STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 07-0424PL

)

FRANCISCO VAZQUEZ, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case before Larry J. Sartin, an Administrative Law Judge of the Division of Administrative Hearings, on March 26, 2007, by video teleconference between Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Patricia Nelson

Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

For Respondent: Michael Gennett, Esquire

Shutts & Bowen, LLP

201 South Biscayne Boulevard, Suite 1500 Miami, Florida 33131-1329

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent Francisco Vazquez, M.D., committed a violation of Chapter 458, Florida Statutes (2003)(2004), as alleged in the Administrative

Complaint filed by Petitioner, the Department of Health, on May 3, 2006, in DOH Case Number 2005-03579; and, if so, what disciplinary action should be taken against his license to practice medicine in the State of Florida.

PRELIMINARY STATEMENT

On or about May 3, 2006, the Department of Health filed an Administrative Complaint against Francisco Vazquez, M.D., an individual licensed to practice medicine in Florida, before the Board of Medicine, in which it alleged that Dr. Vazquez had committed a violation of Section 458.331(1)(jj), Florida Statutes (2003)(2004). Dr. Vazquez executed an Election of Rights form in which he disputed the allegations of fact contained in the Administrative Complaint and requested a formal administrative hearing pursuant to Section 120.569(2)(a), Florida Statutes. Dr. Vazquez also filed, through counsel, an Amended Petition for Formal Administrative Hearing.

On January 22, 2007, the matter was filed with the Division of Administrative Hearings with a request that an administrative law judge be assigned the case to conduct proceedings pursuant to Section 120.57(1), Florida Statutes (2006). The matter was designated DOAH Case Number 07-0424PL and was assigned to the undersigned.

The final hearing was scheduled by a Notice of Hearing by Video Teleconference entered February 1, 2007, for March 26,

2007.

On March 1, 2007, Dr. Vazquez filed a Motion to Relinquish Jurisdiction. In the Motion, Dr. Vazquez reported that he was filing, contemporaneously with the Motion, "a Petition in the Second Judicial Circuit in and for Leon County, seeking declaratory and injunctive relief in holding that §458.311 (1)(jj) is unconstitutional under the United States and Florida Constitutions, in that it allows the state to revoke a physician's medical license based solely on the entry of a court order in a proceeding where the physician has no legal right to notice and an opportunity to be heard." Therefore, Dr. Vazquez suggested that jurisdiction be relinquished to Petitioner pending the outcome of the constitutional challenge.

On March 19, 2007, after providing verbal notice to the parties, an Order Denying Motion to Relinquish was entered. There then followed two motions filed by Dr. Vazquez seeking a continuance of the final hearing pending the outcome of his challenge in the courts.

Oral argument, conducted by telephone, was heard on

March 21, 2007, on the first motion for continuance. The motion was denied during the hearing. No order memorializing the denial of the continuance has been entered. The second motion

for continuance filed by Dr. Vazquez was denied during the final hearing at the conclusion of Petitioner's case.

The denial of Dr. Vazquez's motions was based upon the conclusion that the role of the Division of Administrative Hearings in this case is a limited one. That role is to determine whether Dr. Vazquez is guilty of the following:

Being found by any court in this state to have provided corroborating written medical expert opinion attached to any statutorily required notice of claim or intent or to any statutorily required response rejecting a claim, without reasonable investigation.

§ 458.331(1)(jj), Fla. Stat.. It was concluded that this statutory provision simply required an administrative law judge of the Division of Administrative Hearings to determine whether a court of the state had entered an order making such a finding and that, if so, there was no opportunity to go behind the order to determine whether the court had erred. Given the simplicity of the factual issues to be addressed, it was concluded that the final hearing could proceed without any significant hardship to either party. It was also concluded that, by proceeding to final hearing and the issuance of a recommended Order,

Dr. Vazquez would be able to not only pursue his challenge to the facial constitutionality of the disciplinary provision, but to challenge the statue as applied in an appeal of the final order ultimately entered in this case. Toward that end,

Dr. Vazquez was given 30 days in which to pursue further discovery which could form the basis of a proffer of evidence pertinent to his constitutional challenge.

