STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ADOLFO C. DULAY, M.D., )

)

Petitioner, )

)

vs. ) Case No. 98-4880F

)

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was held in this case on April 1, 1999, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Diane Cleavinger.

APPEARANCES

For Petitioner: Richard B. Collins, Esquire

Ryan Garrett, Esquire Post Office Drawer 12429

Tallahassee, Florida 32317-2429

For Respondent: John E. Terrel, Esquire

Agency for Health Care Administration

1580 Waldo Palmer Lane Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

The issue is whether Petitioner, as a prevailing small business party in an administrative action, should be awarded attorney's fees and costs pursuant to the Florida Equal Access to Justice Act, Section 57.111(4)(a), Florida Statutes.1

PRELIMINARY STATEMENT

An Administrative Complaint was filed with the Agency for Health Care Administration, now a representative of the Department of Health, on March 26, 1997, alleging that the Petitioner/Respondent had violated Section 458.331(1)(t) and (m), Florida Statutes, by Respondent's (Petitioner in this proceeding) failing to recognize the severity of patient T.H.'s systolic blood pressure and heart rate, and by directing the ambulance to South Georgia Medical Center, thereby delaying the patient's arrival at a treatment facility. Further, it was alleged that Respondent failed to record communications with the Emergency Medical Services about patient T.H. and to record Respondent's decision to transfer T.H. The Respondent (Petitioner in this proceeding) requested a formal hearing before an Administrative Law Judge from the Division of Administrative Hearings. A formal hearing was held on December 2-4, 1997, in Madison, Florida. On June 2, 1998, the Administrative Law Judge filed a Recommended Order recommending that the Board of Medicine dismiss the Administrative Complaint against the Petitioner/Respondent.

Petitioner filed a Petition for Attorney's Fees and Costs on July 2, 1998, pursuant to Section 57.111, Florida Statutes; the Equal Access to Justice Act; and Section 57.041, Florida Statutes. On July 21, 1998, Respondent filed a Motion to Dismiss, or in the alternative, Response to the Petition, requesting an evidentiary hearing. This Court entered an Order

on September 4, 1998, dismissing the petition because the issue was not ripe for litigation since no final order had been entered by the Board. The Board of Medicine approved and adopted the Administrative Law Judge's Recommended Order on August 7, 1998.

On September 15, 1998, the Board of Medicine filed its Final Order adopting the conclusions of law and the findings of fact in the Recommended Order. On October 27, 1998, Petitioner filed a Renewed Petition for Attorney's Fees and Costs. On November 16, 1998, Respondent filed a Motion to Dismiss, or in the Alternative, Response to Renewed Petition for Attorney's Fees and Costs.

A formal hearing was held on April 1, 1999, in Tallahassee, Florida. Petitioner filed the following exhibits with the Division:

1. Composite Exhibit, Final Order, Recommended Order, and Complaint;

2. Request for Admissions regarding the

   $15,000 in attorneys' fees;

3. Excerpts from the February 26, 1998, deposition of Richard W. Blanchar (the Court asked that a complete copy of the deposition be provided) (the deposition was admitted over Respondent's objection).

The Respondent filed the following exhibits with the Division:

1. Investigative Report with attached exhibits;

2. Probable Cause Transcript;

3. Expert Report of Richard Blanchar dated October 14, 1996.

The parties filed their Proposed Final Order on April 26, 1999.

FINDINGS OF FACT

1. Petitioner is a licensed physician in the State of Florida, having been issued license number ME 0027368.

2. The parties by their response or by stipulation agreed that this matter was filed pursuant to Section 57.111, Florida Statutes, and Rule 60Q-2.031, Florida Administrative Code; that the actions in AHCA Case No. 95-03216 were initiated by the Agency for Health Care Administration, an agent for Department of Health, a state agency; that the Agency is not a nominal party only; that the attorney's fees sought by Petitioner are reasonable in the amount up to $15,000.00 and that the statutory cap of $15,000.00 applies; and that the Petitioner prevailed in the underlying case. Respondent also stipulated that it was aware of no circumstances that exist which would make the award unjust.

3. Petitioner, Adolfo Cardenas Dulay, M.D., is a small business party within the meaning of Section 57.111, Florida Statutes.

4. The Administrative Complaint in DOAH Case No. 97-3103 was filed March 26, 1997, against Petitioner.

5. The Complaint alleged Petitioner's failure to recognize the severity of a patient's condition by directing an ambulance to another facility, failing to keep records regarding the patient's condition, failure to treat a hypertensive emergency and very high heart rate, failing to document an order for

   Procardia and the decision to transfer a patient, failing to keep written records justifying the course of treatment of a patient, and failing to practice medicine at a level accepted by prudent similar physicians under similar conditions and circumstances.

