STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT V. CARIDA, M.D. )

)

Petitioner, )

)

vs. ) Case No. 00-3493F

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was held in this case on September 29, 2000, before Patricia Hart Malono, a duly- designated Administrative Law Judge of the Division of Administrative Hearings. The hearing was conducted via video teleconference, with the Petitioner appearing in Fort Lauderdale, Florida, and the Respondent appearing in

Tallahassee, Florida.

APPEARANCES

For Petitioner: Robert L. Jennings, Esquire

Jennings & Valancy, P.A.

311 Southeast 13th Street

Fort Lauderdale, Florida 33316

For Respondent: Ephraim D. Livingston, Esquire

John E. Terrel, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

STATEMENT OF THE ISSUE

Whether the Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes.

PRELIMINARY STATEMENT

On August 21, 2000, Robert V. Carida, M.D., filed with the Division of Administrative Hearings Respondent's Application for Attorneys' Fees and Costs as Prevailing Party. In the application, Dr. Carida requests an award of attorney's fees and costs he incurred in litigating the case styled Department of Health, Board of Medicine v. Robert V. Carida, M.D., DOAH Case No. 99-2997, DOH Case No. 95-03135. The Department of Health ("Department") responded to the application with a Motion to Dismiss, or in the Alternative, Response to Petition for Attorney's Fees and Costs, which was filed with the Division of Administrative Hearings on August 8, 2000. After consideration of the issues raised in the Motion to Dismiss, the motion was denied in an order entered September 14, 2000, and the case was scheduled for final hearing on September 29, 2000.

At the hearing, Dr. Carida testified in his own behalf and presented the testimony of William R. Leonard and of Diane K. Carida. 1/ Petitioner's Exhibits 1 through 6 were offered and received into evidence; Petitioner's Exhibit 4 consists of the transcript of the deposition of Leonard S. Williams, M.D., taken

after the administrative proceeding before the Division of Administrative Hearings was initiated. 2/ The Respondent did not call any witnesses, but Respondent's Exhibits 1 through 6 were offered and received into evidence. Dr. Carida requested that official recognition be taken of the entire file of the proceeding in DOAH Case No. 99-2667; the request was denied on the authority of the decision in Agency for Health Care Administration v. Gonzalez, 657 So. 2d 56 (Fla. 1st DCA 1995)(An

administrative law judge should look to the evidence before the probable cause panel in determining whether an action was substantially justified pursuant to Section 57.111, Florida Statutes.).

A one-volume transcript of the proceedings was filed with the Division of Administrative Hearings on October 27, 2000, and both parties timely submitted proposed findings of fact and conclusions of law, which have been considered in preparing this Recommended Order.

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. Effective July 1, 1997, the Department is the state agency charged with regulating the practice of medicine through the Board of Medicine ("Board"). Section 20.43, Florida

   Statutes; Chapters 456 and 458, Florida Statutes. Pursuant to the provisions of Section 20.43(3), Florida Statutes, the Department has contracted with the Agency for Health Care Administration ("AHCA") to provide consumer complaint, investigative, and prosecutorial services required by the Board of Medicine.

2. Dr. Carida is, and was at all times material to this action, licensed to practice medicine in Florida, having been issued license number ME 0019622.

3. Since January 1, 1996, Dr. Carida has practiced medicine as an employee of D.R.C. & Associates, Inc. ("D.R.C."), and he is paid an hourly wage by the company. D.R.C. is a medical management company owned by Diane Carida, Dr. Carida's daughter, who is the company's president. D.R.C. is not a professional association, and Dr. Carida has no ownership interest in the corporation.

4. In November 1998, Dr. Carida was the only doctor employed by D.R.C.; the company's only other employees were an echo technician, a billing clerk, and a phlebotomist who also acted as Dr. Carida's medical assistant. In November 1998, the company's net worth was approximately $10,000.00.

5. On October 30, 1998, the Board's Probable Cause Panel considered the results of an investigation into a complaint filed against Dr. Carida by the family of patient J.M. In

   accordance with its contract with the Department, the investigation was conducted by AHCA, and an attorney employed by AHCA presented the case against Dr. Carida to the Probable Cause Panel. The investigative file included the medical records of patient J.M. and the report of Leonard S. Williams, M.D., a physician employed by AHCA to render an expert opinion regarding Dr. Carida's care and treatment of the patient. AHCA's attorney also presented to the Probable Cause Panel a draft administrative complaint outlining the proposed charges against Dr. Carida, and AHCA's attorney recommended to the panel that the penalty of license revocation or suspension be sought as the maximum penalty against Dr. Carida.

6. In his report, Dr. Williams presented a summary of the medical records he had reviewed and his conclusions regarding Dr. Carida's care and treatment of patient J.M. Dr. Williams stated in the report that it was his opinion that Dr. Carida had failed to meet the applicable standard of care in his care and treatment of patient J.M. and that the medical records maintained by Dr. Carida failed to document accurately and completely his care and treatment of the patient.

