The Issue The issue is whether the medical license held by Respondent, Louis C. Alaia, M.D., should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact The Respondent, Louis C. Alaia, M.D., was issued Florida medical license ME 0008062 on August 14, 1958. Dr. Alaia placed his Florida license on voluntary inactive status on December 31, 1979. Dr. Alaia's last known address is 18890 Santa Clara Circle, Fountain Valley, California. The Board of Medical Quality Assurance, the licensing authority for the State of California, revoked Dr. Alaia's license to practice medicine in California on May 15, 1987. The revocation was based on Dr. Alaia's conviction for manslaughter for the murder of his former wife and her boyfriend, on his inability to safely practice as a result of impairment from narcolepsy and cataplexy, and on his failure to show rehabilitation following the convictions and incarceration for the killings.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that The Department of Professional Regulation, Board of Medicine, enter a Final Order and therein revoke the license of Louis C. Alaia, M.D., to practice medicine in the State of Florida. DONE and ENTERED this 7th day of February, 1989, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-4659 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact submitted by Petitioner, Department of Professional Regulation, Board of Medicine 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1), 2(2), and 3(2). COPIES FURNISHED: JONATHAN KING STAFF ATTORNEY DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 LOUIS C. ALAIA 18890 SANTA CLARA CIRCLE FOUNTAIN VALLEY, CALIFORNIA 92708 KENNETH EASLEY GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 DOROTHY FAIRCLOTH EXECUTIVE DIRECTOR BOARD OF MEDICINE 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750
Findings Of Fact Petitioner, Department of Professional Regulation (Department), is a state governmental licensing and regulatory agency charged with the duty and responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.30, Florida Statutes, Chapters 120, 455 and 458, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Amador A. Cabrera, is now and was at all times material hereto a licensed physician in the State of Florida, having been issued license number ME 0026024. Respondent was licensed to practice medicine in the State of Florida in August 1975, and thereafter operated a private practice until on or about April 15, 1985. During such period, respondent was a member of the medical staff at the following hospitals: Coral Gables Hospital, Cedars of Lebanon Hospital, Larkin General Hospital, Hialeah Hospital, and International Hospital. On May 16, 1984, respondent was indicted in the United States District Court, Eastern District of Kentucky, for conspiracy to distribute and possess with intent to distribute, and to aid and abet others in the distribution of cocaine, a Schedule II controlled substance, in violation of 21 U.S.C. Sections 841(a)(1) and 846, and interstate and foreign travel in aid of a racketeering enterprise in violation of 18 U.S.C. Sections 1952(a)(1)(3) and 2. The overt acts which formed the basis of the indictment were alleged to have occurred in August 1983. In April 1985, respondent was found guilty of the aforesaid charges, and on July 8, 1985, was sentenced to 10 years imprisonment and fined $45,000. Respondent served a term of his sentence in the federal prison system, and on September 18, 1990, was paroled, with a termination date of April 14, 1995. While imprisoned, as well as while on parole, respondent did not pose any supervision problems. Moreover, while imprisoned and thereafter, respondent remained current in all continuing education requirements and, following his release from prison, reactivated his medical license in the State of Florida. Respondent has not, however, prescribed, administered or dispensed controlled substances, and is apparently not authorized to hold a DEA number that would authorize him to perform such functions until termination of his probation. Following his release from prison, respondent, who was divorced during his incarceration, sought and obtained custody of his four daughters: Millie, age 20; Kathy, age 19; Belinda, age 17; and Michelle, age 13. Respondent's daughters continue to reside with him, are solely supported by him, and, although aware of his transgression, are supportive of him. In April 1991, respondent opened his own business, the Nutrition and Fitness Center. That business counsels clients regarding proper nutrition and exercise. Respondent sold such business to Joseph M. Samalion, likewise a licensed physician in the State of Florida, in 1992, but continues to work at the center. At hearing, Dr. Samalion offered to supervise respondent in his practice of medicine, should respondent be accorded the opportunity to retain his license. Apart from respondent's conviction, discussed supra, there is no suggestion of record that respondent lacks the requisite skills or is otherwise not capable of safely engaging in the practice of medicine. To the contrary, the proof offered on respondent's behalf demonstrates that, among those who know of him, respondent was considered and, notwithstanding his conviction, is still considered an excellent and respected physician. 2/ Regarding the crimes for which respondent stands convicted, he averred at hearing that his sole involvement in the conspiracy was the laundering of profits derived from the operation, and that he was not personally involved in the sale of cocaine. Here, the proof supports respondent's characterization of his involvement in the conspiracy, but such does not diminish the seriousness of his offense. Cocaine, a narcotic, addictive drug, is potentially lethal and a danger to the public welfare. It is commonly known that the illegal sale and use of such drug has brought misery to the lives of countless people and has inflicted a severe burden on our society. Respondent, who for no apparent reason other than personal gain, laundered the profits derived from the illegal sale of cocaine, and thereby provided support integral to the success of the illegal enterprise. Under such circumstances, his involvement may be considered as offensive as the actual sale of cocaine. Notwithstanding, over nine years have elapsed since the acts which formed the basis for the conviction were committed, and over seven years have elapsed since respondent's conviction. Respondent has served his term of confinement without incident, and has conducted himself in like manner while on probation. He is apparently, again, a productive member of society, enjoys the respect of his peers and clients, and the support of his family. Given the proof regarding respondent's conduct during the years that have intervened since the offenses were committed, there is good reason to believe that, currently, respondent may be relied upon to abide by existent law.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered finding the respondent guilty of violating the provisions of Section 458.331(1)(c), Florida Statutes (1982 Supp.), and imposing the penalties set forth in paragraph 18, supra. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of October 1992. WILLIAM J. KENDRICK 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 23rd day of October 1992.
