STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID S. ENGELHARDT, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 95-1719

)

AGENCY FOR HEALTH )

CARE ADMINISTRATION )

BOARD OF MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on June 11, 1996, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Robert S. Cohen, Esquire

Pennington & Culpepper Post Office Box 10095

Tallahassee, Florida 32302-2095

For Respondent: Allen R. Grossman, Esquire

Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050 STATEMENT OF ISSUE

The issue for determination is whether Petitioner misrepresented or concealed a material fact on his application regarding his qualifications for licensure to practice medicine in the State of Florida.

PRELIMINARY STATEMENT

By Order dated August 10, 1994, Respondent denied Petitioner's application for licensure by endorsement.

Petitioner timely sought formal administrative proceedings to contest Respondent's denial. Subsequently, the matter was transferred to the Division of Administrative Hearings for conduct of formal hearings pursuant to Section 120.57(1), Florida Statutes.

At the final hearing, the parties presented two joint exhibits. Petitioner presented two additional exhibits and testified on his own behalf. Respondent presented one additional exhibit, but called no witnesses.

The transcript of the final hearing was filed with the Division of Administrative Hearings on July 22, 1996.

Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Petitioner's application for licensure by endorsement was filed November 30, 1993. By order dated August 10, 1994, Respondent denied Petitioner's application on the basis of Petitioner's "less than favorable evaluation" from Robert Packer Hospital; Petitioner's failure "to list training at Wilson Memorial Regional Medical Hospital" on the application; Petitioner's termination from the Wilson Memorial Regional Medical Center training program due to "academic and behavioral problems"; and Petitioner's inability to "practice with skill and safety."

   
   

2. Petitioner's first post graduate training was a three year residency program in internal medicine at Robert Packer Hospital in Sayre, Pennsylvania. Petitioner participated in that program during the period 1984-85, and received an overall evaluation denominated as "Recommend with some Reservation" from Fredrick D. Rose, M.D. at Robert Packer Hospital. The only lower evaluation that could have been received, as denoted on the evaluation form, was a "Cannot Recommend." There were two evaluation ratings higher than that rating received by Petitioner, "Recommend as Qualified and Competent" and "Recommend as Outstanding Applicant." Subsequent to his evaluation, Petitioner was not offered a contract permitting him to continue for a second year in the three year program.

   
   

3. Respondent's application form, completed and submitted by Petitioner, required that Petitioner set forth a chronological listing of all postgraduate training (including internship, residency, and fellowship) from date of graduation to the present. Directions on the application required the applicant to "[a]ccount for all time from date of graduation medical school to present.

   DO NOT LEAVE OUT ANY TIME". Petitioner responded by listing training at Robert Packer Hospital in the specialty of internal medicine for the time period of July 1, 1984 to July 1, 1985.

   
   

4. Petitioner did not list on the application, or his curriculum vitae (CV) which was attached to the application, his participation in postgraduate training at Wilson Regional Memorial Medical Center (Wilson Memorial) in the specialty of family medicine from July 1989 to June 1990.

   
   

5. By letter to the Board of Medicine dated January 1, 1994, Petitioner stated that the omission of training at Wilson Memorial had occurred in an effort to avoid "more delay in the application process."

   
   

6. In an appearance before the Board of Medicine's credentials committee on July 8, 1994, Petitioner testified under oath that he lied on his application when he omitted disclosing the Wilson Memorial training program on the application, and that he did so because "it looked bad" since he had not finished the program. He also testified to the committee that he did not think the Wilson Memorial residency program was relevant to the application since he did not receive "any kind of credit" for the program. To the contrary, Petitioner received eight months credit for his participation in the Wilson Memorial residency program, a 12 month program.

7. As established by his testimony at the final hearing, Petitioner was aware that failure to list all training on the application would jeopardize his ability to obtain a license.

   
   

8. The application also required that Petitioner list in chronological order from date of graduation to present, all practice experience and/or employment. Petitioner responded on the application with the written notation "see CV [curriculum vitae]."

   
   

9. Petitioner's CV, submitted with the application, represented that he was an "ER attending" during the period 1989-90 at St. Joseph's Hospital in Elmira, New York, and was working full time there.

   
   

10. Petitioner further testified to the Board of Medicine's credentials committee meeting on July 8, 1994, that his preparation of the CV was "half- hearted" and that "it [the document] wouldn't contribute anything." Petitioner's CV concludes with his handwritten certification that the document is "true and accurate."

    
    

11. During Petitioner's participation in the residency program at Wilson Memorial, he moonlighted as an emergency room physician at St. Joseph's Hospital. While on call as a resident, Petitioner either paid other residents to cover his duties at Wilson Memorial, or he called in sick in order to be available for work at St. Joseph's Hospital.

    
    

12. As established by Petitioner's testimony at the final hearing, the ability to be accurate and truthful reflects on the ability to practice medicine with skill and safety.

    
    

    CONCLUSIONS OF LAW

    
    

13. Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.

    
    

14. Petitioner bears the burden of demonstrating his fitness to practice medicine. Fla. DOT v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA, 1981).

    
    

15. Subsection 458.331(1)(gg), Florida Statutes, states that Respondent may impose disciplinary action for the concealment or misrepresentation of a material fact "at any time during any phase of a licensing or disciplinary process or procedure."

    
    

16. Subsection 458.331(2), Florida Statutes, in pertinent part, reads as follows:

    
    

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

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

       or registration.

17. To determine whether Petitioner's mispresentations were material, consideration should be given to the function of the Board of Medicine and its review of applications for licensure. The purpose of information provided in submitted applications is to provide the Board with a starting point for its ultimate determination of an applicant's fitness to practice.

    
    

18. Petitioner's misrepresentation, through omissions of information from his application regarding his attendance and later termination from the training program at Wilson Memorial, was intentional and clearly ignored the factual information required by the application. Such misrepresentation constitutes a violation of Section 458.331(1)(gg), Florida Statutes.

    
    

19. Petitioner's admission of intentional omission of information from the application because it "looked bad" demonstrates that he lacks the ability to be accurate and truthful, an integral ingredient to being able to practice medicine with skill and safety.

    
    

20. Petitioner's own admissions and other proof establish that Petitioner misrepresented or concealed material facts in the application process and supports a determination that he is not entitled to licensure in the State of Florida on the basis of this application.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying Petitioner's application.

DONE and ENTERED this 19th day of August, 1996, in Tallahassee, Leon County, Florida.

DON W. DAVIS, 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 19th day of August, 1996.

APPENDIX

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's Proposed Findings.

1.-5. Rejected, unnecessary to result reached.

1. Adopted generally.

2. Incorporated by reference. 8.-10. Subordinate to HO findings.

11.-12. Adopted, not verbatim.

13.-14. Not supported by weight of the evidence.

15. Rejected, unnecessary.

16.-19. Subordinate to HO findings. 20.-23. Rejected, relevance.

24.-26. Rejected, subordinate.

Respondent's Proposed Findings.

1.-7. Adopted, but not verbatim.

8. Rejected, unnecessary to result.

COPIES FURNISHED:

Robert S. Cohen, Esquire Pennington & Haben

Post Office Box 10095 Tallahassee, Florida 32302-2095

Allen R. Grossman, Esquire Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Jerome Hoffman, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308-5403

Dr. Marm Harris, Executive Director Board of Medicine

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0750

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.

Docket for Case No: 95-001719

Orders for Case No: 95-001719