Findings Of Fact Petitioner, Immaculate Espejo Asuncion, of St. Paul, Minnesota, filed an application with Respondent, Board of Medical Examiners, on September 21, 1982, for licensure by endorsement to practice medicine. (Testimony of Petitioner, Joint Exhibit No. 1) On March 7, 1983, Respondent issued a Notice of Intent to Deny Endorsement Licensure on the grounds that Petitioner had not obtained a 75 percent FLEX weighted average on the licensure examination of the Federation of State Medical Boards of the United States, Inc., as required by Rule 21M- 29.01(2), Florida Administrative Code, and was not certified by the National Board of Medical Examiners as having completed its examination within the ten years immediately preceding the filing of the application for licensure by endorsement, as required by Section 458.313(1)(d), Florida Statutes. Petitioner thereafter requested a hearing on the proposed denial of her application. (Testimony of Faircloth, Joint Exhibit No. 1) Petitioner was licensed to practice medicine in the state of Minnesota in 1978. She obtained such licensure by satisfactorily passing the clinical science and clinical competence portions of the FLEX examination, and by successfully completing a basic sciences examination administered by the Minnesota State Board of Examiners. (Testimony of Petitioner, Joint Exhibit No. 1) Petitioner is a graduate of a foreign medical school and is therefore not eligible to take the examination of the National Board of Medical Examiners. The alternate method of obtaining licensure by endorsement is by certification through licensure examination of the Federation of State Medical Boards of the United States, Inc. (FLEX). This examination has three parts and is taken over a period of three days. The three parts of the examination are basic science, clinical science, and clinical competence. The scores on the three parts are averaged under a formula to produce a weighted average score. Respondent's Rule 21M-29.01(2), Florida Administrative Code, requires that an applicant have a FLEX weighted average of 75 percent from one complete sitting on the examination. Petitioner took only the clinical science and clinical competence portions of the examination and therefore did not obtain a certified FLEX weighted average score. The Minnesota basic sciences examination taken by Petitioner was not the same basic sciences examination administered as part of the FLEX examination. (Testimony of Faircloth, Joint Exhibit No. 1)
Recommendation That Respondent enter a Final Order denying Petitioner's application for licensure by endorsement. DONE and ENTERED this 16th day of June, 1983, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1983. COPIES FURNISHED: Immaculate Espejo-Asuncion, M.D. Dorothy J. Faircloth 80 Battle Creek Place Executive Director St. Paul, Minnesota 55119 Board of Medical Examiners 130 North Monroe Street John Griffin, Esquire Tallahassee, Florida 32301 Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in these two consolidated cases is whether disciplinary action should be taken against Luis J. Marti, M. D., hereinafter referred to as "Respondent Marti," and/or Jesus Escar, M.D., hereinafter referred to as "Respondent Escar," based upon the alleged violations of Chapter 458, Florida Statutes, contained in the separate Administrative Complaints filed against each of the Respondents.
Findings Of Fact Based on the stipulations of the parties; on the testimony of the witnesses, and on the exhibits received in evidence at the hearing; I make the following findings of fact. Respondent Escar is, and has been at all times material hereto, a licensed physician in the state of Florida, having been issued license number ME 0034247. Respondent Escar's last known address is 935 West 49th Street, Suite #107, Hialeah; Florida 33012. Respondent Marti is, and has been at all times material hereto, a licensed physician in the state of Florida, having been issued license number ME 0034842. Respondent Marti's last known address is 24355 West Flagler Street, Miami, Florida 33125. Respondent Marti went to medical school in Madrid, Spain. In approximately 1970, while Respondent Marti was in medical school in Madrid, Spain, Respondent Marti met Jose A. Tudela for the first time. At the time, Tudela had come to Madrid, Spain, for the purposes of starting medical school. In approximately 1975, while Respondent Marti was working as a resident at Cedars of Lebanon Hospital, Respondent Marti again saw Jose A. Tudela. At about the same time, Respondent Escar met Tudela for the first time. Tudela's father, Francisco Tudela, a physician, was an attending physician at Cedars of Lebanon Hospital. Respondents Marti and Escar saw Jose and Francisco Tudela in 1975 while on rounds at the hospital. In 1979, while Respondents Marti and Escar were working at Palm Springs General Hospital, Jose A. Tudela came to the hospital to apply for a position as a house physician and saw Respondents Escar and Marti. When Tudela applied for the position of house physician at Palm Springs General Hospital, Respondents Marti and Escar were both residents at the hospital. On the day that Jose A. Tudela came to apply for the position of house physician at Palm Springs General Hospital, Tudela came to the doctors' lounge at the hospital where he spoke with Respondents Escar and Marti. Tudela had with him a diploma which appeared to Respondents Escar and Marti to be authentic and which appeared to have been issued by the Universidad Central del Este. The diploma had on the back what appeared to be official stamps and seals and the signature of the Vice Consul of the United States. Additionally, a translation of the diploma was attached to the diploma. On the date that Tudela came to apply for the position of house physician at Palm Springs General Hospital, Tudela also showed Respondents Escar and Marti what appeared to be a transcript of his grades from the Universidad Central del Este and a letter purportedly from one Victoria Marcial de Gomez. The transcript and letter appeared to Respondents Escar and Marti to be original and authentic. The letter from Gomez, who purportedly was the medical director for the health center of Trujillo Alto Health Department, in the associated Free State of Puerto Rico, appeared to verify the fact that Dr. Jose A. Tudela had worked in the Health Center of Trujillo Alto for seven months. When Respondent Marti reviewed Tudela's documents, he knew it was important that foreign papers be certified because he had had the