The Issue The issue in the case is whether the allegations of the Administrative Complaint filed by the Petitioner are correct and, if so, what penalty should be imposed against the Respondent.
Findings Of Fact Beginning on October 3, 1995, and at all times material to this case, the Respondent has been licensed as a medical doctor in the State of Florida, holding license number ME 69324. At all times material to this case, the Respondent was also a licensed medical doctor in Minnesota. From 1984 to 1998, the Respondent was employed as a professor at the University of Minnesota (University). As a University professor, the Respondent was involved in chemical dependency research and participated in human research projects intended to treat drug addictions. Beginning in June 1993, the Respondent conducted a study wherein Gamma-Hydroxybutrate (GHB) was provided to human test participants. The Respondent was the principal investigator in the study. He personally applied to and received permission from the U.S. Food and Drug Administration (FDA) to conduct the study. The human participants in the 1993 GHB study were primarily a group of Southeast Asians known as "Nmong" who exhibit high rates of opium addiction. The purpose of the study was to determine whether GHB could be beneficial in detoxification from opium addiction. As the principal investigator, the Respondent was responsible for planning and implementation of the study. Obtaining the "informed consent" of study participants was a requirement of the University's standard protocol, and is a standard requirement for any human research project The informed consent documentation used in the Respondent's GHB study consisted of five English-text pages. The participants in the GHB study were essentially unable to speak or read English. The Respondent assumed that the University hospital, where the study was conducted, would obtain the appropriate informed consent from participants. By the time the GHB study began, informed consent had not been obtained from all the human test subjects. The University apparently became aware of the informed consent issue, and asked the Respondent on August 4, 1993 to discontinue the test. The Respondent terminated the test on August 5, 1993. After the test was terminated, the University reviewed the test's procedures and determined that in addition to the informed consent issue, test administrators had failed in some cases to follow dosing protocol limits, and had also failed to provide a substitute drug (methadone) to study participants who sought the substitution. Based on the improper implementation of the study, the University took disciplinary action against the Respondent including a reprimand, restrictions against conducting research involving university hospital patients, and imposition of a two- year monitoring period of the Respondent's clinical performance. Based on the University action, the Minnesota Board of Medical Practice reviewed the situation. The Board is the licensing authority for physicians in the State of Minnesota. By Order dated May 9, 1998, the Respondent entered into a stipulation and order with the Minnesota Board of Medical Practice. The stipulation and order required as follows: provide proof of compliance with requirements imposed by the University of Minnesota; notify the Minnesota Board of Medical Practice if Respondent participated in human research studies for a period of two (2) years; c. obtain a supervising physician, meet with the supervising physician monthly, and provide the supervising physician with information pertaining to Respondent's clinical practice outside the scope of his teaching responsibilities; d) meet with a designated member of the Minnesota Board of Medical Practice quarterly to review Respondent's progress under the terms of the order; and c) pay a civil penalty in the amount of $3,500. Although the Respondent did not have a private clinical practice in Minnesota, he had a limited number of clinical patients at a VA hospital in Minnesota who were outside his teaching responsibilities. In accordance with the terms of the settlement and order, the Respondent obtained a supervising physician who apparently oversaw the clinical practice. In September 1998, the Respondent moved to Florida and began a private clinical practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner enter a final order imposing a suspension of the Respondent's Florida licensure until the Respondent's Minnesota license is unencumbered. DONE AND ENTERED this 20th day of July, 2000, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 20th day of July, 2000. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way BIN C01 Tallahassee, Florida 32399-3251 Kristy M. Johnson, Esquire Agency for Health Care Administration 2727 Mahan Drive Post Office Box 14229 Tallahassee, Florida 32317-4229 Donald W. Weidner, Esquire G. Thomas Bowden, II, Esquire Donald W. Weidner, P.A. 11265 Alumni Way, Suite 201 Jacksonville, Florida 32246
Conclusions THIS CAUSE came before the BOARD OF MEDICINE (Board) on June 6, 2014, in Tampa, Florida, for the purpose of considering Respondent's offer to voluntarily relinquish his license to practice medicine in the State of Florida. (attached hereto as Exhibit A.) Said written offer of velinguishment specifically provides that Respondent agrees never again to apply for licensure as a physician in the State of Florida. Upon consideration of the written offer of voluntary relinquishment, the charges, and the other documents of record, and being otherwise fully advised in the premises, IT IS HEREBY ORDERED that Respondent’s Voluntary Relinquishment of his license to practice medicine in the State of Florida is hereby ACCEPTED, and shall constitute discipline upon Respondent’s license. This Final Order shall take effect upon being filed with ! the Clerk of the Department of Health. DONE AND ORDERED this} | he day of ‘ A yt, 2014. BOARD OF MEDICINE Allison M. Dudley, J. For Nabil El Sanadi, Executive Director , ,Chair | a CERTIFICATE OF SERVICE I I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by U.S. Mail to HAROLD EDWARD SMITH, M.D., 4001 Sw 13™ Street, Gainesville, Florida 32608; and 501 N. Orlando Avenue, Suite 313-247, Winter Park, Florida 32789; to Juan A. Ruiz, Esquire, Rissman, Barrett, et al., 201 East Pine Street, 15° Floor, Post office Box 4940, Orlando, Florida 32802-4940; and