STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD KOENIG, D.P.M., )

)

Petitioner, )

)

vs. ) Case No. 97-5057

) DEPARTMENT OF HEALTH, BOARD OF ) PODIATRIC MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Mary Clark, held a formal hearing in the above-styled case on February 17, 1998, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Eric B. Tilton

Gustafson, Tilton, Henning & Metzger, P.A. Suite 200

204 South Monroe Street Tallahassee, Florida 32301

For Respondent: John J. Rimes, III

Office of Attorney General The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUES

The central issue in this case is whether Richard Koenig, D.P.M., should be licensed as a podiatrist in the State of Florida. More specifically, this case must determine these issues: whether Richard Koenig, D.P.M., has practiced podiatry

in the past at an acceptable standard of care as required by Section 461.013(1)(s), Florida Statutes; whether he fraudulently misrepresented material facts on his application for licensure as a podiatrist in violation of Section 461.013(1)(a), Florida Statutes; and whether his application to become licensed as a podiatrist is barred on grounds of administrative res judicata because of the Board of Podiatry's denial of his application in 1994-1995.

PRELIMINARY STATEMENT

In May 1997, Richard Koenig, D.P.M. (Dr. Koenig) submitted his application for licensure by examination to the Florida Board of Podiatry (Board). The application was subsequently deemed to be complete. Dr. Koenig appeared before the Board on July 25, 1997, and at that meeting the Board voted to deny his application. The Board issued and filed its order on October 6, 1997. On October 22, 1997, Dr. Koenig timely filed his petition requesting a formal administrative hearing.

At the hearing Dr. Koenig testified on his own behalf. The Board presented no witnesses. The parties offered one composite exhibit each which were received in evidence without objection.

The parties submitted their proposed recommended orders on March 9, 1998. Their proposed findings of fact have been considered and utilized in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Dr. Koenig is an applicant for licensure as a podiatrist in the State of Florida. He is presently licensed to practice podiatry in the State of Missouri and was previously licensed in Illinois and Florida. Both of the latter licenses have expired. Dr. Koenig meets all criteria for licensure in Florida other than the grounds for denial cited by the Board in its Notice of Intent to Deny and described in the Statement of the Issues, above.

2. The Board is responsible for certifying individuals who are qualified to become licensed as podiatrists and the Department of Health is responsible for issuing the licenses after the Board's certification.

3. Dr. Koenig permitted his Florida license to lapse while he practiced in Missouri. He initially sought to be licensed again in this state in 1994. At that time, his application to sit for the examination, and thereafter to be licensed, was denied by the Board. Dr. Koenig requested a hearing on the denial before the Division of Administrative Hearings (DOAH) and a case was opened as DOAH Case No. 95-0570. Dr. Koenig later dismissed his petition and the DOAH file was closed. The earlier denial thus became final.

4. Dr. Koenig reapplied for licensure in 1997. It is this application which is the subject of the instant proceeding.

   Dr. Koenig has already taken and passed the national podiatric licensure examination in Louisiana in 1997, thus meeting the examination requirement.

5. Dr. Koenig was involved in approximately eleven podiatric malpractice cases during his practice in Missouri in the 1980's and early 1990's. Eight of the cases were settled by his insurance carrier. Three additional cases were pending at the time of Dr. Koenig's initial application in 1994. Of these three, Dr. Koenig prevailed at trial in two cases. The third case has been voluntarily dismissed by the plaintiff and has not been refiled.

6. Dr. Koenig has not been engaged in the practice of podiatry as his primary professional activity since 1993-1994.

   He occasionally provides podiatric services as part of his commitment to the U.S. Navy, but he has primarily been engaged in developing and marketing two devices for use in podiatric and related services and has been teaching.

7. Dr. Koenig received and reviewed the 1994 Board Notice of Intent to Deny Application for Examination and Licensure prior to filing his 1997 licensure application. In addition, he was aware that he had dismissed his petition to review that decision and the Board's decision was thus final. Nevertheless when called upon to state in the 1997 application whether he had ever been denied licensure as a podiatrist, Dr. Koenig answered "No." (Petitioner's Exhibit No. 1) This answer was false.

8. Question five of the application for podiatry licensure reads: "Has any podiatry license held by you ever been acted upon, suspended or revoked, or have you ever been denied

   licensure?" Dr. Koenig's explanation concerning his negative answer to this question was that he thought he was being denied the right to take the examination, which was a condition required before he could be licensed. His understanding is supported by a reading of the minutes of the Board meeting at which the decision was made: "Dr. Simmonds moved to deny Dr. Koenig from taking the examination based on not having the ability to practice Podiatric Medicine at a level of care and safety." (Petitioner's Exhibit No. 1)

9. However, the Board sent, and Dr. Koenig received, a Notice of Intent to Deny Application for Examination and Licensure. While that document plainly states that he was both being denied the right to take the examination and the right to be licensed, he did not focus on the second point--the right to be licensed. Dr. Koenig offered his explanation to the Board at its meeting on July 25, 1997, and when asked about the application question, he stated, "Because it is a misunderstanding. I make a differentiation between being denied a license and being denied the opportunity to sit for a license, and I may be wrong, and I stand corrected if I am, but that's what my intention was." (Petitioner's Exhibit No. 1, Transcript pp. 21-22). He understood that the Board was denying him the right to take the examination, an essential element of his application process. Dr. Koenig's explanation has been

   consistent throughout this proceeding, both before the Board and in the formal hearing.

10. Although Dr. Koenig did answer the question incorrectly, his explanation that he did so without any fraudulent intent is entirely credible. Had there been an intent to defraud the Board regarding his application, Dr. Koenig might have avoided disclosing the malpractice suits which resulted in the Board's earlier decision to deny him licensure.