experience of having to leave Cuba and re-establish himself. Respondent Marti's own diplomas from Spain bear attestations of notarization of a foreign government. Respondent Escar believed that Tudela's documents were originals because of his experience in having seen similar original documents of other residents in the past. On or about August 1, 1979, Jose A. Tudela completed an application for employment as a house physician at Palm Springs General Hospital. The application contained basic personal information about Tudela and listed some of Tudela's education and work experience. According to the application, Tudela went to Belle Glade High School, in Belle Glade; Florida; Warwick High School, in Newport News, Virginia, where he graduated in 1965; and the University of Miami; in Coral Gables, Florida where he graduated in 1970. According to the application, Tudela worked in an unspecified capacity in the Centro de Salud, in Trujillo Alto, Puerto Rico, from 1978 to 1979. The application form does not contain any information about Tudela's medical education. Specifically, it does not contain any mention of University of Santo Domingo, Universidad Central del Este, or U.C.E. On or about August 8, 1979, Jose A. Tudela was employed by Palm Springs General Hospital as a house physician. Jose A. Tudela remained at Palm Springs General Hospital as a house physician until October 29, 1979. Tudela left Palm Springs General Hospital on that date to become a surgical assistant at Miami Children's Hospital. While employed a Miami Children's Hospital, Tudela received the highest score on every item on his employee evaluation form. That hospital never knew of any problem with Tudela's performance or credentials until this case occurred. Between approximately 1979 and 1983, Respondents Escar and Marti practiced medicine together as partners. In 1980, Jose A. Tudela approached Respondent Marti and asked Respondent Marti to sign an affidavit on behalf of Tudela. Therefore, on or about March 13, 1980, Respondent Marti signed a Form B-1 which was addressed to Rafael A. Penalver, M.D., Director, Office of International Medical Education, University of Miami School of Medicine; Miami; Florida. The form B-1 contained the following sworn statement: This is to certify that Jose A. Tudela born in Cuba and a graduate from the University Santo Domingo on 1978 was legally engaged in the practice of medicine from ---- to in Puerto Rico. I have known the applicant since 1975 and was acquainted with him/her during the time he practiced medicine. I was algo (sic) engaged in the practice of medicine in Miami U.S.A. during the years of 1975 and up. At some time after Respondent Marti signed the Form B-1, the abbreviation "(U.C.E.)" was added to the above-referenced sworn statement after the school name, "University Santo Domingo." Respondent Marti did not place the quoted abbreviation on the Form B-1. Prior to signing the subject Form B-1, Respondent Marti reviewed, for verification purposes, the employment application of Jose A. Tudela for Tudela's employment as a house physician at Palm Springs General Hospital. However, the employment application in question does not reflect any attendance by Tudela at any educational institution in the Dominican Republic or Santo Domingo. Furthermore, the employment application does not indicate the capacity in which Tudela worked in the Centro Salud in Trujillo Alto, Puerto Rico, and does not specifically indicate that Tudela practiced medicine in Puerto Rico. In 1980, Jose A. Tudela also approached Respondent Escar and asked Respondent Escar to sign an affidavit for him. Therefore, on or about March 13, 1980, Respondent Escar signed a Form B-1 which contained the following sworn statement: This is to certify that Jose A. Tudela born in Cuba and a graduate from the University of Santo Domingo on 1978 was legally engaged in the practice of medicine from ---- to in Puerto Rico. I have known the applicant since 1970 and was acquainted with him/her during the time he practiced medicine. I was algo (sic) engaged in the practice of medicine in Miami, Fla during the years of 1977 and up. The Form B-1 was addressed to Rafael A. Penalver, M.D., Director; Office of International Medical Education, University of Miami School of Medicine, Miami, Florida. At some time after Respondent Escar signed the Form B-1, the abbreviation "(U.C.E.)" was added to the above-referenced sworn statement after the school name, "University of Santo Domingo." Respondent Escar did not place the quoted abbreviation on the Form B-1. Respondent Escar relied upon Respondent Marti's verification of Tudela's background information in signing the Form B-1 described in the immediately preceding paragraph. Respondent Escar did not personally review Tudela's application for employment at Palm Springs General Hospital but discussed the information contained in the employment application with Respondent Marti. At the time Respondents Marti and Escar signed the Forms B-1, they did not know Tudela very well and did not know very much about his background. Although they both thought Tudela was probably a graduate of a medical school, they did not remember what school he had supposedly graduated from, as evidenced by the fact that they put the wrong school name on the Forms B- 1. Both Respondent Escar and Respondent Marti lacked personal knowledge of the information contained in the Forms B-1 which they signed for Jose A. Tudela. Neither of the Respondents saw or taught Tudela at medical school in the Dominican Republic. Furthermore, neither Respondent Escar nor Respondent Marti was in Puerto Rico at the time Jose A. Tudela allegedly practiced medicine at the Centro Salud in Trujillo Alto, Puerto Rico. Neither of the Respondents had any source of information about Tudela's alleged medical education in the Dominican Republic or his alleged practice of medicine in Puerto Rico other than statements Tudela may have made to them, statements Tudela wrote on the application form at Palm Springs General Hospital, and whatever information could be gleaned from a casual review of Tudela's forged credentials. Jose A. Tudela has never graduated from the Universidad Central del Este, which is located in the Dominican Republic, nor from any other medical school. Tudela enrolled in the Universidad Central del Este (U.C.E.) medical school in August, 1977. There is no evidence in the school records for U.C.E. that Tudela passed any of his courses. In May of 1978 Tudela was no longer at the university. Tudela was given a