STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4220

) HERBERT RICHARD SLAVIN, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on January 30, 1997, in Fort Lauderdale, Florida, before Errol H. Powell, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Albert Peacock, Esquire

Edward M. Lerner, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Andrea L. Wolfson, Esquire

Wolfson and Konigsburg, P.A. 4491 South State Road 7

Suite 314

Davie, Florida 33314 STATEMENT OF THE ISSUE

The issue for determination is whether Respondent committed the offenses set forth in the administrative complaint and, if so, what action should be taken.

PRELIMINARY STATEMENT

On July 29, 1996, the Agency for Health Care Administration, Board of Medicine (Petitioner) filed an administrative complaint against Herbert Richard Slavin, M.D. (Respondent). Petitioner charged Respondent with violating Subsection 458.331(1)(x), Florida Statutes, by violating a lawful order of the Petitioner previously entered in a disciplinary hearing. By an Election of Rights, Respondent disputed the allegations of fact in the administrative complaint and requested a formal hearing. On September 6, 1996, this matter was referred to the Division of Administrative Hearings.

At hearing, Petitioner presented the testimony of four witnesses, with one witness being Respondent,1 and entered five exhibits into evidence. Respondent did not testify in his own behalf or present any witnesses and entered one exhibit into evidence.

A transcript of the hearing was ordered. At the request of the parties, the time set for filing post-hearing submissions was set for more than ten days following the filing of the transcript. The parties submitted proposed findings of fact which have been considered in this recommended order.

FINDINGS OF FACT

1. At all times material hereto, Herbert Richard Slavin (Respondent) was a licensed physician in the State of Florida having been issued license number ME 0036889.

2. On April 21, 1995, the Agency for Health Care Administration, Board of Medicine (Petitioner) filed its Final Order in Case No. 91-05473, DOAH Case No. 93-3931, in which an administrative complaint had been filed against Respondent. Petitioner concluded in the Final Order that Respondent had violated Chapter 458, Florida Statutes, and as penalty, among other things, placed Respondent on probation for one (1) year, with conditions, including the limitation that Respondent could practice medicine only under the indirect supervision of a licensed physician who was approved by Petitioner or its Probationer's Committee as Respondent's monitoring physician. The Final Order was effective April 21, 1995.

3. Respondent appealed the Final Order. On July 19, 1995, Petitioner granted Respondent a stay of its Final Order during the pendency of Respondent's appeal.

4. On March 1, 1996, the appellate court issued its Mandate commanding compliance with its opinion. Although the appellate court's opinion was not entered into evidence and neither party offered testimony regarding the substance of the opinion, neither party disputes that the appellate court affirmed Petitioner's Final Order. Consequently, an inference is drawn and a finding is made that the appellate court's opinion affirmed Petitioner's Final Order. Commensurate with the Mandate, Petitioner's disciplinary action against Respondent, previously imposed by the Final Order, became effective.

5. On April 19, 1996, Respondent obtained temporary approval of his monitoring physician, with formal approval to be subsequently made by Petitioner's Probationers Committee. On May 23, 1996, Petitioner's Probationers Committee approved the monitoring physician.

6. At all times material hereto, Respondent was employed by the Institute of Advanced Medicine (Institute) as its Medical Director.

7. As Medical Director of the Institute, Respondent's responsibilities include overseeing the activities of the Institute, supervising the Institute's nurse practitioner, and interpreting blood work.

8. On April 8, 1996, three patients, R. G., F. S., and

   
   

   C. B., presented to the Institute.

   
   

9. R. G., a male patient, had been receiving treatment from Respondent for approximately two years. He presented to Respondent's office for his regular physical examination. R.G. was examined by a nurse, including taking his blood pressure, and blood was drawn. Respondent was not present at the office. R. G. was not seen by any other physician.

10. F. S., a 91 year old male patient, regularly presents to Respondent's office for blood work and presented on April 8, 1996, for that same purpose. Respondent was not present at his office. F. S. was not seen by any other physician.

11. C. B., a male patient, had been receiving treatment from Respondent for approximately two and one-half years. He presented to Respondent's office for a regular blood analysis. Blood was drawn by a nurse. Respondent was not present at his office. C. B. was not seen by any other physician.

12. On April 8, 1996, the nurse practitioner was present at Respondent's office. The nurse practitioner treated and diagnosed the patients and reviewed the results of blood work.

13. On April 8, 1996, even though Respondent was not present at the Institute, he had the responsibility of supervising the nurse practitioner; however, another physician was available at the time, to supervise the nurse practitioner.2

14. On April 8, 1996, Respondent did not order any blood work, review lab results, or consult with the nurse practitioner.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto, pursuant to Subsection 120.57(1), Florida Statutes.

16. License revocation proceedings are penal in nature. The burden of proof is upon Petitioner to establish the truthfulness of the allegations in the administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1963).

17. Section 458.331, Florida Statutes (1995), provides in pertinent part:

    1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

       
       

       * * *

       
       

       (x) Violating . . . a lawful order of the board or department previously entered in a disciplinary hearing . . . .

       
       

18. Petitioner has demonstrated by clear and convincing evidence that between March 1, 1996, and April 19, 1996, as the result of a previous disciplinary action, Respondent was prohibited from practicing medicine. As a result, Respondent violated Subsection 458.331(1)(x) if he was engaging in the practice of medicine on April 8, 1996.

19. Subsection 458.305(3), Florida Statutes (1995), defines the “practice of medicine” as “the diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical or mental condition.” A physician’s physical presence or hands-on contact is not required for the practice of medicine.

20. Subsection 464.012(3), Florida Statutes (1995), provides that a nurse practitioner shall perform functions within the framework of an established protocol and that a licensed physician “shall” supervise the nurse practitioner for directing the specific course of medical treatment. Consequently, although on April 8, 1996, the nurse practitioner performed medical

    functions on the three patients, supervision of the nurse practitioner by a licensed physician was required.

21. The practice of medicine includes directing the course of treatment. Physical presence is not required to supervise and direct the course of treatment. Therefore, supervision of the nurse practitioner in the performance of the medical functions on April 8, 1996, constitutes the practice of medicine.

22. Petitioner failed to demonstrate that Respondent violated Subsection 458.331(1)(x). Even though on April 8, 1996, the nurse practitioner performed medical functions which required supervision by a licensed physician, Respondent has shown that another physician was available to supervise the nurse practitioner.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Board of Medicine enter a final order dismissing the administrative complaint against Herbert Richard Slavin, M.D.

DONE AND ENTERED this 11th day of June, 1997, in Tallahassee, Florida.

ERROL H. POWELL

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 11th day of June, 1997.

ENDNOTES

1/ Neither party called an expert.

2/ Petitioner presented no evidence or testimony to refute or contradict.

COPIES FURNISHED:

Albert Peacock, Esquire Edward M. Lerner, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32308-5403

Andrea Wolfson, Esquire

4491 South State Road 7, Suite 314

Davie, Florida 33314

Dr. Marm Harris, Executive Director Agency for Health Care

Administration

1940 North 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 SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-004220

Orders for Case No: 96-004220