Findings Of Fact In February, 1984 Petitioner applied to Respondent for licensure by examination under Section 458.311(2), F.S., but after review of said application at a meeting held on June 10, 1984, Respondent issued an Order dated July 21, 1984 denying said application. Petitioner received a degree which is designated Doctor of Medicine on May 2, 1983 from the Universidad Techologica de Santiago, (UTESA), Santo Domingo, Dominican Republic. He has been in residency at Orlando Regional Medical Center since June 28, 1983. Various required clerkships were performed by Petitioner between August 2, 1982 and February 28, 1983 in hematology, obstetrics and gynecology, pediatrics, dermatology and ENT/0phth., and were performed completely, or partially at osteopathic hospitals, or under the supervision of osteopathic physicians. An additional one month elective clerkship was also performed in April 1983 at Southeastern College of Osteopathy. Petitioner passed the exam given by the Educational Commission for Foreign Medical Graduates (ECFMG) on March 15, 1983, but has not been certified due to the need for additional institutional verification. Respondent informed Petitioner of the decision of ECFMG to withhold verification of certification and also informed Petitioner of its duty to approve or deny an application for licensure within ninety (90) days, unless waived by the applicant. Petitioner declined to consent to a waiver and requested Respondent to act on his application without verification of an ECFMG certificate.
The Issue The issues presented here are based upon an Administrative Complaint filed by the Petitioner against the Respondent seeking the revocation, suspension, or other disciplinary action against the Respondent, and his license to practice medicine in the State of Florida. Count I to the Administrative Complaint accuses the Respondent of making misleading, deceptive, untrue and fraudulent representations in obtaining his license to practice medicine in the State of Florida. It is further contended that Respondent has not and cannot demonstrate that he graduated from medical school, and alleges that Respondent cannot demonstrate that he has met the minimal medical education, training and experience necessary for licensure by the Petitioner. Based upon these allegations, Respondent has purportedly violated Subsection 455.1201(1)(a), Florida Statutes (1977), by failing to demonstrate qualifications and standards for licensure contained in Chapter 455, Florida Statutes, or the rules and regulations of the Board of Medical Examiners. Count II, utilizing the same factual basis as has been alleged in the initial count, accuses the Respondent of violating Subsection 455.1201(1)(b) , Florida Statutes (1977), by practicing fraud or deceit in obtaining a license to practice medicine. Count III accuses the Respondent, based upon the aforementioned facts, with violating Subsection 458.1201(1) Florida Statutes (1977), by engaging in unethical, deceptive or deleterious conduct or practice harmful to the public. Count IV is based upon the facts as related in Count I and asserts that Respondent has violated Subsection 455.1201(1)(m), Florida Statutes (1977), by being guilty of immoral or unprofessional conduct, negligence or willful misconduct. Count V, utilizing the facts related in Count I, alleges that Respondent has violated Subsection 455.327(2)(c), Florida Statutes (1951), and thereby violated Subsection 458.331(1)(x), Florida Statutes (1981), by violating a provision of Chapter 455, Florida Statutes. Finally, Count VI, asserting the facts as discussed herein, alleges that Respondent has violated Subsection 455.331(1)(a), Florida Statutes (1951), by attempting to obtain and obtaining a license to practice medicine by fraudulent misrepresentations CASE HISTORY On September 24, 1981, the Petitioner filed the Administrative Complaint against the Respondent which is the subject of this proceeding and which is referred to in summary fashion by the Issues statement to this Recommended Order. Subsequently, Respondent requested a hearing in this cause on November 11, 1981, by indicating, in substance, that he disputed the allegations as contained in the Administrative Complaint. On that same date, Respondent, through counsel, answered the Administrative Complaint. This answer was made a part of the record in the course of the final hearing and is being forwarded with the Recommended Order in this action. On November 30, 1981, the Division of Administrative Hearings received the case from Petitioner, the Petitioner having requested the Division to conduct a formal hearing in this matter. On December 3, 1981, Respondent's initial counsel withdrew from representation of Respondent. Respondent subsequently obtained the assistance of his present counsel, Rodney Smith, Esquire, and a final hearing was conducted on March 9, 1982, in keeping with Subsection 120.57(1), Florida Statutes. Petitioner's presentation consisted of testimony by Dorothy J. Faircloth, Executive Director, Board of Medical Examiners, State of Florida. Petitioner also offered seven (7) items as evidence. All those items, with the exception of Nos. 5 and 6, have been received. Respondent gave testimony and presented as witnesses Edward M. Crawford, President, High Springs, Florida, Chamber of Commerce; Lorna J. Peters, resident, High Springs, Florida; Leslie Ann Morgan, X-Ray Technologist in the office of Respondent; Angela Anderson, employee of Respondent; Mireya Braga, Respondent's wife; Lacey William Register, Mayor, High Springs, Florida; a Mr. Westmoreland, resident, High Springs, Florida; Cybil M. Crawford, Vice- President, High Springs Bank, High Springs, Florida; and Thomas William Wolfe, Chief of Police, High Springs, Florida. Respondent offered six (6) items of evidence. All items have been received. The parties, in the person of counsel, have offered proposed recommended orders and supporting argument. Those matters have been reviewed prior to the entry of this Recommended Order. To the extent that those items are consistent with this Recommended Order, they have been utilized. To the extent that the matters are inconsistent with this Recommended Order, they are hereby rejected.