special concession at U.C.E. so that upon presentation of a pre-medical certificate which Tudela claimed to possess, Tudela could receive credit for the pre-medical program training. However, Tudela never presented the required proof of his pre-medical program. Tudela did not complete any of the twelve semesters at U.C.E. which make up the medical degree program including pre-medical training. Although Respondent Marti first met Tudela in 1970 and Respondent Escar met him in 1975, the Form B-1 signed by Respondent Marti states that he met Tudela in 1975, and the one signed by Respondent Escar states that he met Tudela in 1970. The reason for this error is that both of the forms were prepared by Respondent Marti and the forms were inadvertently switched at the time they were signed. The Forms B-1 signed by Respondents Marti and Escar were submitted to the Board of Medical Examiners by Jose A. Tudela as attachments to an Application for Continuing Medical Education Program, which was submitted as part of Tudela's application for licensure as a physician in Florida. Tudela applied for licensure in Florida under the provisions of a special law which provided that the Board of Medical Examiners would establish continuing education courses designed to qualify for licensure those individuals who were resident nationals of the Republic of Cuba and were residents of Florida on July 1, 1977. In order to qualify for the continuing education program set up by the Board of Medical Examiners for Cuban nationals, an applicant had to demonstrate that he was a graduate from a medical school with a medical degree and that he was a resident national of the Republic of Cuba and a resident of Florida on July 1, 1977. Upon approval of the applicant to participate in the continuing education program set up by the Board of Medical Examiners, the applicant would have to complete the continuing education program. Upon completion of the continuing education program, the applicant would be qualified to take the licensing examination. In or about March of 1980, Tudela submitted an Application for Examination, an Application for Florida State Board of Medical Examiners Continuing Education Program, and the necessary attachments, which included the Forms B-1 signed by Respondents Escar and Marti and copies of what purported to be his diploma and transcript of grades. After successfully completing the continuing medical education program and the licensure examination, Tudela became certified to practice medicine and surgery by the Board of Medical Examiners on August 23, 1982. At the time of Tudela's application for medical license, the staff of the Board of Medical Examiners conducted the initial review and made the initial determination as to whether an individual was qualified to take the continuing education course and to take the licensure examination for certification to practice medicine and surgery in Florida. In making such determinations, consideration is given to all of the information contained in an applicant's file, which includes such things as the applicant's degree or diploma, transcript of grades, and the Forms B-1. At the time Tudela applied for licensure, the staff of the Board of Medical Examiners did not verify the medical education of applicants and conducted no investigation into the school or the graduation of applicants for licensure. Prior to approving Tudela's application, neither the Board members nor the staff independently contacted the Universidad Central del Este to verify whether Tudela actually graduated from medical school. The Board members did not personally review Tudela's application. The staff reviewed the papers and presented the Board with a list of applicants who appeared to be eligible for the continuing education course and the licensure examination. The diploma and the transcript of grades which Tudela showed to the Respondents and filed with the Board of Medical Examiners are forgeries. They are very good forgeries and bear a remarkable resemblance to genuine diplomas and transcripts issued by the Universidad Central del Este. The false documents provided by Tudela to the Board as part of his application, along with the Forms B-1 signed by Respondents Marti and Escar, deceived the staff into recommending Tudela for the continuing education course, the licensure exam, and ultimately for certification to practice medicine. Tudela's application to the Board also contains several letters of recommendation from other physicians who were convinced of Tudela's competence. The Educational Commission for Foreign Medical Graduates granted Tudela a certificate despite his forged documents. In November 1984, an Administrative Complaint was filed against Jose A. Tudela which alleged that Tudela did not graduate from or obtain a degree of Doctor of Medicine from U.C.E., contrary to what Tudela had indicated in his application for licensure examination described above. In March 1985, the Board of Medical Examiners entered an order accepting the surrender for revocation of Jose A. Tudela's license to practice medicine in lieu of further prosecution of the charges contained in the Administrative Complaint which had been filed in November 1984. Tudela is not currently licensed as a physician in the state of Florida. No further action was taken against him for his having fraudulently obtained a medical license in Florida. Respondents Escar and Marti were both aware of the fact that the Forms B-1 which they signed were to be submitted as part of the application for the continuing medical education program which had been established by the Board of Medical Examiners for Cuban nationals as a prerequisite to take the licensure examination. In fact; Respondent Marti became eligible to take the medical licensure examination in Florida by completing the same continuing medical education program. When the Respondents Escar and Marti signed the subject Forms B-1, neither of them had any personal knowledge as to the truth or falsity of the statements therein regarding Tudela's medical education and experience; yet they deliberately certified, under oath, to the truthfulness of matters about which they were distinctly uninformed. When the Respondents Escar and Marti signed the subject Forms B-1, both of them knew the purpose of the forms and both knew that the Board of Medical Examiners would rely on the information in the forms.
The Issue This is an examination challenge proceeding in which the Petitioner asserts entitlement to a passing grade on a licensure examination.
