The Issue The issues for consideration in this case are those promoted by an administrative complaint in which the Petitioner has accused the Respondent of violating certain provisions within Chapters 455 and 458, Florida Statutes, pertaining to licensure. This relates to the contention by Petitioner that Respondent has obtained his license to practice medicine in Florida by fraudulent means. These allegations are more completely described in the conclusions of law.
Findings Of Fact Respondent is a licensed physician having been issued license number ME0043541. On or about September 9, 1983, Respondent submitted an application to the Board of Medical Examiners, now known as the Board of Medicine, seeking a license to practice medicine in Florida. This request was for licensure by endorsement. On the form application there is a section which refers to the applicant's medical education. It instructs the applicant to be specific and account for each year of the medical education calling upon the applicant to give the name of the medical school and the location. In response to this requirement, Respondent indicated that he attended the Universidad del Noreste in Tampico, Mexico, from July, 1977 to May, 1978; from July, 1978 to May, 1979 and from June, 1979 until May, 1980. He further stated that he attended Universidad Cetec, Santo Domingo, Dominican Republic, from June, 1980 until May, 1981 and received a degree of doctor of medicine from that university on June 8, 1981. In submitting the application for licensure by endorsement, he did so under oath and in the course of signing the application he acknowledged the following in his affidavit and oath: "I have carefully read the questions in the foregoing application and have answered them completely, without reservation of any kind, and I declare under penalty of perjury that my answers and all statements made by me herein are true and correct. Should I furnish any false information in this application, I hereby agree that such action shall constitute cause for the denial, suspension or revocation of my license to practice medicine and surgery in the State of Florida. As part of the application process, Dorothy J. Faircloth, Executive Director to the Board of Medical Examiners, sent a letter to Dr. Traynor on September 30, 1983, requesting additional information. The text of that letter was as follows: Dear Dr. Traynor: With further reference to your application for licensure in Florida by you are required to provide to this office, in the form of an affidavit, a narrative report on all your activities relating to your medical education beginning with date of enrollment in medical school. Such report should include, but not be limited to, all classes attended (dates and name and location of institution) which were not conducted at the main teaching hospital of the medical school from which you received a medical diploma. You are also required to complete the enclosed form, providing additional information regarding your medical education and places of residence while in medical training. Upon receipt of the above requested material, you may be required to make a personal appearance before the Board for consideration of your application. The form referred to in the second paragraph of the correspondence from Ms. Faircloth is the form entitled: Attachment for Application for Licensure. Within that form it asks that the applicant "list all places of residence during medical school." This is broken down into various lines on the form requiring the applicant to state the city, state or country and the various period in which he resided in those places. A copy of the executed form offered by the Respondent on October 7, 1983 may be found as a part of Petitioner's composite exhibit 5 admitted into evidence. In the course of describing his residence, he refers to Tampico, Mexico in the period August, 1977 through July, 1978; August, 1978 through July, 1979 and August, 1979 through July, 1980. He then describes his place of residence during medical school as being Santo Domingo, Dominican Republic, in the period July, 1980 through June, 1981. The attachment for application for licensure form then has a section which states "Medical Education: be specific. Account for each year. List all universities or colleges where you attended classes and received training as a medical student." In response to this request, the Respondent provided the same information which he had given in his initial endorsement application form described before. In swearing to the accuracy of those matters set forth in the Attachment for Application for Licensure offered on October 7, 1983, Respondent gave the same oath as related to the endorsement application form acknowledging the possibility of denial, suspension or revocation of any license which was received by the giving of false information. In reply to the first paragraph of the September 30, 1983 correspondence from Ms. Faircloth, Respondent offered a document entitled "Clinical Training." A copy of that document may be found as part of Petitioner's composite exhibit 5. That document states: CLINICAL TRAINING Kevin M. Traynor Aug. '77 - July '79: Basic science courses at Del Noreste; Tampico, Mexico August - Dec. '79: Del Noreste Hospital, Tampico, Mexico Pulmonary Ear, nose & throat Cardiology Ophthalmology Jan. - June '80: Del Noreste Hospital; Tampico, Mexico Traumatology (orthopedics) Forensic medicine Gastroenterology Dermatology July - Dec. '80: University Hospital; Cetec School of Medicine, Santo Domingo, Dominican Republic Neurology Infectious disease Endocrinology General surgery Jan. - June '81: University Hospital; Uni- versity Cetec School of Medicine, Santo Domingo, Dominican Republic Psychiatry Internal medicine OB-GYN Pediatrics By the representations set forth in the statement of clinical training which were made by the Respondent, the impression is given that all of his activities related to his medical education from the point of enrollment to the completion of his medical school training were conducted at the Universidad del Noreste and University Cetec and the hospitals affiliated with those institutions. Given that the Respondent is silent on other activities outside those settings, a reading of his explanation leads one to believe that he had no such activities. This is not a true depiction of his training in medical school. In this respect, the Respondent has misled the Florida Board of Medical Examiners in that the vast majority of clinical rotations which the Respondent participated in during his medical school education occurred during externships in the United States. In addition, Respondent, in his comments in the endorsement application form and in the Attachment for Application for Licensure form, has misled the Board of Medical Examiners by describing his residence in medical school as Santo Domingo, Dominican Republic, in the period July, 1980 through June, 1981. He was not residing in the Dominican Republic until January, 1981. Respondent's domicile or official residence was in Tampico, Mexico, until the end of 1980. Respondent did not receive medical education in the sense of attending classes and receiving training as a medical student in affiliation with the Universidad Cetec until January, 1981. This is contrary to his representations about residence and medical education in which he describes his association with Universidad Cetec dating from July, 1980. Respondent had made an inquiry about being admitted to Universidad Cetec in December, 1980, and was given the impression that that request would be approved. Respondent's official acceptance by Universidad Cetec occurred on January 8, 1981. In referring to the activities related to medical education spoken to in the September 30, 1983 correspondence from Ms. Faircloth, the records reveal that Respondent did externship at St. Francis Hospital in Miami Beach, Florida from July 9, 1975 through November 20, 1979. He further did externship at Kingsbrook Jewish Medical Center in Brooklyn, New York, from January, 1980 through May, 1980, rotations involving medicine, pediatrics and surgery. In that same institution from June 30, 1980 through July 13, 1980, Respondent did a rotation in neurology. In the period July, 1980 through December, 1980, Respondent performed unofficial and uncredited externship at Kingsbrook. All of these activities occurred under the aegis of his status as a medical student at Universidad del Noreste. In the period February, 1981 through May, 1981, while at Universidad Cetec, Respondent did an externship at Brookdale Hospital Medical Center in New York in hematology and renal and electrolytes. In April, 1981, as an extern at Nassau County Medical Center in East Meadow, New York, Respondent performed a clerkship in urology. Under the circumstances in examining the places of residence during medical school, while Respondent may have been in official residence in Mexico and the Dominican Republic, his actual residence was in various locations within the United States in the periods described in the preceding paragraphs. Following his graduation, Respondent also participated in training programs at Brookdale Hospital Medical Center related to an elective in emergency services from the period August 10, 1981 through September 4, 1981. He performed an elective in the period September, 1981 through October, 1981 in the Division of Pulmonary Medicine at the Down State Medical Center which is affiliated with the Department of Medicine, AIE University of New York. From 1981 through June, 1984, Respondent was involved in an internal medicine residency at Jersey Shore Medical Center/Fitken Hospital in Neptune, New Jersey. Beginning in 1984 through June, 1986, Respondent completed a cardiology fellowship program in Jacksonville, Florida, at the University Hospital which is part of JHEP, a training program associated with the University of Florida medical school. In explaining why he has reported his residence in his medical education as commencing in July, 1980 at Universidad Cetec, Respondent indicates that he had been told by the dean of the medical school at Cetec, upon his admission there, that his enrollment would be back-dated to the beginning of the fall semester, or June, 1980. To this end Respondent paid Universidad Cetec $2,500 which represented a tuition payment