Findings Of Fact In February, 1976, Respondent made his initial application to the Board of Medical Examiners to become a licensed physician in the State of Florida. A copy of that application may be found as Petitioner's Exhibit No. 1, admitted into evidence. This application was received beyond the time of the deadline for filing and as a consequence, Respondent was required to submit a further application. The second application was made on January 17, 1977. A copy of that application may be found as Petitioner's Exhibit No. 2, admitted into evidence. Both applications were prepared by the Respondent and sworn to as to their accuracy. This attestation also acknowledged that if false information was given in the application, that Respondent agreed that the act of falsifying the application constituted cause for denial, suspension or revocation of his license to practice medicine in the State of Florida. Following the submission of the second application for licensure, Braga stood the Board of Medical Examiners' license examination, given in English, and was a successful candidate for licensure. He was awarded License No. ME0032004 and has renewed that license by the payment of applicable fees since the initial award of the license in 1978. The Administrative Complaint which has been discussed in the course of this Recommended Order challenges the accuracy of the information presented in the applications which were submitted by Respondent. In the initial application filed by the Respondent for licensure dating from February, 1976, Braga states that he attended Faculdade de Ciencias Medicas de Santos in Sao Paulo, Brazil, from February, 1971, through December, 1967. In the application, Respondent indicates that he practiced and/or was employed at the INPS (Institute National of Providence Social) , Sao Paulo, Brazil, in General Practice, between 1970 through 1972; Clinica Nuesta Senora, Sao Paulo, Brazil, in General Practice, between 1971 through 1972; Heliopolis Hospital, Sao Paulo, Brazil, between 1969 through 1970, and the Fundacao Centro Nacional, San Paulo, Brazil, between January, 1968 and December, 1968. The initial application of February, 1976, also contained a document written in Portuguese, which was sworn and certified to by Braga as being a true, authentic and legitimate photocopy of the original of his medical diploma issued by Medic Sciences of Santos in Brazil. (See Petitioner's Exhibit No. 1) There is also contained in the application of February, 1976, an indication, under oath by Respondent, concerning a document as attached, purportedly issued by Heliopolis Hospital in San Paulo, Brazil. Finally, Respondent had attached to the form application, and found in Petitioner's Exhibit No. 1, affidavits from three physicians; Antonio J. Maniglia, Jorge Macedo and Humberto Munoz. These affidavits indicated that the physicians swore and affirmed that, by their personal knowledge, Respondent attended and graduated from Faculdade de Ciencias Medicas de Santos, and practiced lawfully in the profession of medicine in Brazil in the years 1968 through 1972, and further indicated that the physicians had practiced in Brazil during that time. It has been proven and Respondent acknowledges that the application of February, 1976, Petitioner's Exhibit No. 1, was false to the extent that it indicated his attendance at Faculdade de Ciencias Medicas de Santos in Sao Paulo, Brazil, during the years 1971 through 1967; to the extent that the application indicated he practiced in the hospitals and clinics as set forth above, and to the extent that the application indicated that the physicians who had signed the affidavits had personal knowledge of Respondent's graduation from the medical school and his practice of medicine in Brazil. In the January, 1977, application with associated documents, found as Petitioner's Exhibit No. 2, admitted into evidence, Respondent indicates to the Board of Medical Examiners that he attended Faculdade de Ciencias Medicas de Santos, Sao Paulo, Brazil, from December 1967 to February, 1971, and received his degree of Doctor of Medicine from that school on January 7, 1967. He indicates in the application, on the subject of residency or other postgraduate training, that he worked at the Fundacao Lusiada, Faculdade de Ciencias Medicas de Santos, from January, 1967, through October, 1967; and attended a Vascular Surgery Course, in the Heliopolis Hospital, Sao Paulo, Brazil, November, 1970. His employment was described in the application as being at the INPS (Institute National of Providence Social) Hospital, Sao Paulo, Brazil, General Practice, 1970 through 1972; at Clinica Nuestra Senora, Sao Paulo, Brazil, General Practice, 1971 through 1972; at Heliopolis Hospital, Sao Paulo, Brazil, General Practice, 1969 through 1970; and Fundacao Centro Nacional, General Practice, January, 1968 through December, 1968. The second application, which is found as Petitioner's Exhibit No. 2, attached a medical diploma purportedly from the School of Medical Sciences of Santos (Faculdade de Ciencias Medicas de Santos). This document shows a date of January 7, 1967, and was dissimilar to the diploma document which was attached to the February, 1976, application. There were certain affidavits with the January, 1977, application from physicians Jose A. Pardo, Jaime Motta and Pedro Melo, which affidavits indicated that the physicians had personal knowledge of Braga's attendance and graduation from Faculdade de Ciencias Medicas de Santos, in Sao Paulo, Brazil, and that he had lawfully practiced the profession of medicine in Brazil in the years 1967 through 1972. It was shown and Respondent admits that the January, 1977 application for licensure was false, in that Respondent did not attend the Faculdade de Ciencias Medicas de Santos in Sao Paulo, Brazil, from December 1967 through February, 1971; that be had not practiced medicine in the hospitals and clinics as listed; that be had not attended residency or postgraduate training programs as shown in the application; and that the physicians who signed the affidavits for Respondent did not have personal knowledge of his graduation from medical school or his practice of medicine in Brazil. In reality, while it is accepted, that Respondent, who is a native of Brazil, has obtained a medical doctor's knowledge, Braga is not found to have graduated from a medical school either in that country or elsewhere or to have, following graduation from a medical school, practiced medicine as a general practitioner for five years or practiced in a one-year internship program, prior to licensure in Florida. Respondent departed Brazil sometime either in 1968 or 1969. Fe did so in the face of circumstances in his country, in which Respondent had been imprisoned. After gaining his freedom he migrated to the United States. When Braga arrived in the United States, he moved to Chicago, Illinois, and practiced medicine in that community without the benefit of a medical license. He subsequently left the State of Illinois and moved to Florida. After arriving in Florida and while employed in the Milagrosa Clinic in Miami, Florida, practiced medicine. At that time he had not been licensed by the State of Florida to practice medicine. Prior to the date of licensure by the State of Florida, Respondent attended and successfully completed the Florida State Board of Medical Examiners' continuing education program for 1977, which was offered by the Office of International Medical Education, University of Miami, School of Medicine, In turn, he successfully stood the requisite medical examination offered in English and was licensed. After receiving his medical license in 1975, Respondent moved to High Springs, Florida, and opened a medical practice which is primarily involved with the general practice of medicine. In the course of his practice, he has treated some 15,000 to 20,000 patients. Respondent offered as witnesses many persons from the community of High Springs, Florida, who, from the point of view of these individuals, are impressed with his good moral character. No evidence was presented from either side on the subject of Respondent's reputation as a medical practitioners as perceived by members of his profession.
The Issue The issue in this case is whether the Petitioner, Rene Delgado Leon, M.D., is eligible for examination for licensure to practice medicine in the state of Florida. The Petitioner, of course, contends that he is eligible. The Respondent, Board of Medical Examiners, contends that the Petitioner has failed to demonstrate eligibility, having previously advised him, inter alia: Your application and supporting documentation contained substantial omissions of material information relative to your medical education. Additionally, your application and supporting documentation does not provide sufficient information to demonstrate that you can practice medicine with reasonable skill and safety. See Section 458.301, Florida Statutes.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. The Petitioner, Dr. Rene Pedizo Delgado Leon, was born on November 26, 1936, in Cuba. All of his formal education prior to medical school was obtained in Cuba. He attended medical schools, off and on, at various times and places between 1955 and June of 1980. His medical education commenced in 1955 at the Medical School of the University of Havana and ended when he-was awarded his medical degree from the University of Dominica in June of 1980. The Petitioner's first language was Spanish and he is not completely fluent in the English language. When communicating in English he appears to have a tendency to interpret statements and questions in a very literal manner. The Petitioner does not appear to have intended to deceive the Board of Medical Examiners or to misrepresent information about his education and experience. Nevertheless, he has not been very clear about a number of details. Since receiving his degree from the University of Dominica in 1980, the Petitioner has completed a residency in pathology, has passed the FLEX exam in conjunction with his application for licensure in the state of Georgia, and has been licensed to practice medicine in the state of Georgia. There were several discrepancies between information given by the Petitioner to the Board of Medical Examiners and to the Hearing Officer concerning various aspects of his background, particularly concerning his medical education. With regard to his medical education, Petitioner listed on his first application that he attended medical school in Havana, Cuba, from April 1954 until December 1962. On his second application he stated that he attended medical school in Havana, Cuba, from September 1955 until September 1960. He testified before the Foreign Medical Graduate Committee that he attended medical school at the University of Havana from 1955 until 1962. At the final hearing he testified that he attended the University of Havana from 1955 until 1962. On his first application, in response