Findings Of Fact Stipulated facts The Respondent, Raul A. Tamayo, M.D., is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued license number ME0051659. At all times material hereto, the Respondent worked on a part-time basis, solely as an employee, at Westchester Clinic. The Respondent was neither an owner nor a principal of Westchester Clinic, nor was he an employer of Simon Hajje. The Respondent has had no prior discipline against his license to practice medicine in the State of Florida. Facts proved at hearing From early April of 1990 until November 16 of 1990, Dr. Simon Hajje also worked as an employee of the Westchester Clinic. During the time he worked for the Westchester Clinic, Dr. Simon Hajje was not licensed as a medical doctor in the State of Florida. During the time he worked for the Westchester Clinic, Dr. Simon Hajje's job title was "medical assistant." During the period that Dr. Hajje and the Respondent were employed at the Westchester Clinic, there were also numerous other physicians who worked there on a part-time basis on many different work schedules. On November 15, 1990, a Department investigator named Ms. Georgina Jorge went to the Westchester Clinic where, using the assumed name of Megalyn Guzman, she pretended to be a patient in need of medical attention. On that day Ms. Jorge was taken to an examination room where she met Dr. Simon Hajje. Thereupon, Dr. Hajje, acting as if he were a licensed medical doctor, took a medical history from Ms. Jorge, examined Ms. Jorge, and then wrote two prescription forms which he ultimately gave to Ms. Jorge. As she was leaving the clinic, Ms. Jorge asked the receptionist for the name of the doctor and she was given a card on which the name "Dr. Hajje-Tamayo" was written. On the following day, November 16, 1990, Ms. Jorge returned to the Westchester Clinic, again using the assumed name of Megalyn Guzman, and asked to see "Dr. Hajje-Tamayo." Ms. Jorge again saw Dr. Simon Hajje, whereupon she told him that she had lost one of the prescriptions. Dr. Simon Hajje thereupon wrote and delivered to Ms. Jorge another prescription to replace the allegedly lost prescription from the previous day. The prescription forms given to Ms. Jorge on November 15 and 16, 1990, were on prescription forms that had the name, address, and telephone number of the Westchester Clinic Center printed at the top. Those prescription forms also had a manuscript signature at the bottom that appeared to read "R. Tamayo, M.D." With regard to the two prescription forms given to her on November 15, 1990, Ms. Jorge observed that the prescription forms were signed before Dr. Simon Hajje started filling them out. She was unable to make such an observation regarding the prescription form given to her on November 16, 1990. On November 16, 1990, Ms. Jorge also retrieved six other presigned blank prescription forms that had the name, address, and telephone number of the Westchester Clinic Center printed at the top and had the manuscript signature of the Respondent at the bottom. None of the medications on the prescription forms given to Ms. Jorge by Dr. Simon Hajje were controlled substances. Dr. Hajje found the presigned prescription forms described above on a desk in one of the examination rooms at the Westchester Clinic. The Respondent never gave Dr. Hajje permission to take any of the presigned prescription forms and give them to Ms. Georgina Jorge. Dr. Hajje never told the Respondent that he was going to write prescriptions on the presigned forms and give them to Georgina Jorge. Dr. Hajje never told the Respondent that he was going to take the presigned prescription forms and write prescriptions for any patient. Dr. Hajje never said anything to the Respondent and never did anything that would cause the Respondent to expect that Dr. Hajje would write prescriptions on the presigned forms and give the prescription forms to Georgina Jorge. On November 19, 1990, Ms. Jorge interviewed the Respondent at the Respondent's private practice office located at 9473 West Flagler, Miami, Florida. Ms. Jorge had never seen the Respondent prior to the November 19, 1990, interview, nor had she spoken to him prior to the interview. During the course of the interview on November 19, 1990, Ms. Jorge showed the Respondent the prescription forms Dr. Hajje had issued to her and also showed him the other presigned blank prescription forms she had retrieved from the Westchester Clinic. Upon being told what had happened, the Respondent became very emotional and stated that he did not realize that Dr. Hajje had issued any prescriptions. The Respondent was very shocked and very surprised that Dr. Hajje had issued the prescriptions in question. The Respondent denied any knowledge of Dr. Hajje's actions in this regard and explained to Ms. Jorge that he might have left some presigned prescription forms behind at the Westchester Clinic because, as a