At the commencement of the final hearing, a Motion to Take Official Recognition filed by Petitioner was granted.

Petitioner called no witnesses at the final hearing.

Instead, Petitioner had admitted three exhibits, Petitioner's Exhibits numbered 1, 2, and 3. Dr. Vazquez testified on his own behalf. He also had admitted Respondent's Exhibits numbered 2, 3, and 8.

The one-volume Transcript of the final hearing was filed with the Division of Administrative Hearings on April 2, 2007. Proposed recommended orders were, therefore, to be filed on or before April 30, 2007. On April 23, 2007, Dr. Vazquez filed a Joint Motion for Extension of Time to Submit Proposed Orders and Proffer of Evidence. That Motion was granted. Proposed Orders were to be filed on or before May 30, 2007.

On April 17, 2007, Petitioner filed a Motion to Reopen the Hearing and Record and Schedule Evidentiary Formal Hearing.

While Petitioner had agreed initially with the undersigned's interpretation of Section 458.331(1)(jj), Florida Statutes, Petitioner suggested in its Motion a new interpretation of Section 458.331(1)(jj), Florida Statutes. Essentially, Petitioner argued that Section 458.331(1)(jj), Florida Statutes,

should be interpreted as requiring Petitioner to present a prima facia case of a violation by offering a court order and, once presented, giving Dr. Vazquez an opportunity to prove essentially that the order was incorrect. Petitioner argued that this new interpretation would make the statute constitutional.

On May 8, 2007, an Order Denying Petitioner's Motion to Reopen the Hearing was entered. Petitioner's new interpretation of Section 458.331(1)(jj), Florida Statutes, was rejected as contrary to any reasonable reading of the statute.

On May 16, 2007, Respondent filed Respondent's Motion for Protective Order. In the Motion, Dr. Vazquez represented that Petitioner had scheduled Dr. Vazquez's deposition. Dr. Vazquez argued that he should be protected against attending the deposition, in pertinent part, because the legal interpretation of Section 458.331(1)(jj), Florida Statutes, asserted in Petitioner's Motion to Reopen had been rejected. In response to the Motion, Petitioner argued that it should be allowed to take the deposition so that it could prepare a proffer of evidence on its statutory interpretation. On May 24, 2007, an Order Denying Respondent's Motion for Protective Order was entered.

On May 22, 2007, Dr. Vazquez filed Respondent's Motion to Amend Petition. No response having been filed, the Motion was granted.

On May 30, 2007, both parties filed Proposed Recommended Orders. Dr. Vazquez also filed Respondent's Proffer of Evidence. The Proposed Recommended Orders have been fully considered in preparing this Recommended Order.

FINDINGS OF FACT

1. The Parties.

   
   

   1. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. § 20.43 and Chs. 456 and 458, Fla. Stat. (2006).

   2. Respondent, Francisco Vazquez, M.D., is, and was at all times material to this matter, a physician licensed to practice medicine in Florida pursuant to Chapter 458, Florida Statutes, having been issued license number ME 68742 on July 6, 1995.

   3. Dr. Vazquez's address of record is 4595 Palm Beach Boulevard, Fort Myers, Florida 33905.

2. The Court's Order.

1. On September 5, 2003, Dr. Vazquez executed an Affidavit offering his expert medical opinion that 40 physicians and a hospital were negligent in the care of Patient C.L. The same day, the Affidavit was attached to Notices of Intent to Initiate Medical Negligence Litigation, as required before initiating

   medical malpractice litigation by Section 766.106(2)(a), Florida Statutes.

2. Subsequently, litigation was initiated in the Circuit Court of the Sixth Judicial Circuit in and For Pinellas County, Florida, Case No. 04-875CI-7 (hereinafter referred to as the "Circuit Court Case").

3. On February 22, 2005, the presiding judge in the Circuit Court Case, the Honorable Bruce Boyer, entered an Order of Dismissal with Prejudice as to Drs. Hallgren and Schulman Based on Their Motion to Determine the Sufficiency of the Plaintiff's Presuit Investigation. The Order was entered after a February 2, 2005, hearing for which Dr. Vazquez received no notice and in which he did not participate.