to the direction that he list all universities or colleges where he attended classes and received training as a medical student, he stated only that he attended the University of Dominica from June of 1977 until June of 1980. He subsequently filed a form, received by the Board on October 26, 1983, stating that he had attended the University of Zaragoza, Zaragoza, Spain, and received training as a medical student from November of 1974 until April of 1975. On his second application, he stated that he had attended the University of Zaragoza as a medical student from November of 1974 until April of 1975. At the final hearing he testified that in 1973 while he was in Zaragoza he applied to revalidate old courses taken in Havana and that thereafter he took all examinations up to the third year. He stated that he took other courses in Zaragoza, but that he did not take the examinations for any of the medical courses taken in Zaragoza. He also testified that he was given credit for courses at Zaragoza even though he did not take the examinations. The next segment of his medical education was consistently testified to as having been had at the Universidad Central del Este in the Dominican Republic. He attended the Universidad Central del Este for only one semester, during which he took six or seven subjects. He testified that Universidad Central del Este did give him some credit for the third year of medical school; in spite of the fact that he did not take examinations in any of the third-year courses he took in Zaragoza. In January of 1979 he transferred to Universidad Nordestana and spent approximately one year there. Univeraidad Nordestana gave him two and one half to three years of credit. Although his initial application showed that he had attended the University of Dominica in the West Indies from June of 1977 until June of 1980, his subsequent written and oral testimony was that he was enrolled at the University of Dominica only from January of 1980 until June of 1980. He testified before the Foreign Medical Graduate Committee that at the time he transferred from Nordestana, he was basically finished with his medical education and he said he transferred to Dominica because they did not talk in English in Santo Domingo. He also testified that he transferred to Dominica so that he could get some exposure to how medicine was practiced in the United States. Petitioner testified that although he transferred to the University of Dominica and he received his degree from the University of Dominica six months after he transferred there, he did not pay any monies to the University of Dominica. His explanation of why he did not pay money to the University of Dominica is that he wrote things for them, like a pathology booklet. The application form which Petitioner completed requested that he specify all places of residence since beginning medical training. On his first application he showed that he resided in Dominica, West Indies, from January of 1980 until June of 1980. On his second application he listed as residences since initiation of medical training only the University of Miami, Jackson Memorial, VA Hospital, and the University of South Florida, Tampa. In August of 1983 he followed up the second application with a letter to Mrs. Faircloth which stated that his place of residence while attending medical school was the "students quarters and dormitories" at Portsmouth, University of Dominica, West Indies. However, at the hearing before the Foreign Medical Graduate Committee and at the final hearing, Petitioner admitted that he was, in fact, on the campus of the University of Dominica only one day, and that was on graduation day. In fact, when he testified before the Foreign Medical Graduate Committee, he was specifically asked, "When you left Nordestana, where did you go?" To that question he replied, "Oh, to Dominica." However, he later admitted that when he left Nordestana, he went to Miami and he did not go to Dominica until he went six months later in order to graduate. On both of his written applications, Petitioner was asked to list the degrees earned other than M.D. On neither application did he list a bachelor's degree. Yet, in testimony before the Committee and at the final hearing, he testified that he had earned the equivalent of a B.S. in chemistry at the University of Havana. He testified that the reason that he omitted it was that he thought the question referred to medical education. However; in response to the same question, he listed that he had obtained a Licensee in Science and a Doctor in Science from the University of Zaragoza. With regard to the matter of what clerkships, if any, Petitioner performed as part of his medical education, the record shows that he was enrolled at the University of Dominica, the school from which he received a medical degree, from January or February of 1980 until June of 1980. The record also shows that during that five- or six-month period he performed what purported to be clerkships at the VA Hospital and at Coral Gables Hospital, in Miami, and at the same time was an employee of the VA Hospital. He testified that his clerkship at the VA Hospital was in pathology and that he was employed full time in the same area as he was receiving clerkship credit. He arranged the clerkships himself and informed the university of the clerkships. He testified that he did the same activities as the other clerks did, but he worked approximately forty hours and they worked thirty to forty hours. He effected his transfer to the University of Dominica by writing to the New York office and by taking some "required" examinations in basic sciences and clinical studies. He took the examinations in Miami and passed everything but gynecology. He eventually passed gynecology, but not until May of 1980 after he had almost completed clerkships. He testified that when he did his "rotation" at the VA Hospital, he was told that he could "moonlight." He testified that he did all of the autopsies while the other medical students watched. He testified that he went in to work at about 7:00 a.m. and left around 4:00 p.m. and that the other residents did not arrive until about 8:00 a.m. However, he did testify that the clerks arrived at 6:00 a.m. Petitioner testified that he was doing a clerkship at the time, not a residency, and that it was the extra time that he put in that justified his being both paid and given credit for an educational experience. Dr. Robert M. Clark was Petitioner's supervisor during the period of approximately January of 1980 until June of 1980. Petitioner worked in the morgue as a Physician's Assistant and also did "resident physician work." Petitioner was paid at the same time as he was doing a rotation because there was a shortage of residents. Petitioner had the same exposure to pathology as the other residents, all of whom were from the University of Miami. None of the other students were paid employees. A Physician's Assistant requires two years of medical school. Dr. Clark was introduced to Petitioner by Dr. Kuhnhardt. Dr. Kuhnhardt was not connected in any way with the medical school at the University of Dominica. The only other purported clerkship about which there was testimony at the hearing related to a clerkship at Coral Gables Hospital. That clerkship was under Dr. Hurst. That clerkship was done from January of 1980 until June of 1980, the same period during which the clerkship at the VA Hospital was done. Petitioner testified that he went to Coral Gables Hospital after he left the VA Hospital, usually after 4:00 p.m., and stayed however long was necessary, possibly as late as 8:00 or midnight. Dr. Hurst only let the students observe medical procedures. That clerkship was conducted in a community hospital. As for the supervision by the school, the testimony was that the school played no role in arranging the clerkships. Petitioner testified that people from the school came for general meetings every once in a while during the clerkships. As for evaluation, Petitioner testified that the school sent evaluation forms to him and he distributed the forms to whoever was supervising him.
Recommendation Based upon all of the foregoing it is my recommendation, because of the contradictions and uncertainties on the record in this case regarding the nature of the Petitioner's medical education, that the Board of Medical Examiner issue a final order denying the Petitioner's application for licensure by examination without prejudice to the filing of any future application for licensure by examination or endorsement, unless; for reasons analogous to those set forth in the Lopez decision, supra, the Board is persuaded that the shortcomings in the application and its supporting evidence may be overlooked in light of the Petitioner's achievements since 1980. DONE AND ORDERED this 3rd day of January, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 3rd day of January, 1986. COPIES FURNISHED: M. Catherine Lannon, Esquire Assistant Attorney General Department of Legal Affairs Room LL-04, The Capitol Tallahassee, Florida 32301 Jorge A. Sibila, Esquire 2751 Coral Way Miami, Florida 33145 Dorothy Faircloth; Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche; Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 APPENDIX The following are my specific rulings on each of the proposed findings of fact submitted by each of the parties. Rulings on Petitioner's proposed findings: The Petitioner's proposed findings of fact consist of a two- line introductory clause and six unnumbered indented paragraphs. The six unnumbered indented paragraphs are addressed below in the order in which they appear in the Petitioner's proposed findings of fact. First Paragraph: Rejected. This paragraph is merely a commentary on the state of the record and does not contain any proposed finding of fact. Second Paragraph: Rejected for the same reason as the first paragraph. Third Paragraph: Rejected in part and accepted in part. Rejected portions are rejected for the most part for the same reason as the rejection of the first two paragraphs. The "fully explained" portion of this paragraph is rejected as not supported by the greater weight of the evidence. Findings have been made consistent with the portions of this paragraph relating to when Petitioner's medical education began and ended, his completion of a residency in pathology, and his passing of the FLEX examination. Fourth Paragraph: The first sentence of this paragraph is rejected in part because it is merely a commentary on the state of the record and in part because it is inconsistent with the evidence of record. Dr. Clark did not explain the Petitioner's work in detail: to the contrary, his testimony was rather vague about a number of the details and he failed to recall a number of specific details. The last sentence of this paragraph is rejected because it is not supported by competent substantial evidence. Fifth Paragraph: Rejected for the same reason as the first paragraph. Sixth paragraph: The first sentence of this paragraph is rejected because the Petitioner's explanations were incomplete. With regard to the second sentence of this paragraph, it is accepted that the Petitioner is "not fluent/native in the English language or in legal terminology," and that the Petitioner did not intend to deceive the Board or misrepresent information to the Board. m e remainder of the second sentence is rejected on the grounds that it is in part irrelevant and immaterial as well as on the grounds that the ultimate factual conclusion urged in the second sentence is not warranted by the evidence in the record. Rulings on Respondent's proposed findings: The Respondent's proposed findings of fact consist of seventeen separately numbered paragraphs. The paragraph numbers which follow correspond to the numbers of the paragraphs of the Respondent's proposed findings. Accepted in substance with certain gratuitous editorial material deleted. Accepted in substance. Accepted in substance with the exception of the sentence reading: "In contradiction, he testified at the final hearing, on both direct and cross-examination, that he furthered his medical education in Spain in 1970." The quoted sentence is rejected because it does not accurately reflect the totality of the Petitioner's testimony on this subject. Some other redundant material in this paragraph is also rejected. Rejected on the grounds that it consists of irrelevant and cumulative details which are not necessary to the disposition of this case. Accepted in substance with certain gratuitous editorial material deleted. The first sentence of this paragraph is accepted. The second sentence is accepted with the exception of the words ". . . at which time he needed three years." The quoted language is rejected as not being supported by persuasive competent substantial evidence. Accepted. The first two sentences of this paragraph are accepted in substance. The last sentence is rejected as irrelevant in part, cumulative in part, and not supported by competent substantial evidence in part. Accepted in substance with certain gratuitous editorial material deleted. Accepted. Accepted in part and rejected in part. Reasons for rejection include the feet that although most of this paragraph is an accurate summary of portions of the Petitioner's testimony; some of the testimony on this subject was not persuasive and has not been used as the basis for findings of fact. The parenthetical mention of the pathology booklet is rejected because there is no competent substantial evidence as to when Petitioner wrote any pathology books Accepted in substance. Accepted in part and rejected in part. Reasons for rejection include the fact that although much of this paragraph is an accurate summary of portions of Dr. Clark's testimony, much of the testimony on this subject was not persuasive and has not been used as the basis for findings of fact. Portions of this paragraph have also been rejected on the grounds that they constitute commentary on the quality of the testimony or argument and are not proposed findings of fact. Accepted in part and rejected in part. Reasons for rejection include the fact that although most of this paragraph is an accurate summery of portions of the Petitioner's testimony, much of the testimony on this subject was not persuasive and has not been used as the basis for findings of fact. Accepted. Rejected as findings of fact because it constitutes argument rather than proposed findings of fact. [Much of the argument is well taken, but it is argument nevertheless and not appropriately part of the findings of fact.] Rejected for the same reason as Paragraph 16.
Findings Of Fact The parties stipulated as follows: Raul Ivan Vila, Petitioner, applied to Respondent for licensure by endorsement after having graduated from a foreign medical school, passed the Federation Licensing Examination (FLEX) and having been certified by the Educational Commission for Foreign Medical Graduates (ECFMG). He was denied licensure on the grounds that the supervised clinical training he received in the United States was not obtained in wither a hospital affiliated with a medical school approved by the Council on Medical Education of the American Medical Association, or in a residency program approved by the Accreditation Council for Graduate Medical Education as required by Rule 21M-22.18, Florida Administrative Code, which took effect on November 28, 1984. Petitioner had completed his supervised clinical training in the United States and had received his medical degree prior to the effective date of this rule. Petitioner's application would also be denied under amended Rule 21M-22.18, Florida Administrative Code, which took effect on March 13, 1985, because the supervised clinical training he received in the United States was not obtained in either a hospital affiliated with a medical school accredited by the Liaison Committee on Medical Education, or in a residency program accredited by the Accreditation Council for Graduate Medical Education in the specialty area in which the clinical training is obtained. The following findings are based upon the evidence received and matters officially recognized: The Board adopted Rule 21M-22.18, which took effect on November 28, 1984, and it provided: Foreign Medical Graduates: Qualification Re- quirements. Before any foreign medical school graduate, except a graduate of an approved school in Canada, is admitted to take the writ- ten licensure examination or be licensed by endorsements [sic], he or she must demonstrate (in addition to other requirements set forth in Chapter 458, F.S.) that the supervised clinical training received in the United States as part of the curriculum of the foreign medi- cal school was obtained either in a hospital affiliated with a medical school approved by the Council on Medical Education of the Ameri- can Medical Association or in a residency pro- gram approved by the Accreditation Council for Graduate Medical Education. The Board subsequently amended Rule 21M-22.18, and the amendment took effect March 13, 1985, to provide: Foreign Medical Graduates: Qualification Requirements. Before any gra- duate of a medical school not accredited by the Liaison Committee on Medical Education, ex- cept a graduate of an accredited school in Canada, is admitted to take the written licen- sure examination or be licensed by endorsement, he or she must demonstrate (in addition to other requirements set forth in Chapter 458, F.S.) that the supervised clinical training re- ceived in the United States as part of the cur- riculum of the medical school was obtained either in a hospital affiliated with a medical school accredited by the Liaison Committee on Medical Education or in a residency program accredited by the Accreditation Council for Graduate Medical Education in the specialty area in which the clinical training is being obtained. This rule, as well as its amendment, were adopted to implement Sections 458.311 and 458.313(4), Florida Statutes. The Liaison Committee on Medical Education, which reviews and accredits medical schools in the United States, has adopted standards for the accreditation of medical education programs which were ratified by the Council on Medical Education of the American Medical Association on March 1, 1985, and the Executive Council of the Association of American Medical Colleges on April 4, 1985, and which state in part: The traditional required clinical subjects, which should be offered in the form of requir- ed experiences in patient care (customarily called clerkships), are internal medicine, ob- stetrics and gynecology, pediatrics, psychia- try and surgery. Additionally, many schools require a clerkship in family medicine. . . . Each required clinical clerkship must allow the student to undertake thorough study of a series of selected patients having the major and common types of disease problems represent- ed in the primary and related disciplines of the clerkship. . . . The required clerkships should be conducted in a teaching hospital or ambulatory care fa- cility where residents in accredited programs of graduate medical education, under faculty guidance, may participate in teaching the stu- dents. In an ambulatory care setting, if faculty supervision is present, resident par- ticipation may not be required. If required clerkships in a single discipline are conduct- ed in several hospitals, every effort must be made to ensure that the students receive equivalent educational experiences. No schools outside the United States are accredited by the Liaison Committee. According to Charles P. Gibbs, M.D., Assistant Dean for Curriculum at Shands Teaching Hospital, chairman of the clerkship committee at Shands, and an expert in medical education, clerkships are an essential part of a medical education because they are the first time the student is introduced to the real practice of medicine and contact with patients in a supervised setting. Clerkships occur in the third and fourth years of a medical education, after the student has had courses in the basic sciences, pathology, pharmacology and an introduction to clinical medicine. During a clerkship, the student participates as part of a team and does patient histories, physicals, participates in discussions about patient care, observes operations and attends lectures. Clerkships are usually taken in fields such as obstetrics and gynecology, pediatrics, internal medicine, surgery, community health, family medicine and psychiatry. The Liaison Committee reviews the clinical clerkship program as part of the accreditation process. Dr. Gibbs testified that written exams, such as FLEX or the National Board, are important in measureing a student's cognitive knowledge and determining minimum qualifications, but cannot measure clinical qualities of a doctor such as how he works with colleagues, and how he communicates. Clerkships are important in determining a student's performance level in these clinical qualities. Robert B. Katims, M.D., testified as a member of the Board and Chairman of the Foreign Medical Graduates Committee of the Board. As Committee Chairman he had noted problems with the clinical experience being received by graduates of certain foreign medical school that are not accredited by the Liaison Committee. All medical schools in the United States are accredited. Dr. Katims observed that problems with the clinical experience offered at these foreign medical schools arise because there are not enough teaching hospitals in some foreign countries, and therefore students must arrange their own clinical experience in the United States. There have been repeated instances of little of or no supervision in these clinical experiences, which frequently consist of a one-on-one affiliation with a practicing physician with very little structured training. Under these circumstances, the foreign medical student does not receive the kind of supervised clinical training which is a vital part of a medical education.