Findings Of Fact The Petitioner, Allen Sledge, took the hematology technologist licensure examination in March 1999. In due course he was furnished a grade report which advised him that he had failed the exam. The grade report advised him that the minimum passing score was 350, and that he had achieved a score of 338. During the examination review requested by the Petitioner, he was not provided with the same examination booklet he had used during the examination. However, the contents of the examination booklet provided to him during the examination review were identical to the contents of the examination booklet provided to him when he took the examination. During the examination review process, the Petitioner was not allowed to make copies or notes regarding the content of any of the examination materials. Therefore, he had to write his challenges to the examination based on his memory of what he saw during the examination review process, without benefit of the exact language of the questions. The Petitioner's examination review was conducted in accordance with the provisions of statutes and rules that govern post-examination access to examination materials. There is only one version of the hematology technologist examination that was administered in March 1999. All candidates who took the examination on that date were provided with examination booklets that contained identical content. All candidates who took the hematology technologist examination in March 1999, were instructed to select the "best" answer for each question. With regard to the three challenged questions (Questions 35, 37, and 47), the Petitioner did not select the "best" answer to any of the three questions. Rather, the answers chosen by the Petitioner for each of the three challenged questions were incorrect choices. The subject matter of all of the challenged questions is appropriate for a hematology technologist licensure examination. All of the questions test for knowledge that should be known by a hematology technologist.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That a final order be issued dismissing the Petitioner's challenge to the examination, and concluding that the Petitioner failed the subject examination. DONE AND ENTERED this 18th day of January, 2000, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 January, 2000.
The Issue Whether Petitioner's application for technologist license should be approved pursuant to Chapter 493, Florida Statutes. Petitioner appeared without counsel at the hearing and was advised of his rights in administrative proceedings. He acknowledged understanding such rights and elected to represent himself in this matter.
Findings Of Fact Petitioner Irving Zahler resides at Golden Beach, Florida. In September 1979, he submitted an application to Respondent for licensure as a clinical laboratory technologist in the specialties of serology, clinical chemistry, hematology, and immunohematology. His application reflected his education, laboratory training, and experience in the field. Specifically, it showed that he had been the director of a diagnostic laboratory for a period of 32 years. Prior to that period, from 1940 to 1949, he had been employed as a medical technician for the Veterans Administration, Bronx, New York. He has obtained 35 academic college credits in his field at accredited colleges or universities. (Testimony of Petitioner, Taylor, Exhibits 1-2). By letter of February 13, 1980, Respondent's director of Office of Laboratory Services advised Petitioner that his application had been denied because he did not have 60 semester hours of education as required under Section 10D-441.25(9), Florida Administrative Code. Petitioner informally requested review of the decision to determine if he met other qualification standards under the rule. By letter of arch 12, 1980, Respondent sent him another letter again informing him that his application had been denied for failure to show that he had achieved a satisfactory grade in the U.S Public Health Service approved proficiency examination in clinical laboratory technology, as specified in Section 10D-41.25(10), F.A.C. Petitioner thereafter requested an administrative hearing. (Exhibit 3). The U.S. Public Health Service proficiency examination was administered from 1975 to March 1979 when it was discontinued. Petitioner did not take the examination during that period and cannot do so at this time since it is not available to applicants. However, during the period 1967-1968, he passed qualifying examinations given by the Department of Health, Education and Welfare in General, microbiology, chemistry, mematology, serology, blood grouping and typing. These examinations qualified him to serve as the director of a clinical laboratory. In 1979 he was issued a license as a director of a clinical laboratory by the City of New York. (Testimony of Petitioner, Taylor, supplemented by Exhibit 4)
Recommendation That Petitioner Irving Zahler be issued a license as a clinical laboratory technologist in those specialties set forth in his application for licensure. DONE AND ENTERED this 10th day of June, 1980, in Tallahassee, Florida. THOMAS C. OLDHAM, Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Leonard Helfand, Esquire District 11 Legal Counsel 401 Northwest 2nd Avenue Room 1040 Miami, Florida 33128 Irving Zahler 100 Golden Beach Drive Golden Beach, Florida 33160 Department of Health and Rehabilitative Services Steven W. Huss, Staff Attorney Central Operations Services 1317 Winewood Boulevard Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES IRVING ZAHLER, Petitioner, vs. CASE NO. 80-710 DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Respondent. /
Findings Of Fact The Petitioner holds a Bachelor of Science degree in microbiology from Gujarat University in India. He has also worked in a master's program in medical microbiology as well as taken courses in zoology at Maharashtra University in Bombay, India. Since then he worked from 1970 through 1974 in various laboratory technologist capacities at a medical laboratory as well as at several hospitals in India. Since coming to the United States he has worked at Doctors Hospital in Hollywood, Florida, apparently working in all his presently attained specialties. While in India, the Petitioner worked not only as a medical technologist, but as a supervisor and director of medical technologists as well during the years above-mentioned and up through the early portion of 1980. He began working in that capacity at Doctors Hospital in Hollywood in May of 1980. The Petitioner filed his application for licensure in the field of cytology on February 3, 1981. After review, the Respondent denied the application by letter of February 6, 1981, indicating that, as described above, the required educational requirements for licensure had not been met. The Respondent timely requested a hearing, and at the hearing he presented evidence as outlined above of his experience in the various fields of medical technology. He has a keen interest in pursuing a career in cancer research based upon his family history involving a number of family members who were cancer victims, as well as the fact that medicine is his family's traditional profession. He has set a goal of acquiring specialties in all the fields of medical technology with a view toward working in the area of cancer research and research in extending the human life span. The Petitioner presented evidence, with the stipulation of the Respondent, in the form of a letter from the General Secretary of the Indian Red Cross Society attesting to his position as supervisor of a blood bank in India, as well as one from an Indian blood bank attesting to his ability in the area of hematology. There is no question, however, and the Petitioner ultimately conceded, that he does no have the required educational course work approved by the Council on Medical Education of the American Medical Association, th required internship, nor has he taken the US Public Health Service proficiency examination, all of which are prerequisites to licensure as a medical technologist in the specialty of cytology. The Petitioner's testimony establishes that although hi past experience and education entitled him to licensure in the areas of specialty described above, he was unaware when he applied that these requirements had to be met before he could be licensed in cytology, especially in view of the fact that he had worked in that field extensively during his experience in India. The Petitioner expressed a willingness to immediately enroll in an internship program apparently offered at Jackson Memorial Hospital in Dade County in the field of cytology, and there has been shown to be no legal impediment to his licensure in this field once he completes the educational requirements embodied in the above rule.