6. Pursuant to Section 455.225, Florida Statutes, Petitioner was notified of the investigation and invited to submit a response to the allegations.

7. Petitioner and his attorney, submitted a letter from an attorney dated August 8, 1995. This was the only response provided by Respondent to the allegations. Petitioner chose not to present any expert opinions to the Probable Cause Panel.

8. The Probable Cause Panel that considered this matter was composed of two physicians, who were or are, Board of Medicine members and a consumer member of the Board of Medicine, as required by statute.

9. Present at the March 20, 1997, meeting of the Probable Cause Panel were Panel members Robert Katims, M.D., Chairman of the Panel; Becky Cherney; and Louis C. Murray, M.D. Also present at the meeting were Allen R. Grossman, Acting Board Counsel; Randy Collette, Senior Attorney for the Agency; Jim Cooksey of Investigations; and Deborah Marshal, Administrative Assistant, Agency for Health Care Administration.

10. Prior to the Probable Cause meeting of March 20, 1997, the members of the Probable Cause Panel received the entire

    investigative file, including all medical records and the expert opinion of Dr. Blanchar offered by Respondent.

11. The only expert opinion available to the Probable Cause Panel on March 20, 1997, was that of Dr. Richard W. Blanchar, who admitted that he had not engaged in a similar practice of emergency medicine since 1989, eight years before this matter was considered. However, Dr. Blanchar did have sufficient experience in emergency medicine to qualify as an expert witness. The lack of recent practice goes to the weight given Dr. Blanchar’s opinion.

12. Prior to consideration of the case, Mr. Grossman advised the Panel that any questions concerning interpretation of the law or rules, or what the Panel's duties were, should be directed to him.

13. Mr. Grossman also advised the panel that the responsibility of the attorney for the Agency is to explain the facts of the case, the reason why the Agency is making the recommendation, and to answer any questions concerning those facts in the recommendation or investigation.

14. The Probable Cause Panel members discussed this matter, reached a determination, and voted for a finding of Probable Cause for alleged violations of Sections 458.331(1)(t) and 458.331(1)(m), Florida Statutes.

15. On March 20, 1997, the Probable Cause Panel issued a memorandum stating:

    This matter was brought before the Probable Cause Panel membership composed of Robert Katims, M.D., Chairperson and Louis C. Murray, M.D. and Becky Cherney on the date set forth above. The Panel, having received the investigative report, having carefully reviewed that report, having reviewed the recommendation of the Agency, and having had the opportunity to inquire of counsel and being otherwise duly advised in the premises thereof, find that: Probable Cause was found on the following statutory and rule grounds, including but not limited to Sections 458.33(1),(t), and (m), Florida Statutes.

16. Moreover, it is clear from the record in the underlying case that the evidence regarding diagnosis and appropriate treatment of the patient were in dispute. Dr. Blanchar was found to have sufficient qualifications as an expert in this matter. Dr. Dulay's experts and their expertise and opinions clearly outweighed those of the Department's expert and the issue was resolved in Dr. Dulay's favor. However, there was a dispute of fact in this case and the Department clearly had sufficient cause to go forward with the underlying action. Therefore, Petitioner is not entitled to an award of attorney's fees and costs.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over this subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

18. The Petitioner bears the initial burden of proving that he was a small business party at the time the underlying adjudicatory proceeding pursuant to Chapter 120, Florida Statutes, was initiated by a state agency, and that he prevailed.

    Once this showing is made, the burden shifts to the Respondent to demonstrate that its actions were substantially justified or that special circumstances exist which would make the award unjust.

    Department of Professional Regulation, Division of Real Estate v. Toledo Realty, Inc., 549 So. 2d 715 (Fla. 1st DCA 1989).

19. Section 57.111(4)(a), Florida Statutes, provides that unless the actions of the agency were substantially justified or there are special circumstances that would make an award unjust, an award of attorney's fees and costs shall be made to the prevailing small business party from any adjudicatory proceeding or administrative proceeding held pursuant to Chapter 120, Florida Statutes, initiated by a state agency.

20. Section 57.111(3)(d)(1)(a) and (b) and (3)(d)(2), Florida Statutes, defines a small business party as:

1.a. A sole proprietor of an unincorporated business, including a professional practice, whose principal office is in this state, who is domiciled in this state, and whose business or professional practice has, at the time the action is initiated by a state agency, not more than 25 fill-time employees or a net worth of not more than $2 million, including both personal and business investments, or;

b. A partnership or corporation, including a professional practice, which has its principal office in this state and has at the time the action is initiated by a state agency not more than 25 full-time employees or a net worth of not more than $2 million, or;

2. Either small business party as defined in subparagraph 1., without regard to the number of its employees or its net worth, in any

action under s. 72.011 or in any administrative proceeding under that section to contest the legality of any assessment of tax imposed for the sale or use of services as provided in chapter 212, or interest thereon, or penalty therefor.