by interoffice! delivery to Doug Sunshine, Department of Health, 4052 Bald Cypress Way, Bin #C- i 65, Tallahassee, Florida 32399-3253 this \ Za) | day of ~& , 2014. Deputy Agency Clerk FILED | DEPARTMENT oF HEALTH STATE OF FLORIDA DEPUTY DEPARTMENT OF HEALTH CLERK: wo? Conte) DEPARTMENT OF HEALTH Petitioner, = | pare__MAY 06 204 | v . DOH Case No. 2012-05273 Harold Edward Smith, M,D., ! Respondent. ' ee TAR’ Respondent, Harold Edward Smith, M.D., license No. ME 7300, hereby voluntarily t relinquishes Respondent's license to practice medicine in the State of Florida and states as i 1, Respondent's purpose in executing this Voluntary: Relinquishment is to avoid follows: | further administrative action with respect to this cause. Respondent understands that . | acceptance by the Board of Medicine (hereinafter the Board) of this Voluntary i] * Relinquishment shall be construed as disciplinary action against Respondent's license . . | pursuant to Section 456,072(1)(f), Florida Statutes, As with any disciplinary action, this | relinquishment will be reported to the National Practitioner's Data Bank as disciplinary | ’ action. Licensing authorities In other states may impose disdpline in their jurisdiction based on discipline taken In Florida. : . | 2. Respondent agrees to never reapply for licensure as ai Medical Doctor in the i State of Florida. ‘| 3. Respondent agrees to voluntarily cease practicing medicine immediately upon executing this Voluntary Relinquishment. Respondent further agrees to refrain from i 1 i ~335785—————________ ee : the practice of Medicine until such time as this Voluntary Relinquishment is presented to the Board and the Board issues a written final order in this matter. 4. In order to expedite consideration and resolution of this action by the Board in a public meeting, Respondent, being fully advised of the consequences of so doing, hereby Waives the statutory privilege of confidentiality of Section 456. 073(10), Florida Statutes, regarding the complaint, the investigative report of the Department of Health, and all other information obtained pursuant to the Department's investigation in the above-styled action. By signing this walver, Respondent understands that the record and complaint become public tecord and remain public record and that information is immediately accessible to the public. . Section 456.073(10) Florida Statutes. ; 5. Upan the Board's acceptance of this Voluntary Relinduishment, Respondent agrees to waive ail rights to seek judidal review of, or to otherwise challenge or contest the | validity of, this Voluntary Relinquishment and of the Final Order of the Board incorporating 6. Petitioner and Respondent hereby agree that upon the’ Board's acceptance of this Voluntary Retinquishment. this Voluntary Relinquishment, each party shall bear its own attomey's fees and costs related { | to the prosecution or defense of this matter. 7. Respondent authorizes the Board to review and examine all investigative file Materials conceming Respondent in connection with the Board's ‘consideration of this Voluntary Relinquishment, Respondent agrees that consideration of this Voluntary Relinquishment and other related materlais by the Board shall not prejudice or preclude the 2+ 2014, ; i | Board, or any of its members, front further participation, consideration, or resolution of these proceedings if the terms of this Voluntary Relinquistment are not accepted by the Board. i DATED this 2d dayof__MMiaey 2014. Harold E, Smith,
Conclusions THIS CAUSE comes before the State of Florida, Agency for Health Care Administration, (“the Agency”) regarding certificate of need ("CON") application number 10158 filed by North Florida Regional Medical Center, Inc. (“NFRMC”). 1. NFRMC filed a CON application which sought the establishment of a 24-bed comprehensive medical rehabilitation unit within its hospital located in Alachua County, Florida, Service District 3. The Agency denied NFRMC’s CON application 10158. ; 1 Filed November 4, 2013 11:11 AM Division of Administrative Hearings 2. NFRMC filed a petition for formal hearing challenging the Agency’s denial of CON application number 10158. 3. Shands Teaching Hospital and Clinics, Inc. d/b/a Shands Rehab Hospital, filed a petition for formal hearing in support of the Agency’s denial of NFRMC’s CON application 10158. 4. NFERMC has since voluntarily dismissed its petition for formal hearing. 5. Based upon the voluntary dismissal, the Division of Administrative Hearings entered an Order Closing Files and Relinquishing Jurisdiction in the above styled matter. IT IS THEREFORE ORDERED: 6. The denial of NFRMC’s CON application 10158 is UPHELD. ORDERED in Tallahassee, Florida on this DD day of Octet. 2013. cbc Peele Elizabeth Dudek, Secretary Agency for Health Care Administration _NOTICE OF RIGHT TO JUDICIAL REVIEW A party who is adversely affected by this final order is entitled to judicial review. which shall be instituted by filing the original notice of appeal with the agency clerk of AHCA, and a copy along with the filing fee prescribed by law with the district court of appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review proceedings shall be conducted in accordance with the Florida appellate rules. The notice of appeal must be filed within 30 days of the rendition of the order to be reviewed. CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by U.S. Mail or electronic mail to the persons named below on this f "__ day of Nove~ hes _, 2013. Richard J. Shoop, Agency Cler| Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 412-3630 Janice Mills Facilities Intake Unit Agency for Health Care Administration (Electronic Mail) James McLemore, Supervisor Certificate of Need Unit Agency for Health Care Administration (Electronic Mail) Elizabeth W. McArthur Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Stephen A. Ecenia, Esquire R. David Prescott, Esquire Rutledge Ecenia, P.A. 119 South Monroe Street, Suite 202 Tallahassee, Florida 32302 Counsel for NFRMC (U.S. Mail) Lorraine M. Novak, Esquire Assistant General Counsel Agency for Health Care Administration {Electronic Mail), F. Philip Blank, Esquire Blank & Meehan, P.A. 204 South Monroe Strect Tallahassee, Florida 32301 Counsel for Shands Rehab Hospital (U.S. Mail) we
The Issue Whether or not Petitioner is entitled to a license by endorsement to practice medicine pursuant to Section 458.313(1) F.S.