The Issue Whether the Petitioner is entitled to a medical license in the State of Florida by examination?
Findings Of Fact The Petitioner is a graduate of a foreign medical school. She graduated from the University of Ceylon, Colombo, Sri Lanka. The Petitioner was licensed in Sri Lanka on March 8, 1976. From March 8, 1976, through May, 1979, the Petitioner was employed as a physician at a government hospital located in Galle, Sri Lanka. From May, 1979, until January 24, 1981, the Petitioner was employed as a physician at a government hospital located in Colombo, Sri Lanka. While employed at the government hospitals in Galle and Colombo, Sri Lanka, the Petitioner earned 21 days of vacation time and 24 days of "casual" leave a year. Upon the termination of her employment at the government hospital in Colombo, Sri Lanka, the Petitioner was paid for 21 days of her accrued vacation and casual leave. If the 21 days for which the Petitioner was paid for upon her departure from the government hospital at Colombo, Sri Lanka are counted as time during which the Petitioner worked as a licensed physician, the Petitioner's employment during this period of time would run from March 8, 1976, to February 14, 1981. This is a total of 4 years and 343 days. If the 21 days are not counted, the Petitioner's employment would run from March 8, 1976, to January 24, 1981. This is a total of 4 years and 322 days. On January 24, 1981, the Petitioner traveled from Sri Lanka to the United Kingdom to be with her husband. Therefore, the Petitioner did not practice medicine as a physician after January 23, 1981. The Petitioner remained in the United Kingdom from January 24, 1981, to July 11, 1982. The Petitioner was issued a Certificate of Limited Registration as a Medical Practitioner by the General Medical Council in the United Kingdom which authorized her to practice medicine. The Certificate limited the Petitioner's "employment" as a physician to the following: Any supervised employment in hospitals within the National Health Service excluding employment in casualty or in accident and emergency departments except to give a second opinion with a view to management or to assist a casualty officer in treatment or to administer anesthetics. The Certificate also provided the following "period of limited registration": 9 Oct. 981 to 8 Oct. 1982. In substance the Petitioner's practice as a physician in the United Kingdom was limited only as to where she could work (National Health Service hospitals) and the period during which she could practice (9 Oct. 1981 to 8 Oct. 1982). The requirement that her employment be supervised was consistent with the manner in which all physicians in the hospitals of the National Health Service are treated; "consultants" supervise all other physicians. The exclusion of the Petitioner's employment in casualty or in accident and emergency departments was included on the certificate only because the Petitioner did not choose to pay an additional 15 Pounds Sterling. While in the United Kingdom, the Petitioner worked as a physician from October 1, 1981 until July 10, 1982, a total of 283 days. On July 11, 1982, the Petitioner returned to Sri Lanka to visit with her son and her family before joining her husband in the United States. The Petitioner remained in Sri Lanka from approximately July 11, 1982, until October 30, 1982. In August of 1982 the Petitioner took over the practice of Dr. S. H. M. Kaleel, on 7 intermittent days. Dr. Kaleel's practice consisted of a general-family practice. Dr. Kaleel was in the United Kingdom from September 1, 1982, to October 7, 1982. This was a period of 37 days. During this period the Petitioner operated Dr. Kaleel's office for him. On October 30, 1982, the Petitioner left Sri Lanka to join her husband in the United States. She arrived in New York, New York, on October 31, 1982. The Petitioner and her husband initially lived in Athens, Georgia, where her husband attended the University of Georgia. The Petitioner and her husband subsequently moved to Gainesville, Florida. The Petitioner still resides in Gainesville. The Petitioner has more than 5 years of licensed practice if her employment with the government hospitals in Sri Lanka (March 8, 1976 to February 14, 1981), her employment in the United Kingdom (October 1, 1981 to July 10, 1982), and her employment by Dr. Kaleel (7 days in August, 1982, and from September 1, 1982 to October 7, 1982) are counted. If the period from January 24, 1981 to February 14, 1981, and the Petitioner's employment in the United Kingdom are not counted, the Petitioner still has more than 5 years of licensed practice. If the period from January 24, 1981 to February 14, 1981, the Petitioner's employment in the United Kingdom and her employment by Dr. Kaleel are not counted the Petitioner has less than 5 years of licensed practice. The