The Issue Whether Petitioner has met the requirements for licensure by examination as set forth in Chapter 458, Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary adduced at the hearing, the following relevant facts are found: Petitioner is 48 years old and resides at 210 Tibet Avenue, No.L-2, Savannah, Georgia 312406. Petitioner attended City College of Medicine, Cebu City, Philippines during the 1962-63 school year. While at City College, Petitioner failed four out of the five courses he was taking which, along with his father's financial hardship, forced Petitioner to drop out of medical school. Petitioner enrolled in medical school at Southwestern University, Matias H. Azklnar, Memorial College of Medicine, Inc., Villa Aznar, Cebu City, Philippines (Southwestern) for the school year 1965-66. During the 1965-66 school year at Southwestern Petitioner passed, among others, those courses which he had failed at City College during the 1962-63 school year. During the 1966-67 school year Petitioner failed pharmacology 2 and physical diagnosis but passed those courses during the 1967-68 school year, while failing surgical pathology which he passed during the 1968-69 school year. During the 1968-69 school year Petitioner failed pharmacology 3 in the first and second semester. Although Petitioner testified that he passed pharmacology 3, Petitioner's transcript from Southwestern does not indicate that Petitioner passed pharmacology 3 before graduating from Southwestern University in 1971. Petitioner graduated from and received his medical degree from Southwestern in 1971. Southwestern is registered by the World Health Organization. Petitioner served an internship at Detroit-Macomb Hospital Association from July 1, 1982 until June 30, 1983. Petitioner received an overall evaluation of "good" on his internship and was recommended as qualified and competent. Petitioner took the Federation Licensing Examination (FLEX) in December 1982, June 1983, December 1983 and December 1984, and failed the examination each time. In June 1985, Petitioner took the FLEX examination again and passed Component 2 but failed Component 1 by one point. In December 1985, Petitioner took Component 1 again and passed. Petitioner successfully passed the medical examination portion of the Educational Commission For Foreign Medical Graduates (ECFMG) examination on January 21, 1981 and the English examination portion on July 22, 1981 and was issued certificate number 245-840-4 on January 8, 1982. That ECFMG has remained valid since that date. Before passing the ECFMG examination in 1981, Petitioner had failed that examination six times. Petitioner is licensed to practice medicine in the states of Michigan and Georgia, and has been licensed in those states since March 3, 1986 and June 11, 1986, respectively. However, other than serving an internship, Petitioner has never practiced medicine in the state of Michigan. Petitioner's licenses to practice medicine in the state of Michigan and Georgia have never had any disciplinary action taken against them. Petitioner practiced medicine at Central State Hospital (a mental institution) at Milledgville, Georgia as a general physician in family practice, working also in the area of psychiatry, from April 1, 1988 until his resignation on October 24, 1988. At the time of the hearing, Petitioner had been practicing medicine as an emergency room physician for approximately 8 months at Stattanall Memorial Hospital near Savannah, Georgia, and had been working as the physician in charge at the Immediate Med Clinic near Savannah, Georgia for a couple of months. Petitioner also practiced medicine for a brief period at Folkston Memorial Hospital in Folkston, Georgia, but terminated this employment due to the long distance from Savannah, Georgia where Petitioner resided. Although Petitioner was a staff member at Central State Hospital, he did not have staff privileges in that he was not authorized to admit patients to Central State Hospital. Petitioner did not have staff privileges at any other hospital or clinic where he practiced medicine in that he was not authorized to admit patients. Petitioner is an active member of the American Medical Association (AMA) in good standing. Petitioner has never been a defendant in a medical malpractice suit. Petitioner has established facts to show that he is qualified and competent to practice medicine with reasonable skill and safety, notwithstanding that it took him 7 years to complete a five-year medical curriculum, that it took him 6 tries before passing the ECFMG examination, that it took him 5 tries before passing the FLEX examination, that he has practiced in Georgia for only approximately 2 years mainly in general practice and, his performance in his medical education and training. There was no evidence that Petitioner had "exhibited a consistent pattern of less than successful or borderline performance" in his "medical education and training". Respondent Board did not present any evidence from an expert or "person with special expertise" or anyone else to show a rational relation between Petitioner taking 7 years to complete a 5-year medical school curriculum, Petitioner failing the ECFMG examination 6 times before passing, Petitioner failing the FLEX examination 5 times before passing, Petitioner's practice in Georgia and his medical school education and training performance; and the ability of Petitioner to practice medicine with reasonable skill and safety.