Findings Of Fact Petitioner William D. Plummer is an applicant for licensure as a physician by endorsement in Florida. On May 2, 1991, Petitioner filed a licensure application with the Department of Professional Regulation. On page one of the application is the question: Are you now or have you ever been licensed in any State, Canada, Guam, Puerto Rico or U.S. Virgin Islands? Yes No . Petitioner marked the "No" answer to this question on his application. On page four of the application is the question: Have you ever been denied an application for licensure to practice medicine by any state board or other governmental agency of any state or country? Yes No . Petitioner marked the "No" answer to this question on his application. On June 11, 1991, Petitioner was sent a notice that his application was incomplete. In that notice, he was asked: Are you now, or have you ever been licensed to practice medicine in any State? In response, Petitioner sent a letter stating only that he had received a Pennsylvania medical license on July 3, 1991. This date was subsequent to his making the initial Florida application on May 2, 1991. As part of the application process in Florida, Petitioner was asked to appear before the Credentials Committee of the Board of Medicine on January 25, 1992, in Tampa, to discuss various matters regarding his application. In the course of discussing various issues with the Credentials Committee Petitioner was asked: Were you ever denied a license to practice medicine in another state? In response, Petitioner stated, No. I have my Pennsylvania license. In my training initially--my medical training license took some time, and I think that was in 1985 and it was because we didn't have a program in Pennsylvania to work with the State Board. Later, Petitioner told the Committee, I thought there was a difference between a medical training license and a medical license. A medical training license is under supervision at a hospital. In point of fact, in 1985, Petitioner had applied for a graduate medical license in Pennsylvania in order to enter the residency program at Misercordia, Mercy Hospital where he had already been accepted. The Pennsylvania graduate medical license allows the licensee to work as a physician under supervision only as a resident in the institution named on the license. Petitioner's application for this license was rejected because the Pennsylvania Board found that Petitioner had "knowingly falsified" an answer regarding his addiction to alcohol. The Pennsylvania Board further prohibited Petitioner from reapplying for a graduate medical license until June 6, 1986. After formal hearing, the Pennsylvania Board entered its order as follows: ... an Applicant with a proclivity toward engaging in word ploys in these important matters runs the risk, as here, of being in error and thus committing an active concealment and misrepresentation. A more prudent course perhaps for such an Applicant would be to err on the side of giving excess (voluntary) information in responding to such a formal and serious written questionnaire. Medical residents in training programs "practice medicine." In Pennsylvania, residents are prohibited from practicing medicine unless they receive a graduate medical license from the State of Pennsylvania. Because of the Pennsylvania Board's denial of Petitioner's application for a graduate medical license, he was unable to accept the position at Mercy Catholic Hospital. However, in 1986, Petitioner reapplied for a graduate medical training license in Pennsylvania and the application was granted. This graduate medical training license was renewed annually thereafter while Petitioner continued to train in Pennsylvania. Petitioner still held the latest renewed graduate medical training license when he applied for Florida licensure in May 1991. Petitioner was granted his permanent unrestricted medical license in Pennsylvania in July 1991. (See Findings of Fact 2 and 5 supra.) At formal hearing, Petitioner explained that because Pennsylvania's graduate medical training license only allows participation in a residency training program at an approved institution named on the face of the license, he did not consider it to be a "license to practice medicine," and accordingly he did not disclose to Florida the Pennsylvania Board's 1985 denial of such license. He represented that he believed that because the Pennsylvania graduate medical training license was institution-specific, limited to one year in scope, and only a prerequisite to supervised additional medical education, it did not constitute what Florida's inquiries were all about. By common English usage, Pennsylvania law, and Florida law, the authority that Dr. Plummer was denied in 1985 and granted in 1986 by the Pennsylvania Board constitutes a "license to practice medicine," contrary to his interpretation of that term when he filled out his Florida application and responded to inquiries during the course of Florida's licensure investigation. He should have identified it in response to each relevant question or inquiry. However, Petitioner's interpretation of Florida's questions and his answers thereto do not constitute attempting to obtain a license to practice medicine by fraudulent misrepresentation or concealment of a material fact for the following reasons: Petitioner's formal hearing testimony was credible and unrefuted. Petitioner was consistent in his interpretation of the questions on this subject in that he also did not disclose to Florida the "good" facts that the Pennsylvania Board had subsequently granted him the graduate medical license in 1986 and had renewed it annually and that he still held such a license at the time of filling out his Florida application. Also, in the Florida application, he readily and fully disclosed to Florida the "bad" facts of his detrimental past history of alcoholism. Dr. Lee testified as a medical physician licensed to practice in New York, Pennsylvania, and Iowa, that he considered Petitioner's interpretation of the Florida application questions concerning prior medical licensing reasonable and that he also considered Petitioner's answers to those questions reasonable. No contrary testimony was presented. The American Medical Association profile