Petitioner filed an Application for licensure by examination which was received by the Respondent on February 13, 1985 (hereinafter referred to as the "First Application"). In the First Application the Petitioner listed her current address as Gainesville, Florida. On the second page of the First Application, when requested to list "all places of residence since initiation of medical training," the Petitioner failed to list her residence in Athens, Georgia or Gainesville, Florida. The Petitioner also did not indicate that she had been in Sri Lanka from July 11, 1982, until October 30, 1982. Finally, the Petitioner indicated that she had resided in Sri Lanka until February, 1981. In completing this portion of the First Application the Petitioner did not list her residences. Instead, the Petitioner listed places of employment. Her failure to list all of her residences was caused by sloppiness and carelessness. The Petitioner was also requested to list her places of employment on the First Application. In doing so, the Petitioner indicated that she had been employed in Sri Lanka until February of 1981. This was consistent with the position she has taken in this proceeding. The Petitioner also failed to list her employment in Sri Lanka after leaving the United Kingdom in July of 1982. She failed to list this employment because she forgot about this period of employment. The Petitioner also filed a Professional Biodata dated February 9, 1985. Again she indicated that she worked in Sri Lanka until February, 1981, that she left for the United Kingdom in February, 1981, and failed to indicate that she had worked in Sri Lanka during 1982. Two routine certifications of personal knowledge of the Petitioner's practice were filed with the Respondent by a Dr. Yogasakaran and a Dr. de Lanerllore. By letter dated August 23, 1985, the Respondent informed the Petitioner that the affidavits submitted by Drs. Yogasakaran and de Lanerllore contain erroneous information about her Sri Lanka practice. The affidavits refer to her practice being from February 15, 1976 through February 14, 1981. The letter states that the Petitioner had stated in her letter to the Board that she was in the United Kingdom from February through October, 1981. The letter further advises that the practice in the United Kingdom is unacceptable toward the 5 years of licensed practice, because it was under a limited license. In a letter dated October 2, 1985, the Petitioner informed the Respondent for the first time that she had worked as a physician from September 1, 1982 to October 7, 1982, at Dr. Kaleel's clinic. She enclosed affidavits from Drs. Devacaanthan and Yogasarkara indicating that she had practiced as a physician from March 8, 1976, to February 14, 1981 and from September 1, 1982 to October 7, 19.82. She also enclosed a letter from Dr. Kaleel indicating that she had practiced from September 1, 1982 to October 7, 1982. In September, 1986, the Petitioner filed a second application for licensure by examination (hereinafter referred to as the "Second Application") pursuant to Section 458.311, Florida Statutes (1985), seeking a license based upon taking the FLEX examination and completing 5 years of licensed practice. In the Second Application the Petitioner again listed her current residence as Gainesville, Florida. She left off her residence in Athens, Georgia, and Gainesville on the second page of the Second Application, however, and again indicated that she had resided in Sri Lanka until February, 1981. Again the Petitioner listed her places of employment instead of her residence on the Second Application. Her failure to properly list her residences was caused by her sloppiness and carelessness. The Petitioner also listed her places of employment on the Second Application. Although the Petitioner had informed the Respondent about her employment in Sri Lanka during 1982, the Petitioner again failed to list this employment. By Order filed June 19, 1987, the Respondent denied the Petitioner's Second Application. The Petitioner incorrectly answered the question, "[h]ave you ever had to discontinue practice for any reason for a period of one month or longer," on the First and Second Applications. She did so because she was sloppy and careless in completing these Applications. Since at least 1978 the Respondent has interpreted Section 458.311(1)(c), Florida Statutes, to exclude practice by a physician pursuant to a limited or restricted license issued by a foreign jurisdiction for purposes of determining whether a physician has 5 years of licensed practice. Therefore, the Respondent did not accept the period during which the Petitioner practiced in the United Kingdom. The position of the Respondent set out in Finding of Fact 34 has not been adopted as a rule. It has been consistently applied by the Respondent. The Respondent