for the seventh semester running from approximately June, 1980 to December, 1980. This payment for back-dating and credit for the seventh semester was made on April 23, 1981. There is no indication that those records were back-dated to show acceptance of a seventh semester under association with Universidad Cetec. Respondent did not undertake any clinical training in that period which could be credited, with the exception of his urology clerkship at Kingsbrook Jewish Medical Center in the period June 30, 1980 through July 13, 1980. He did not stand examination in any of the subject areas pertaining to his medical education in that seventh semester running from June, 1980 to December, 1980, having foregone the examination sessions given by Universidad del Noreste at the conclusion of that seventh semester. In the final analysis, Respondent did not accomplish anything toward advancing his medical education in the seventh semester running from approximately June, 1980 through December, 1980 as recognized by either medical school which he attended. There is evidence that part of the unofficial work done by the Petitioner in the fall of 1980 at Kingsbrook Jewish Medical Center related to dermatology and E.R. Even accepting the concept explained by the Respondent to the effect that both of the medical schools he attended would allow a student to stand examination in medical subjects at times not correlated with the performance of clinical clerkships, to the extent that the seventh semester unofficial clinical clerkships being performed are germane, they have not been credited. Respondent claims that the period from the end of the fall of 1980 was not crucial in that he had fulfilled enough weeks in clinical rotation to allow his graduation. In any event, Respondent did graduate, was certified by the Educational Commission for Foreign Medical Graduates, passed the FLEX examination and has been licensed in the states of Georgia and New Jersey. In explaining his response to the requirements related to his application for licensure in Florida to practice medicine, Respondent indicates that he was of the persuasion that he need only provide information pertaining to his clinical training as credited by the two schools he attended. This is not a fair reading of the requirements expressed in the correspondence of September 30, 1983, in which all activities involving the medical education are sought. This contemplates that specific information as to the exact nature and location of the externship rotations performed in the United States should be explained. Respondent failed to do this and what he did offer by way of explanation is misleading in that clerkships are set forth pertaining to experience in the period July, 1980 through December, 1980 associated with the Universidad Cetec which did not occur at that time because the Respondent was not enrolled at Universidad Cetec during that period. In addition, the statement about clinical training given by the Respondent would have one believe that the training occurred in the affiliated hospitals associated with the two medical schools he attended which is erroneous. The clinical training statement by the Petitioner does not coincide with his actual clinical training, an example being that during the period January, 1980 through June, 1980 while affiliated with the Universidad del Noreste, he says that he received training in traumatology (orthopedics), forensic medicine, gastroenterology, and dermatology when in fact the training he was receiving at that time at Kingsbrook Jewish Medical Center was in the fields of medicine, pediatrics and surgery. It appears that Universidad del Noreste gave him credit for those subjects he relates, but this was not the clinical training he was undergoing in that time sequence. During the period July through December 1980 where he indicates that he received clinical training in neurology, infectious disease, endocrinology and general surgery, the only official training he received was in neurology. It is debatable whether the requirements for establishing residence as described in the endorsement application form and the Attachment for Application for Licensure form sought the official residence, that is, his residence in the country where he attended medical school or the actual residence where externships were being performed as well as when he was actually at the university. In any event, if it was seeking the official residence, his information is misleading in that he describes his official residence as Santo Domingo in the period July, 1980 through December, 1980, when in fact his official residence was Tampico, Mexico. Respondent was given his medical license by the State of Florida on December 5, 1983, based in part upon the information as set out in the endorsement application form, the Attachment for Application for Licensure form and the narrative on clinical training provided by the Respondent. Before the occasion of the present administrative complaint, there is no indication that the Respondent has been disciplined by the State of Florida. At present, Respondent is practicing medicine in Florida and is a resident of Stuart, Florida.