does not list Petitioner's Pennsylvania graduate medical training license as a "license to practice medicine." Various qualified credible witnesses acknowledged that Petitioner's failure to disclose his alcoholism to the Pennsylvania Board in 1985 was a denial symptom of his alcoholism at that time and was not symptomatic of his character makeup now that his alcoholism is in remission or at any time he responded during the Florida licensing process. Respondent presented no direct evidence to prove that Petitioner had a fraudulent intent in answering as he did. Although fraudulent intent may sometimes be inferred from the circumstances, the circumstances herein do not permit such an inference. On his initial Florida application, Petitioner could not correctly recall the dates of his medical training because he had not kept accurate records himself and because of his alcoholic condition in prior years. One representative error he made is that he listed a full year in one program which he attended for only four months. However, he approximated the dates as best he could and revealed all training programs, even those in which he was unsuccessful, and he consistently responded to the Board that he would defer to whatever the training institutions' records showed. He also concealed no rehabilitation programs he had been in. No intent to defraud or conceal can be inferred from these circumstances. Petitioner is an alcoholic. Petitioner's alcoholism had its inception sometime during his childhood, possibly as early as the age of eight years. Petitioner graduated from Pennsylvania State University summa cum laude, in 1976. He matriculated from the Uniformed Services University in 1980. Toward the end of his time in medical school, approximately 1980, Petitioner began to realize that he had a problem with alcohol. In 1980, Petitioner entered a surgical training program at Balboa Hospital in San Diego, California. As a direct result of his problems with alcohol, Petitioner left that surgical training program in 1981 without completing his training. Between 1981 and 1983, Petitioner was partially supported by his parents, performed odd jobs as a handyman and searched for a new training program. In July, 1983, Petitioner entered an internal medicine training program at St. Raphael Hospital in New Haven, Connecticut. After approximately five months and prior to completion of training in New Haven, Petitioner's problems with alcohol forced him to terminate participation in the internal medicine training program. In December 1983, Petitioner entered a rehabilitation program at Marworth in Waverly, Pennsylvania. He remained as an inpatient at Marworth until February 1984 when he was discharged to Little Hill--Alina Lodge, a continuing care facility in Blairstown, New Jersey, where he remained as an inpatient until May 1984. Petitioner left Little Hill--Alina Lodge with staff approval. Between May 1984 and November 1986, Petitioner worked at various odd jobs as a handyman and helped his parents relocate and build in Florida. He also waited for his graduate medical training license in Pennsylvania. (See Finding of Fact 7, supra) Petitioner described both the periods of 1981-1983 (See Finding of Fact 18 supra.) and 1984-1986 as periods of "self-employment" whereas "unemployment" might have been more accurate. This discrepancy was neither "fraud" nor "concealment," as those terms are generally understood. In November, 1986, Petitioner entered an internal medicine training program at Misercordia, Mercy Catholic Medical Center in Philadelphia, Pennsylvania. Petitioner's problem with alcohol caused him to behave in a manner which indicated the presence of an active physical impairment of alcoholism and resulted in Petitioner's suspension and later resignation from that program after approximately three and a half months and prior to completion of training. In June 1987, Petitioner returned to Marworth as an inpatient. He remained under treatment for approximately one month and then stayed on at Marworth as an inpatient for approximately a month. Thereafter, he worked as a janitor and groundskeeper for nearly two years while concentrating on his life problems that had contributed to his alcoholism. Many professionals reviewing his case have been favorably impressed with Petitioner's dedication and sacrifice during this period of time. In 1989, Petitioner entered an internal medicine training program at Robert Packer Hospital in Sayre, Pennsylvania. This hospital is part of the Guthrie Healthcare System where Petitioner is currently employed. (See Findings of Fact 28, 43, 49 infra.). In June 1990, Petitioner took a vacation to the Florida keys and while on vacation went on a four day drinking binge. Petitioner voluntarily reported himself for further treatment and returned to Pennsylvania. While awaiting placement in another rehabilitation program, he suffered an alcohol withdrawal induced seizure. In July 1990, Petitioner entered his fourth inpatient treatment program for alcoholism at Bethany Center in Homesdale, Pennsylvania, where he remained for one month. His absence was counted as vacation and sick time while he was able to complete his internal medicine training program at Robert Packer Hospital on schedule in April 1992. The Guthrie Health Care System immediately offered him his current position, with full knowledge of his excellent academic record and clinical references and his alcohol recovery history. (See, Findings of Fact 43 and 49 infra). Currently, Petitioner participates in the Physician's Health Program of the Pennsylvania Medical Society and since January 1991 has been participating, through counseling, in a program of recovery from alcoholism with the Bradford Sullivan Drug and Alcohol Program. Both the Florida Physician Resource Network and the Pennsylvania Physician's Health Program impaired physicians programs have opined that Petitioner's history of alcoholism should not bar his licensure in Florida at the current time. (See, Findings of Fact 31-39 infra.) Dr. Roger Goetz is the Director of Florida's PRN and is the Department of Professional Regulation's consultant charged with implementing Florida's Impaired Practitioner Program. The Physician Resource Network includes the Physician