has taken this position because it believes that it is unable to determine what actual restrictions apply to a limited or restricted license issued by a foreign jurisdiction. The evidence in this proceeding proved, however, that the actual restrictions which apply to a limited or restricted license can be determined and are a matter of proof. The Petitioner's testimony concerning the affidavits submitted by various physicians in support of the Petitioner's applications was not credible. The Petitioner testified that the dates of employment included by physicians who submitted affidavits were not provided to those physicians by the Petitioner and that she did not know where they got the dates. This testimony defies logic. Only one of those physicians, Dr. Kaleel, had any personal knowledge of the exact dates that the Petitioner engaged in the licensed practice of medicine. One of the physicians, Dr. Yogasakaran filed one affidavit with dates consistent with those supplied by the Petitioner. When the Respondent questioned those dates, Dr. Yogasakaran submitted a second affidavit with the new dates supplied by the Petitioner. The Petitioner's testimony on other matters was credible and her position that she has completed 5 years of licensed practice was substantiated by other credible evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued GRANTING the Petitioner's application for licensure by examination. DONE and ENTERED this 3rd day of February, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3004 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1-9 These proposed findings of fact were stipulated to by the parties. They are hereby accepted. 10 3, 4 and 21. The first sentence is accepted in paragraph 5. The rest of these proposed findings of fact are rejected as irrelevant. 5-8. The Petitioner did not resign from her employment effective February 14, 1981. Although the last sentence is true, it is not relevant to these proceedings. 13 8, 9, 14 and 16-18. 14 18. 15 These proposed findings of fact are summaries of testimony. See 34. The Respondent's Proposed Findings of Fact 1 1 and 22. 2 29. 3 24 and 31. 4 21 and 24. 5 25. 6-7 28. 8-16 and 18 These proposed findings of fact are generally correct. They have been taken into account in weighing all of the evidence in this case. See 26-28. 17 2-4 and 8. 19 9-10 and 13. 20 34. See 34 and 35. Irrelevant. 23 10. 24 1. 25-26 Not supported by the weight of the evidence. 27-28 33. COPIES FURNISHED: Paul Watson Lambert, Esquire Taylor, Brion, Buker & Greene Post Office Box 11189 Tallahassee, Florida 32302 Allen R. Grossman, Esquire Assistant Attorney General Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32399-1050 Ms. Dorothy Faircloth, Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues in this case are whether Respondent Francisco Vazquez, M.D., committed a violation of Chapter 458, Florida Statutes (2003)(2004), as alleged in the Administrative Complaint filed by Petitioner, the Department of Health, on May 3, 2006, in DOH Case Number 2005-03579; and, if so, what disciplinary action should be taken against his license to practice medicine in the State of Florida.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. § 20.43 and Chs. 456 and 458, Fla. Stat. (2006). Respondent, Francisco Vazquez, M.D., is, and was at all times material to this matter, a physician licensed to practice medicine in Florida pursuant to Chapter 458, Florida Statutes, having been issued license number ME 68742 on July 6, 1995. Dr. Vazquez's address of record is 4595 Palm Beach Boulevard, Fort Myers, Florida 33905. The Court's Order. On September 5, 2003, Dr. Vazquez executed an Affidavit offering his expert medical opinion that 40 physicians and a hospital were negligent in the care of Patient C.L. The same day, the Affidavit was attached to Notices of Intent to Initiate Medical Negligence Litigation, as required before initiating medical malpractice litigation by Section 766.106(2)(a), Florida Statutes. Subsequently, litigation was initiated in the Circuit Court of the Sixth Judicial Circuit in and For Pinellas County, Florida, Case No. 04-875CI-7 (hereinafter referred to as the "Circuit Court Case"). On February 22, 2005, the presiding judge in the Circuit Court Case, the Honorable Bruce Boyer, entered an Order of Dismissal with Prejudice as to Drs. Hallgren and Schulman Based on Their Motion to Determine the Sufficiency of the Plaintiff's Presuit Investigation. The Order was entered after a February 2, 2005, hearing for which Dr. Vazquez received no notice and in which he did not participate. Among other things, Judge Boyer found in the February 22, 2005, Order the following: This cause came to be heard on February 2, 2005, on the motion of two of the defendants, Scott Hallgren, D.O. and Michael Schulman, [D.O.] to determine whether the