Petitioner has met the statutory definition of a small business entity under Section 57.111, Florida Statutes, and Respondent has agreed to such determination.

1. It has been stipulated that Petitioner was a prevailing party in the underlying case. This in itself does not mean that the Respondent lacked substantial justification in its initiation of proceedings against Petitioner. Section 57.111(3)(e), Florida Statutes, defines "substantially justified" as:

   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. (Emphasis added.)

   
   

2. The purpose of Section 57.111, Florida Statutes, the Florida Equal Access to Justice Act (FEAJA), as stated in Section 57.111(2), Florida Statutes, is to diminish the deterrent effect on certain persons from seeking review of, or defending against, unreasonable governmental action because of the expense of civil actions and administrative proceedings. Grand Boulevard Improvement Association v. City of Chicago, 553 F. Supp. 1154, 1161 (N.D. III. 1982).

3. Section 57.111(4)(a), Florida Statutes, provides for attorney's fees "unless the actions of the agency were substantially justified." As stated in Ashburn:

   The fact that the government lost its case does not raise a presumption that the government's position was not substantially justified . . . . Nor is the government required to establish that its decision to litigate was based on a substantial probability of prevailing.

   
   

   Ashburn v. United States, 740 F.2d 843 (11th Cir. 1984). Further, the agency's failure to establish even a prima facie case does not mean that its position was not substantially justified. Enerhaul, Inc. v. N.L.R.B., 710 F.2d 748, 750 n.3 (11th Cir. 1983).

4. In order to determine whether Respondent's initiation of action against the Petitioner was substantially justified, one must determine whether the agency had a reasonable basis in law and fact to allege that a violation had occurred.

5. In order to sustain a finding of Probable Cause, it is necessary that there be "some evidence considered by the panel that would reasonably indicate that the violations alleged had indeed occurred." Kibler v. Department of Professional Regulation, 418 So. 2d 1081 at 1984 (Fla. 4th DCA 1982). In the present case, the Probable Cause Panel considered the investigative report, including the Petitioner's letter, the opinion of Dr. Blanchar, and the complaint letter from the patient's doctor. From those documents, it was reasonable for the Panel to conclude that a violation of Section 458.331(1)(t) and (m), Florida Statutes, had taken place.

6. Further, simply because the determination to prosecute essentially turns on a credibility assessment of experts does not mean that the governmental body did not have a reasonable basis in law and fact. The panel is simply making a decision on probable cause. It is not reaching a conclusion as to guilt or innocence. Gentele, O.D. v. Department of Professional Regulation, 513 So. 2d 672 (Fla. 1st DCA 1987).

7. Section 455.621, Florida Statutes (formerly Section 455.225, Florida Statutes), suggests that ". . . an investigative report may be the most substantial and relevant evidence necessary to assist the panel in rendering a decision of whether probable cause exists for the issuance of a formal complaint against a licensee." Department of Professional Regulation, Division of Real Estate v. Toledo Realty, Inc., 549 So. 2d 715, (Fla. 1st DCA 1989).

8. The panel clearly had a reasonable basis in both law and fact to find probable cause against Dr. Dulay. Therefore, Petitioner is not entitled to an award of attorney’s fees and costs.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ordered that the Petitioner's Application for Award of Attorney's Fees and Costs is dismissed for the reasons cited herein.

DONE AND ORDERED this 30th of June, 1999, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 30th of June, 1999.

ENDNOTE

1/ Petitioner withdrew his Petition for Costs pursuant to Section 57.041, Florida Statutes.

COPIES FURNISHED:

Richard B. Collins, Esquire Ryan Garrett, Esquire

Post Office Drawer 12429 Tallahassee, Florida 32317-2429

John E. Terrel, Esquire Agency for Health

Care Administration 1580 Waldo Palmer Lane

Tallahassee, Florida 32308

Tanya Williams, Executive Director Board of Medicine

Department of Health 1940 North Monroe Street

Tallahassee, Florida 32399-0750

Pete Peterson, General Counsel Department of Health

Bin A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701

Angela T. Hall, Agency Clerk Department of Health

Bin A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703

NOTICE OF RIGHT TO APPEAL

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 the 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: 98-004880F

Orders for Case No: 98-004880F