Recovery Network (PRN). In the past five years, the PRN has evaluated approximately 350 physicians with impairments at the request of the Board of Medicine. Over this period, Dr. Goetz cannot recall a single instance where an applicant endorsed by PRN has failed to maintain sobriety. PRN statistics show that at least 97 per cent of the practitioners on contract have not reverted to alcohol or chemical use. Petitioner is willing to enter such a contract with PRN if he is licensed. Dr. Goetz believes Petitioner will be able to practice medicine with skill and safety to patients in Florida, provided he enters into a contract with the PRN. Dr. Goetz opined that Petitioner's relapse in 1990 does not indicate the likelihood of future relapses because Petitioner has continued with a more effective treatment program and support system geared to his needs as a physician. Dr. Goetz, on behalf of PRN, recommended a five-year contract for Petitioner designed to identify pre-relapse behavior and entail that he remain chemically abstinent, be subjected to random body fluid analysis, establish a doctor/patient relationship and receive care from another physician for his personal health, obtain a monitoring physician, attend group therapy, attend Alcoholics Anonymous meetings, have significant family members involved in his recovery, notify the PRN of any problems in his life, including changes in his physical health, be willing to withdraw immediately should there be any problems surrounding his practice, and participate and cooperate with the PRN at all times. Such a contract would provide Petitioner with an environment in Florida which is similar to his current recovery environment in Pennsylvania. Dr. Goetz testified that to the extent of his knowledge Petitioner has a good reputation for truth and veracity. At the request of PRN, Petitioner was evaluated for chemical dependency by Leah H. Williams, M.D. in July 1991. Dr. Williams reported to PRN that she was in favor of Florida licensure for Petitioner. In September 1991, Petitioner received a thorough outpatient evaluation from Dr. Lynn Hankes, PRN's approved evaluator. Dr. Hankes also endorsed Florida licensure for Petitioner, contingent upon Petitioner entering the PRN program and participating in ongoing psychotherapy. Penny Ziegler, M.D., Medical Director of the Pennsylvania Physician's Health Program, supports Petitioner's application for licensure in Florida. Nicholas F. Colangelo, Ph.D., a psychologist, supports Petitioner's application for licensure in Florida. Dr. Colangelo may be considered as a past and currently treating psychologist for Petitioner. They have known each other since Petitioner was at Marworth. Dr. Colangelo is a nationally certified alcohol and drug counselor who is Vice-President of Clearbrook, Inc., an alcohol and drug addiction treatment facility. He is a recovering alcoholic who has been sober for over seventeen years. Twenty-five to thirty-five per cent of his addiction counseling focuses on professionals. According to Dr. Colangelo, professionals and other high-achieving individuals like Petitioner often have difficulty accepting that they must submit to the whole program for recovery from alcoholism but once they do, they recover at a higher than average rate. In Dr. Colangelo's opinion, Petitioner has demonstrated conduct which gives him a better than average prospect for continued sobriety. Dr. Colangelo opined that Petitioner's current employment in a tertiary care facility, the Guthrie Clinic, coupled with the management of the ongoing licensure proceedings in Florida, provide Petitioner with as much environmental stress as he has ever experienced, but the existence of environmental stress does not play a significant role in Petitioner's continued sobriety. Dr. Colangelo perceived Petitioner as a person of truth and veracity. Petitioner is currently employed by the Guthrie Healthcare System, a multi-specialty private medical practice clinic employing approximately 110 physicians in non-surgical areas of medicine. Petitioner is responsible for the initial evaluation of nonsurgical patients. It is within his job duties to determine the type of medical care to be provided to each nonsurgical patient entering the clinic. In that position, he sometimes provides all primary care to the patient or directs the patient to the appropriate subspecialist. Apart from the four days in 1990, Petitioner has been continuously sober for five and one-half years. That 1990 four day relapse did not detrimentally affect his patient care. At that time, Petitioner contacted Florida's PRN. He has maintained contact with Dr. Goetz ever since. According to Dr. Colangelo and Dr. Goetz, two years of continuous sobriety is a benchmark most professional associations accept for granting a license or privilege. The American Board of Internal Medicine uses such a two year benchmark. Petitioner has met all credentialing requirements to obtain certification by the American Board of Internal Medicine. Dr. Ferrol Lee currently is responsible for the nonsurgical quality of medicine at Guthrie, with overall supervision of the 110 physicians employed there, including Petitioner. He has worked with Petitioner both during Petitioner's residency at Robert Packer and during his current employment. He views Petitioner as a hard worker whose personal struggle with alcoholism gives him valuable insight into the care of patients who struggle with similar problems. He ranks Petitioner within the top 5-10 residents of the 100 he has worked with over the past nine years. Dr. Lee testified that Petitioner has continually demonstrated good moral character and has a flawless reputation for truth and veracity. Dr. Lee endorses Petitioner's licensure in Florida. The State of Pennsylvania has never taken disciplinary action against Respondent's license to practice medicine in that state.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered certifying Petitioner for licensure with placement of Petitioner on probation for five years subject to his entering into and abiding by a contract acceptable to the Physicians Recovery Network. RECOMMENDED this 20th day of April, 1993, 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 20th day of April, 1993.