Recommendation Having considered the evidence in the record, the candor and demeanor of the witnesses and the arguments of the parties, it is therefore RECOMMENDED: That the application of Kiran Kumar M. Upadhyaya for licensure as a clinical laboratory technologist in the specialty of cytotechnology be denied without prejudice to the Petitioner's renewing his application for licensure when he has complied with the requirements of Rule 10D-41.25(11)(a) and (b) Florida Administrative Code. DONE AND ENTERED at Tallahassee, Florida, this 7th day of August, 1981. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1981. COPIES FURNISHED: Kiran Kumar M. Upadhyaya 7610 Sterling Road Apartment C-106 Hollywood, Florida 33034 Harold L. Braynon, Esquire District Ten Legal Counsel Department of HRS 800 West Oakland Park Blvd. Ft. Lauderdale, Florida 33311
The Issue Whether the Petitioner has met the requirements for licensure as a medical doctor in the State of Florida set forth in Section 458.311(1)(f), Florida Statutes (1986 Supp.), as required by Section 458.313(1), Florida Statutes (1986 Supp.)?
Findings Of Fact The Petitioner applied for licensure by endorsement as a medical doctor in Florida in September of 1986. Following notification by the Respondent that additional materials were required to complete the Petitioner's application, the Petitioner timely submitted the materials. In March of 1987, the Petitioner appeared before the Foreign Medical Graduate Committee of the Respondent. On April 5, 1987, the Respondent entered an Order titled Notice of Intent to Deny the Application for Licensure by Endorsement of Hien B. Nguyen. The stated basis for the denial of the Petitioner's application was that the Petitioner had failed to demonstrate that he graduated from a medical school. The Petitioner began medical school in 1967 at the University of Saigon, Faculty of Medicine, in Saigon, Republic of Vietnam. The Petitioner Successfully completed the six years required course work in medicine at the University of Saigon, Faculty of Medicine, in 1974. Following the completion of the course work required to earn a medical degree at the University of Saigon, Faculty of Medicine, the Petitioner was drafted into the Republic of Vietnam's military. He attended training for approximately six months immediately following the completion of his medical degree course work. The Petitioner was required to complete a thesis before being eligible for a medical degree from the University of Saigon, Faculty of Medicine. Upon completion of military training, the Petitioner commenced and completed work on his thesis. The Petitioner's thesis consisted of a translation of "Central Nervous Disease in Children," of Nelson's Pediatric Textbook, from English into Vietnamese. The Petitioner presented his thesis on April 14, 1975. Thuc R. Bach, M.D. attended the presentation of his wife's thesis on April 14, 1975, and witnessed the Petitioner's thesis presentation. The Petitioner was awarded a Certificate from the University of Saigon, Faculty of Medicine, on April 14, 1975, which indicated that the Petitioner had completed work necessary to be awarded a medical degree. The Certificate was issued temporarily. After approximately five years the Petitioner was required to return the Certificate at which time he could be issued an official diploma. On approximately April 30, 1975, the government of the Republic of Vietnam fell to the army of North Vietnam. Following the fall of the Republic of Vietnam, the Petitioner was confined to a concentration camp where the Petitioner acted as camp doctor. Following the Petitioner's release from confinement in 1976, the Petitioner worked as a physician at Saint Paul Clinic in Saigon until 1979. From 1977 until 1980 the Petitioner also attended and taught at a medical training center in Saigon. In October, 1980, the Petitioner escaped from Vietnam. He resided in Galang, Indonesia until March, 1981, when he moved to the United States. The Petitioner has completed the following since his arrival in the United States: December, 1981: Sat for the Federation Licensing Examination and was subsequently certified by the Federation of State Medical Boards; January 24, 1983: Certified by the Educational Commission for Foreign Medical Graduates; July, 1984 - June, 1985: Interned at the Cook County Hospital, Chicago, Illinois; July, 1985 - June, 1987: Residency program at Cook County Hospital, and February 19, 1986: Licensed as a physician by the State of Illinois (the license is currently active and unrestricted). The Petitioner was presented with a certificate from the Faculty- Council-in-Exile of the Faculty of Medicine of the University of Saigon dated April 20, 1981. The certificate affirms that the Petitioner "Successfully completed the course of study leading to the degree of Doctor of Medicine..." The certificate is signed by the Dean Emeritus of the University and Dao Huu Anh, M.D., Associate Dean of the University. Prior to the fall of the government of the Republic of Vietnam, graduates of the University of Saigon, Faculty of Medicine, were presented with a certificate authorizing them to practice as a physician without restriction upon completion of the required courses of study and a thesis. Graduates were not issued an Official Diploma until five years had passed since the issuance of their certificate. Although the Petitioner completed the required courses of study, presented his thesis and received a certificate authorizing him to practice as a physician, the Petitioner was not able to obtain an Official Diploma five years later because of the fall of the government of the Republic of Vietnam. In light of the fall of the government of the Republic of Vietnam, it is doubtful that the records of the University of Saigon, Faculty of Medicine are available or that the Petitioner could obtain an Official Diploma. The Petitioner is a graduate of the University of Saigon, Faculty of Medicine, a medical school.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued GRANTING the Petitioner's application for licensure by endorsement as a medical doctor in the State of Florida. DONE AND ORDERED this 25th day of January, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2969 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2. 3 3. 4 4 and 5. 5 6. 6 7-10. 7 11-12. 13. The Petitioner worked at the training center from 1977 through 1980. 15. The Petitioner went from Vietnam to Indonesia in October of 1980. He did not travel to the United States until March of 1981. 10-12 Cummulative, summary of the evidence and unnecessary. Dr. Nghia Van Tran's letter was not accepted into evidence. 