4. Among other things, Judge Boyer found in the February 22, 2005, Order the following:

   This cause came to be heard on February 2, 2005, on the motion of two of the defendants, Scott Hallgren, D.O. and Michael Schulman, [D.O.] to determine whether the plaintiff's claim rests on a reasonable basis and request for dismissal. Neither the pro se plaintiff nor her former attorneys appeared at the hearing. The Court reviewed the defendants' motion and supporting materials which show the following: . . . that the plaintiff's presuit expert is not a gastroenterologist and does not otherwise appear to be qualified to comment on the defendants' care; that the plaintiff's presuit expert does not appear to have made any reasonable effort to investigate and determine what

   role the defendants played in the decedent's care; that the plaintiffs' presuit expert submitted a scattergun presuit affidavit which charged forty doctors and one hospital with negligence apparently without investigating what role each health care provider played in the decedent's care; that former plaintiff's counsel served the notices of intent on Drs. Hallgren and Schulman based on an inadequate supporting affidavit and without an adequate presuit investigation; . . . .

   
   

5. Judge Boyer then ordered that the complaint against Drs. Hallgren and Schulman be dismissed and indicated that "[t]he Court has forwarded a copy of this order to the Division of Quality Assurance of the Department of Health concerning the conduct of the presuit expert, Francisco M. Vazquez, M.D., in accordance with Fla. Stat. § 766.206(5)(a)(2003)."

6. Based upon the foregoing findings, Judge Boyer "found" that Dr. Vazquez provided a corroborating written medical expert opinion for inclusion with a statutorily required notice of claim or intent without reasonable investigation.

7. Dr. Vazquez became aware of Judge Boyer's February 22, 2005, Order when he was notified of the investigation of this

   matter.

   
   

   1. Jurisdiction.

      
      

      CONCLUSIONS OF LAW

      
      

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

   the parties thereto pursuant to Sections 120.569, 120.57(1), and 456.073(5), Florida Statutes (2006).

   1. The Charges of the Administrative Complaint.

      
      

9. Section 458.331(1), Florida Statutes (2005), authorizes the Board of Medicine (hereinafter referred to as the "Board"), to impose penalties ranging from the issuance of a letter of concern to revocation of a physician's license to practice medicine in Florida if a physician commits one or more acts specified therein.

10. In its Administrative Complaint the Department has alleged that Dr. Vazquez has violated Section 458.331(1)(jj), Florida Statutes (2003)(2004).

    1. The Burden and Standard of Proof.

       
       

11. The Department seeks to impose penalties against Dr. Vazquez through the Administrative Complaint that include

    Investor Protection v. Osborne Stern and Co.,	670	So. 2d 932
    (Fla. 1996); Ferris v. Turlington, 510 So. 2d	292	(Fla. 1987);
    Pou v. Department of Insurance and Treasurer,	707	So. 2d 941

    suspension or revocation of his license and/or the imposition of an administrative fine. Therefore, the Department has the burden of proving the specific allegations of fact that support its charge that Dr. Vazquez violated Section 458.331(1)(jj), Florida Statutes (2003)(2004), by clear and convincing evidence. Department of Banking and Finance, Division of Securities and

    (Fla. 3d DCA 1998); and Section 120.57(1)(j), Florida Statutes (2006)("Findings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute.").

12. What constitutes "clear and convincing" evidence was described by the court in Evans Packing Co. v. Department of

Agriculture and Consumer Services, 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA 1989), as follows:

. . . [C]lear and convincing evidence 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 in 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 or conviction, without hesitancy, as to the truth of the allegations sought to be established.

Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

See also In re Graziano, 696 So. 2d 744 (Fla. 1997); In re Davey, 645 So. 2d 398 (Fla. 1994); and Walker v. Florida Department of Business and Professional Regulation, 705 So. 2d 652 (Fla. 5th DCA 1998)(Sharp, J., dissenting).

1. Section 458.331(1)(jj), Florida Statutes (2003)(2004).

   
   

   16. Section 458.331(1)(jj), Florida Statutes (2003)(2004), defines the following disciplinable offense:

   (jj) Being found by any court in this state to have provided corroborating written

   medical expert opinion attached to any statutorily required notice of claim or intent or to any statutorily required response rejecting a claim, without reasonable investigation.