Findings Of Fact In 1981, Dr. Terry Rees applied to Respondent for certification to employ David Michael Avance as a physician's assistant. Dr. Rees' application represented that Avance would perform as a surgical assistant for Dr. Rees and those other surgeons having surgical privileges at Mease Hospital and Clinic ("Mease"). Respondent approved the application and issued Certificate No. 452 to Dr. Rees on June 8, 1981. The certifi-cate authorized Dr. Rees to employ Avance as a physician's assistant to function pursuant to Section 458.347, Florida Statutes. On January 12, 1983, Dr. Rees advised Respondent that Fleming intended to apply to employ Avance as a physician's assistant. Dr. Rees further advised Respondent that pending approval of Fleming's application, Dr. Rees would no longer continue to certify Avance. Respondent thereafter received an application for certification of physician's assistant from Fleming, which was submitted on or about February 4, 1983. The application sought permission for Fleming to supervise Avance. As with Dr. Rees' application, the application filed by Fleming reflected Fleming's intention that Avance would provide services not only for Fleming but also for those other surgeons having surgical privileges at Mease. Fleming has been licensed to practice medicine in Florida since 1950, and since 1952 has been practicing and maintaining an office at Mease in Dunedin, Florida, where he holds the position of senior surgeon. Fleming's office is located in the same building as the other surgeons holding privileges at Mease that would utilize Avance as a physician's assistant. The offices of all physicians holding surgical privileges at Mease are located no more than five minutes from the operating suite. By letter dated February 8, 1983, Fleming advised Respondent of the identity of all other physicians on the staff at Mease who would potentially use the services of Avance as a physician's assistant, together with the date those physicians were licensed in Florida, and their license numbers. Since his certification as a physician's assistant, Avance has limited the scope of his functions to assisting only in the operating rooms of the surgical suite at Mease. The functions performed by Avance are uniform and dependent upon the type of surgery in which he assists. The functions consist of preparing the skin; assisting in placement of sterile drapes; maintaining wound exposures; retraction; assisting in hemostasis; clamping tissue; maintaining a dry operative field; coagulation of bleeding vessels; tying off blood vessels or applying hemoclips to control bleeding vessels; and assisting in secure wound skin closure and dressing applications. In the past, prior to each procedure in which Avance was requested to assist a physician other than the one to whom he was certified, the certifying physician has reviewed the surgery schedule, including the procedure anticipated, and has given direction to Avance as to what was expected of him. Whenever Avance has performed as a physician's assistant in the operating suite at Mease, there has been at least one licensed surgeon present in the operating suite to direct him. Each surgeon assisted by Avance has completed an efficiency report on Avance's performance, each of which has been reviewed by the surgical staff at Mease. Avance's performance has been reviewed as uniformly excellent, and he has never received any reprimands, complaints, or been involved in any litigation concerning his work as a physician's assistant. Since his certification, Avance has assisted in surgery on a daily basis, alternating weekends and on-call status with another physician's assistant. While licensed, he has assisted in approximately 2,000 operations, and is required to, and does, maintain his own malpractice insurance in an amount of at least $500,000. Respondent has not contested, and it is hereby specifically found, that Avance and Fleming possess the requisite qualifications to act as a certifying physician and physician's assistant. Respondent's Physician's Assistant Advisory Committee reviewed Fleming's and Avance's applications at a February 7, 1983, meeting, and recommended that the applications be denied. The Committee requested that Fleming be asked to provide additional information concerning both the practice setting at Mease and the proposed use of Avance as a physician's assistant by other surgeons. In a letter to Respondent dated February 8, 1983, Fleming responded to the Committee and advised that he planned to permit Avance to assist 25 other specifically named staff physicians who had surgical privileges at Mease. The letter advised that the physicians at Mease were not employees, but each functioned as an independent contractor. Respondent considered the applications and the Committee's recommendation at its February 12, 1983, meeting and voted to adopt the Committee's recommendation of denial. In its notice of intent to deny the applications, Respondent stated that the reasons for denial were that Avance was in truth being certified to Mease as opposed to an individual physician, and further noted that Respondent did not believe that Fleming could provide the responsible supervision and control over Avance contemplated by Section 458.347, Florida Statutes. The applications were reconsidered by the Physician's Assistants Advisory Committee at its April 6, 1983, meeting. Both Avance and Fleming were present at the Committee's meeting at the time their application was discussed. The Committee voted to recommend approval of the applications. However, subsequent to the vote on Petitioners' applications, and after Petitioners' departure from the meeting, the Committee engaged in a lengthy policy discussion regarding the responsibilities of certifying physicians, and the authority of the certifying physician to delegate supervision of his physician's assistant in various practice settings. Because the Committee's discussion resulted in recommendations that might be unfavorable to Petitioners' applications, the Committee instructed staff to contact Petitioners and inform them of the Committee's discussion. The Committee's discussion and recommendation is set forth in the minutes of the April 6, 1983, meeting as follows: Responsibilities of Physician and Group Practice--A lengthy discussion was held regarding responsibilities of the super- vising physician, the delegation of supervision and the functioning of a physician's assistant in the following settings: Solo Practice. Group Practice or Partnerships. Hospitals. Nonassociated Physicians. It was the opinion of the Committee that a physician's assistant should have one individual physician who accepts respon- sibility for his supervision and to whom he is certified. If the certifying or supervising physician is a member of a medical group practice or partnership, supervision of the PA may be delegated by the supervising physician to other members of the group; and the PA may function in accordance with standards and safeguards which have been estab- lished for his working in such a practice setting. The physician to whom the PA is certified shall be ultimately responsible for the super- vision of his PA. If the PA is certi- fied to a physician who is in a solo practice, supervision of the PA may be delegated to the physician who is taking calls or assumes responsibility for the patients of the supervising or certifying physician, such as on weekends when the certifying physician is out of town or is on vacation. The supervising physician cannot delegate supervision of his PA to another physician