Findings Of Fact Petitioner, Immaculate Espejo Asuncion, of St. Paul, Minnesota, filed an application with Respondent, Board of Medical Examiners, on September 21, 1982, for licensure by endorsement to practice medicine. (Testimony of Petitioner, Joint Exhibit No. 1) On March 7, 1983, Respondent issued a Notice of Intent to Deny Endorsement Licensure on the grounds that Petitioner had not obtained a 75 percent FLEX weighted average on the licensure examination of the Federation of State Medical Boards of the United States, Inc., as required by Rule 21M- 29.01(2), Florida Administrative Code, and was not certified by the National Board of Medical Examiners as having completed its examination within the ten years immediately preceding the filing of the application for licensure by endorsement, as required by Section 458.313(1)(d), Florida Statutes. Petitioner thereafter requested a hearing on the proposed denial of her application. (Testimony of Faircloth, Joint Exhibit No. 1) Petitioner was licensed to practice medicine in the state of Minnesota in 1978. She obtained such licensure by satisfactorily passing the clinical science and clinical competence portions of the FLEX examination, and by successfully completing a basic sciences examination administered by the Minnesota State Board of Examiners. (Testimony of Petitioner, Joint Exhibit No. 1) Petitioner is a graduate of a foreign medical school and is therefore not eligible to take the examination of the National Board of Medical Examiners. The alternate method of obtaining licensure by endorsement is by certification through licensure examination of the Federation of State Medical Boards of the United States, Inc. (FLEX). This examination has three parts and is taken over a period of three days. The three parts of the examination are basic science, clinical science, and clinical competence. The scores on the three parts are averaged under a formula to produce a weighted average score. Respondent's Rule 21M-29.01(2), Florida Administrative Code, requires that an applicant have a FLEX weighted average of 75 percent from one complete sitting on the examination. Petitioner took only the clinical science and clinical competence portions of the examination and therefore did not obtain a certified FLEX weighted average score. The Minnesota basic sciences examination taken by Petitioner was not the same basic sciences examination administered as part of the FLEX examination. (Testimony of Faircloth, Joint Exhibit No. 1)
Recommendation That Respondent enter a Final Order denying Petitioner's application for licensure by endorsement. DONE and ENTERED this 16th day of June, 1983, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1983. COPIES FURNISHED: Immaculate Espejo-Asuncion, M.D. Dorothy J. Faircloth 80 Battle Creek Place Executive Director St. Paul, Minnesota 55119 Board of Medical Examiners 130 North Monroe Street John Griffin, Esquire Tallahassee, Florida 32301 Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondent abused its discretion in withdrawing its certification of eligibility which had authorized Petitioner, a physician who was educated and trained in Nicaragua, to enroll in a course at the University of Miami that is necessary for his licensure to practice medicine in the State of Florida.