7. Two members of the Probable Cause Panel, a physician and a lay member of the Board, were present and voting at the October 30, 1998, meeting. The Probable Cause Panel was represented by an attorney employed by the Florida Attorney

   General. Both members of the Probable Cause Panel present at the October 98, 2000, meeting acknowledged receiving the investigative file on Dr. Carida prior to the meeting, and both determined that probable cause existed to support AHCA's charges against Dr. Carida.

8. On November 2, 1998, as a result of the decision of the Probable Cause Panel, AHCA served on Dr. Carida a two-count Administrative Complaint charging that, with respect to patient J.M., he had practiced medicine below an acceptable standard of care and that he had failed to maintain adequate written medical records relating to his care and treatment of the patient.

9. Dr. Carida disputed the facts asserted in the Administrative Complaint, and AHCA sent the file to the Division of Administrative Hearings for assignment of an administrative law judge. A formal hearing was held, and a Recommended Order was entered, in which it was concluded, first, that AHCA had failed to prove by clear and convincing evidence that Dr. Carida practiced medicine below an acceptable standard of care with respect to the care and treatment of patient J.M. and, second, that AHCA had met its burden of proving that Dr. Carida failed to maintain adequate medical records regarding the care and treatment he provided to patient J.M. The Recommended Order was forwarded to the Board for final agency action, and, in its Final Order, the Board dismissed the charge that Dr. Carida

   practiced medicine below an acceptable standard of care and concluded that Dr. Carida was guilty of the charge that he had failed to maintain adequate written medical records related to patient J.M. On the basis of this violation, the Board imposed an administrative fine on Dr. Carida in the amount of $250.00 and required that he attend an approved course on proper maintenance of medical records.

10. The evidence presented by Dr. Carida is sufficient to establish that he was the prevailing party in the proceeding styled Department of Health, Board of Medicine v. Robert V. Carida, M.D., DOAH Case No. 99-2997, DOH Case No. 95-03135. The more serious charge brought against Dr. Carida in the Administrative Complaint was that he had practiced medicine below an acceptable standard of care, and AHCA contended before the Probable Cause Panel that the appropriate penalty to be imposed against Dr. Carida for this violation was the revocation or suspension of his license. This charge against Dr. Carida was, however, dismissed by the Board in its Final Order, and Dr. Carida was found guilty only of having failed to keep adequate medical records. The penalty imposed on Dr. Carida in the Board's Final Order for this violation clearly indicates that the Board considered the medical records charge to be a minor one.

11. The evidence presented by Dr. Carida is not, however, sufficient to establish that he is entitled to an award of attorney's fees and costs as a small business party. Rather, at the time the action against Dr. Carida was initiated, he was an employee of a medical management corporation, which was not a party to the disciplinary proceeding.

    CONCLUSIONS OF LAW

    
    

12. 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 (2000).

13. Section 57.111, Florida Statutes (2000), the Florida Equal Access to Justice Act, provides in pertinent part as follows:

    (4)(a) Unless otherwise provided by law, an award of attorney's fees and costs shall be made to a prevailing small business party in any adjudicatory proceeding or administrative proceeding pursuant to chapter 120 initiated by a state agency, unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust.

    
    

14. The Department admitted in its Amended Unilateral Prehearing Statement that the amount of attorney's fees and costs sought by Dr. Carida, up to the $15,000.00 statutory limitation, are reasonable and that it is aware of no

    circumstances that would make an award of attorney's fees and costs to Dr. Carida unjust. Therefore, the issues to be resolved in this proceeding are: (1) Whether Dr. Carida prevailed in DOAH Case No. 99-2997, the underlying administrative action; if so, (2) whether Dr. Carida is a "small business party"; and, if so, (3) whether actions of the Department were substantially justified.

15. In proceedings to establish entitlement to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, the initial burden of proof is on the party requesting the award to establish by a preponderance of the evidence that he, she, or it prevailed in the underlying disciplinary action and that he, she, or it was a small business party at the time the disciplinary action was initiated. Once the party requesting the award has met this burden, the burden of proof shifts to the agency to establish that it was substantially justified in initiating the disciplinary action. See Helmy v. Department of Business and Professional Regulation, 707 So. 2d 366, 367 (Fla. 1st DCA 1998); Department of Professional

    Regulation, Division of Real Estate v. Toledo Realty and Ramiro Alfert, 549 So. 2d 715, 717 (Fla. 1st DCA 1989).

16. Section 57.111(3), Florida Statutes (2000), provides in pertinent part as follows:

    1. A small business party is a "prevailing small business party" when:

       1. A final judgment or order has been entered in favor of the small business party and such judgment or order has not been reversed on appeal or the time for seeking judicial review has expired.