where there is no association of the physician. For a PA to work for more than one physician where there is no association or group practice setting, he must be certified to a supervising physician in each employment setting. The Board met several days later and adopted the Committee's policy recommendations as reflected above, and voted to reaffirm the previous denial of Petitioners' applications. At the time Petitioners' applications were submitted, considered, and denied, except for the changing of the identity of the supervising physician, the factual situation and circumstances concerning the practice setting, employment relationship between the physician's assistant and physician, and the type of supervision contemplated had not changed since 1981 when Avance was certified as a physician's assistant to Dr. Rees. Indeed, except for the granting of Dr. Rees' application in 1981, prior to the time of Petitioners' applications in this case, Respondent apparently had no articulated policy with regard to the utilization of physician's assistants by physicians other than the certifying physician. In April, 1981, prior to granting of Dr. Rees' application, Respondent formed the Physician's Assistant Advisory Committee to make recommendations concerning the establishment of criteria and guidelines for the performance of physician's assistants and to review and make recommendations to the Board on applications. The Committee is comprised of four physicians, three of whom are Board Members, and two physician's assistants. The Committee meets approximately every two months, and presents a report to the Board at its next scheduled meeting. The Chairman of the Committee presents recommendations to the Board, and includes within the Committee's report all documents and information for the Committee, together with the minutes of the Committee meeting. By way of the minutes of the April 6, 1983, meeting quoted above, the Committee, and thereafter the Board, has attempted to classify the use of physician's assistants in various practice settings in an attempt to insure that the relationship between the physician's assistant and the certifying physician will protect the interest of patients. The Committee recommended, and the Board apparently adopted, a policy, sought to be enforced in this proceeding, that a certifying physician may not delegate supervision of his physician's assistant to another physician where there is no formal business association of the physicians. This purported policy further requires that for a physician's assistant to work for more than one physician where there is no formal business association of the physicians, the physician's assistant must be certified to a physician in each employment setting. This purported policy differs from that in existence at the time Avance was initially certified, and was apparently "formulated" during the pendency of the applications here at issue. The principal dispute in this proceeding concerns Respondent's "policy" that a ". . . supervising physician cannot delegate supervision of his PA to another physician where there is no association of the physicians . . ." A further integral part of Respondent's "policy" in this regard, its position that ". . . if the certifying or supervising physician is a member of a medical group practice or partnership, supervision of the PA may be delegated by the supervising physician to other members of the group; and the PA may function in accordance with standards and safeguards which have been established for his working in such a practice setting. . . ." In making these policy choices, Respondent considered the following factors: There is no purpose in requiring certification of a physician's assistant if the certifying physician is then able to delegate the physician's assistant to whomever he chooses; noncertified physicians utilizing physician's assistants may not be familiar with the educational training and background of a physician's assistant, or the services they are allowed by law to perform; and physicians not functioning within a medical group or partnership setting have no common legal responsibility to the same patient population. The record in this cause establishes that, with regard to medical group practice or partnership settings, the Board did not inquire into the competency of group members or partners other than the certifying physician, except to ascertain whether group members or partners are properly licensed in Florida. Respondent's "policy" contains no requirement that partners or group practitioners have a practice similar to that of the certifying physician before they may utilize a physician's assistant. Further, there is no requirement that a member of a group or a partner have any knowledge of the physician's assistant's abilities. Further, there is no requirement in Respondent's policy that a partner or other group practitioner have previously supervised the work of a physician's assistant, or that a patient seen in conjunction with the physician's assistant has been treated previously by the certifying physician. There is no evidence of record to establish that there exists any greater danger to the public by virtue of the subdelegation of the supervisory responsibility over a physician's assistant in a situation such as that contemplated by Petitioners' applications than would be the case in a group practice or partnership setting. With regard to a group practice or partnership, Respondent requires only that the identity of secondary physicians and their licensing status be divulged by the certifying physician. Fleming has satisfied this requirement by submitting a list of the names and licensure status of other Mease physicians who propose to utilize the services of Avance. Respondent has produced no evidence to establish that any of these physicians are not qualified to appropriately supervise Avance. There simply is no competent, credible evidence of record to justify Respondent's disparate treatment of Petitioners and those physicians who happen to practice in group practice or partnership settings. There is no evidence of record in this proceeding to justify Respondent's policy situation in this regard, and further, there is no evidence of record to indicate that any such evidence was presented to either the Committee or the Board during the policy formulation process. This record does establish that Avance proposes to continue to function as he has functioned since his 1981 certification, with the sole exception of the identity of his certifying physician. This record establishes that Avance has performed admirably as a physician's assistant since 1981, and that no problems have arisen as a result of the quality of supervision received by him from his certifying physician and other physicians for whom he functioned as a physician's assistant at Mease.