Findings Of Fact On October 19, 1989, Petitioner submitted to the Board of Medicine an application for licensure as a physician in the State of Florida. This application sought licensure by examination pursuant to Section 458.311(10), Florida Statutes. Petitioner is a physician who received his education and training in Nicaragua and who had practiced medicine in Nicaragua for approximately twenty years before moving to Florida. At no time pertinent to these proceedings was Petitioner licensed to practice medicine in the State of Florida. Petitioner's application sought the Board of Medicine's certification that Petitioner was eligible to enroll in a physician training course offered by the University of Miami. Petitioner needed to successfully complete this course as part of the licensure by examination process. Petitioner enrolled in this class after his eligibility was certified by the Board of Medicine on February 19, 1990. In April of 1990, a joint investigation of the L.A. Surgical Medical Center in Miami, Florida, (L.A. Center) was undertaken by the Florida Department of Law Enforcement and the Florida Department of Professional Regulation (DPR). While those agencies had reason to believe that an unlicensed physician was operating out of that facility, Petitioner was not initially a target of the investigation. Petitioner was, at the times pertinent hereto, the administrator of the L.A. Center. At the times pertinent to this proceeding Ramon Prieto was an undercover investigator employed by DPR. On April 25, 1990, Mr. Prieto presented himself to the L.A. Center complaining of severe back pains and asked to see a doctor. There was no licensed physician on the premises of the L.A. Center even though Mr. Prieto presented himself at approximately 1:00 p.m., which is during the L.A. Center's normal business hours. Mr. Prieto was seated in the waiting area where he waited for approximately twenty minutes. Petitioner came into the area in which Mr. Prieto had been waiting, told Mr. Prieto to come with him, and escorted Mr. Prieto into a doctor's office. In connection with Mr. Prieto's visit on April 25, 1990, Petitioner performed a medical examination, made a medical diagnosis, prescribed and dispensed medication, ordered x-rays, and created medical records. Petitioner also prescribed and provided medication for Mr. Prieto's wife based on Mr. Prieto's description of her symptoms even though Petitioner had not examined her or talked to her. Mr. Prieto requested that Petitioner give to him medication for himself and for his wife. While Mr. Prieto pretended to be in considerable pain, the evidence does not establish that his condition was treated by Petitioner as an emergency. On April 26, 1990, Mr. Prieto returned to the L.A. Center where he was again prescribed medication by Petitioner. Mr. Prieto was billed for Petitioner's services and for the medication that Petitioner gave to Mr. Prieto for himself and for his wife. On April 26, 1990, after Mr. Prieto's return visit, Petitioner was arrested by agents of the Florida Department of Law Enforcement. An information was filed against Petitioner charging him with two counts of practicing medicine without a license, which are third degree felony charges. On August 16, 1990, the Board of Medicine withdrew its certification of Petitioner's eligibility to continue the course at the University of Miami. Thereafter Petitioner filed his request for a formal administrative hearing. On September 24, 1990, the Board of Medicine entered an order which stayed its Order entered August 16, 1990, pending the resolution of this administrative proceeding. On September 10, 1990, in the Circuit Court for Dade County, Florida, Petitioner entered a plea of nolo contendere to the criminal charges that had been filed against him. The plea was accepted, adjudication of guilt was withheld, and Petitioner was sentenced to two days of time served. There was no evidence that Petitioner had engaged in the practice of medicine in the State of Florida without a license before or after April 25-26, 1990. The Board of Medicine had received no complaints regarding Petitioner other than those related to the events of April 25-26, 1990. Petitioner knew that his conduct with Mr. Prieto was wrong and that it constituted the unlicensed practice of medicine.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which upholds the Board of Medicine's withdrawal of its certification of Jose M. Bermudez's eligibility to take the subject University of Miami course. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 25th day of March, 1991. CLAUDE B. ARRINGTON 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 25th day of March, 1991. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-5894 The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraph 1 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 2 - 6 are rejected as being the recitation of testimony that is either subordinate to the findings made or unnecessary to the conclusions reached. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. 