in substance.

10. To the extent that this proposed finding states that Respondent has never been subject to disciplinary action of any type by any disciplinary board, it has been rejected because it lacks sufficient evidentiary/record support. To the extent that it states that Respondent has never had any license revoked and that he is currently the chief of orthopedics at Broward General Hospital, it has been accepted and incorporated in substance.

11. Accepted and incorporated in substance.

1. (The Respondent's proposed recommended order does not contain a proposed finding of fact 29 or 30). First sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact; Remaining sentences: Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact.

3. Accepted and incorporated in substance.

4. Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact.

5. Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

6. Not incorporated in this Recommended Order because it is subordinate. 37-44. Rejected as findings of fact because they are more in the nature of

summaries of testimony adduced at hearing than findings of fact.

45. Not incorporated in this Recommended Order because it is subordinate. 46-49. Rejected as findings of fact because they are more in the nature of

summaries of testimony adduced at hearing than findings of fact.

COPIES FURNISHED:

Kevin W. Crews, Esquire Albert Peacock, Esquire Agency for Health Care

Administration

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Thomas Grimmett, Esquire

633 South Federal Highway, Suite 400 Fort Lauderdale, Florida 33301

Dr. Marm Harris, Executive Director Board of Medicine

Agency for Health Care Administration

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jerome H. Hoffman, Esquire General Counsel

Agency for Health Care Administration

The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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 of time 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.

Docket for Case No: 94-004292

Orders for Case No: 94-004292