The Issue Whether disciplinary action should be taken against Respondent's license to practice medicine and surgery based on the violations of Section 458.331(1), Florida Statutes, alleged in the Administrative Complaint filed in this proceeding.
Findings Of Fact The following paragraphs of the findings of fact submitted by the Respondent have been accepted and included in the findings of fact in this Recommended Order at least in substance and in most instances in their entirety. Editorial modifications have been made in some instances in the interests of accuracy and clarity; as well as when consolidating similar proposals submitted by both parties: 1, 2, 3, 4, 15, and 17. Paragraph 5 is rejected as constituting argument rather than proposed findings of fact. Paragraph 6 is rejected as constituting primarily argument about the credibility of witnesses rather than proposed findings of fact. To the extent findings are proposed in this paragraph, they are rejected as subordinate. The first two sentences of paragraph 7 are rejected as constituting argument about the credibility of witnesses rather than proposed findings of fact. The last sentence of paragraph 7 is accepted. The first five sentences of paragraph 8 are accepted. The last two sentences of paragraph 8 are rejected as constituting legal argument and/or subordinate facts. Paragraphs 9 and 10 are rejected as constituting argument about the credibility of witnesses rather than proposed findings of fact. The substance of the first three sentences of paragraph 11 is accepted. The last two sentences of paragraph 11 are rejected as constituting argument about the credibility of witnesses rather than proposed findings of fact. Paragraph 12 is rejected as for the most part constituting argument rather than proposed findings of fact. To the extent findings are proposed; they are rejected as subordinate. With the exception of the last sentence; all of paragraph 13 is rejected as for the most part constituting argument rather than proposed findings of fact. The substance of the last sentence of paragraph 13 is accepted. The fourth sentence of paragraph 14 is accepted with the deletion of the last clause. The remainder of paragraph 14 is rejected as constituting argument or as proposing irrelevant and/or subordinate facts. Paragraph 16 is accepted in substance, but only as to when and where the Respondent and Vicente met and as to what Vicente told the Respondent he was doing. Paragraph 18 is rejected as constituting argument about the credibility of some of the evidence rather than constituting proposed findings. Paragraph 19 is rejected as constituting argument about the credibility of some of the evidence rather than constituting proposed findings. Further, the implications of the arguments are rejected as being contrary to my resolution of credibility issues. The substance of the first two sentences of paragraph 20 is accepted. The remainder of paragraph 20 is rejected as irrelevant commentary about testimony rather than proposed findings on a material issue. Paragraphs 21, 22, and 23 are rejected as constituting argument rather than proposed findings of fact.
Recommendation For all of the foregoing reasons, it is recommended that the Board of Medical Examiners enter a Final Order in this case dismissing all charges against the Respondent, Roberto Cuesta, M.D. DONE AND ORDERED this 12th day of March, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 12th day of March, 1986. COPIES FURNISHED: Leonard Sussman, Esquire 7195 S.W. 47th Street Suite #101 Miami, Florida 33155 Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 APPENDIX The following are my specific rulings on each of the proposed findings of fact submitted by each of the parties. By way of preface to the specific rulings which follow, I feel constrained to make the following observations regarding three of the principal witnesses in order that the parties may more clearly understand the basis for certain of the findings of fact. With regard to conflicts between the testimony of the Respondent and the witness Carlos Ramirez, I have generally tended to credit the testimony of the Respondent, largely on the grounds that the Respondent's version was more consistent with other evidence. Further, I found the Respondent to be sincere, candid, accurate, and honest in his testimony. Accordingly, I have given a great deal of weight to the Respondent's testimony. I found the witness Armando R. Vicente to be otherwise. Accordingly; I have given very little weight to Mr. Vicente's testimony except to the extent that it was corroborated by other reliable evidence or constituted admissions against interest.
The Issue At issue in this proceeding is whether petitioner's application for a medical license by endorsement should be approved.
Findings Of Fact The Findings of the Facts of tbe Recommended Order are adopted by the Board of Medicine as being based on competent substantial evidence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered certifying petitioner's application to the Department of Professional Regulation, for licensure by endorsement with, should the Board be persuaded that such is appropriate, placement of petitioner on probation for such term and subject to such conditions as the Board may reasonably specify. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of April 1991. 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 24th day of April 1991.
The Issue Whether the Petitioner should receive a passing grade on the Clinical Application of Medical Knowledge and Basic Science & Disease Process portions of the Florida Medical Licensure Examination ("FMLE") administered November 15 and 16, 2001.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for licensing and regulating physicians practicing medicine in Florida, including foreign-licensed physicians. Sections 458.311 and 458.3115, Florida Statutes (2001); Rule 64B8-5.002, Florida Administrative Code. The Department is also authorized to administer licensing examinations to physicians seeking to practice medicine in Florida. Section 456.017, Florida Statutes (2002). Dr. Rivero was accepted as a candidate for the FMLE and sat for the examination on November 15 and 16, 2001. Dr. Rivero attained a scaled score of 332 points on the Basic Sciences & Disease portion of the examination and 331 points on the Clinical Application of Medical Knowledge portion of the examination. Each of these portions of the FMLE administered November 15 and 16, 2001, had a minimum passing score (also known as "cut score") of 350 points. On November 15, 2001, the first day of the examination, the Department staff who were to administer the examination were notified that the Federal Express shipment of examination materials was incomplete and did not include the laboratory value sheets and the answer sheets to be used for each portion of the examination. The supervisor of the examination administration arranged to have copies of the appropriate documents available that morning. The examination candidates, who had been told to arrive at the examination site at 7:30 a.m., were not admitted to the examination room until 8:30 a.m. as a result of the problem with the laboratory value and answer sheets. The candidates were told to skip the questions that required use of the laboratory value sheets and to write the answers in the examination booklets for the questions that required use of the answer sheets. The candidates were advised prior to beginning the examination that they would be allowed additional time to transfer their answers from the booklet to the answer sheet. The examination began at 9:30 a.m. on November 15, 2001, after a delay of one hour. The administration supervisor made an error calculating the time and gave the candidates four hours and ten minutes to complete the examination, rather than the prescribed four hours. In addition, all candidates who wanted additional time to transfer their answers from the examination booklet to their answer sheets were given as much additional time as necessary. Dr. Rivero experienced stress and nervousness as a result of the delay and confusion in the administration of the examination that might have affected her performance on the examination. She did, however, have sufficient time to complete the examination on November 15, 2001, and to transfer her answers to the answer sheet. The minimum passing score on both portions of the examination was 350 points. These "cut scores" were developed for the November 2001 FMLE using the Angoff method of scoring. The Angoff Method is a widely used method for selecting the "cut score" for an examination. For each administration of the FMLE, a group of physicians are chosen to review the examination and determine, question by question, the percentage of minimally competent people who would answer each question correctly. The "cut score" for each portion of the examination is developed by averaging the responses of the physicians. The Angoff method was a valid methodology for ascertaining the "cut scores" for the November 2001 administration of the FMLE. After the examination was scored, a group of physicians and a psychometrician met to review all of the questions that were the subject of a complaint by examination candidates and all of the questions that a statistically significant number of candidates answered incorrectly. The group also conducted a Point by Serial review of the examination, which involves establishing that the candidates scoring highest on the examination answered a particular question correctly, while candidates scoring lowest on the examination answered the same question incorrectly. As part of this post-examination review, the November 2001 FMLE was reviewed for discrepancies between the order of the answers to questions in the English version of the examination and the order of the answers to questions in the Spanish version of the examination. No discrepancies were found.2 In addition, Dr. Rivero conceded that there were no discrepancies between the English and Spanish versions of the questions she answered incorrectly. The results of the review of the November 2001 FMLE established that the examination was fair, reliable, and valid. The November 2001 FMLE was developed, scored, and reviewed in accordance with the procedures normally used by the Department. Dr. Rivero has failed to establish that she should be awarded additional credit for any question the Department scored as incorrect on the Basic Sciences & Disease and on the Clinical Application of Medical Knowledge portion of the examination.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order dismissing the petition of Ana Rivero challenging her failing scores on the Clinical Application of Medical Knowledge and Basic Science & Disease Process portions of the FMLE administered November 15, and 16, 2001. DONE AND ENTERED this 20th day of December, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 December, 2002.