1. The proposed findings of fact in paragraphs 1 - 10 are adopted in material part by the Recommended Order. COPIES FURNISHED: Allen R. Grossman, Esquire Department of Legal Affairs The Capitol, Suite 1603 Tallahassee, Florida 32399-1050 Stephen H. Rosen, Esquire 2600 Douglas Road, Penthouse #2 Coral Gables, Florida 33134 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dorothy Faircloth Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: On June 27, 1977, respondent was charged by Information with committing the felony of leaving the scene of an accident on February 24, 1977. The accident resulted in injuries to a seventy-nine (79) year old woman, Grace Heck, who died nine (9) days later as a consequence of those injuries. Respondent pled nolo contendere to that charge and, on November 15, 1977, Judge Thomas M Coker, Jr, entered an order withholding adjudication of guilt and placing respondent on probation for a period of three (3) years, with the specific condition, among nine others, that he pay restitution for the medical expenses of the accident victim. The term of probation was later modified to one year to conform to the law. On or about July 10, 1978, respondent's probation officer filed an Affidavit of Violation of Probation stating nine violations of the terms of respondent's probation. These violations included failure to submit required reports and pay costs for supervision, failure to make restitution for the accident victim's medical expenses, carrying a concealed firearm, operating a motor vehicle on two occasions while his license was suspended, careless driving, and failure to reduce the speed of his automobile resulting in the colliding with and subsequent death of a pedestrian, John Kelly Wilkens. Effective July 13, 1978, Judge Coker revoked respondent's probation imposed for the offense of leaving the scene of an accident and sentenced respondent to one year in the county jail. Pursuant to a motion for mitigation, Judge Coker on August 18, 1978, set aside the order of adjudication of guilt and the one year sentence, and ordered that respondent be placed on a new probation for a period of one year. The original terms of probation were imposed, along with the conditions that respondent not resume the practice of medicine until an examining board determined his fitness and that he submit to a psychiatric evaluation and treatment, if required. On or about July 14, 1978, another Information was filed against respondent for the third degree felony offense of carrying a concealed weapon. After a plea of nolo contendere, adjudication of guilt was withheld and respondent was placed on probation for a period of five years by Judge Coker on January 24, 1979. Independent evidence was adduced by the petitioner with respect to both the hit-and-run accident and the carrying a concealed firearm charge. A passenger in respondent's car on February 24, 1977, testified in her deposition that respondent was driving his car, ran a red light in Fort Lauderdale and collided with a turning car containing two elderly persons. Respondent immediately left the accident scene, drove to a closed service station and stayed there for a few minutes, then drove to a school parking lot and left the car there. The deponent and respondent then walked to respondent's home, picked up another car and drove to West Palm Beach where respondent played tennis. Two officers with the Fort Lauderdale Police Department testified that their investigation of the February 24, 1977, accident confirmed that respondent was the driver of the hit-and-run vehicle. The officer who arrested respondent for carrying a concealed weapon testified by way of deposition that in June of 1978, she found respondent in his car with a fully loaded and cocked automatic weapon on the floor and live ammunition matching the weapon in his pocket. Respondent has not reported to his probation officer since October of 1979. An Affidavit of Violation of Probation has been filed against the respondent and respondent is presently the subject of an arrest warrant. His present whereabouts are unknown to his probation officer and he is considered a fugitive from justice. At the request of Judge Coker, Dr. Arnold H. Eichert, a psychiatrist, examined respondent on September 11, 1979, It was Dr. Eichert's opinion that respondent suffered from paranoid schizophrenia, Dr. Eichert seriously doubted respondent's ability to practice medicine at that time. Inasmuch as respondent had violated his probation and failed to appear at this hearing, Dr. Eichert opined that such conduct and poor judgment was consistent with his earlier diagnosis that respondent would be unable to practice medicine with reasonable skill and safety to patients. Respondent was expelled from the Broward County Medical Association on July 7, 1977, for the reason that his medical practice was detrimental to the profession, his patients or the community. No appeal was taken from this action. On November 10, 1977, respondent's medical staff privileges at Plantation General Hospital were suspended for his lack of attendance at general staff and departmental meetings. On September 30, 1977, the State Committee on Peer Medical Utilization Review (PMUR), which analyses physician treatment of Medicare patients for Blue Shield, found that respondent was