matter of convenience and efficiency, he sometimes presigned blank prescription forms in order to save time while with his patients. In the course of this explanation, the Respondent showed Ms. Jorge a prescription pad he had in his possession that had two blank prescription forms that had been presigned by the Respondent. The presigned prescription forms the Respondent showed to Ms. Jorge on November 19, 1990, were different from the ones she saw on November 15 and 16, 1990, at the Westchester Clinic, because the ones on November 19 had printed at the top the Respondent's name and the addresses of the Respondent's private offices. On November 19, 1990, when Ms. Jorge showed the Respondent the prescription forms she had received from Dr. Hajje and the six blank presigned prescription forms she had retrieved on November 16, 1990, the Respondent examined those prescription forms and acknowledged that the signatures on all of those prescription forms appeared to be his signature. Prior to the interview on November 19, 1990, the Respondent did not realize that the act of presigning blank prescription forms was (and still is) prohibited by statute. The Respondent studied medicine in Havana, Cuba, in the early 1970's and also practiced in Cuba before coming to this country. Due to the heavy case loads that are common for physicians practicing in Cuba, it was common for such physicians to develop the habit of presigning documents such as prescription forms and having a physician's assistant fill out the prescriptions pursuant to instructions from the physician. Dr. Simon Hajje's activities on November 15 and 16, 1990, described above, led to his arrest on charges of engaging in the unlicensed practice of medicine. Those activities were also made known to the Board of Medicine when Dr. Hajje applied for a license to practice medicine in the State of Florida. Nevertheless, Dr. Hajje was licensed in due course and continues to be licensed to practice medicine in the State of Florida. The Respondent is well respected, both personally and professionally, by physicians in the medical community in which he practices. Physicians who know him well regard the Respondent as an honest and honorable individual who is an excellent and dedicated physician.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Medicine issue a Final Order in this case to the following effect: Dismissing the violations charged in Counts Two and Three of the Administrative Complaint on the grounds that the evidence is insufficient to prove the violations charged in those two counts; Concluding that the Respondent is guilty of having, on at least one occasion, violated Section 458.331(1)(aa), Florida Statutes (1990), as charged in Count One of the Administrative Complaint; and Imposing an administrative penalty consisting solely of a written reprimand. DONE AND ENTERED this 15th day of December, 1993, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1993. APPENDIX The following are the Hearing Officer's specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: Paragraphs 1 through 7: Accepted in substance, with a number of details corrected or clarified to conform to the evidence. Paragraph 8: Rejected as not supported by persuasive competent substantial evidence. (There is evidence that the Respondent presigned "some" prescription forms, but there is no clear evidence that he did so on "numerous occasions" and there is no clear evidence that he was doing so throughout a two-year period from November 1988 to November 1990.) Paragraph 9: Rejected as not supported by persuasive competent substantial evidence and as contrary to the greater weight of the evidence. (There is no evidence that the Respondent intended for anyone other than himself to issue the prescription forms he presigned.) Paragraph 10: Rejected as not supported by persuasive competent substantial evidence and as contrary to the greater weight of the evidence. (There is no evidence that the Respondent authorized Dr. Simon Hajje to issue prescriptions, that he delegated the issuance of prescriptions to Dr. Hajje, or that he even knew Dr. Hajje was issuing prescriptions.) Findings submitted by Respondent: Paragraph 1: Accepted. Paragraphs 2 and 3: Rejected as subordinate and unnecessary historical or background details. Paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, and 21: Accepted in substance, with a number of details corrected or clarified to conform to the evidence. Paragraph 22: Rejected as subordinate and unnecessary details. Paragraph 23: First sentence accepted in substance to the effect that the Respondent was very surprised and in a state of shock when he learned that Dr. Simon Hajje had issued prescriptions presigned by the Respondent. The remainder of this paragraph is rejected as consisting of subordinate and unnecessary details and legal arguments. Paragraph 24: Accepted in substance. Paragraph 