STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH OVADIA, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 96-3599F

)

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

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a final hearing was conducted in this case on January 13, 1997, by means of televideo link between Tallahassee, Florida, and Miami, Florida, before Michael M. Parrish, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: John Sutton, Esquire

7721 Southwest 62nd Avenue, Suite 101 South Miami, Florida 33143

For Respondent: Joseph Garwood, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317 STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner is entitled to an award of attorney’s fees and costs pursuant to Section 57.111, Florida Statutes, and, if so, the amount of such award.

PRELIMINARY STATEMENT

At the final hearing in this case the Petitioner testified on his own behalf and offered one exhibit, which was received in evidence. The Respondent presented the testimony of one witness and offered five exhibits, all of which were received in evidence.

At the conclusion of the final hearing the parties were allowed fifteen days from the filing of the transcript within which to file their proposed final orders. The transcript of the final hearing was filed with the Division of Administrative Hearings on January 30, 1997. Thereafter, both parties filed timely proposed final orders on February 14, 1997. The parties’ proposals have been carefully considered during the preparation of this Final Order.

FINDINGS OF FACT

1. The Petitioner, Joseph Ovadia, M.D., is a licensed physician in the State of Florida, having been so licensed since approximately April of 1985.

2. On or about October 10, 1994, the Respondent initiated an administrative action against the Petitioner, as directed by the Probable Cause Panel of the Board of Medicine in AHCA Case No. 93-17425, through the filing of an Administrative Complaint. The Administrative Complaint in AHCA Case No. 93-17425 charged the Petitioner with one count of making a deceptive, untrue, or fraudulent representation in or related to the practice of

   medicine, in violation of Section 458.331(1)(k), Florida Statutes. In the Administrative Complaint it was alleged that the Petitioner had stated under oath that he was Board Certified in Orthopedic Surgery when, in fact, he was not Board Certified in any medical specialty. A Corrected Administrative Complaint was subsequently filed against the Petitioner to correct a minor and irrelevant factual allegation. The Petitioner denied the allegations in the Corrected Administrative Complaint and requested a formal hearing on the matter. The proceeding was referred to the Division of Administrative Hearings, where it was docketed as DOAH Case No. 95-0322, and styled as Agency for Health Care Administration, Board of Medicine vs. Joseph Ovadia,

   M.D. Following a formal hearing before the Division of Administrative Hearings, a Recommended Order was issued in which it was recommended that the charge against the Petitioner be dismissed. Ultimately, the Board of Medicine issued a Final Order dismissing all charges against the Petitioner in DOAH Case No. 95-0322, and on August 2, 1996, the Petitioner filed a timely petition seeking an award of attorney’s fees and costs pursuant to Section 57.111, Florida Statutes.

3. The Petitioner, Joseph Ovadia, M. D., has been, at all times material to this proceeding, the sole proprietor of an unincorporated professional practice domiciled in this state with its principal office in this state. The Petitioner has never had

   more than three employees. The Petitioner’s net worth is less than two million dollars.

4. In the course of defending against the charges in DOAH Case No. 95-0322, the Petitioner incurred attorney’s fees in the amount of $4,190.001 and incurred costs in the amount of $201.50.

5. The administrative charges filed against the Petitioner arose from the following question and answer in the deposition testimony of the Petitioner taken on July 9, 1992, in a civil action involving injuries to a patient who had been examined by the Petitioner:

   Q. Are you Board Certified, Doctor?

   
   

   A. Yes.

   
   

6. At the time of the Probable Cause Panel meeting at which it was decided to file charges against the Petitioner, the information before the panel included a transcript of the deposition that included the above-quoted question and answer and an affidavit from the Executive Vice President of the American Board of Medical Specialties to the effect that the Petitioner was not Board Certified in Orthopedic Surgery. The panel did not have before it any evidence as to why the Petitioner gave that deposition answer or what the Petitioner’s intent was at the time he gave that answer.

7. The Petitioner's actual intent when he gave the subject deposition answer was described as follows in the findings of fact in the underlying case:

   9. The [Petitioner] is foreign-born and is a foreign medical graduate, having graduated from the Medical School at McGill University in Canada. Among graduates of Canadian medical schools it is common to refer to the examinations for licensure in the United States, such as those of the National Board of Medical Examiners or the Federation of State Medical Boards, as the 'boards.' When the [Petitioner] gave the answer described in paragraph [5] of these findings of fact he was thinking in terms of the Canadian jargon, rather than the American jargon. The [Petitioner] did not intend by the answer described in paragraph [5] to imply that he was board certified by the American Board of Orthopedic Surgeons. The [Petitioner] has never intentionally represented to anyone that he was board certified by the American Board of Orthopedic Surgeons.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sections 57.111 and 120.57(1), Florida Statutes.