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times relevant to the charges in this proceeding, respondent was employed as a registered nurse on the 11:00 P.M. to 7:30 A.M. shift aft the Putnam Community Hospital in Palatka, Florida. On or about October 28, 1978, the night supervisor at the Hospital, Ollie Craven, discovered an empty vial of Demerol (Meperidine) in the narcotic box, to which respondent had a key. Normally, the vial would be broken after use, but this vial was not broken. From this date until December 1, 1978, respondent was observed by the staff to exhibit symptoms of being under the influence of drugs. These symptoms included wide mood swings, lethargic behavior, minute-sized pupils and a very dry mouth, all consistent with one taking narcotics. When respondent came on duty on or about December 1, 1978, she appeared to be ill and did vomit. When observed later in the lounge, she was drowsy and lethargic. The night supervisor observed what appeared to be Demerol in her lab coat pocket. Feeling that respondent was not capable of carrying out her duties, Ms. Craven telephoned Ms. Wallace, the Director of Nurses, at about 3:00 A.M. and Ms. Wallace came to the Hospital. When questioned by Ms. Wallace, respondent denied having taken any drugs. Ms. Wallace palpitated the respondent's thighs and found the tissue to be hard and consistent with numerous injections. Respondent was asked to give a blood and a urine sample and did so. She was observed to have blood spots on her girdle. Ms. Wallace observed the respondent to be dull, with an extremely dry mouth and minute, pinpoint sized pupils. The blood and urine samples were positive for Meperidine, also known as Demerol, a controlled substance. By an Administrative Complaint dated December 3, 1978, the petitioner Board charged respondent with unprofessional conduct and a violation of F.S. Section 464.21(1)(b). On January 11, 1979, the respondent signed a form requesting an administrative hearing on the charges. In mid-February, the undersigned received a letter from the respondent reading as follows: Ms. Tremor: The hearing will have to be held without me. I am not now able to attend or will I be able in the next 60 to 90 days. Doctors orders. He states it will be to much tension because of the heart attack I have had. Sincerely yours Mary Pennington The attorney for the Board opposed a continuance without a letter from the respondent's physician. By notice of hearing dated May 3, 1979, the final hearing was noticed for June 4, 1979. The respondent Pennington did not appear at the hearing.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the respondent be found guilty of unprofessional conduct in violation of Section 464.21(1)(b), Florida Statutes, and that her registered nursing license be suspended for a period of six (6) months. Done and entered this 2nd day of July 1979, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Geraldine Johnson Coordinator of Investigation and Licensing State Board of Nursing 111 East Coastline Drive Suite 504 Jacksonville, Florida 32202 Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Mary Wood Pennington Route 2, Box 1480 Palatka, Florida 32077 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA STATE BOARD OF NURSING IN THE MATTER OF: Mary Wood Pennington As a Registered Nurse Case No. 78-764 Route 2, Box 1480 License Number 59864-2 Palatka, Florida 32077 /
The Issue The central issue in this case is whether the Respondent violated Chapter 458 Florida Statutes as alleged in the Administrative Complaint dated July 11, 1986; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witness and the documentary evidence received at the hearing, I make the following findings of fact: The Respondent, Maria I, Andrakovich, M.D., is a licensed physician in the State of Florida, having been issued license number MEOO2I436. On or about May 1, 1983, Respondent entered into a Service agreement with "The Doctor's Office, Inc." wherein Dr. Andrakovich agreed to provide medical services for the patients at 330 South Dixie Highway, Lake Worth, Florida. Respondent's employment with "The Doctor's Office, Inc." ended in March, 1984. On or about July 12, 1983, Respondent filed with the Board of Medical Examiners an Application for Certification for Physician's Assistant for Jean Eugene Raymond. On August 15, 1983, Mr. Raymond was certified to work under the supervision of Respondent pursuant to Chapter 458 Florida Statutes. On November 22, 1983, Mr. Raymond filed his Biennial Physician's Assistant Certification and reported a change of office address to 1177 Hypo1uxo Road, Lantana, Florida. Respondent executed the affidavit for this certification before a notary public. Respondent never worked at the Hypo1uxo, Road facility. Dr. Andrakovich remained at the prior office location which was approximately five miles from the Hypoluxo site. Prior to his move to the Hypoluxo facility, Mr. Raymond would confer, in person, with Dr. Andrakovich regarding each patient. After moving to the Hypoluxo facility, Mr. Raymond would confer with Dr. Andrakovich by telephone. Respondent relied on Mr. Raymond's judgment that this telephonic system of conferring about patients complied with any legal requirements of their relationship. Respondent did not know the regulations which govern physician's assistants. Many of the patients seen at the facilities on Hypoluxo and Dixie were elderly and suffered heart problems. Respondent's schedule required her to see one patient every fifteen minutes. This patient scheduling rate later increased to one patient every ten minutes. It was difficult for Respondent to confer with Mr. Raymond by telephone and meet the schedule. Respondent assumed Mr. Raymond would confer with the physicians at the Hypoluxo facility. No specific arrangement was made to require physicians at Hypoluxo to supervise Mr. Raymond nor did any physician there assume responsibility for Mr. Raymond's activities. During her employment with "The Doctor's Office, Inc." Respondent treated Norman Shapiro. Mr. Shapiro had a history of heart trouble, diabetes, and hypertension. During the fall of 1983, Mr. Shapiro had complained of increased pain which had resulted in Respondent doubling the strength of Mr. Shapiro's heart medication. Mr. Shapiro's medical record for this period suggested a deterioration in his heart condition. On November 21, 1983, Norman Shapiro went to the Hypoluxo facility and was seen by Mr. Raymond. Mr. Shapiro complained that he was constantly having to take his heart medication by handful amounts. Mr. Raymond recommended no coffee, tea, chocolates or smoking and that the patient should elevate his head 4-6 inches for sleeping. The only additional medication suggested was Maalox. The treatment recommended by Mr. Raymond was consistent with the diagnosis of a hiatal hernia but was inappropriate given the patient's history of heart disease. The minimally acceptable care within the medical community where "The Doctors' Office" was located would have required the patient Shapiro to be hospitalized. Mr. Raymond did not confer with Dr. Andrakovich regarding Mr. Shapiro's visit on November 21, 1983, until after the treatment had been recommended. Had Dr. Andrakovich seen Mr. Shapiro on that day, she would have put him in the hospital. Dr. Andrakovich believed Dr. Conti had treated Mr. Shapiro on November 21, 1983. On November 21, 1983, the electrocardiogram (EKG) for Mr. Shapiro was within normal limits. Despite the EKG, Mr. Shapiro's symptoms were cardiac- related and had a significant potential for morbidity and mortality. In fact, Mr. Shapiro died on November 22, 1983. Frank Colavecchio was president of the "The Doctor's Office Inc." and made all administrative decisions regarding the facilities on Dixie and Hypoluxo. Mr. Colavecchio administratively moved Mr. Raymond to the Hypoluxo office. On March 15, 1984, Dr. Andrahovich terminated employment with the "The Doctor's Office, Inc". Respondent did not notify the Board of Medical Examiners of this change and at no time advised the Board that she would no longer be supervising Mr. Raymond. It is inappropriate and contrary to standards of good medical practice for a physician's assistant to treat heart patients. Dr. Andrakovich knew or should have known that Mr. Raymond was treating heart patients.