25: Accepted in substance, but with a large number of unnecessary details omitted. Paragraph 26: Rejected as constituting legal argument rather than proposed findings of fact. Paragraphs 27, 28, and 29: Accepted in substance. Paragraph 30: Rejected as constituting legal argument rather than proposed findings of fact. Paragraph 31: Accepted in substance. Paragraph 32: Accepted in substance, with exception of last sentence. Last sentence is rejected as legal argument. Paragraphs 33, 34, 35, and 36: Rejected as consisting of a combination of subordinate and unnecessary details and arguments about the sufficiency of the evidence. Paragraphs 37, 38, 39, 40, 41, 42, 43, and 44: Accepted in substance, with a number of details corrected or clarified to conform to the evidence, and with other details simplified to the bare essentials. COPIES FURNISHED: Francesca Plendl, Esquire Senior Attorney Department of Business and Professional Regulation 1940 N. Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Steven R. Ballinger, Esquire, and Morton J. Morris, Esquire 2500 Hollywood Boulevard Suite 212 Hollywood, Florida 33020 Dorothy Faircloth, Executive Director Board of Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Jack McRay, Esquire General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue for determination is whether Respondent, a licensed physician, committed violations of Chapter 458, Florida Statutes, as alleged in the Administrative Complaint, sufficient to justify the imposition of disciplinary sanctions against his license.
Findings Of Fact Respondent is Michael A. Fuentes, M.D., a licensed physician at all times pertinent to these proceedings, holding medical license number ME 0044461. Respondent's last known address is 311 Akron Avenue, Pittsburgh, Pennsylvania 15216. Petitioner is the state agency charged with regulating the practice of medicine pursuant to Chapter 458, Florida Statutes. The Pennsylvania State Board of Medicine is the licensing authority for the State of Pennsylvania. The Connecticut Board of Medicine is the disciplining body for the State of Connecticut. On or about July 27, 1994, the Pennsylvania State Board of Medicine indefinitely suspended Respondent’s license to practice medicine and then stayed that suspension while placing Respondent on five year's probation. The Board found Respondent to be an impaired physician who had been non-compliant with treatment recommendations. On or about August 26, 1996, the Pennsylvania State Board of Medicine, reviewed its earlier decision and shortened the probationary period to three years. Respondent did not report the Pennsylvania State Board of Medicine’s action in either instance to Petitioner’s representatives in the State of Florida. On October 19, 1993, the Connecticut Board of Medicine summarily suspended Respondent’s license to practice medicine due to his mental impairment and failure to undergo a complete psychiatric evaluation. Subsequently, on or about June 20, 1995, the Board revoked Respondent’s license to practice medicine in Connecticut. Respondent did not report the Connecticut State Board of Medicine's action in either instance to Petitioner's representatives in the State of Florida. Respondent is guilty of having action taken against his license to practice medicine by the licensing authorities of the State of Pennsylvania and the State of Connecticut, violations of Section 458.331(1)(b), Florida Statutes. Additionally, Respondent did not notify the Florida Board of Medicine within 30 days of the license disciplinary actions taken by either the State of Pennsylvania or the State of Connecticut against his license, notifications required by Section 458.331(1)(kk), Florida Statutes.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of the charges set forth in the Administrative Complaint and revoking his license to practice medicine in the State of Florida. DONE AND ENTERED this 22nd day of September, 1997, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1997. COPIES FURNISHED: Carol Lanfri, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Stephen M. Chizmadia, Esquire 125 Sun Dance Road Stamford, Connecticut 06905 Michael A. Fuentes 32 Lake Drive Darien, Connecticut 06820 Michael A. Fuentes c/o The Royal Inn Route 219, Boot Jack Summit Ridgway, Pennsylvania 15853 Marm Harris, Executive Director Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0770 Pete Peterson, Esquire Department of Health Building 6, Room 102-E 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health Building 6 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 James Howell, Secretary Department of Health Building 6, Room 306 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Respondent's medical license should be revoked, suspended, or otherwise disciplined on charges that he was convicted or found guilty of a crime directly relating to the practice of medicine or his ability to practice medicine, in violation of Section 48.331(1)(c), Florida Statutes.