   
   

   1. The "statutorily required notice of claim or intent" referred to in Section 458.331(1)(jj), Florida Statutes, is set out in Section 766.106(2)(a), Florida Statutes (2003):

      After completion of presuit investigation pursuant to s. 766.203(2) and prior to filing a complaint for medical negligence, a claimant shall notify each prospective defendant by certified mail, return receipt requested, of intent to initiate litigation for medical negligence. Notice to each prospective defendant must include, if available, a list of all known health care providers seen by the claimant for the injuries complained of subsequent to the alleged act of negligence, all known health care providers during the 2-year period prior to the alleged act of negligence who treated or evaluated the claimant, and copies of all of the medical records relied upon by the expert in signing the affidavit. The requirement of providing the list of known health care providers may not serve as grounds for imposing sanctions for failure to provide presuit discovery.

      
      

   2. Section 766.203(2), Florida Statutes, further describes the requirements of a presuit investigation:

      PRESUIT INVESTIGATION BY CLAIMANT.--Prior to

      issuing notification of intent to initiate medical negligence litigation pursuant to s. 766.106, the claimant shall conduct an investigation to ascertain that there are reasonable grounds to believe that:

      1. Any named defendant in the litigation was negligent in the care or treatment of the claimant; and

      2. Such negligence resulted in injury to the claimant.

         
         

         Corroboration of reasonable grounds to initiate medical negligence litigation shall be provided by the claimant's submission of a verified written medical expert opinion from a medical expert as defined in s.

         766.202(5), at the time the notice of intent to initiate litigation is mailed, which statement shall corroborate reasonable grounds to support the claim of medical Fla. Stat. negligence. [Emphasis added].

         
         

   3. In this matter, Dr. Vazquez provided the "verified written medical expert opinion" required of the presuit investigation in the Circuit Court Case.

   4. In dismissing the complaint against two of the defendants in the Circuit Court Case for which Dr. Vazquez's medical expert opinion was relied upon to satisfy Section 766.106, Florida Statutes, Judge Boyer, complied with the requirements of Section 766.206(5)(a), Florida Statutes (2003):

      (5)(a) If the court finds that the corroborating written medical expert opinion attached to any notice of claim or intent or to any response rejecting a claim lacked reasonable investigation or that the medical expert submitting the opinion did not meet the expert witness qualifications as set forth in s. 766.202(5), the court shall report the medical expert issuing such corroborating opinion to the Division of Medical Quality Assurance or its designee.

      If such medical expert is not a resident of the state, the division shall forward such

      report to the disciplining authority of that medical expert.

      
      

   5. It is apparent from Judge Boyer's February 22, 2005, Order that he found that Dr. Vazquez's written medical expert opinion of September 5, 2003, "lacked reasonable investigation [and] that the medical expert submitting the opinion did not meet the expert witness qualifications as set forth in s. 766.202(5) "

   6. Given the language of Judge Boyer's Order and his compliance with the requirements of Section 766.206(5)(a), Florida Statutes, it has been clearly and convincingly proved that Dr. Vazquez is in violation of Section 458.331(1)(jj), Florida Statutes (2003)(2004).

2. The Appropriate Penalty.

1. In determining the appropriate punitive action to recommend to the Board in this case, it is necessary to consult the Board's "disciplinary guidelines," which impose restrictions and limitations on the exercise of the Board's disciplinary authority under Section 458.331, Florida Statutes. See Parrot

   Heads, Inc. v. Department of Business and Professional Regulation, 741 So. 2d 1231 (Fla. 5th DCA 1999).

2. The Board's guidelines are set out in Florida Administrative Code Rule 64B8-8.001, which provides the

   following "purpose" and instruction on the application of the penalty ranges provided in the Rule:

   1. Purpose. Pursuant to Section 456.079, F.S., the Board provides within this rule disciplinary guidelines which shall be imposed upon applicants or

      licensees whom it regulates under Chapter 458, F.S. The purpose of this rule is to notify applicants and licensees of the ranges of penalties which will routinely be imposed unless the Board finds it necessary to deviate from the guidelines for the stated reasons given within this rule. The ranges of penalties provided below are based upon a single count violation of each provision listed; multiple counts of the violated provisions or a combination of the violations may result in a higher penalty than that for a single, isolated violation. Each range includes the lowest and highest penalty and all penalties falling between.