          
          

          * * *

          
          

    2. The term "small business party" means:

       1. 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 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 employees or a net worth of not more than $2 million, . . .

       
       

17. On the basis of the facts found herein, Dr. Carida has met his burden of proving by a preponderance of the evidence that he prevailed in DOAH Case No. 99-2997. The charge against Dr. Carida that could have resulted in revocation or suspension of his license to practice medicine was dismissed, and the penalty imposed by the Board for Dr. Carida's failure to keep adequate medical records was a minimal administrative fine and a requirement that he attend a class on keeping medical records. Accordingly, Dr. Carida prevailed on the significant issue in

    the disciplinary proceeding and, as a result, received the substantial benefit of retaining his license to practice medicine. See Moritz v. Hoyt Enterprises, 604 So. 2d 807 (Fla. 1992)("Prevailing party" is party that prevails on the significant issue in the litigation.).

18. However, on the basis of the facts found herein, Dr. Carida has failed to meet his burden of proving by a preponderance of the evidence that he was a prevailing "small

    business party" at the time the Board initiated the disciplinary action against him. Indeed, the uncontroverted evidence establishes that Dr. Carida was the employee of a medical management corporation wholly owned by his daughter. Because of his status as a salaried employee of a corporation owned by another, Dr. Carida cannot recover attorney's fees and costs pursuant to Section 57.111, Florida Statutes (2000), for monies expended in defending himself in the disciplinary proceeding brought against him, individually. See Florida Real Estate Commission v. Shealy, 647 So. 2d 151 (Fla. 1st DCA 1994)(Even when a party seeks a license to do work for a corporation wholly owned by himself and his wife, he is not entitled to an award of attorney's fees and costs pursuant to Section 57.111 when the corporation was not a party to the proceedings below and when the party seeking an award of attorney's fees and costs appeared in his individual capacity.); Department of Professional

    Regulation, Division of Real Estate v. Toledo Realty Inc., and

    
    

    Ramiro Alfert, 549 So. 2d 715, 716 (Fla. 1st DCA 1989)(The court agreed with the hearing officer's decision to deny attorney's fees and costs to Mr. Alfert because he was an employee of Toledo Realty and, therefore, was not a small business party as defined in Section 57.111.); cf. Ann & Jan Retirement Villa, Inc. v. Department of Health and Rehabilitative Services, 580 So. 2d 278 (Fla. 4th DCA 1991)(Attorney's fees were awarded to corporation where corporation and its sole owner were considered the same entity.).

19. The case of Albert v. Department of Health, Board of Dentistry, 763 So. 2d 1130 (Fla. 4th DCA 2000), cited by

    Dr. Carida in his proposed conclusions of law, does not support his contention that he is a small business party. In Albert, the court stated that a dentist who practiced as a professional service corporation organized under the provisions of

    Chapter 621, Florida Statutes, should have been awarded attorney's fees pursuant to Section 57.111 under the definition of small business party in Section 57.111(3(d)1.b., Florida Statutes. Id. at 1131. The holding in Albert is not applicable to Dr. Carida in this case; he expressly stated in his testimony that D.R.C. & Associates, Inc., was not a professional association, that he did not own any stock in the corporation, and that he was an employee of the corporation.

20. Because Dr. Carida did not meet his burden of proving that he was a prevailing small business party, he has failed to establish that he is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes (2000). 3/

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of Law, the Respondent's Application for Attorneys' Fees and Costs as Prevailing Party is denied.

DONE AND ORDERED this 21st day of December, 2000, 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 21st day of December, 2000.

ENDNOTES

1. The Department's ore tenus motion in limine to exclude the testimony of Mr. Leonard was denied.

   
   

2. The Department objected to the receipt into evidence of the transcript of the deposition of Dr. Williams on the grounds that his deposition testimony is not relevant to this proceeding because the deposition was taken after the decision of the Probable Cause Panel to prosecute Dr. Carida. The deposition

   testimony has been reviewed and found to be not relevant to the issues presented herein.

   
   

3. Because of this conclusion, the analysis in Helmy and in Toledo Realty indicates that the Department need not prove that the Board was substantially justified in initiating the disciplinary action against Dr. Carida. Accordingly, no detailed findings of fact or conclusions of law have been included in this order with respect to this issue. Were it necessary to make specific findings of fact and to reach specific conclusions of law on this issue, it must be noted that the evidence presented tends to establish that the Board's decision to proceed with a disciplinary action against

Dr. Carida had a reasonable basis in law and fact under the standard set forth in Helmy.

COPIES FURNISHED:

Robert L. Jennings, Esquire Jennings & Valancy, P.A.

311 Southeast 13th Street

Fort Lauderdale, Florida 33316

Ephraim D. Livingston, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

NOTICE OF RIGHT TO JUDICIAL REVIEW

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 a 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: 00-003493F

Orders for Case No: 00-003493F