Findings Of Fact At all times material to the charge, Respondent was a licensed medical doctor in the State of Florida, having been issued license No. ME 0020485. I. Prior Disciplinary Action Against Respondent The Respondent has been the subject of prior disciplinary proceedings instituted by the Department. On February 7 and 8, 1984, an administrative hearing was conducted by Diane Tremor, hearing officer with the Division of Administrative Hearings in Fort Myers, Florida. The issue for determination was whether his license as a medical doctor should be revoked, suspended, or otherwise disciplined for the medical treatment he provided to five named patients, one of whom was Holli Schmidt. On July 24, 1984, the hearing officer submitted her recommended order to the Board of Medical Examiners. With regard to patient Schmidt, the hearing officer found that Respondent inserted an intrauterine contraceptive device without taking adequate precautions to insure that the patient was not pregnant at the time of insertion, and concluded that his treatment of patient Schmidt fell below an acceptable standard of care, skill and treatment, in violation of Section 458.331(1)(t), Florida Statutes. On January 9, 1985, the Board of Medical Examiners adopted the hearing officer's Findings of Fact and Conclusions of Law, but modified her recommended penalty of a one year suspension by providing that he could petition for reinstatement after serving six months of the suspension. II. Criminal Proceedings Against Respondent In the meantime, Respondent was the subject of a criminal proceeding arising out of his treatment of patient Holli Schmidt. On October 28, 1981, the Assistant State Attorney of the Twentieth Judicial Circuit filed an information charging Respondent with Culpable Negligence, a misdemeanor violation of Section 784.05, Florida Statutes. The information alleged that between February 1, 1981 and March 30, 1981, Respondent "exposed Holli Schmidt to personal injury through culpable negligence." (Joint Exhibit 6). On March 23, 1984, in the County Court of Lee County, Florida (Case No. 81MM6984), a jury found Respondent guilty as charged. (Joint Exhibit 4). On June 18, 1984, County Judge Radford R. Sturgis, the presiding judge, entered an order (1) reciting that Respondent had been found guilty (by the verdict of a jury) of culpable negligence; (2) withholding adjudication of guilt; and (3) placing him on probation for a period of six months. The order also reflects that the Court was satisfied that Respondent was "not likely again to engage in a criminal course of conduct, and that the ends of justice and the welfare of society do not require that [he] should presently be adjudged guilty and suffer the penalty authorized by law." (Joint Exhibit 5). Respondent was ordered to serve 50 hours of Community Service, pay a $500 fine, and serve 59 days of jail time (49 days were suspended and 10 were to be served on weekends). The crime, of which Respondent was found guilty, related to the practice of medicine. In their prehearing stipulation, the parties agree that "[t]here is an identity of underlying facts supporting both [the] criminal conviction . . . and the current suspension of [Respondent's] license by the Board of Medical Examiners based upon the [prior hearing officer's] Recommended Order. . . . Respondent timely appealed the jury's verdict (finding him guilty of Culpable Negligence) to the Circuit Court of the Twentieth Judicial Circuit of Florida, which appeal is still pending.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondent's medical license be suspended for a period of six months, such suspension to run concurrently with the suspension previously imposed by the Board of Medical Examiners for his treatment of patient Holli Schmidt. DONE and ORDERED this 15th day of April, 1985, in Tallahassee, Florida. R. L. CALEEN, JR. 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 15th day of April, 1985.
Findings Of Fact The word "rewrote" in paragraph 14 of the Recommended Order has been changed to "modified." The Board finds that this word more accurately reflects the activity of the Respondent as set forth by the evidence in the record. A comparison of the "original" medical record and the subsequently prepared medical record unequivocally establishes that Respondent did more than just copy over the "original" medical record. The language in paragraph 23 stating that the original medical record would verify that the subsequently prepared medical record was identical to the original is rejected as not being supported by any competent and substantial evidence in the record. To the contrary, a comparison of exhibits 1 and 2 clearly establishes that the two versions of the medical record are not identical. Paragraph 40 of the Recommended Order is