11. Those malpractice suits are no longer an appropriate basis to deny licensure.

12. Dr. Koenig is a Board-certified podiatrist and is a Fellow of the American College of Foot and Ankle Surgeons. One becomes Board-certified by taking an examination, by meeting practice requirements, and by submitting a number of medical cases to the Board for evaluation. Only about 10 percent of all podiatrists are Board-certified. Dr. Koenig's specialty is foot surgery and he has operated more often than a podiatrist in standard practice.

13. Dr. Koenig has written several articles in peer- reviewed journals, and has spoken widely in the United States and elsewhere at various continuing medical education seminars. A frequent topic of his speeches involves the use of an implant which he developed to replace the big toe joint. This implant is patented, approved as a safe device by the FDA, and is covered by

    Medicare and Medicaid. Dr. Koenig has developed and marketed a special shoe for patients who have had foot surgery.

14. There have been no Medicare or Medicaid complaints brought against Dr. Koenig and he maintains Medicare and Medicaid provided numbers.

15. The two lawsuits which went to a jury verdict were decided in his favor and there are no lawsuits pending now. The multiple claims of malpractice occurred when he was actively engaged in foot surgery practice in Missouri. His insurance carrier, without consulting him, settled those claims. After he changed carriers and contested the claims, he has prevailed.

16. The Board in this proceeding presented no evidence that Dr. Koenig has practiced below the standard of care. Nor did it refute his credible testimony.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.57(1), Florida Statutes.

18. Chapter 461, Florida Statutes, is the statute regulating the licensing and disciplining of podiatrists. Section 461.006, Florida Statutes, established standards for licensure by examination. Among those standards established in Section 461.006, Florida Statutes, is the requirement that candidates not be in violation of the standards set forth in Section 461.013, Florida Statutes.

19. Dr. Koenig, as applicant, bears the burden of demonstrating his fitness to practice medicine in compliance with the statutory requirements. Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977); Florida Department of Transportation v. J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981).

20. The Board denied Dr. Koenig's application based on the following:

    1. There have been repeated claims of your practicing below the standard care. See Section 461.013(1)(s), Florida Statutes.

       
       

    2. Your attempting to obtain a license by fraudulent misrepresentation by denying on your recent application that you had ever been denied licensure. See Section 461.013(1)(a), Florida Statutes.

       
       

21. The statute does not prohibit licensure because of repeated claims of practicing below the standard of care. The statute speaks to repeated malpractice (not relevant here because there are no claims paid in the last five years) or the "failure to practice podiatric medicine at a level of care, skill and treatment which is recognized by a reasonable prudent podiatrist as being acceptable." Since there is no record evidence of such a failure, and indeed, there is competent evidence to contrary, Dr. Koenig proved he meets the standard of care required by Section 461.013(1)(s), Florida Statutes.

22. The Board has the burden of proof by a preponderance of evidence on the issue that Dr. Koenig attempted to obtain his

    license by fraudulent misrepresentation. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996).

23. "Fraudulent misrepresentation" requires a showing of intent or a willful effort to deceive or mislead. Munch v. Department of Professional Regulation, Division of Real Estate,

    592 So. 2d 1136 (Fla. 1st DCA 1992); Walker v. Department of Business and Professional Regulation, 705 So. 2d 652 (Fla. 5th DCA 1998). The Board failed to make that showing; moreover, Dr. Koenig's explanation for his patent blunder was entirely credible.

24. Finally, the Board argues that licensure is precluded by its previous final order denying Dr. Koenig's application because of his numerous malpractice claims.

25. Florida subscribes to the doctrine of administrative res judicata or "the law of the case" and has held, as a general rule, agencies cannot revisit final orders, once issued. Wood v. Department of Professional Regulation, Board of Dentistry, 490 So. 2d 1079 (Fla. 1st DCA 1986); Thomson v. Department of Environmental Regulation, 511 So. 2d 989, (Fla. 1987). The Board candidly observes that administrative res judicata is not as formulaic as is the judicial variety. The Supreme Court in Thomson, supra, 991, recognized the changing landscape upon which administrative agencies act and provided a rule of reasoned analysis when it stated:

    The proper rule in a case where a previous permit application has been denied is that res judicata will apply only if the second application is not supported by new facts, changed conditions, or additional submissions by the applicant. [citation omitted].

    
    

26. Contrary to the Board's assertion, circumstances have changed in Dr. Koenig's case. Since 1994 he has been exonerated in the only two cases which went to trial and the plaintiff has abandoned its complaint in a third case. The licensing statute does not bar unsuccessful applicants from ever applying again and it would make no sense to conclude that an acknowledged surfeit of malpractice claims would forever preclude licensure in Florida no matter what the outcome of those claims might be.

27. Dr. Koenig has met his burden of proving entitlement to licensure.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED: that a Final Order be entered granting Dr. Koenig's license to practice podiatry in the State of Florida.

DONE AND ENTERED this 24th day of April, 1998, in Tallahassee, Leon County, Florida.

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 1998.

COPIES FURNISHED:

John J. Rimes, III

Office of Attorney General The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Eric B. Tilton

Gustafson, Tilton, Henning & Metzger, P.A. Suite 200

204 South Monroe Street Tallahassee, Florida 32301

Angela T. Hall, Agency Clerk Department of Health Building 6

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 Eric G. Walker, Executive Director

Board of Podiatry Department of Health 1940 North Monroe Street

Tallahassee, Florida 32399-0792

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 must be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 97-005057

Orders for Case No: 97-005057