STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, ) BOARD OF OSTEOPATHIC MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 99-0523

)

CHRISTOPHER WAYNE, D.O., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on June 2, 1999, with the Petitioner and the Respondent appearing in Miami, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Richard M. Ellis, Esquire

Agency for Health Care Administration Legal Department

2727 Mahan Drive, Building 3

Tallahassee, Florida 32308

For Respondent: Louise Jeroslow, Esquire

Kirkpatrick & Lockhart, LLP Miami Center, 20th Floor

201 South Biscayne Boulevard Miami, Florida 33131-2399

STATEMENT OF THE ISSUE

Whether the Respondent committed the violations set forth in the Amended Administrative Complaint dated November 19, 1998, and, if so, the penalty which should be imposed.

PRELIMINARY STATEMENT

In an Amended Administrative Complaint dated November 19, 1998, the Department of Health ("Department") charged in Count I that Christopher Wayne, D.O., violated Section 459.015(1)(x), Florida Statutes, by failing to practice osteopathic medicine at an acceptable level of care, skill, and treatment and in Count II that Dr. Wayne violated Section 459.015(1)(m), Florida Statutes, by making deceptive, untrue, or fraudulent representations related to the practice of osteopathic medicine. To support these charges, the Department alleged that, on two occasions,

Dr. Wayne impersonated a physician employed by his medical group and gave medical orders for that physician's patients, who were hospitalized in a hospital at which Dr. Wayne had no staff privileges.

Dr. Wayne timely requested a formal hearing on these charges, and the Department transmitted the file to the Division of Administrative Hearings for assignment of an administrative law judge. Pursuant to notice, the final hearing in this matter was held on June 2, 1999.

At the hearing, the Department presented the testimony of Agustin Andrade, M.D., the complainant; Ann Bravi, R.N., a nurse

employed by Parkway Regional Medical Center; Mary V. Breslin, Director of Quality Management at Parkway Regional Medical Center; and Marvin Malamut, D.O., who testified as the Department's expert witness. Petitioner's Exhibits A through G were offered and received into evidence. Petitioner's Composite Exhibit H, consisting of two pages, was offered into evidence but rejected; the Department proffered this exhibit as part of the record. At the Department's request and without objection, official recognition was taken of Chapter 64B15-19, Florida Administrative Code.

Dr. Wayne testified in his own behalf and presented the testimony of Barbara Strickland, a former employee in Dr. Wayne's office, and William Zubkoff, Administrator at South Shore Hospital. Respondent's Exhibits 1, 2, and 4 through 9 were offered and received into evidence; Respondent's Exhibit 3 was received into evidence solely for purposes of impeachment.

A transcript of the proceedings was filed with the Division of Administrative Hearings, and the parties timely filed proposed findings of fact and conclusions of law, which have been considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Board of Osteopathic Medicine is the entity responsible for imposing discipline on those licensed in Florida as osteopathic physicians. Section 459.015(2), Florida Statutes. The Department of Health is the state agency responsible for investigating and prosecuting disciplinary cases in which a probable cause panel of the Board of Osteopathic Medicine has found probable cause to support the filing of a formal complaint against a licensee. Section 455.621(4), Florida Statutes.

2. Christopher Wayne, D.O., was at the times material to this proceeding, and is currently, a licensed osteopathic physician in the State of Florida, specializing in family practice and certified by the American Osteopathic Board of Family Physicians.

3. Dr. Wayne operated at the times material to this proceeding, and currently operates, a primary care medical practice under the name of Dr. Christopher Wayne, D.O., Incorporated ("Company"). At the times material to this proceeding, the Company's office was located on the fifth floor in a building adjacent to the Mount Sinai Medical Center in Miami Beach, Florida.

4. At the times material to this proceeding, Dr. Wayne and the physicians employed in his practice had staff privileges at several hospitals and medical centers in the Dade County area. However, at the times material to this proceeding, Dr. Wayne did not have staff privileges at Parkway Regional Medical Center

   ("Parkway"). At least one physician employed by the Company, Agustin Andrade, had staff privileges at Parkway.

5. Dr. Wayne began discussions with Agustin Andrade with respect to his possible employment by the Company as a family practice physician in or around June 1995. Dr. Andrade is a medical doctor who completed a three-year residency in internal medicine and a two-year fellowship in endocrinology at the University of Miami, in Miami, Florida; he is board-certified in internal medicine and endocrinology. Dr. Andrade was also a citizen of Ecuador at the times material to this proceeding.

6. On July 7, 1995, Dr. Andrade signed an Employment Agreement with the Company, and he began working for the Company in October 1996. The delay was attributable to Dr. Andrade's need to obtain legal residency and authority to work in this country. He obtained legal residency and authorization to work in this country in June 1996, and he obtained his green card, representing the permanent right to stay in this country, in February 1997.