rejected as not being supported by any competent and substantial evidence in the record. The first sentence of paragraph 48 of the Recommended Order is rejected as not being supported by any competent and substantial evidence in the record. Paragraph 48 is further modified to reflect Respondent's failure to reveal the existence of an "original" record. This failure is admitted by Respondent and Respondent's attorney witnesses in their testimony and reiterated by Mr. McPherson in his testimony. The final sentence of paragraph 53 of the Recommended Order is rejected as not being supported by any competent and substantial evidence in the record. Furthermore, as a matter of policy, the public safety is harmed by exposure to potential and real injury due to the egregious nature of Respondent's fraudulent act and hiding that fact from appropriate authorities for several years. The harm that would be done to the public by tolerating the fraudulent reconstructing of medical charts is such that it strikes deep at the public safety and welfare. Paragraph 54 of the Recommended Order is rejected as not being supported by any competent and substantial evidence in the record. The proposed finding of fact ignores the fundamental and obvious fact that at least one of Respondent's stated motive in reconstructing the medical record was to better protect against exposure in a malpractice action. Appendix B RULINGS ON PETITIONER'S EXCEPTIONS TO FINDINGS OF FACT 1. - 3. Accepted Rejected. Hearing Officer's findings supported by competent and substantial evidence in the record. Accepted. - .7 Rejected. Hearing Officer's findings supported by competent and substantial evidence in the record. 8. - 9. Accepted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered: Finding Respondent guilty of Count Two of the Administrative Complaint filed herein; Finding Respondent not guilty of Counts One, Three, and Four and dismissing those Counts of the Administrative Complaint filed herein; Imposing an administrative fine of $250 to be paid by a date certain; and Requiring that Respondent perform 150 hours of community service over a 3-year period. DONE and ENTERED this 3rd day of May, 1994, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-6228 Petitioner's proposed findings of fact numbered 1, 3-9, 11, 14-16, 19, 20, and 22 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 2 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Petitioner's proposed findings of fact numbered 10, 12, 13, 17, 18, 21, and 25 have been rejected as being unnecessary to the issues involved herein. Petitioner's proposed findings of fact numbered 23, 24, and 26-29 have been rejected as not being supported by the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 1-29, 31-41, and 43-92 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 30 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel. Respondent's proposed finding of fact numbered 42 has been rejected as being irrelevant to the issues under consideration in this cause. COPIES FURNISHED: Joseph Harrison, Esquire Slepin, Harrison & Feuer 2500 North Military Trail, Suite 275 Boca Raton, Florida 33431 Michael Cohen, Esquire 517 Southwest First Avenue Fort Lauderdale, Florida 33301 Dr. Marm Harris, Executive Director Department of Business and Professional Regulation Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Count I: Whether or not Respondent violated a provision of Chapter 458 and a lawful order of the Department of Professional Regulation by refusing to comply with a March 23, 1988 order of the Secretary of the Department of Professional Regulation to produce and release medical reports pertaining to Respondent's mental or physical condition, and in so refusing violated Sections 458.331(1)(x) and 458.339(2) F.S. Count II: Whether or not Respondent violated a lawful order of the Board of Medicine previously entered in a disciplinary hearing, that is, whether or not Respondent specifically violated probation conditions imposed by a final order entered April 18, 1988, by failing to notify the Board of a change of residence address, and in so doing violated Sections 458.331(1)(x) and 458.339(2) F.S.
