STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 99-2326

)

ARTHUR SETH PORTNOW, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on February 17 and 18, 2000, in Jacksonville, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Stephen F. Dean.

APPEARANCES

For Petitioner: John E. Terrel, Esquire

Agency for Health Care Administration

Post Office Box 14229 Tallahassee, Florida 32317-4229

For Respondent: Donald W. Weidner, Esquire

Thomas Bowden, Esquire Weidner & Winicki

11265 Alumni Way, Suite 201

Jacksonville, Florida 32246-6685 For Baker & Gilmore, M.D., P.A.:

Christine C. Whitney, Esquire Christine C. Whitney, P.A.

225 West 5th Street Jacksonville, Florida 32206

STATEMENT OF THE ISSUE

Whether the Respondent should be disciplined for violation of Section 458.33(1)(k), Florida Statutes.

PRELIMINARY STATEMENT

In a one-count Administrative Complaint dated May 17, 1999, the board charged the Respondent with fraudulently representing he was certified in internal medicine and cardio-vascular disease in an application for employment and presenting fraudulent credentials. This complaint was amended on May 24, 1999, because of a scrivener's error that did not amend the allegations. The Respondent requested a formal hearing, and the matter was referred to the Division of Administrative Hearings on May 25, 1999. The case was initially set for hearing by notice dated June 17, 1999, by the undersigned. The case was continued once, but re-set for February 17 and 18, 2000, by order and notice dated November 9, 1999. The case was heard as noticed.

At hearing, the Petitioner presented the testimony of

Scott B. Baker, M.D., and John Connor. The Petitioner sought to introduce Exhibits 1 through 9, and 12. Respondent's

evidentiary objections to Exhibits 1, 2, 3, 8, and 9 were sustained, and they were excluded from the factual record of this case. The Petitioner was permitted to make a proffer of these exhibits for appellate review. The Respondent presented

the testimony of Alan R. Treiman, M.D.; John Puleo, M.D.; and Richard B. Seely, M.D., and introduced Respondent's Exhibit 1. The Respondent also proffered a question about the Respondent addressed to Dr. Baker.

Following the hearing, both parties submitted proposed findings in the form of Proposed Recommended Orders that were read and considered. The Petitioner's Proposed Recommended Order discusses and offers for consideration matters that were excluded from the record at hearing. Ordinarily, this material would be ignored without comment. In this case, however, consideration by the Board of these materials, which were excluded by the undersigned for evidentiary reasons about which the Board has no special expertise, could have serious procedural repercussions including preventing the Board from initiating further prosecution based upon them.

These matters relate to acts alleged to have been committed by the Respondent that were not charged in the Administrative Complaint. Their introduction was the subject of an emergency motion in limine prior to hearing, which resulted in an oral order to the parties excluding them. They were subsequently moved at hearing, objected to, and the objection sustained.

They constitute separate factual allegations and statutory violations unrelated to the violations initially alleged. These matters are properly the subject of another administrative

complaint. Respondent recites in his emergency motion in limine that he offered to waive probable cause determination to permit amendment to the Administrative Complaint in order that these new issues could be joined at the scheduled hearing. The Petitioner apparently rejected this offer because there was no amendment. The Respondent has raised certain double jeopardy arguments with regard to the Board's consideration of these issues. In an abundance of caution, the undersigned mentions this procedural history to prevent the Board's inadvertent consideration of these matters and resultant limitations upon any future actions of the Board.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating the practice of medicine in the State of Florida and has contracted with the Agency for Health Care Administration to provide investigative and prosecutorial services to the Board of Medicine.

2. Dr. Portnow is and has been at all times material to this complaint a licensed physician in the State of Florida, having been issued license no. ME 0070351. Respondent's last known address is 8540 Great Meadow Drive, Sarasota, Florida 34238. However, the parties agreed to conducting the hearing in Jacksonville, Florida, which resulted in the reassignment of the case to the undersigned.

3. In or about April 1996, Dr. Portnow attempted to secure employment with Baker & Gilmore, M.D., P.A., a medical practice in Jacksonville, Florida. In applying for employment, Dr. Portnow represented to the physicians of Baker & Gilmore, M.D., P.A., that he was board certified in Internal Medicine and in the subspecialty of Cardiovascular Disease. To support these representations, Dr. Portnow provided copies of certificates which purported to authenticate the board and specialty certifications he claimed in his employment application to Baker & Gilmore, M.D., P.A.