Findings Of Fact Upon consideration of the oral and documentary evidence presented the following facts are found: Petitioners each made application for a certificate of need under the provisions of Sections 381.493 through 381.497, Florida Statutes, 1975, which applications were submitted to the Bureau of Community Medical Facilities and accepted as complete by the bureau. Each application seeks a certificate of need for a third generation computerized axial tomography scanner (whole body unit) hereinafter referred to as a CAT scanner. There is presently in Jacksonville a head scanner installed at St. Vincent Hospital in November, 1975, and a whole body scanner at St. Luke's Hospital which has been in full operation since January, 1976. All three Petitioners are located in Jacksonville, Florida. The applications were processed by the appropriate Health Systems Agency. After due consideration the Health Systems Agency recommended that each of the three applications be granted. At the request of the Bureau of Community Medical Facilities, Department of Health and Rehabilitative Services, the State Hospital Advisory Council reviewed the applications and upheld the Health Systems Agency's determination that the three applications should be granted certificates of need. After consideration of the applications, the Health Systems Agency's recommendation the State Hospital Advisory Council's recommendation, Mr. Art Forehand, Administrator, Office of Community Medical Facilities, Respondent herein, notified each of the three Petitioners that their applications were not favorably considered. Mr. Forehand's notification set forth three reasons for the unfavorable consideration. Those were (1) lack of demonstrated need for the requested scanner, (2) failure of each application to demonstrate positive action toward containment of cost for services rendered to the public, and (3) lack of demonstrated unavailability, unaccessability, and inadequacy of like services within the Jacksonville area. At the time of his decision Mr. Forehand had no material or information available to him which was not available to the Health Systems Agency or the State Hospital Advisory Council at the time of their decision. At the time the three applications were denied Mr. Forehand felt that there did exist a need for one additional scanner in the Jacksonville area but he did not feel that he should bear the burden of deciding which one of the three applications should be granted and therefore all three were denied. Except for those matters set forth in Mr. Forehand's denial and noted above, none of the parties to this proceeding disputed that the criteria for determining need found in Section 101-1.03(c), F.A.C., were met. A study of computerized axial tomography with suggested criteria for review of certificate of need applications was conducted by the staff of the Health Systems Agency of Northeast Florida relative to the Duval County area. This study was published in April of 1976 and its findings appear to have been accepted by the Health Systems Agency. As one of its suggested criteria for determining need it found that a hospital or applicant should have a potential case load of at least 1,000 CAT scans per year. The study went on to project a potential case load for the three Petitioners herein. That projection for Baptist Memorial Hospital shows a a potential case load of 2,512 scans per year. The study noted that Baptist Memorial projected 1,300 scans for the first year during start up operations and 2,080 scans during the second and third years of their forecast. The study found that Riverside Hospital has a potential case load of 1,196 scans per year compared to their own projections of 1,432 scans per year. The study finally found that the University Hospital has a potential case load of 1,558 scans per year compared to their projection of 2,904. Testimony on behalf of the Respondent shows that in the opinion of Respondent full use of a CAT scanner is 10 scans per day on a 20-day work month working five days a week. As shown by unrebutted testimony the existing scanner at St. Luke's Hospital in Jacksonville is presently averaging 10 scans per day, five-days a week. Further, according to the evidence presented by Respondent, the existing scanner at St. Vincent is being utilized to at least 85 percent of its capacity. Respondent took the position at the hearing that when existing scanners are being used to 85 percent or more of their capacity a need exists for more equipment. Thus, it appears that using the criteria of utilization adhered to by Respondent, the existing CAT scanners in Jacksonville are being utilized to the extent that there is a need for additional scanners. University Hospital has 310 licensed beds and is the community hospital in Duval County with the responsibility of serving the indigent on an emergency and short term basis. It is the trauma center of the city and has the most active emergency room. It is also the major teaching hospital in Duval County. Respondent agrees that it has the greatest need of any hospital in Duval County for a