guilty of "maximal overutilization of office visits, injections and laboratory procedures." This finding was made after a review of the medical records of approximately forty-five (45) of respondent's patients during the 1974 year. The charts were reviewed by Blue Shield, the Florida Medical Foundation, Inc. and a county peer review committee. Statistically, a review of respondent's patient charts illustrated that respondent was far beyond the utilization screening parameters as compared to other physicians in the Broward County area engaged in general practice. Specifically, the norm for visit days per patient for physicians doing general practice in the area was five days. The respondent's records indicated eight visit days per patient, or sixty percent over the screening parameter. The average number of injections per patient was 2.44. Respondent's injections per patient amounted to 17.7, or 620.08 percent over the parameter. Respondent's laboratory procedures per patient per year were 6.24, while the screening parameter was 4.96, representing 25.81 percent overutilization. By way of deposition, Dr. Frank Hodnette, Chairman of the State Committee on PMUR, testified that such statistics denote that respondent was "way out of bounds as far as his utilization of the medicare benefits as related to . . . the area of office visits, injections and laboratory work." After reviewing respondent's patient's medical charts, the various reviewing committees further concluded that respondent's practice deviated from the standard of acceptable daily practice and was not consistent with what is considered as standard good care of medical practice. A member of the Broward County Medical Association's PMUR Committee that reviewed respondent's records testified at the hearing as an expert in family and general practice. Dr. Nancy La Fuente reviewed several medical charts and found no medical justification for certain injections, multiple injections of the same substance, and an overall gross abuse of injections, particularly of vitamins. Dr. La Fuente concluded that respondent's practice significantly deviated from the standard of acceptable and prevailing medical practice in his area of expertise in Broward County.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that respondent be found guilty of violating Section 458.1201(1)(c), (m), (n) and (p) and that respondent's license to practice medicine in the State of Florida be revoked. Respectfully submitted and entered this 6th day of June, 1980, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: William B. Wiley McFarlain, Bobo, Sternstein, Wiley and Cassedy, P.A. 666 Lewis State Bank Building Tallahassee, Florida 32301 Alfred E. Johnson, Esquire 3443 Hancock Bridge Parkway North Ft. Myers, Florida 33903 Nancy Whittenberg, Secretary Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Mailed to Stephen M. Niesen, M. D. to the three addresses indicated below: 1940 South Ocean Drive Hemisphere's Apartments No. 8-P Hallandale, Florida 33309 % Probation Department Broward County Courthouse Fort Lauderdale, Florida 33301 Post Office Box 6372 Fort Lauderdale, Florida 33310
The Issue The issue is whether the Florida Commission on Human Relations (FCHR) has jurisdiction over Petitioner's claim that Respondent discriminated against him in violation of Section 760.10(1), Florida Statutes (2003).
Findings Of Fact Respondent has never employed 15 or more employees at any point in time. At the most, Petitioner has employed three employees, the owner and two other people including Petitioner. Lab One/Exam One may employ more than 15 people. However, Respondent's only relationship with Lab One/Exam One is as an independent contractor. At no time material to this case has Respondent or its owner acted as an agent, representative, or employee for Lab One/Exam One. In his Petition for Relief, Petitioner states that Respondent is an independent contractor that is affiliated with Exam One, a world-wide medical exam company. According to the petition, Respondent uses a computer program known as Exam Link to send bi-monthly bills to Exam One for services rendered. Petitioner also alleges that Lab One/Exam One uses e-mail or facsimile transmissions to request Respondent to perform medical exams. During the hearing, Petitioner testified that Lab One/Exam One had sufficient influence over Respondent to ensure that Petitioner received his final paycheck from Respondent. However, the witness Petitioner subpoenaed to provide testimony in support of this proposition did not make an appearance. Petitioner's attempt to show that Respondent's relationship with Lab One/Exam One was based on more than a contract was unsuccessful.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief for lack of jurisdiction. DONE AND ENTERED this 29th day of June, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 29th day of June, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Randy M. Lombardo 321 Stone House Road Tallahassee, Florida 32301-3355 Julius F. Parker, III, Esquire Butler Pappas Weihmuller Katz Craig LLP 3600 Maclay Boulevard, Suite 101 Tallahassee, Florida 32312 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