      The purposes of the imposition of discipline are to punish the applicants or licensees for violations and to deter them from future violations; to offer opportunities for rehabilitation, when appropriate; and to deter other applicants or licensees from violations.

      
      

   2. Violations and Range of Penalties. In imposing discipline upon applicants and licensees, in proceedings pursuant to Section 120.57(1) and 120.57(2), F.S., the Board shall act in accordance with the following disciplinary guidelines and shall impose a penalty within the range corresponding to the violations set forth below. The verbal identification of offenses are descriptive only; the full language of each statutory provision cited must be consulted in order to determine the conduct included.

3. Florida Administrative Code Rule 64B8-8.001(2) goes on to provide, in pertinent part, that the penalty range for a violation of Section 458.331(1)(jj), Florida Statutes, is "[f]rom denial or revocation of license with the ability to reapply upon payment of $1,000.00 fine to denial of license without ability to reapply."

4. Florida Administrative Code Rule 64B8-8.001(3) provides that, in applying the penalty guidelines, the following aggravating and mitigating circumstances are to be taken into account:

   1. Aggravating and Mitigating Circumstances. Based upon consideration of aggravating and mitigating factors present in an individual case, the Board may deviate from the penalties recommended above. The Board shall consider as aggravating or mitigating factors the following:

      
      

      1. Exposure of patient or public to injury or potential injury, physical or otherwise: none, slight, severe, or death;

      2. Legal status at the time of the offense: no restraints, or legal constraints;

      3. The number of counts or separate offenses established;

      4. The number of times the same offense or offenses have previously been committed by the licensee or applicant;

      5. The disciplinary history of the applicant or licensee in any jurisdiction and the length of practice;

      6. Pecuniary benefit or self-gain inuring to the applicant or licensee;

      7. The involvement in any violation of Section 458.331, F.S., of the provision of controlled substances for trade, barter or

         sale, by a licensee. In such cases, the Board will deviate from the penalties recommended above and impose suspension or revocation of licensure.

      8. Where a licensee has been charged with violating the standard of care pursuant to Section 458.331(1)(t), F.S., but the licensee, who is also the records owner pursuant to Section 456.057(1), F.S., fails to keep and/or produce the medical records.

      9. Any other relevant mitigating factors.

   
   

5. In Petitioner's Proposed Recommended Order, the Department has suggested that Dr. Vazquez' license to practice medicine be revoked with the ability to reapply. While this recommendation is consistent with the guidelines, taking into consideration the mitigating and aggravating circumstances and the fact that Dr. Vazquez did not have an opportunity to be heard before issuance of the February 22, 2005, Order, it is recommended that Dr. Vazquez's license only be suspended.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the a final order be entered by the Board of Medicine finding that Francisco Vazquez, M.D., has violated Section 458.331(1)(jj), Florida Statutes, as described in this Recommended Order; suspending his license to practice medicine in the State of Florida for two years; and imposing a fine in the amount of $1,000.00.

DONE AND ENTERED this 18th day of June, 2007, in Tallahassee, Leon County, Florida.

S

LARRY J. SARTIN

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 18th day of June, 2007.

COPIES FURNISHED:

Michael P. Gennett, Esquire Shutts & Bowen, LLP

201 South Biscayne Boulevard, Suite 1500 Miami, Florida 33131

Patricia Nelson, Esquire Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3250

Larry McPherson, Executive Director Department of Health

4052 Bald Cypress Way Tallahassee, Florida 32399-3265

Dr. Ana M. Viamonte Ros, Secretary Department of Health

4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701

Josefina M. Tamayo, General Counsel Department of Health

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

R. S. Power, Agency Clerk 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 these cases.

Docket for Case No: 07-000424PL

Orders for Case No: 07-000424PL