13 16. The last sentence is cummulative, a summary of evidence and unnecessary. The footnote is irrelevant. The burden of proof in this proceeding was on the Petitioner. The Respondent is not required to verify the signature of Dr. Dao. 14 10 and 17. 15 17-18. 16-18 Cummulative, summary of the evidence and unnecessary. The Respondent's Proposed Findings of Fact 1 1 and 3. 2-5 The Respondent's remaining proposed findings of fact are essentially summaries of the Respondent's inter- pretation of the evidence and argument concerning the evidence. The Respondent's interpretation of the evidence is rejected. The following is a brief discussion of why the Respondent's arguments have been rejected. The first two sentences are true and support the finding of fact that the Petitioner began medical school in 1967, completed his course work in 1974 and presented his thesis in April of 1975. See findings of fact 4-5 and 9. The third and fourth sentences are true but the Respondent has overlooked the fact that the Petitioner presented other evidence which supports his position. Therefore, even if the fifth sentence were correct, there is other evidence which supports findings of fact 4-5 and 9. The sixth sentence is irrelevant. Although the Board may have raised a question, the correct answer to that question is a matter of proof. The seventh sentence is true but irrelevant. The eighth sentence is not supported by the weight of the evidence. There was no testimony sufficient to support any finding of fact concerning Dr. Dao's signature on any document. Although the ninth sentence is correct, the weight of the evidence does not support the alleged fact set out in the tenth sentence. The eleventh sentence was taken into account in the weight given to Dr. Dao's statement. Although the twelfth sentence is correct the thirteenth and fourteenth sentences are not supported by the weight of the evidence. While it is true that the Petitioner's testimony with regard to when he completed his course work at the University of Saigon was not totally consistent, the weight of the evidence supports a conclusion that the Petitioner finished his course work in June of 1974. The Petitioner's explanation concerning the inconsistency in his testimony was credible. The first and second sentences are true. The third sentence is true but overlooks the fact that it corroborates non-hearsay evidence. The fourth sentence is law. The fifth sentence is true. The sixth and seventh sentences are true. The eight sentence is not supported by the weight of the evidence. The ninth and tenth sentences are true but they do not support the ultimate conclusion the Respondent suggests. It is possible that the Certificate in question could have been based upon other credible evidence. The first sentence is true. The second sentence is not supported by the weight of the evidence. The Petitioner testified that he completed his course work in 1974. The third sentence is true. The fourth and fifth sentences are not supported by the weight of the evidence. COPIES FURNISHED: Carolyn S. Raepple, Esquire Cheryl G. Stuart, Esquire Hopping, Boyd, Green & Sams 420 First Florida Bank Building Post Office Box 6526 Tallahassee, Florida 32314 M. Catherine Lannon, Esquire Assistant Attorney General Administrative Law Section Department of Legal Affairs Room 1601, The Capitol Tallahassee, Florida 32399-1050 Ms. Dorothy Faircloth Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Petitioner is qualified to be licensed as a medical doctor in Florida by endorsement.
Findings Of Fact Petitioner Jeffrey Jad Gaier applied for licensure by endorsement in Florida by filing a written application in November of 1983 with the Board of Medical Examiners, which is within the Department of Professional Regulation. He made a personal appearance before the Foreign Graduate Committee of the Board of Medical Examiners in April 1984. After Petitioner's appearance before the Foreign Graduate Committee, the Foreign Graduate Committee made a favorable recommendation regarding Petitioner's application for licensure to the Board of Medical Examiners. However, the full Board of Medical Examiners voted to deny Petitioner's application for licensure. On May 21, 1984, the Board of Medical Examiners rendered an Order denying Petitioner's application for licensure as a physician by endorsement, stating as the grounds: Your application and supporting documentation does not provide sufficient information to demonstrate that you can practice medicine with reasonable skill and safety. See Section 458.331(3), F.S. More specifically, the clinical training you received while attending the American University of the Caribbean as disclosed within your documentation was determined to be insufficient insofar as the clinical training was not received at a hospital affiliated with a medical school approved by the Counsel [sic] on Medical Education of the American Medical Association. The denial of Petitioner's application for licensure by endorsement was taken before the Board of Medical Examiners for reconsideration on February 3, 1985. Counsel for Petitioner was present at the hearing. At that hearing, the discussion by the Board of Medical Examiners of the request for reconsideration clarified the basis for the denial of the medical license as being the overall inadequacy of the clinical training and not specifically because the clinical training was not obtained at teaching hospitals. Except for the purposes of clarifying the issue(s) herein the collegial actions of the board are irrelevant to the instant de novo proceedings. Petitioner received a B.S. degree from Clark University, Massachusetts and a Masters degree in science education from Florida Institute of Technology, August 1978. Petitioner was granted a medical degree by the American University of the Caribbean after being enrolled at that school for less than three years. During that time, Petitioner was on the campus of the American University in Montserrat, British West Indies for only eight months. There the class used prepared slides instead of gross tissue samples. Before that, Petitioner studied at the campus in Cincinnati, Ohio, where the class used rubber cadavers instead of human cadavers. All of the clinical training received by Petitioner as part of the requirements for the completion of the medical degree consisted of preceptorships at hospitals in south Florida which included Florida Medical Center, Plantation General Hospital, University Community Hospital, and Bennett Community Hospital. Dr. Neil Katz, Petitioner's principal expert medical witness, supervised Petitioner for six weeks in a preceptorship in Family Practice. Dr. Katz is a board-certified Family