Findings Of Fact Respondent was first licensed as a medical physician under the laws of the state of Florida in 1971. Thereafter, he regularly renewed license number ME 0017326 until it expired December 31, 1989. The instant case's DPR number is 8902496. Due to the defenses and motions, it is important to note that the instant case constitutes the third formal administrative complaint against Respondent. Prior to August 10, 1987, Respondent was charged in the first formal administrative complaint (DPR Case No. 63959) by the Department of Professional Regulation, Board of Medicine, with certain professional violations, none of which involved allegations Respondent was physically or mentally impaired to practice. On August 10, 1987 the Board of Medicine entered a Final Order approving, adopting, and incorporating a May 14, 1987 stipulation signed by Respondent. In pertinent part, the disposition of that case under the August 10, 1987 Final Order provided as follows: Respondent's license shall be placed on probation for a period of one (1) year subject to the following terms of probation: Respondent shall not violate the provisions of Chapters 455, 458, or 893 Florida Statutes. In the event the Respondent should leave Florida to reside or practice outside of Florida for periods longer than thirty (30) consecutive days, the Respondent shall notify the Board in writing of the dates of departure and return. Periods of residency or practice outside of Florida will not apply to the reduction of the Respondent's probationary period. The Respondent shall advise the Board of any change in his residence and/or office address. Respondent's term of probation under the August 10, 1987 Final Order commenced on August 10, 1987 and would have concluded on August 9, 1988 but for subsequent intervening events. On or about July 10, 1987, the second formal administrative complaint had been filed against Respondent. That administrative complaint was referenced by DPR Case No. 75536. The second case also did not involve any allegations of Respondent's unfitness to practice due to any type of impairment, but did allege inappropriate or excessive prescribing of drugs and failure to treat a patient with that level of care, skill and treatment recognized by a reasonably prudent similar physician, failing to keep written medical records, gross or repeated malpractice, and prescribing outside of professional practice. In October 1987, Respondent considered himself "burned out" and under stress and at the request of his partners submitted himself to evaluations for alcohol and drug abuse. The results of these evaluations are not in evidence. 2/ For a period of time, the precise dates of which are not clear on the record, Respondent also submitted himself to counselling with a psychiatrist, Dr. Virzi. While counselling with Dr. Virzi, Respondent was under the impression that Dr. Virzi was in confidential communication with, and following instructions given by, Dr. Roger Goetz on behalf of the Board of Medicine. Respondent "thought" Dr. Goetz was the "Florida Director of the Impaired Physicians Program for the entire State," but was a little vague on how he came by that knowledge and equally vague on whether he or Dr. Virzi ever actually provided any medical records to Dr. Goetz. Respondent testified that Dr. Goetz appeared with him at a Board of Medicine probationary hearing, but the exhibits which purport to be the Respondent's record before the Board and the Department of Professional Regulation (DPR) are silent on any official involvement of Dr. Goetz with Respondent either on behalf of the Board of Medicine or the DPR or before the Board for any reason. Neither Dr. Virzi nor Dr. Goetz testified; no records of Respondent's psychiatric treatment or of his entry into any impaired physician program were offered in evidence. Respondent presently has no agreement with anybody, including Dr. Virzi or Dr. Goetz, to complete any type of treatment program and he is not now and never has been in the Physicians Recovery Network. Respondent testified that although he acknowledged to himself and possibly to his partners in February 1988 that he was impaired, the nature of that impairment, other than "stress," was undisclosed and unacknowledged by Respondent at formal hearing. Indeed, Respondent further testified that at some point, he stopped seeing Dr. Virzi because Dr. Virzi recommended that Respondent enter an alcoholic treatment program and Respondent personally understood his evaluations to be that he was not an alcoholic. As of the date of formal hearing, Respondent was seeing a different psychiatrist. Respondent's testimony leaves the overall impression that Dr. Goetz' contact with him was secondhand at best and that no medical releases were executed by Respondent specifically for Dr. Goetz. However, there was sufficient evidence from which one may infer that a Board consultant was informally notified that there was reason to believe Respondent was impaired as a result of the misuse or abuse of alcohol and drugs, or both, or due to mental condition, and that throughout this period of the consultant's involvement, Respondent was simultaneously under investigation and prosecution by the DPR under the second formal administrative complaint which did not allege impairment. On February 23, 1988, Respondent signed a stipulation to settle the second disciplinary case upon presentation of the stipulation to the Board. The stipulation, however, bore DPR Case No. 75537. On or about March 23, 1988, an Order to Produce and Release Medical Records signed by the Secretary of the Department of Professional