The Issue The issues are as follows: (a) whether Petitioner attempted to obtain a license by misrepresenting or concealing material facts at any time during any phase of the licensing process in violation of Section 458.331(1)(gg), Florida Statutes; (b) whether Petitioner meets the training requirements pursuant to Section 458.331(1)(f), Florida Statutes; (c) whether Petitioner has had a license to practice medicine acted against by the licensing authority of another jurisdiction in violation of Section 458.331(1)(b), Florida Statues; and (d) whether Petitioner was convicted or found guilty or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction that directly relates to the practice of medicine in violation of Section 458.331(1)(c), Florida Statutes.
Findings Of Fact Petitioner is a medical doctor. He is currently licensed to practice medicine in Mississippi. Petitioner attended the University of Lagos, College of Medicine, in Lagos, Nigeria. While he was in medical school, Petitioner failed a pathology class. He did not have to repeat the entire class, but he was required to retake the examination in order to get credit for the course. In 1972, Petitioner graduated from the University of Lagos, College of Medicine, which is an allopathic foreign medical school. However, the medical school has not been recognized and approved by an accrediting agency recognized by the United States Office of Education (U.S.O.E.). Additionally, Petitioner's medical school is not located within a territorial jurisdiction of the United States. The U.S.O.E. has designated the Liaison Committee on Medical Education (LCME) as the approved accrediting organization. Pursuant to this designation, LCME only has authority to accredit medical schools in the United States and Canada. Foreign medical schools are not accredited by anyone in the United States. The U.S.O.E. has not designated an accrediting organization for foreign medical schools other than those located in Canada. Each foreign medical school (excluding Canada) is accredited by its own country. Therefore, Petitioner is not eligible for licensure pursuant to Section 458.311(f)1., Florida Statutes. The World Health Organization does not approve/accredit medical schools. Additionally, Respondent has never certified a foreign medical school pursuant to Section 458.314, Florida Statutes. Therefore, Petitioner is not eligible for licensure pursuant to Section 458.311(f)2., Florida Statutes. Graduates of foreign medical schools, which have not been certified pursuant to Section 458.314, Florida Statutes, must meet the requirements of Section 458.311(f)3., Florida Statutes. Petitioner meets these requirements in part because his medical credentials have been evaluated by the Educational Commission for Foreign Medical Graduates (ECFMG). He holds an active, valid certificate issued by ECFMG and has passed the examination utilized by that commission. Since October 1, 1992, graduates of foreign medical schools like Petitioner must complete an approved residency or fellowship of at least two years in one specialty area. The training must count toward regular or subspecialty certification by a board recognized and certified by the American Board of Medical Specialties. The Accreditation Council for Graduate Member Education (ACGME) is the body that certifies training programs in the United States. Petitioner has not completed an ACGME-approved residency or fellowship of at least two years in one specialty area. From October 1975 to September 1976, Petitioner completed one year of residency training in the Meharry Medical College Family Practice program at George W. Hubbard Hospital, in Nashville, Tennessee. He has not completed any other residency or fellowship training. Therefore, Petitioner is not eligible for licensure pursuant to Section 458.311(f)3., Florida Statutes. In late 1984 or early 1985, Petitioner had a private medical practice in Holly Springs, Mississippi. He lived across the state border in Tennessee where he maintained a business office. Petitioner also advertised his medical practice in a Tennessee newspaper. On or about September 3, 1985, Petitioner pled no contest to a criminal charge that he had met with and talked to four separate ladies about family planning in his Memphis, Tennessee, office. The Criminal Court of Shelby County, Tennessee, found Petitioner guilty of operating an ambulatory surgery treatment center without a license. Petitioner was required to pay a fine in the amount of $2,000.00. In August of 1989, the Mississippi Division of Medicaid initiated sanction proceedings against Petitioner for performing excessive routine laboratory tests in his private practice. In November 1990, the Medicaid and Medicare programs in Mississippi suspended Petitioner as a provider for three years. On or about July 26, 1991, the Mississippi State Board of Medical Licensure issued an order revoking Petitioner's Mississippi medical license. The order was affirmed on appeal. The Mississippi Board of Medical Licensure reinstated Petitioner's Mississippi medical license with conditions in August 1997. In September 1999, the Mississippi Board of Medical Licensure removed the restrictions/limitations from Petitioner's medical license. In February 2001, Petitioner had privileges at Hardy Wilson Memorial Hospital in Hazlehurst, Mississippi. Petitioner made the decision that he could no longer afford medical malpractice insurance. Because the hospital required physicians to have malpractice insurance, the hospital reduced Petitioner's clinical privileges. Although the timing of these events is not clear, Petitioner voluntarily resigned his privileges at the hospital. In April 2003, Petitioner signed an application form for medical licensure by endorsement in Florida. Petitioner filed the application with Respondent in June 2003. The April 2003 application contained the following affidavit, signed by Petitioner on April 6, 2003: I have carefully read the questions in the foregoing application and have answered them completely, without reservations of any kind, and I declare under penalty of perjury that my answers and all statements made by me herein are true and correct. Should I furnish any false information in this application, I hereby agree that such act shall constitute cause for denial, suspension or revocation of my license to practice Medicine in the State of Florida. Question 12b on the April 2003 application inquired whether Petitioner had been required to repeat any of his medical education. The question states that if the answer is "yes," the applicant should explain on a separate sheet providing accurate details. Petitioner answered Question 12b on the April 2003 application in the negative. His answer was misleading and inaccurate because it did not disclose that he had to retake an examination in order to pass a pathology course. Question 18 on the April 2003 application asked several questions, three of which are relevant here. First, the application inquired whether Petitioner currently held staff privileges in any hospital, health institution, clinic or medical facility. Petitioner answered "yes" to this question. Second, Question 18 instructed Petitioner to list any hospital/health institution/clinic or medical facility where he held staff privileges. Petitioner listed Jefferson County Hospital, Emergency Room Privileges. Third, Question 18 inquired whether Petitioner had ever had any staff privileges denied, suspended, revoked, modified, restricted, placed on probation, asked to resign or asked to take a temporary leave of absence or otherwise acted against by any facility. Petitioner answered this question negatively. Question 23 on the April 2003 application inquired whether Petitioner had ever been convicted or found guilty, regardless of adjudication, resolution, or expungement, or pled guilty or nolo contendere to a criminal misdemeanor or felony in any jurisdiction. Petitioner answered this question in the negative. Question 24 on the April 2003 application inquired whether, regardless of adjudication, Petitioner had ever been convicted of a violation of, or pled nolo contendere to, any federal, state, or local statute, regulation, or ordinance, or entered into any plea, negotiated plea, bargain, or settlement relating to a misdemeanor or felony, or ever had an adjudication, resolution or expungement. Petitioner answered this question in the negative. In a letter dated July 31, 2004, Respondent advised Petitioner that his application was incomplete. Among other things, Respondent stated that it was waiting for a response to an inquiry directed to Jefferson County Hospital, verifying Petitioner's staff privileges and good standing. Respondent also requested Petitioner to complete and file an current/updated application form. In August 2003, Petitioner filed the updated application with