7. As part of the process for obtaining a green card,

   
   

   Dr. Andarde completed a HUD J-1 Visa Waiver Policy Affidavit and Agreement in which he agreed to the following conditions:

   1. I understand and agree that in consideration for a waiver, . . . I shall render primary medical services to patients, including the indigent, for a minimum of forty (40) hours per week within a USPHS designated HPSA. Such service . . . shall continue for a period of at least two (2) years.

   2. I agree to incorporate all the terms of this HUD J-1 Visa Waiver Affidavit and Agreement into any and all employment agreements I enter pursuant to paragraph 3 and to include in each such agreement a liquidated damages clause, of not less than

      $250,000 payable to the employer. This damages clause shall be activated by my termination of employment, initiated by me for any reason, only if my termination occurs before fulfilling the minimum two year service agreement.

8. Soon after he began working for the Company,

   
   

   Dr. Andrade's professional relationship with Dr. Wayne deteriorated rapidly for a variety of reasons. After two weeks, Dr. Andrade told Dr. Wayne that he wanted a raise because he had learned that the other physician employed by the Company at the time was paid a higher salary than he was paid. Dr. Andrade also accused Dr. Wayne of forcing him to engage in what Dr. Andrade termed "illegalities," of forcing him to see too many patients at too many different hospitals, and of requiring him to see pediatric patients, which he did not feel he was qualified to treat.

9. On January 7, 1997, Dr. Wayne and Dr. Andrade were the only physicians employed by the Company. On the evening of January 7, 1997, medical orders were given by telephone for three of Dr. Andrade's patients hospitalized at Parkway. The physician order forms indicate that the person giving the orders was

   Dr. Andrade. Dr. Andrade denies giving these orders, and he subsequently refused to accept responsibility for the orders by declining to sign them.

10. At around 8:00 p.m. on January 9, 1997, Dr. Andrade went to Parkway and spoke with the nurses in Parkway's surgical intensive care unit, specifically Ann Bravi, a registered nurse who has been employed at Parkway for twenty-eight years.

    Dr. Andrade told Nurse Bravi that someone was impersonating him and giving telephone orders for his patients. While Dr. Andrade was standing beside her, Nurse Bravi called Dr. Andrade's answering service regarding one of his patients. The call was returned by someone who identified himself to Nurse Bravi as

    Dr. Andrade and who told her that there would be "[n]o orders for now." Nurse Bravi cannot recall whether she telephoned the answering service at Dr. Andrade's request or on her own initiative, nor could she recall whether she called the answering service number noted on the patient's chart or called a number that Dr. Andrade gave her.

11. On Friday, January 10, 1997, Dr. Andrade terminated his employment with the Company, accusing Dr. Wayne of having breached the Employment Agreement by impersonating him with the staff at Parkway and by giving telephone orders on Dr. Andrade's patients at Parkway.

12. On Monday, January 13, 1997, Dr. Andrade was distributing business cards indicating that he was practicing medicine with another physician, whose offices were located on the first floor of the building in which the Company's office was located.

13. The Company has sued Dr. Andrade for damages resulting from breach of contract, and Dr. Andrade has sued Dr. Wayne for defamation. At the time of the final hearing, both lawsuits were pending in the Circuit Court of the 11th Judicial Circuit in and for Dade County, Florida.

14. If an osteopathic physician gives medical orders by telephone for a patient who is not his patient and who is hospitalized in a facility at which he does not have medical staff privileges, then that physician has acted in a manner inconsistent with ethics and the standard of care practiced by an osteopathic family physician. The osteopathic physician has further acted in a manner inconsistent with ethics and the standard of care practiced by an osteopathic family physician if that physician gives telephone orders using the name of another physician.

15. The evidence presented by the Department is insufficient to establish with the requisite degree of certainty that Dr. Wayne gave telephone orders for any of Dr. Andrade's patients at the Parkway Regional Medical Center or that he identified himself as Dr. Andrade in telephone conversations with staff at the Parkway Regional Medical Center.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of

    the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (1997).

17. Section 459.015(1), Florida Statutes, sets forth the grounds for disciplinary action by the Board of Osteopathic Medicine and includes the following violations:

    (m) Making deceptive, untrue, or fraudulent representations in or related to the practice of osteopathic medicine or employing a trick or scheme in the practice of osteopathic medicine.

    
    

    * * *

    
    

    (x) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar osteopathic physician as being acceptable under similar conditions and circumstances.

    
    

18. Section 459.015(2), Florida Statutes, provides that, among other penalties, the Board of Osteopathic Medicine may suspend or revoke the license of an osteopathic physician if the physician is found guilty of any of the violations set forth in Section 459.015(1).

    
    

19. Section 449.015(3), Florida Statutes, provides:

    
    

    In any administrative action against a physician which does not involve revocation or suspension of license, the division shall have the burden, by the greater weight of the evidence, to establish the existence of grounds for disciplinary action. The division shall establish grounds for revocation or suspension of license by clear and convincing evidence.