plaintiff's claim rests on a reasonable basis and request for dismissal. Neither the pro se plaintiff nor her former attorneys appeared at the hearing. The Court reviewed the defendants' motion and supporting materials which show the following: . . . that the plaintiff's presuit expert is not a gastroenterologist and does not otherwise appear to be qualified to comment on the defendants' care; that the plaintiff's presuit expert does not appear to have made any reasonable effort to investigate and determine what role the defendants played in the decedent's care; that the plaintiffs' presuit expert submitted a scattergun presuit affidavit which charged forty doctors and one hospital with negligence apparently without investigating what role each health care provider played in the decedent's care; that former plaintiff's counsel served the notices of intent on Drs. Hallgren and Schulman based on an inadequate supporting affidavit and without an adequate presuit investigation; . . . . Judge Boyer then ordered that the complaint against Drs. Hallgren and Schulman be dismissed and indicated that "[t]he Court has forwarded a copy of this order to the Division of Quality Assurance of the Department of Health concerning the conduct of the presuit expert, Francisco M. Vazquez, M.D., in accordance with Fla. Stat. § 766.206(5)(a)(2003)." Based upon the foregoing findings, Judge Boyer "found" that Dr. Vazquez provided a corroborating written medical expert opinion for inclusion with a statutorily required notice of claim or intent without reasonable investigation. Dr. Vazquez became aware of Judge Boyer's February 22, 2005, Order when he was notified of the investigation of this matter. Jurisdiction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Medicine finding that Francisco Vazquez, M.D., has violated Section 458.331(1)(jj), Florida Statutes, as described in this Recommended Order; suspending his license to practice medicine in the State of Florida for two years; and imposing a fine in the amount of $1,000.00. DONE AND ENTERED this 18th day of June, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 2007. COPIES FURNISHED: Michael P. Gennett, Esquire Shutts & Bowen, LLP 201 South Biscayne Boulevard, Suite 1500 Miami, Florida 33131 Patricia Nelson, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3250 Larry McPherson, Executive Director Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 Dr. Ana M. Viamonte Ros, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact The Respondent, Walker L. Whaley, is a licensed physician in the State of Florida, having been issued license number ME 0025950. On February 7, 1984, Respondent was convicted, in the United States District Court for the Middle District of Florida, of conspiracy, to wit: Between at least on or about June 1982, and on or about April 7, 1983, Respondent did unlawfully, willfully, willingly, and intentionally combine, conspire, confederate and agree together with persons known or unknown to manufacture cocaine, a Schedule II controlled substance, in violation of Title 21, United States Code, Section 841(a)(1) Initially, Dr. Whaley was indicted on three counts. He was acquitted of two of the three counts appearing in the indictment against him. There was a mistrial because of the jury's inability to reach a verdict on the remaining count. He was ultimately convicted on the remaining count after a second trial. Respondent's criminal conviction is currently on direct appeal. The matters alleged in the indictment against Dr. Whaley pertain to alleged personal activities and were not alleged to have occurred as part of the conduct of his medical practice.
Recommendation Based upon the foregoing findings of fact and conclusions of law, and upon consideration of the exhibits presented by the parties, it is RECOMMENDED that the Board of Medical Examiners enter a final order finding Dr. Whaley guilty of the act set forth in Section 458.331(1)(c) and imposing the following penalty: suspension of Dr. Whaley's license for one year, followed by five years of probation subject to such conditions as the board may specify. It is further recommended, in accordance with the parties' stipulation, that the imposition of the penalty be stayed until the direct appeal of the criminal conviction has been decided and that, if the criminal conviction is reversed, this case be dismissed. DONE and ENTERED this 16th day of December, 1985, in Tallahassee, Florida. DIANE A. GRUBBS 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 16th day of December, 1985. APPENDIX Petitioner's and Respondent's
The Issue This is a license discipline case in which the Petitioner, by means of a one-count Administrative Complaint, seeks to take disciplinary action against the Respondent on the basis of his alleged violation of Section 458.331(1)(c), Florida Statutes (2002).