Respondent. In response to Question 16 on the updated application, Petitioner once again denied that he was required to repeat any of his medical education? In response to Questions 27 and 28 on the updated application, Petitioner continued to maintain that he currently held privileges at Jefferson County Hospital in Fayette, Mississippi. In response to Question 29 on the updated application, Petitioner, continued to assert that he had never had any facility staff privileges denied, suspended, revoked, modified, restricted, placed on probation, or asked to resign. Petitioner appeared before Respondent's Credentialing Committee in November 2003. The committee was obligated to review Petitioner's entire application file, including the April 2003 application and the August 2003 application. Petitioner failed to disclose his Tennessee criminal conviction on the April 2003 application. The conviction is related to practice of medicine because it involved Petitioner talking to patients from a Tennessee office. During the hearing, Petitioner identified the following two letters of recommendation: (a) Willie L. McArthur, M.D., on Jefferson County Family Medicine Center letterhead; and (b) Bernadette E. Sherman, M.D. on Jefferson Comprehensive Health Center, Inc. letterhead. Neither of the letters refers to Petitioner's privileges at Jefferson County Hospital. Petitioner testified that he answered Question 18 on the April 2003 application and Questions 27 and 28 on the updated application correctly, affirming that he held privileges at Jefferson County Hospital. There is no evidence to the contrary. The greater weight of the evidence indicates that Petitioner's reduction of clinical privileges at Hardy Wilson Memorial Hospital was due to his decisions not to secure malpractice insurance and to voluntarily resign his privileges. Therefore, he did not answer Question 18 on the April 2003 application and/or Question 29 on the updated application incorrectly.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order denying Petitioner's application for a medical license by endorsement. DONE AND ENTERED this 5th day of January, 2005, 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 5th day of January, 2005. COPIES FURNISHED: Rosanna M. Catalano, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Olufemi Okunoren, M.D. Post Office Box 1992 Madison, Mississippi 39130 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
The Issue As to Case 93-6927, whether Respondent, a licensed physician, violated the provisions of Section 458.331(1)(m), (t), (v), and (dd), Florida Statutes, as alleged in the Administrative Complaint and the penalties, if any, that should be imposed. As to Case 93-6928, whether Respondent violated the provisions of Section 458.319(5), 458.327(1)(a), and 458.331(1)(x), Florida Statutes, as alleged in the Administrative Complaint and the penalties, if any, that should be imposed. As to Case 93-6929, whether Respondent violated the provisions of Section 458.331(1)(x), Florida Statutes, as alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is the agency of the State of Florida that regulates the practice of medicine. Respondent is a licensed physician in the State of Florida and has been issued license number ME 0028412 by the Petitioner. CASE NO. 93-6927 On December 12, 1990, Susan D. Bernhardt conducted an inspection for the Florida Department of Health and Rehabilitative Services (DHRS) of an abortion clinic named Miami International Esthetics Center (MIEC). Ms. Bernhardt was hired as a consultant by DHRS to conduct random inspections of MIEC pursuant to a stipulation between DHRS and MIEC. Ms. Bernhardt is a registered nurse and is experienced in surgical procedures. Ms. Bernhardt observed Respondent perform an abortion on a patient at MIEC on December 12, 1990. Also present in the operating room was a nurse anesthetist, to whom Respondent referred as Mr. Martin. Respondent, Mr. Martin, and Ms. Bernhardt were present in the operating room at all times during the procedure. Mr. Martin administered anesthesia and the patient lost consciousness. Shortly after losing consciousness, the patient began making sounds which Ms. Bernhardt described as "crowing noises" and to which Dr. Van Eldik referred to as "stridors". These sounds indicate that the patient's air passages are blocked, a condition that requires prompt action from the physician or from the person administering anesthesia since the condition can be life threatening. Ms. Bernhardt testified that she went to the patient and used her stethoscope to confirm that the patient was having breathing difficulties. She thereafter tilted the patient's head and restored her breathing. The amount of time that lapsed between the time the patient first experienced difficulties breathing and the time Ms. Bernhardt acted was not established. While it is clear that neither Respondent or Mr. Martin 1/ acted to provide the patient with any relief or to assure that her air passages were open so that she could receive adequate oxygen, it is not clear whether the action of Ms. Bernhardt obviated the necessity for either the physician or the nurse anesthetist to act. Consequently, it is found that Petitioner failed to establish by clear and convincing evidence that Respondent failed to properly supervise Mr. Martin by failing to order him to assist the patient when Ms. Bernhardt acted promptly to relieve the patient. Emergency equipment was maintained on a crash cart that was in the operating room during the procedure Ms. Bernhardt observed. As the operating surgeon, Respondent was responsible for making sure that appropriate emergency equipment was readily available. Appropriate emergency equipment would include emergency drugs on the crash cart. Throughout the procedure there were no emergency drugs present on the crash cart. Respondent failed to adequately supervise Mr. Martin to ensure that appropriate emergency equipment was readily available. As part of her inspection of MIEC, Ms. Bernhardt reviewed medical records at the clinic pertaining to patients of the Respondent. Some of the records that were reviewed by her are contained in Petitioner's Exhibit 5. Respondent's records reviewed by Ms. Bernhardt were of overall poor quality. Documentation concerning physical examination was scanty and often failed to include the size of the patient's uterine and a description of the presumptive signs of pregnancy. Anesthesia records were not filled out. Documentation concerning the recovery room period was virtually nonexistent. No vital signs or progress notes were charted. There was no follow-up documentation evidencing a pelvic examination and no notation of patient complaints or symptoms. The records reviewed by Ms. Bernhardt during her inspection did not justify or adequately document the course of treatment for the respective patients. A subpoena was served on Respondent by one of Petitioner's investigators that required him to turn over all medical records pertaining to certain named patients. A similar subpoena was served on Mr. Angel Caso, the owner of MIEC. In response to the subpoena that was served on his client, Respondent's attorney informed the investigator that Respondent did not have any medical records other than those that would have been maintained at the MIEC. In response to the subpoena that was served on him, Mr. Caso turned over medical records pertaining to 45 patients. These records reflect that the Respondent was their attending physician. Mr. Caso could not be subpoenaed by Petitioner to compel his attendance at the formal hearing because he could not be located. The medical records that were turned over to Petitioner pursuant to subpoena were admitted into evidence as Petitioner's Exhibit 5 as records received by Petitioner during the course of an official investigation. There was no evidence that any other medical records pertaining to these patients exist. The medical records that constitute Petitioner's Exhibit 5 do not justify or adequately document the course of treatment of the respective patients. CASE NO. 93-6928 Section 458.319(5), Florida Statutes, provides, as follows: (5) The licensee must have on file with the department the address of his primary place of practice within the state prior to engaging in that practice. Prior to changing the address of his primary place of practice, whether or not within this state, the licensee shall notify the department of the address of his new primary place of practice. The Petitioner maintains the addresses of physicians by computer. There is no statute or rule that requires a physician to notify the Department in writing as to a change of address, but the Department's policy is to require that address changes be in writing and that the request for a change of address come from the physician. There was no written notification from