Physician and a fellow of the American Academy of Family Practice. He has been Chairman of the Emergency Room Department, a member of the Credentials and Qualifications Committee, and a member of the Intensive Care Unit Committee at University Hospital, Tamarac, Florida. He has taught both foreign medical students in a clinical setting and has briefly qualified as a preceptor for the University of Florida College of Medicine. Dr. Katz actually supervised Petitioner only for the six-week period at the very beginning of Petitioner's rotations. After that six-week period of time, he only "touched base" with Petitioner, seeing him on an informal basis in the cafeteria or at meetings. During the six weeks formal observation period, Petitioner accompanied Dr. Katz in his work in his office, during hospital rounds, at the emergency room, and for most other activities that Dr. Katz participated in, including committee meetings at the hospital. Petitioner took histories and did physicals on patients under direct supervision. Petitioner displayed enthusiasm and energy in his association with Dr. Katz and the rest of the program. Dr. Katz found Petitioner "barely acceptable" in three of the nine categories for which he was to evaluate Petitioner during the preceptorship. These categories were diagnostic acumen, therapeutics and management, and medical knowledge. In explaining that evaluation, Dr. Katz testified that although Petitioner was able to take a history and a physical examination, he was not able to make a diagnosis. In fact, Dr. Katz testified that Petitioner did not have truly acceptable knowledge at the time as to the various therapeutic modalities available to a physician. He encouraged Petitioner to do more reading. During his preceptorship with the University of Florida Medical School students in their first clinical semester, Dr. Katz also saw problems similar to those exhibited by Petitioner, specifically that the University of Florida students were not "super ready," so to speak, on diagnosing and doing differential diagnoses and therapeutics at that particular stage in medical school because they were still learning. I accept Dr. Katz' opinion that Petitioner had adequate exposure to the major diseases and injuries which are common to Family Medicine, sufficient for Petitioner to go into an internship, but in light of his lack of involvement with Respondent's other preceptorships in several different hospitals after the first six weeks, and in light of his specific testimony that in his professional opinion, American-trained students were far superior to the Caribbean-trained students at the same level in terms of general knowledge (TR-65-66), Dr. Katz' opinion that Petitioner did "quite good" at the end of the year and a half period is without adequate predicate and is not persuasive. Dr. Isidoro Dunn was the primary force in the arrangements for preceptorships. Dr. Dunn talked with each preceptor to work out areas which should be covered in their respective rotations. Each preceptor had a "fair amount of latitude" in deciding how to supervise the students. Petitioner was assigned by his school to do his clinical rotations in Florida. He did 14 weeks in internal medicine, 14 weeks in surgery, 10 weeks in pediatrics, 10 weeks in obstetrics/gynecology, 4 weeks in psychiatry, and 10 weeks in electives. This totals 62 weeks, not even close to two years which is the norm in medical schools in the United States. Petitioner was required to follow patients from admission to discharge in each specialty within each of these clinical rotations. Petitioner had didactic teaching on a daily basis, weekdays. Petitioner represents that he had specific didactic courses in hematology, EKG readings, pathology, orthopedics, cardiology, radiology, and gastrointestinal invasive procedures. In each subspecialty, he had a written examination after completion of the rotation, didactic teachings in each rotation, and was required to read medical journals. On Saturdays, Petitioner was required to participate in case conferences, make case presentations, and complete assigned reading from current medical journals. The case presentations necessitated review of patient records, laboratory tests, x-rays, and pathology slides. On "patient management reviews," the Petitioner was "exposed to" or "spent time in" the dialysis unit, pathology laboratory, intensive care unit, emergency room, gastrointestinal unit, blood lab, catherization department, radiology department, EKG unit, and cardiac surgery unit. Petitioner testified, and Dr. Katz confirmed, that there was an entity called the "Doctors' Club," which had a considerable amount of audiovisual equipment available for use 7 days a week, 24 hours each day. Practicing physicians used this media to obtain continuing medical education approved for credit by the American Medical Association. Petitioner represented that "on several days" he signed out equipment or reading material. There is no precise language in his testimony that he used the equipment or that he read the reading material, but drawing any other inference is straining the clear meaning of Petitioner's unrebutted testimony. Petitioner and the other students were required to use various materials from this service, but there is no evidence that Petitioner or other students were objectively checked by Dr. Dunn or their preceptors to verify that they had actually read or viewed the material assigned. Petitioner specifically testified that there was not necessarily any follow-up by the preceptors. Dr. Katz did talk with Petitioner about the reading assignments he gave. Petitioner was required to pass a competency examination for each rotation. Petitioner's clinical studies evaluation forms in his school records indicate no overall evaluation grades below "Good." Petitioner was required to attend and pass both a written and practical examination for a two-day Advanced Cardiac Life Support Course. This course is required even of board certified emergency room (ER) physicians. In Petitioner's opinion, this course was imperative for medical doctors who might work in an emergency room because they need to be very familiar with how to handle a patient presenting with a cardiac arrest, including the administration of drugs, "cardioversion" and "intubation." To the best of Petitioner's knowledge, Dr. Dunn was to report the students' progress to the dean of the American University of the Caribbean. However, the predicate for that testimony is hearsay, uncorroborated by any direct, credible evidence. As for the relationship with the university, Dr. Katz had no knowledge as to any arrangement between Dr. Dunn and the American