STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 99-3094

) JORGE J. SAN PEDRO, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on February 23, 2000, a final hearing was held in this case. The authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes. The hearing location was City Hall, Fire Station Conference Room, 404 Williams Avenue, Port St. Joe, Florida. The hearing was conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Eric C. Scott, Esquire

Agency for Health Care Administration Office of General Counsel

Post Office Box 14229 Tallahassee, Florida 32317-4229

For Respondent: Thomas S. Gibson, Esquire

Rish, Gibson and Scholz, P.A.

206 East Fourth Street

Port St. Joe, Florida 32457 STATEMENT OF THE ISSUE

Should Petitioner discipline Respondent for violating its order entered May 4, 1995, prohibiting Respondent from performing

obstetric or gynecological surgical procedures without appearing before the Board of Medicine (Board) and demonstrating his ability to perform OB/GYN surgery with requisite skill and safety to patients? Section 458.331(1)(x), Florida Statutes.

PRELIMINARY STATEMENT

Pursuant to an administrative complaint in Case No. 96- 11551, Petitioner accused Respondent of the aforementioned violation. In accordance with Section 120.57(1), Florida Statutes, Respondent requested a formal hearing to contest those allegations. On July 21, 1999, the case was received by the Division of Administrative Hearings. Initially it was assigned to Ella Jane P. Davis, Administrative Law Judge. The case was reassigned to the present Administrative Law Judge.

The parties were required to submit a joint prehearing stipulation. In their stipulation the parties listed facts which were admitted. The parties also offered eight joint exhibits for consideration. Both the stipulated facts and Joint Exhibit Nos. 1-8 were admitted at the final hearing. The fact stipulations and joint exhibits have been utilized in preparing the recommended order. In addition, the testimony of Douglas M. Kent, as witness for Petitioner, was presented at hearing.

Respondent testified in his own behalf and presented the testimony of Verna Mathes as his witness.

On March 8, 2000, a hearing transcript was filed with the Division of Administrative Hearings. The parties filed proposed

recommended orders. They have been considered in preparing the recommended order.

FINDINGS OF FACT

Stipulated Facts

1. Respondent is and has been at all times material hereto a licensed medical physician in the State of Florida, having been issued license number ME 0017399.

2. Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.42, Florida Statutes.

3. On or about May 4, 1995, the Board of Medicine issued a Final Order in Case No. 92-05546 imposing discipline on Respondent's license to practice medicine. This discipline was adopted by the Board of Medicine from a stipulated disposition ("consent agreement") voluntarily accepted by Respondent.

4. Respondent does not now challenge the legality or validity of the May 4, 1995, consent agreement.

5. The disciplinary terms of the May 4, 1995, consent agreement include, but are not limited to, the following restriction on Respondent's practice, in pertinent part:

   Respondent shall refrain from performing obstetric or gynecological surgical procedures until such time as he appears before the Board and Demonstrates that he may perform OB/GYN surgery with the requisite skill and safety to patients. For purposes of this Consent Agreement, OB/GYN surgery shall include, but not be limited to: abortion of a fetus, amniocentesis, dilation and curettage, delivery of a fetus,

   hysterectomy, PAP smear, cophorectomy, salpingectomy, tubal ligation, and any and all invasive procedures involving any portion of the reproductive organs of the human female, including the vulva, vagina, cervix, uterus, and adnexa of the uterus.

6. Respondent did not appeal or otherwise legally challenge

   
   

   the May 4, 1995, Final Order of the Board of Medicine.

   
   

7. At no time through July 1996 did Respondent physically appear before the Board of Medicine or petition the Board of Medicine with respect to the above stated restriction on his license and/or the demonstration [sic] to the Board that he could perform obstetric or gynecological surgical procedures as specified in the Final Order with the requisite skill and safety to patients.

8. Between approximately January 1996 and July 1996, Respondent was employed as a physician at the Gulf County Health Department in Gulf County, Florida.

9. During the period that Respondent was employed at the Gulf County Health Department, he performed PAP smears and gynecological cryosurgery.

10. Irrespective of whether such violation was premeditated, intentional, or willful, Respondent violated the terms of the May 4, 1995, Final Order of the Board of Medicine by performing the gynecological procedures he performed during his practice at the Gulf County Health Department.

11. At the time it was presented to the Board, Respondent received a copy of the Consent Agreement executed by him which formed the basis for the Board of Medicine Final Order.

12. Respondent did not provide a copy of the Consent Agreement and/or the Board of Medicine Final Order to the Gulf County Health Department prior to or at the initiation of his employment there.

    Additional Facts

    
    

13. At the time Petitioner imposed discipline against Respondent in Case No. 92-05546, Respondent appeared before Petitioner and an explanation was given concerning the circumstances involved with the discipline. Respondent signed the consent agreement leading to the discipline. The consent agreement included the statements of restrictions on Respondent's practice, the subject of the present case. Respondent had discussed entry into the consent agreement with counsel who represented his interests in Case No. 92-05546.