4. The physicians of Baker & Gilmore, M.D., P.A., sought verification of Dr. Portnow's offered board and specialty certifications from the American Board of Internal Medicine (ABIM). The American Board of Internal Medicine provided documentation which revealed that the offered certifications were fraudulent and that Dr. Portnow was not certified in either specialty.

5. The American Board of Internal Medicine indicated that the actual certificates had been issued to another physician, that Dr. Portnow's name had been forged on the certificates, and that the Cardiovascular Disease certificate is a copy of one issued in 1981 and not in 1989 as represented on the document.

6. A physician must be board certified in Internal Medicine before she/he can be considered eligible to sit for an

   exam in a specialty board such as cardiovascular disease. Further, after completing the required training, a physician must pass the examination in that subspecialty and then he/she may hold himself/herself out as board certified in that subspecialty.

7. Cardiovascular disease is a subspecialty to Internal Medicine.

8. The medical practice to which Respondent submitted his certificates and curriculum vitae needed a physician who was a board certified or board eligible cardiologist with training in electrophysiology. Electrophysiology is a sub-specialty of cardiology that deals with human electrical neurology and its abnormalities.

9. Respondent presented a curriculum vitae to the medical practice that included the same fraudulent misrepresentation concerning his alleged certification in Internal Medicine and Cardiovascular Disease. Respondent also included the notation "F.A.C.C." on his curriculum vitae. F.A.C.C. indicates one is a Fellow of the American College of Cardiology. The American College of Cardiology offers this designation to physicians who have shown excellence in cardiology, which is documented in part by the passing of the cardiovascular boards.

10. The notation "F.A.C.C." on Respondent's curriculum vitae is a fraudulent notation indicating passage of the cardiovascular boards when Respondent did not pass these boards.

11. Respondent signed an insurance form with the medical practice that included the fraudulent representation that he was board certified in both Internal Medicine and Cardiology.

12. On June 24, 1996, Respondent signed an application to the Columbia Credentialing Services, Inc., that included the fraudulent misrepresentations that he was board certified in both Internal Medicine and in Cardiology as of September 1987 and November 1989, respectively.

13. Respondent was hired by the medical practice at a starting salary of $150,000.00 with additional benefits and bonuses based on research and revenue collected. Respondent was also given $6,000.00 as moving expenses.

14. Respondent worked and saw patients at the medical practice from approximately mid-August to his termination date of December 12, 1996.

15. Respondent presented himself via a self-referral to Dr. Richard Seely on August 21, 1999. This self-referral was scheduled approximately one month before this case was originally scheduled to be tried. Dr. Seely agreed that a final hearing is a strong motivating force on the Respondent's similar

    situations. Dr. Seely is a psychiatrist that works with the Physician's Recovery Network (PRN).

16. Dr. Seely did not receive the file from the ABIM concerning the Respondent when he met with him. Dr. Seely also did not perform the Minnesota Multiphasic Personality Inventory (MMPI) or any other similar tests on Respondent. The MMPI helps to characterize a person's personality profile. Dr. Seely also did not receive any medical records to support the Respondent's contention that he suffered form depression in the past.

17. Dr. Seely testified concerning his professional opinion of the Respondent. He found the Respondent was not a pathological liar but could not identify any other neuropsychopathology. Dr. Seely opined that the administrative problem identified by this case is not due to any psychiatric condition. Dr. Seely then related the depression to the Respondent's "Administrative occupational" problem.

18. Dr. Seely recommended that the Respondent be under a PRN contract and be under psychiatric care.

19. The Respondent did not follow the recommendations of Dr. Seely. The Respondent also did not follow the recommendations of Dr. Schwartz, a psychiatrist he had seen in the past, concerning his psychiatric condition.

20. The facts contained in paragraphs 22 through 29 of the Petitioner's Proposed Recommended Order are identified by the

    Petitioner as being based upon the proffer of excluded evidence. These facts and the discussion following them are improperly presented in the proposed recommended order. Further, the Respondent did not take the stand, and did not assert that his acts were a mistake or accident, or that his acts were an isolated incident. There is no issue of intent presented because the Respondent admitted the acts and the misrepresentation. These actions were clearly volitional.