CAT scanner. The University Hospital has approximately 300 visits per month to its emergency room. In the four months prior to the date of final hearing the hospital did 586 skull x-rays due to trauma. In the case of acute trauma patients frequently may not be moved from one hospital to another for the purpose of a CAT scan nor, in some cases, should other dangerous invasive techniques be used for diagnosis. Baptist Hospital has 567 licensed beds and is a major oncology center or cancer center and does a large amount of surgical cancer work in additional to radiation therapy. With the possible exception of University Hospital, Baptist Hospital is the largest pediatric hospital in the area. According to the testimony of the administrator of the hospital it would take 14 to 18 months after receipt of a certificate of need to have a CAT scanner in service. Riverside Hospital has 183 licensed beds. The hospital has been a specialty hospital since its establishment in 1908 and serves the Riverside Clinic. The hospital has approximately 200 specialized physicians, all board certified, on-staff. Riverside is a unique hospital because of its degree of specialty and its relationship to Riverside Clinic. Riverside Hospital does 100 percent of the Riverside Clinic's radiology work. Riverside Hospital has been known as an established diagnostic center. Witnesses for Riverside Hospital testified that if they were not able to have a CAT scanner their reputation and ability to provide first class service would be seriously diminished. CAT scanners represent a significant development in diagnostic medicine. They reduce the need for many dangerous, painful and costly injections of dye, air and radioactive isotopes required by some of the more traditional diagnostic procedures. The three most common tests displaced by CAT scanners are pneumoencephalography, angiography and radioactive isotope scanning. The first two of the foregoing are particularly expensive procedures and require hospitalization. At present, patients at the three Petitioner hospitals have to be transported to another facility in order to use a scanner. The transfer of an inpatient to another hospital for a scan may effectively consume the better part of a patient's day and may require an extra day of hospitalization. The cost of transportation, increased hospital stay and ancillary matters increase the actual cost to the Patient. Patients suffering from severe trauma or otherwise in a critical state, may not be transported out of a hospital to a scanner. All three of the Petitioners have an active neurological and neurosurgical staff and qualified radiologists. The unrebutted testimony indicates that, although CAT scanners are a new development whose potential has not yet been fully explored and whose development may not yet be final, they nevertheless have become an essential diagnostic tool of regular use.
Findings Of Fact Ruth Rogers is a licensed medical physician authorized to practice medicine in this state. The Complaint allegations centered around testimony of the Respondent, Ruth Rogers, during a custody proceeding in which the Child Protective Services (a State Agency) was attempting to gain custody of one Dena (Nikki) Decker based on facts which will be set forth in detail hereinafter. Jack McGowan, a medical doctor engaged primarily in pediatrics in Fort Pierce, Florida, testified that he first treated Dena Decker during August of 1973, at which time Decker was approximately seven weeks old. Dr. McGowan made subsequent treatments of Dena Deckur on a regular basis through December of 1976. During December, Dr. McGowan noted that Decker's lymph glands were enlarged and he ordered that certain lab work be performed, the results of which were returned to him sometime during early January of 1977. Based on the lab results, Dr. McGowan tentatively diagnosed Dena Decker as being a patient suffering from acute leukemia. To confirm this diagnosis, he referred her to the Shands Teaching Medical Center in Gainesville, wherein Dr. McGowan's diagnosis was confirmed. The treating physicians of Patient Decker at Shands Teaching Hospital were Drs. Jerry L. Arbosa and David Pockmore. It was their medical opinion that Dena was in fact suffering from acute lymphoblastic leukemia and that this disease should be treated by chemotherapy at Shands Teaching Hospital in Gainesville. Drs. Barbosa and Rockmore explained to the parents of Dena Decker the benefits and side effects of chemotherapy treatment, and they suggested that this was the best method of treating a patient such as Dena Decker, who was suffering from acute lymphoblastic leukemia. They noted, however, that there were some side effects, such as loss of hair and the destruction of certain "good" cells as well as "bad" cells. Dema Decker's parents requested time to consider the chemotherapy treatment and Drs. Barbosa and Rockmore stressed to her parents that "time was of the essence". After a few days, the parents of Dena Decker declined the treatment and at that juncture, Drs. Barbosa and Rockmore called in the Child Protective Services