14. While employed with the Gulf County Health Department in Gulf County, Florida, between January 26, 1996 and July 18, 1996, Respondent performed 21 PAP smears and two colposcopies/ biopsies in the Port St. Joe, Florida clinic. Respondent performed 29 PAP smears and one colposocopy/biopsy in the Wewahitchka, Florida clinic.

15. In discussing the possibility that Respondent would be employed by the Gulf County Health Department, Respondent did not

    discuss with that agency the existence of the consent order which restricted his practice. Respondent mentioned a suit and the fact of his appearance before the Board of Medicine in the previous year, at the Board's behest, but not the consent order.

16. Verna Mathes is the Community Health Nursing Director for the Gulf County Health Department. Ms. Mathes was involved with the efforts that lead to Respondent's employment with the Gulf County Health Department. Ms. Mathes spoke with someone at the State of Florida, Department of Business and Professional Regulation to ascertain whether Respondent's medical license was "in good standing," before Respondent was hired. That unnamed person replied that there were no disciplinary actions against Respondent's medical license. Subsequent to that conversation Respondent was hired.

17. Before Respondent was hired by the Gulf County Health Department he telephoned the Board of Medicine and spoke to a secretary. His stated purpose for the call was to arrange to appear before the Board and "to know what steps I have to take in order to have any license up to date subject to the rules, whatever limitations had been posted." According to Respondent, the response by the secretary he spoke with was that the "register" does not show any limitation imposed upon Respondent's medical license.

18. Assume that the communication from the person at the State of Florida, Department of Business and Professional

    Regulation was made to Ms. Mathes and that there was a communication from a secretary at the Board of Medicine made to Respondent. Assume the communications reflected the understanding which those persons had concerning Respondent's license status. This did not modify nor relieve Respondent of his obligation in Case No. 92-05546. That obligation was to abide by the restrictions on his practice in relation to the performance of OB/GYN surgery. Respondent could only engage in that surgical practice after appearing before the Board of Medicine and demonstrating the requisite skill and safety to patients in performing OB/GYN surgery. Any inquiry by Respondent and that by Ms. Mathes did not release Respondent from his obligation to appear.

19. Once hired by the Gulf County Health Department, the OB/GYN surgeries that have been described were outside the expectations in the consent order related to Respondent's opportunities to practice medicine.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

21. Petitioner is a state agency charged with regulating the practice of medicine in accordance with Sections 20.165 and 20.42, Florida Statutes; Chapter 455, Florida Statutes; and

    Chapter 458, Florida Statutes. Respondent is licensed to practice medicine in accordance with Chapter 458, Florida Statutes.

22. Petitioner had disciplined Respondent in Case No. 92- 05546, to include the restriction on Respondent's practice that has been described. In particular, Respondent was prohibited from performing obstetric and gynecological surgical procedures until he appeared before the Board of Medicine and demonstrated his competence in that practice area. Respondent is accused of violating a lawful order of the Board previously entered in the disciplinary hearing. Section 458.331(1)(x), Florida Statutes. As a consequence, Petitioner intends to impose discipline against Respondent on this occasion.

23. To prevail in this action Petitioner must establish its case by clear and convincing evidence that the violation of Section 458.331(1)(x), Florida Statutes, occurred. The parties agreed to this standard of proof. Their agreement is supported in law. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1st DCA 1987) and Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996).

24. The parties do not disagree that Respondent failed to refrain from performing obstetric and gynecological surgical procedures before such time as he appeared before the Board and demonstrated that he could perform OB/GYN surgery with requisite skill and safety to his patients. Inquiries which Respondent may

have made and Ms. Mathes did make to ascertain Respondent's license status before he was hired by the Gulf County Health Department and performed the prohibited procedures does not excuse Respondent from complying with the Board's previous order. He did not appear and the Board did not relieve him of the need to appear before undertaking the surgical procedures. The evidence is clear and convincing that Respondent failed to comply with the consent order and that failure constitutes a violation of Section 458.331(1)(x), Florida Statutes.

For the violation Respondent may be punished in accordance with Section 458.331(2), Florida Statutes.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

That a final order be entered which finds Respondent in violation of Section 458.331(1)(x), Florida Statutes, imposes a

$5,000.00 fine, and requires twenty (20) hours of Continuing Medical Education in Obstetrics and Gynecology.

DONE AND ENTERED this 7th day of April, 2000, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

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 7th day of April, 2000.

COPIES FURNISHED:

Eric C. Scott, Esquire

Agency for Health Care Administration Office of General Counsel

Post Office Box 14229 Tallahassee, Florida 32317-4229

Thomas S. Gibson, Esquire Rish, Gibson and Scholz, P.A.

206 East Fourth Street

Port St. Joe, Florida 32457

Tanya Williams, Executive Director Board of 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 32399-1701

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: 99-003094

Orders for Case No: 99-003094