Regulation was entered in DPR Case No. 0090191. In pertinent part, that order found, determined, and ordered that: . . . The Department of Professional Regulation has reason to believe Glenn L. Pohlman, M.D. has violated Section 458.331(1)(s), Florida Statutes, by being mentally impaired and unable to practice medicine with reasonable skill and safety to patients. . . . Furthermore, the Department has need for additional information relative to the mental and physical condition of Glenn L. Pohlman, M.D. . . . pursuant to Section 458.339 Florida Statutes Glenn L. Pohlman M.D. is hereby ORDERED to forthwith release to the Department of Professional Regulation the names of all physicians treating him for the period of time from on or about January 1, 1986 through and including the date of the filing of this Order for any mental or physical condition, and it is further ordered that Glenn L. Pohlman, M.D. release to the Department of Professional Regulation all medical records and reports pertaining to his own mental and physical condition within that same period of time. In order to comply with this order, Glenn L. Pohlman M.D. shall execute five (5) Patient Consent for Release of Medical Information forms. . . . The foregoing Departmental Order is facially sufficient. Its case number corresponds to a computer cross-reference sheet listing a confidential complaint dated November 10, 1987. (P-5, last page) Respondent admitted receiving a copy of the Department's Order in March 1988. Respondent did not appeal the Department's Order or directly take issue with its "lawfulness." He merely refused to comply with it until the Board gave him more information. On April 18, 1988, the Board of Medicine entered a Final Order in DPR Case No. 75537 approving, adopting, and incorporating, as modified therein, the February 23, 1988 stipulation signed by Respondent in DPR Case No. 75537. The witnesses' testimony and the chronology of the official records admitted in evidence are persuasive that, despite the discrepancy of case numbers, the Final Order/Stipulation in DPR Case No. 75537 disposed of the charges contained in the formal administrative complaint in DPR Case No. 75536. That is, the second disciplinary case initiated July 10, 1987 by the second formal administrative complaint described in Finding of Fact 5, supra. That Final Order provides, in pertinent part: 5. Respondent's license shall be placed on probation for a period of up to two (2) years subject to the following terms of probation: * * * b. In the event the Respondent should leave Florida to reside or practice outside the State of Florida for periods longer than thirty (30) consecutive days, the Respondent shall notify the Board in writing of the dates of departure and return. Periods of residency or practice outside of Florida will not apply to the reduction of the Respondent's probationary period. The Respondent shall advise the Board of any change in his residence and/or office address. * * * 8. Respondent agrees to abide by all terms and conditions of this Stipulation. It is expressly understood that a violation of this stipulation shall be considered a violation of Chapter 458, Florida Statutes, for which a disciplinary action may be initiated. There is no acknowledgment within the February 23, 1988 stipulation and no finding within the April 18, 1988 Final Order that the Respondent was impaired. The order requires his prescribing to be monitored but does not limit the scope of Respondent's practice or require his withdrawal from practice. Respondent's term of probation under the April 18, 1988 Final Order would have concluded on April 17, 1990 but for subsequent intervening events. Regardless of testimony by the Administrative Assistant to the Florida Board of Medicine that on the basis of an August 1988 letter from Dr. Scales described in Finding of Fact 25, infra, the Board had tolled the Respondent's probationary periods under each of the two prior Final Orders of probation, beginning in February 1988, it is found that any tolling of the Respondent's probationary periods by the Board must legally be based upon the terms of the respective Final Orders. In a March 28, 1989 interview initiated by a DPR investigator, Respondent gave the investigator a North Carolina address and telephone number, saying it was his temporary residence, and again refused to comply with the Department's March 23, 1988 Order to release his medical records. On May 15, 1989, a letter pursuant to Section 455.225 F.S. from DPR Investigator Dowd to Respondent at Respondent's last known Jacksonville professional address (see Finding of Fact 23) informed Respondent that he was being investigated in connection with a complaint that Respondent had "failed to honor a lawful order by the Department of Professional Regulation to sign and execute a Release of Medical Information." That letter referenced Case No. ME0017326 3/ 