    These facts and discussion should not be considered by the board because their exclusion is not based upon matters of special expertise, and the proffer is properly considered exclusively by the appellate court.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding, pursuant to Section 120.57(1), Florida Statutes, and Section 455.225, Florida Statutes.

22. Pursuant to Section 458.331(2), Florida Statutes, the Board of Medicine is empowered to revoke, suspend, or otherwise discipline the license of a physician for the following violations of Section 458.331(1), Florida Statutes:

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

    * * *

    The board may ignore the following penalty pursuant to Section 458.331(2), Florida Statutes:

    
    

    1. When the board finds any person guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:

       1. Refusal to certify, or certification with restrictions, to the department an application for licensure, certification, or registration.

       2. Revocation or suspension of a license.

       3. Restriction of practice.

       4. Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.

       5. Issuance of a reprimand.

       6. Placement of the physician on probation for such period of time and subject to such conditions as the board may specify, including, but not limited to, requiring the physician to submit to treatment, to attend continuing education courses, to submit to reexamination, or to work under the supervision of another physician.

       7. Issuance of a letter of concern.

       8. Corrective action.

       9. Refund of fees billed to and collected from the patient.

    
    

23. Disciplinary licensing proceedings are penal in nature. State ex rel. vining v. Florida Real Estate Commission

    281 So. 2d 487 (Fla. 1973). In this disciplinary licensing proceeding, Petitioner must prove the alleged violations of Section 458.331(1)(k), Florida Statutes, by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1st DCA 1987); See Addington v. Texas, 441 U.S. 426 (1979).

24. The Administrative Complaint alleges that Respondent violated Section 458.331(1)(k), Florida Statutes, by making deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employing a trick or scheme in the practice of medicine. The Respondent, at the final hearing, stipulated to all of the facts in the Administrative Complaint as evidence was being introduced by the Petitioner.

25. The Petitioner has proved by clear and convincing evidence that the Respondent violated Section 458.331(1)(k), Florida Statutes, by making deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employing a trick or scheme in the practice of medicine.

26. The Respondent has demonstrated fraud and, as determined by Dr. Seely, has no psychiatric illness that could explain this behavior. Therefore, the Respondent's actions appear to be for personal gratification alone.

27. The disciplinary guidelines of the Board of Medicine, found at Rule 64B-8, Florida Administrative Code, provide a range of penalties for violations of the provisions of Section 458.331(1)(k), Florida Statutes. The cases cited by the Respondent indicate that fines, reprimands, and probations have been the typical penalties levied for presenting fraudulent credentials.

28. The testimony of Dr. Seely in this case was not credible regarding the causes of the Respondent's behavior. Even so, the Respondent has not followed-up on Dr. Seely's recommendations.

29. The Respondent's conduct is very disturbing because of its nature. The Respondent is mature and experienced enough to have known that his deception would be discovered, and still he perpetrated a fraud on professional colleagues jeopardizing their professional reputations and business stability. Although there were no medically-related patient problems, the Respondent's acts constitute a serious violation, more serious because it points to some unresolved moral, character, or health issue that has not been revealed.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is

RECOMMENDED that:

The Board fine the Respondent $3,500;

The Board place the Respondent on probation conditioned

upon a required psychological evaluation by a physician or clinician satisfactory to the Board, with all costs to be borne by the Respondent, and a determination by that physician or clinician that the Respondent can practice safely without supervision;

The Board prohibit the Respondent from practicing without supervision until his evaluation is completed and his further practice is considered by the Board; and

The Board limit the Respondent's practice after evaluation based upon any limitations recommended by the evaluating physician or clinician.

DONE AND ENTERED this 28th day of June, 2000, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 June, 2000.

COPIES FURNISHED:

John E. Terrel, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

Donald W. Weidner, Esquire Thomas Bowden, Esquire Weidner & Winicki

11265 Alumni Way, Suite 201

Jacksonville, Florida 32246-6685

Christine C. Whitney, Esquire Christine C. Whitney, P.A.

225 West 5th Street Jacksonville, Florida 32206

Angela T. Hall, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Tanya Williams, Executive Director Board of Medicine

Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

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: 99-002326

Orders for Case No: 99-002326