Findings Of Fact The Respondent, Eduardo S. Mendez, M.D., was born in Cuba, was reared in Cuba, and was educated in Cuba. His education in Cuba included a degree in Medicine. He came to the United States of America in 1995. Shortly after moving to this country, the Respondent became the owner of a retail pharmacy and medical equipment business in Florida. The Respondent did not have a license to practice pharmacy in Florida. On the basis of conduct which took place between July of 1998 and June of 2000, an Information was issued in Case No. 02-20859 in the United States District Court for the Southern District of Florida charging the Respondent with engaging in a conspiracy to pay and receive health care kickbacks in violation of Title 18, United States Code, Section 371. The basic facts forming the basis for the criminal charge are described as follows in the Information: Medicare was a "Federal health care program" as defined in Title 42, United States Code, Section 1320a-7b(f)(1). Confortec D.M.E., Inc. ("Confortec") was a pharmacy located in Miami, Florida. Confortec was authorized by Medicare to submit claims to Medicare Part B for reimbursement of the cost of certain medications that Confortec dispensed by prescription to Medicare beneficiaries. Defendant EDUARDO S. MENDEZ was a resident of Miami and the sole owner of Confortec. Defendant EDUARDO S. MENDEZ offered to pay kickbacks to various patient recruiters so that they would provide the names and Medicare identification numbers of Medicare beneficiaries, along with prescriptions relating to these beneficiaries. Confortec filled these prescriptions and then filed claims with Medicare for reimbursement of the cost of the prescribed medications. After receiving payment on these claims from Medicare, defendant EDUARDO S. MENDEZ used a portion of the payments to pay kickbacks to the patient recruiters or their associates. * * * 12. Using a portion of the money received from Medicare payments, defendant EDUARDO S. MENDEZ paid or caused to be paid approximately $200,000 in kickbacks to the patient recruiters or their associates so that the recruiters would continue to refer Medicare beneficiaries and related Medicare prescription business to Confortec. Following his arrest, the Respondent cooperated extensively with the Federal Bureau of Investigation (FBI) and assisted the FBI in their investigation of his own activities, as well as in their investigation of similar criminal activities by others. Because of the Respondent's assistance to the FBI, the federal prosecutor recommended a substantial reduction in the sentence that might otherwise have been imposed on the Respondent. On November 14, 2000, the Respondent entered into a plea agreement in which he agreed "to plead guilty to an Information or an Indictment that charges him with the crime of conspiracy to commit an offense against the United States, namely, a violation of Title 42, United States Code, Section 1320a-7b(b)(2)(knowingly and intentionally offering and paying kickbacks and bribes to any person to induce the referral of individuals for the furnishing of services or items for which payment may be made under a Federal health care program), in violation of Title 18, United States Code, Section 371." On or about February 12, 2003, a United States District Judge signed a judgment in which the Respondent was adjudicated guilty of the criminal offense described above. The Respondent's sentence was three years of probation, three months of home confinement (with electronic monitoring), 150 hours of community service, and a fine of $100.00. The Respondent has fulfilled all of the terms of his sentence. Although the recruitment methods described above are prohibited by federal law and are a crime, that criminal activity does not involve any element of fraudulent billing seeking reimbursements from the Medicare program for services or items that were not provided. To the contrary, all of the prescriptions for which Confortec sought Medicare reimbursement were prescriptions that were actually filled for medications that were actually provided to the Medicare beneficiaries. During the period from July of 1998 through June of 2000, the Respondent did not have a license to practice medicine in Florida. Accordingly, the criminal conduct described above was not related to the Respondent's practice of medicine, because the Respondent was not practicing medicine at that time. As discussed in greater detail in the conclusions of law, the criminal conduct described above was directly related to the practice of medicine by the physicians who wrote the prescriptions that were filled in the course of the subject criminal activity. As also discussed in greater detail in the conclusions of law, the criminal conduct described above was directly related to the ability to practice medicine. The Respondent is presently a physician licensed to practice medicine in the State of Florida. He has been so licensed since November of 2001. His license number is 83615. The criminal charges described above are the only criminal charges that have ever been filed against the Respondent. There has never been any prior disciplinary action taken against the Respondent's license to practice medicine.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a final order be entered finding the Respondent guilty of violating Section 458.331(1)(c), Florida Statutes (2002), and imposing the following penalties: Suspending the Respondent's license to practice medicine for a period of nine months; Imposing an administrative fine in the amount of five thousand dollars; and When the Respondent is reinstated following the nine- month period of suspension, placing the Respondent on probation for a period of two years subject to such terms of probation as may appear to the Board of Medicine to be necessary and appropriate. DONE AND ENTERED this 16th day of September, 2005, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 2005.