University of the Caribbean or any counterpart-sponsoring organization in the United States. He did not know if there was any arrangement whatsoever. Dr. Katims was accepted as an expert physician witness, as an expert teaching fellow witness, and as an expert witness in medical applications and licensure. He testified that in the normal course of medical education in the United States, part of a student's medical education is clinical training, and that experience consists of bedside outpatient treatment and supervised training under the supervision of a faculty selected particularly for their knowledge, background, and interest in education and teaching. Dr. Katz testified unequivocally that a preceptorship is very different from a clinical rotation or a clerkship. A clerkship takes place in a teaching hospital, which is a very structured environment, wherein students make rounds in a very large hospital and are given instruction in an approved clinical structure. In contrast, a preceptorship gives students more knowledge about what private practice is like and it gives students a view of direct patient care, but does not replace a formal teaching setting in clinical medicine. As recognized above, in Dr. Katz' opinion, American-trained students were far superior to the Caribbean-trained students at the same level in terms of general knowledge. In Dr. Katims' opinion, Petitioner's clinical studies consisting of only four semesters were not sufficient for him to practice medicine with reasonable skill and safety. Dr. Katims testified concerning the importance of clinical training in medical education, commenting that clinical training is the sine qua non of the practice of medicine. In the usual clinical rotation, medical students are assigned to a particular area of a hospital and perform under the full-time supervision of attending physicians. In teaching hospitals, faculties are selected for their ability, interest, and dedication to education, as well as to the practice of medicine. The attending staff at a teaching hospital include house physicians, interns, and residents. Dr. Katims himself has served as a preceptor and testified that a preceptorship is one method of obtaining a minor portion of clinical training, but is very unstructured and unsupervised. Dr. Katims testified that preceptorship training is an inferior method of training because the quality of training depends totally on the quality of the physician to whom the student is assigned and the program is unstructured. There was no testimony that any of the preceptors that supervised, or purportedly supervised, Petitioner were faculty members of any medical school, let alone the American University of the Caribbean. Upon the Requests for Admissions and the Joint Pre-Trial Stipulation of the parties, it is found that: the State of Florida Board of Medical Examiners has granted a medical license to a Dr. Flugsrud-Breckenridge and a Dr. Cobb, both having non-teaching clerkships. Three doctors, Adela Fernandez, Andrew Gonzalez, and Manuel E Garcia, did their clerkships principally at the International Hospital (Miami), a non-teaching/non-medical school-associated hospital, and obtained Florida medical licenses. At least 25 foreign graduates received Florida medical licenses within the years 1981-1984 and did their clerkships principally in non-teaching/non-medical school associated hospitals. No further information appears of record by which the undersigned may determine any other similarities or dissimilarities of these licensees to each other and/or to Petitioner. Nor does the record divulge what, if any, other facts may have been considered in these cases. Petitioner is licensed to practice medicine in Georgia and is a resident of Florida. Petitioner passed the first time his Educational Commission for Foreign Medical Graduates' (ECFMG) examination was given in June, 1981. The examination is a prerequisite to acceptance in a medical residency program. The Federation of State Medical Boards of the United States, Inc.'s (FLEX) examination is recognized by all 50 states, including Florida. Petitioner took this examination after completing his rotations in Florida. Petitioner passed the June 1982 FLEX examination with an 84 percentile ranking. Fifty percent of this test is on patient management. This clinical competence examination was taken before Petitioner started his first year of residency. Petitioner had passed the FLEX examination, completed one year of residency, and obtained a medical license in another state, Georgia, by the time of the April 1984 application hearing. In Dr. Katims' opinion, Petitioner's successful passage of the FLEX examination in the 84 percentile does not show Petitioner to have had good clinical rotations, even though the FLEX test consisted of 50 percent on patient management. Dr. Katims did not feel that by the time Petitioner was in his fourth year of residency, this would be curative of deficiencies in the clinical semesters at a non-teaching hospital, but expressed the opinion that if Petitioner passes his internal medicine board examination and becomes board certified, his clinical deficiencies would be cured and Petitioner should then be granted a Florida medical license by endorsement. Dr. Katz opined that Petitioner presently possesses the medical knowledge, judgment and competency to act with reasonable skill and safety in the practice of medicine in Florida. Affidavits of Ira Spiler, M.D. and John R. Middleton, M.D. support similar opinions of these New Jersey medical physicians. Petitioner has completed three years (July 1, 1982 to June 30, 1985) of Internal Medicine residency at Raritan Bay Medical Center, Perth Amboy General Hospital, New Jersey. Petitioner is presently enrolled in a Nephrology Fellowship program, Medical College of Georgia, a teaching hospital located at, and affiliated with, the University of Georgia Medical School. Petitioner is currently eligible for board certification in internal medicine and will be certified in the event he passes the board examination taken September 10-11, 1985. Petitioner has submitted letters of Ira Spiler, M.D. and Salvatore Chiaramida, M.D., both of New Jersey attesting to Petitioner's good moral character, and no contrary evidence was turned up by the Board's investigation. The parties have stipulated that Rule 21M-22.18, Florida Administrative Code, is not applicable to Petitioner's situation.
Recommendation That the Florida Board of Medical Examiners enter a final order denying Petitioner a medical license by endorsement. DONE and ORDERED this 16th day of January, 1986, in Tallahassee Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 1986.