9. The Petitioner is a “small business party” within the meaning of Section 57.111(3)(d), Florida Statutes (1966 Supp.).

10. The Petitioner is a “prevailing small business party” within the meaning of Section 57.111(3)(c)(1.), Florida Statutes (1966 Supp.).

11. Section 57.111(4)(a), Florida Statutes, provides:

    
    

    Unless otherwise provided by law, an award of attorney’s fees and costs shall be made to a prevailing small business party in any adjudicatory proceeding or administrative proceeding pursuant to chapter 120 initiated by a state agency, unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust.

12. And Section 57.111(3)(e), Florida Statutes, provides:

    
    

    A proceeding is 'substantially justified' if it had a reasonable basis in law and fact at the time it was initiated by a state agency.

    
    

13. At the time the agency initiated the underlying administrative proceeding against the Petitioner, it was well- settled law that the agency was required to prove its charges by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). It was also well-settled that in order to prevail on a charge of violation of Section 458.331(1)(k), Florida Statutes, it was necessary for the agency to prove that the subject of the charge willfully or intentionally testified to a falsehood. See Gentry v. Department of Professional and Occupational Regulation, State Board of Medical Examiners, 293 So.2d 95 (1st DCA 1974), in which the court said:2

    To constitute a violation, we believe the legislature intended that the misleading, deceptive and untrue representations must be made willfully (intentionally).

    
    

14. At the time the agency initiated the underlying administrative proceeding against the Petitioner, the Probable Cause Panel did not have any evidence before it regarding the Petitioner’s intent when he made the subject statement in the deposition. Specifically, the Probable Cause Panel did not have any evidence before it as to whether the Petitioner's deposition answer was given with an intent to deceive or was merely an inadvertent incorrect statement as a result of misunderstanding

    the question. Notably absent from the evidence before the Probable Cause Panel was any clear and convincing evidence of a specific intent on the part of the Petitioner to make a "deceptive, untrue, or fraudulent" statement. Such being the case, the Probable Cause Panel did not have a reasonable basis in law and fact for initiating the administrative proceeding against the Petitioner and that proceeding was not substantially justified.

15. There are no special circumstances in this proceeding which would make an award of attorney’s fees and costs unjust.

CONCLUSION

For all of the foregoing reasons, it is ORDERED:

That the Petitioner, Joseph Ovadia, M.D., is hereby awarded attorney’s fees in the amount of $4,190.00 and costs in the amount of $201.50.

DONE AND ORDERED this 28th day of March, 1997, in Tallahassee, Florida.

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1997.

ENDNOTES

1/ The figure of $4,190.00 is based on Respondent’s Exhibit Number 1, which is a copy of the affidavit submitted in support of the petition in this case. Petitioner’s Exhibit Number 1 and the Petitioner’s testimony contend that the Petitioner paid

$5,000.00 in attorney’s fees. Respondent’s Exhibit Number 1 contains a detailed itemization of the services performed for the

$4,190.00 described in that document. There is no evidence as to what services were performed for the additional $810.00 in attorney’s fees claimed at the final hearing. Absent a clear explanation of the basis for an additional amount of attorney’s fees claimed at the final hearing, the Petitioner’s award should not exceed the amount claimed at the time of filing his petition seeking an award of fees and costs.

2/ More recently the Gentry rationale was applied in Agency for Health Care Administration v. Douglas R. Shanklin, M.D., DOAH Case No. 94-5903 (Recommended Order issued May 3, 1995, Final Order issued June 10, 1995.)

COPIES FURNISHED:

John Sutton, Esquire

7721 Southwest 62nd Avenue, Suite 101 South Miami, Florida 33143

Joseph Garwood, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

Dr. Marm Harris, Executive Director Board of Medicine

Agency for Health Care Administration 1940 Monroe Street

Tallahassee, Florida 32399-0792

Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32309

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate district where the party resides. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 96-003599F

Orders for Case No: 96-003599F