8902496 4/. Approximately July 5, 1989, Respondent confirmed that the North Carolina address and telephone number were temporary. At formal hearing, Investigator Danson acknowledged that at all times material, investigators could always, eventually, locate Respondent through the North Carolina telephone number and address or through the Jacksonville professional address. On August 11, 1989, DPR Investigator Danson sent Respondent another copy of the March 23, 1988 Order and requested immediate compliance. On August 21, 1989, Respondent's then-attorney wrote Investigator Danson, asking to be informed of any lawful complaints pending at that time which might relate to Respondent. The evidence does not reflect any reply from any DPR employee to the attorney's letter, and Respondent continued to refuse to provide medical records or sign releases therefor. Respondent never produced any medical records and never signed any releases. He has consistently refused to provide his medical records or sign releases therefor up to and including the date of formal hearing herein which was the result of the third formal administrative complaint dated October 24, 1990. At least until February 20, 1988, Respondent maintained a professional practice at 3599 University Boulevard South, Jacksonville, Florida 32216. Even when not actively practicing at that address, Respondent has continued to receive mail there up to and including the date of formal hearing herein. He has also continued to be a stockholder in the medical practice of his partners still practicing there and a stockholder in the building at that address. He likewise draws disability insurance payments from the insurer for the partnership. Respondent has never taken the initiative to provide DPR or the Board with any other address in writing despite the two prior Final Orders requiring him to do so. At formal hearing, Respondent represented that, in collaboration with his partners, he voluntarily ceased to practice medicine in the state of Florida on February 20, 1988, a date prior to his signing the second stipulation, prior to entry of the Order of the Secretary, and prior to entry of the second Final Order of probation. The record is clear, however, that in May 1988, pursuant to the terms of the April 18, 1988 Final Order, Respondent qualified Dr. Scales as his monitoring physician to oversee his professional practice. In August 1988, Dr. Scales, Respondent's monitoring physician, notified the Department of Professional Regulation that he had nothing to monitor or report on since Respondent had ceased active practice in February 1988, three months before Dr. Scales was even qualified as monitoring physician. At no time did Respondent surrender his license to the Board or request being placed on inactive status. He is currently on inactive licensure status only because he did not timely renew his license prior to its natural expiration on December 31, 1989. Between February 1988 and the date of formal hearing, Respondent lived in several locations. Although he asserted that he has never "established residency" outside the state of Florida, Respondent admitted that since entry of the April 18, 1988 Final Order, he has "lived" outside Florida for more than 30 consecutive days, that he spent five weeks in Europe, and many months, at least intermittently, in Arizona and North Carolina. Since February 1989, much of Respondent's time has been devoted to repairing and refurbishing for sale a house in Charlotte, North Carolina. The house was damaged by a hurricane after he had purchased it in January 1989. Respondent simultaneously maintained a residence in Jacksonville with his daughter, but he has never taken affirmative action to notify DPR or the Board in writing of this address or of an address where he lived in Melbourne, Florida, for more than thirty days in 1988, either. Although vague and inconclusive as to the exact time frames of his absences from the state of Florida, it is clear that on several occasions, Respondent has failed to notify DPR or the Board of Medicine in writing of his dates of departure and return to Florida and has frequently resided outside the state of Florida for more than 30 consecutive days. Nor has he notified anyone in writing of his in-state changes of residence.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order providing as follows: Finding Respondent guilty of Counts I and II as alleged in the third administrative complaint (two violations of Section 458.331(1)(x) F.S.), and suspending his license to practice medicine in the state of Florida until the March 23, 1988 Order of the Department is complied with, subject to the statutory cap for suspension of a license, and thereafter ordering probation under the terms and conditions of the two prior final orders. DONE and ENTERED this 1st day of October, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1991.