of Gainesville wherein a custody proceeding was convened, with the State seeking a custody award of Dena Decker. During that proceeding, Dr. Ruth Rogers, Respondent, testified that she would treat such a patient suffering from acute lymphoblastic leukemia with natural foods, herbs and optimal psychological support. It was Drs. Barbosa and Rockmore's opinion that the method of treatment outlined by the Respondent would be futile and that the patient would die in a short period of time. There was no evidence that the Respondent, Ruth Rogers, counseled with Dena Decker's parents or that she at any time treated Dena Decker by the method to which she testified during the custody proceeding in Gainesville. Following the conclusion of the Petitioner's case, Respondent's counsel moved for a directed verdict, summary judgment, or a judgment based on a failure on the Petitioner's part to establish a prima facie case. After some consideration, the undersigned concluded that, based on the evidence adduced during the Petitioner's case in chief, insufficient evidence was offered to establish that the Respondent had violated Chapter 458.1201(m), Florida Statutes, as alleged. Section 458.1201 is the section of the Medical Practices Act which deals with the power of the Board in the denial, suspension, revocation of license, and other discipline of medical practitioners. It reads, in pertinent part: "458.1201l--Demial, suspension, revocation of license; disciplinary powers-- The board shall have authority to deny an application for a license or to discipline a physician licensed under this chapter or any antecedent law who, after hearing, has been adjudged unqualified or guilty of the follow- ing: (Here is set forth several categories of disqualification or misconduct included in which is subsection (m))." Subsection (m) sets forth as grounds for. . . discipline of a physician, the following facets of misconduct: "(m) Being guilty of immoral or unprofessional conduct, incompetence, negligence or will- ful misconduct. Unprofessional conduct shall be any departure from, or the failure to conform to, the standards of acceptable and prevailing medical practice in his area of expertise as determined by the board, in which proceeding actual injury to a patient need not be established; when the same is committed in the course of his practice whether committed within or without this state." (Emphasis supplied) The administrative charge herein claimed to be proscribed by the above- quoted section of the statutes deals only with the testimony of the Respondent as to a method of treatment that she would use for treating acute lymphoblastic leukemia. Based on my examination of this record and an analysis of the reported case law, I conclude that the giving of such testimony is not proscribed unprofessional conduct as that term is included within this particular subsection of Chapter 485.1201(m). As the Court of Appeals stated in Lester v. Department of Professional and Occupational Regulation, Fla.App., 348 So.2d 923 (1977), the Court stated: "In construing the language and import of this statute we must bear in mind that it is, in effect, a penal statute since it imposes sanctions and penalties in the nature of denial of license, suspension from practice, revocation of license to practice, private or public reprimand, or probation, upon those found guilty of violating its prescriptions. This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably pro- scribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the applicant or licensee." This being so, I conclude that the above-cited conduct claimed to be violative of Chapter 458 is not proscribed by Chapter 458.1201(m) and I shall recommend that the Board enter a final administrative order dismissing the instant action against the Respondent.
Recommendation Based on the foregoing findings and conclusions, hereby RECOMMEND: That the Administrative Complaint filed herein against the Respondent be DISMISSED. RECOMMENDED this 28th day of August, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Michael I. Schwartz, Esquire Suite 201 Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301 David Rogers, Esquire 3101 Maguire Boulevard Post Office Box 20065 Orlando, Florida 32814 George S. Palmer, M.D. Execuivo Director State of Florida, Board of Medical Examiners 2009 Apalachee Parkway, Suite 220 Tallahassee, Florida 32301
Findings Of Fact The PROVIDER received the FAR that gave notice of PROVIDER'S right to an administrative hearing regarding the fine. The PROVIDER filed a petition requesting an administrative hearing, and then caused that petition to be WITHDRAWN and the administrative hearing case to be CLOSED. PROVIDER chose not to dispute the facts set forth in the Final Agency Audit Report dated October 2, 2009. The facts alleged in the FAR are hereby deemed admitted. The Agency hereby adopts the facts as set forth in the FAR, including the fine amount of $1,000.00 and the requirement to complete a corrective action plan in the form of provider education, which is now due and owing, from PROVIDER to the Agency.