20. Because the Department requested in its Amended Administrative Complaint the imposition of penalties against Dr. Wayne up to and including suspension or revocation of his

    license to practice osteopathic medicine and the imposition of an administrative fine, the Department must prove the allegations in the Amended Administrative Complaint by clear and convincing evidence. In Nair v. Department of Business and Professional Regulation, Board of Medicine, 654 So. 2d 205, 206-07 (Fla.

    1st DCA 1995), the court held that

    
    

    [t]he revocation or suspension of a professional license is of sufficient gravity and magnitude to warrant a standard of proof greater than a mere preponderance of the evidence. (Citations omitted) The correct standard for revocation or suspension of a professional license is that the evidence must be clear and convincing.

    Even though the Department suggested in its Proposed Recommended Order a penalty of probation and the imposition of an administrative fine against Dr. Wayne, "[b]ecause the administrative action against appellant did 'involve revocation or suspension of license,' under the plain language of

    Section 458.331(3) [which contains language identical to that in Section 459.015(3)], the Department was required to prove its case by clear and convincing evidence." Id. at 207. The court in Nair rejected the argument by the Department of Business and Professional Regulation that proof by a preponderance of the evidence could support a lesser penalty than revocation or suspension. Id.

21. Clear and convincing evidence, as defined by the court in Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983),

    requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of conviction, without hesitance, as to the truth of the allegations sought to be established.

22. The testimony of Dr. Andrade and of Dr. Wayne cannot be reconciled, although, in light of all of the evidence, the testimony of Dr. Wayne is slightly more persuasive than that of Dr. Andrade. 1/ It is not, however, necessary for Dr. Wayne to prove his innocence in this proceeding. Rather, the Department must prove his guilt, and based on the findings of fact herein, the Department has failed to satisfy its burden of proving by clear and convincing evidence the truth of the allegations that, using Dr. Andrade's name, Dr. Wayne gave telephone orders for patients hospitalized at Parkway on January 7, 1997, or on January 9, 1997.

23. The only bit of evidence presented by the Department from a disinterested party was the testimony of Nurse Bravi that she was told by Dr. Andrade's answering service that the call she placed on January 9, 1997, had been sent to Dr. Wayne. This evidence cannot, however, form the basis for a finding of fact that Dr. Wayne did, indeed, impersonate Dr. Andrade and give telephone orders for Dr. Andrade's patients at Parkway because

    the evidence is hearsay, it does not explain or supplement any persuasive evidence in the record, 2/ and it would not be admitted over objection in a civil proceeding. See

    Section 120.57(1)(c), Florida Statutes.

    
    

24. Based on the findings of fact herein, the Department has not proven by clear and convincing evidence that Dr. Wayne violated Section 459.015(1)(m) or (x), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Osteopathic Medicine enter a final order dismissing the Amended Administrative Complaint against Christopher Wayne, D.O.

DONE AND ENTERED this 28th day of October, 1999, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

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 28th day of October, 1999.

ENDNOTES

1/ Dr. Andrade testified that Dr. Wayne telephoned him on the night of January 7, 1997, and told him that he, Dr. Wayne, had just identified himself as Dr. Andrade and had given telephone orders for three of Dr. Andrade's patients hospitalized at

Parkway. Dr. Wayne testified that he was paged by Parkway three times on the night on January 7, 1997, and that he did not answer any of the pages but, rather, called Dr. Andrade after the third page and told him to return the calls to Parkway.

Dr. Andrade testified that he discussed Dr. Wayne's alleged "impersonation" with him on January 8, 1997; Dr. Wayne testified that no such conversation took place.

Dr. Andrade testified that Dr. Wayne told him on January 9, 1997, that he, Dr. Wayne, intended to continue taking calls from Parkway, identifying himself as Dr. Andrade, and giving telephone orders for Dr. Andrade's patients hospitalized at Parkway.

Dr. Wayne testified that this conversation never took place.

Nurse Bravi testified that she could not identify the voice on the telephone on January 9, 1997, and that the only information she had regarding the identity of the caller was the information she received from the answering service that the call she placed had been directed to Dr. Wayne. Dr. Wayne denied having received any pages from Parkway on the night of January 9, 1997.

2/ Dr. Andrade's testimony that Dr. Wayne informed him on the afternoon of January 9, 1997, of his intention to impersonate Dr. Andrade, to respond to calls from Parkway, and to give medical orders for Dr. Andrade's patients, is specifically rejected as not credible.

COPIES FURNISHED:

Richard M. Ellis, Esquire

Agency for Health Care Administration Legal Department

2727 Mahan Drive, Building 3

Tallahassee, Florida 32308

Louise Jeroslow, Esquire Kirkpatrick & Lockhart, LLP Miami Center, 20th Floor

201 South Biscayne Boulevard Miami, Florida 33131-2399

Bill Buckhalt, Executive Director Board of Osteopathic Medicine Department of Health

1940 North Monroe Street Tallahassee, Florida 32399-0750

Angela T. Hall, Agency Clerk Department of Health

2020 Capital Circle, Southeast, Bin A02 Tallahassee, Florida 32399-1703

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: 99-000523

Orders for Case No: 99-000523