Respondent to the Petitioner that his business address had changed prior to September 1992. At the time of the formal hearing, Respondent's business address was 102 East 49th Street, Hialeah. His former business address was 4821 West 4th Avenue, Hialeah, Florida. At the times pertinent to this proceeding, Respondent's home address was 14710 Day Pine Avenue, Miami, Florida. As of December 17, 1990, Petitioner had been informed of that address. Petitioner's investigator, Diane Robie, interviewed Respondent at his business address on East 49th Street on August 22, 1991. Respondent had been at this address for approximately eight months as of August 22, 1991. This new business address was reflected by Ms. Robie's report, which was filed with Petitioner on October 8, 1991, but that report did not trigger a change of the business address Petitioner maintained for Respondent in its computers. Respondent's license to practice medicine was scheduled to expire on December 31, 1991. In mid October 1991, the Department of Professional Regulation (Department) mailed a renewal notice to Respondent's former business address on West 4th Avenue. As required by Section 458.319(4), Florida Statutes, the Department routinely mails to the physician a renewal form that the physician must use to renew his license. This mailing takes place 60 days before the physician's license is scheduled to expire. This renewal form is generated by computer and is sent to the mailing address that is on record with the Department and maintained by computer. It was the Department's policy to try to notify a physician at his home address if a renewal notice is returned from a stale office address. There was no evidence that the renewal notice and the renewal form that was mailed to Respondent at his former address in October 1991 was returned to the Department as being an incorrect address. The evidence failed to establish what happened to the renewal notice that was mailed to Respondent in mid-October 1991. There was no further attempt by the Department following the mid-October 1991 mailing to notify the Respondent at his home address or business address that his license was about to expire. Respondent's license expired on December 31, 1991, and his licensure automatically reverted to inactive status pursuant to Section 458.319(3), Florida Statutes. Respondent made no effort to contact the Department until June 1992 at which time his secretary/office manager contacted the Department by telephone and advised that Respondent had not received the renewal documentation. On August 10, 1992, the Petitioner wrote to Respondent at his home address. This was the first written communication between the parties since the mid-October 1991 mailing. Respondent mailed a check in the amount of $500.00 for the renewal of his license to the Department in September 1992. On October 6, 1992, the Department wrote Respondent at his former address on West 4th Avenue and advised that prior to the renewal of his license, Respondent had to pay an additional fee in the amount of $350.00 for the processing of his renewal application and that he would also have to submit proof that he had earned required continuing medical education credits. On February 15, 1993, the Department sent to Respondent a letter at his East 49th Street address that provided as follows: This letter is in response to your (sic) to your submission to renew your Florida medical license which was received in the Board office on 9-15-92. Unfortunately the Board of Medicine cannot comply with your request until the follow- ing is received: $350.00 renewal fee. (in addition to the $500 already submitted) You did not fill out the Financial Respon- sibility portion of the renewal application, therefore, you will need to fill out a new form, and have it properly notarized. Please submit an affidavit for your active practice activities between January 1, 1992, and the present date. Any person applying for reactivation of a license must show either that such licensee main- tained tail insurance coverage which provided liability coverage for incidents that occurred on or after January 1, 1987, or the initial date of licensure in this state, whichever is later, and incidents that occurred before the date on which the license became inactive; OR that such licensee MUST SUBMIT A NOTARIZED AFFIDAVIT STATING THAT SUCH LICENSEE HAS NO UNSATISFIED MEDICAL MALPRACTICE JUDGMENTS OR SETTLEMENTS AT THE TIME OF APPLICATION FOR REACTIVATION. After July 1, 1992, you will need to submit copies of at least 40 hours of Category I CME earned between January 1, 1990, and the present date. Five of these hours must be in Risk Management. Also one hour of HIV/AIDS Category I CME needs to be submitted. Once the above items are received, we will proceed with the issuance of an active Florida medical license. (Emphasis is in the original.) Respondent met all requirements for the renewal of his medical license on March 16, 1993, the date on which his license was reactivated. Between January 1, 1992, and March 15, 1993, Respondent engaged in the practice of medicine in the State of Florida without an active license. Case 93-6929 Petitioner filed an Administrative Complaint against Respondent on April 27, 1988, which was subsequently referred to the Division of Administrative Hearings and assigned DOAH Case No. 88-5546. On February 28, 1989, the parties to that proceeding executed a "Stipulation" which settled the dispute. On April 19, 1989, the Board of Medicine entered a Final Order that accepted the Stipulation and ordered the parties to abide by its terms. Pertinent to this proceeding, Paragraph 4 of the Stipulation required the following: 4. Within one (1) year of the date of filing of the Final Order incorporating the terms of this stipulation, Respondent shall complete twenty-five (25) hours of Category I Continuing Medical Education in the areas of Risk Management and/or Medical Records Keeping. Such continuing education shall be in addition to that amount required for renewal of licensure. Category I Continuing Medical Education is a course approved by the American Medical Association as a top level course. In March 1990, Respondent completed a 25 hour course sponsored by Jackson Memorial Hospital in the area of "Medical Records Keeping". Respondent notified Petitioner on March 21, 1990, that he had completed this course. This was the only course that Respondent claimed to have taken in satisfaction of the Final Order entered in DOAH Case 88-5546. This course has not been designated as a Category I Continuing Medical Education course by Jackson Memorial Hospital. The Petitioner advised the Respondent that the course he had taken did not satisfy its order. Respondent thereafter requested that the matter be reviewed by Petitioner's Probation Committee. This request was granted, but the Probation Committee determined that the course was not acceptable. Respondent did not comply with the order until March 16, 1993.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein and which incorporates the following: Find Respondent not guilty of practicing beyond the scope of his competence in violation of Section 458.331(1)(v), Florida Statutes, as alleged in Count One of Case 93-6927. Find Respondent not guilty of practicing below the standard of care in violation of Section 458.331(1)(t), Florida Statutes, as alleged in Count Two of Case 93-6927. Find Respondent guilty of failing to keep proper medical records in violation of Section 458.331(1)(m), Florida Statutes, as alleged in Count Three of Case 93-6927. For this violation, Respondent should be reprimanded, assessed an administrative fine in the amount of $1,000.00, and placed on probation for a period of two years, to run concurrently with any other period of probation imposed on Respondent. Find Respondent not guilty of failing to properly supervise the nurse anesthetist when the patient experienced breathing difficulties in violation of Section 458.331(1)(dd), Florida Statutes, as alleged in Count Four of Case 93- 6927. Find Respondent guilty of failing to ensure that the crash cart was appropriately equipped, thereby failing to properly supervise the nurse anesthetist in violation of Section 458.331(1)(dd), Florida Statutes, as alleged in Count Four of Case 93-6927. For this violation, Respondent should be reprimanded and assessed an administrative fine in the amount of $250.00. Find Respondent guilty of violating the provisions of Section 458.319(5), Florida Statutes, and thereby violating Section 458.331(1)(x), Florida Statutes, by failing to timely notify Petitioner of his change of business address as alleged in Count One of Case 93-6928. For this violation, Respondent should be reprimanded and assessed an administrative fine in the amount of $250.00. Find Respondent guilty of violating the provisions of Section 458.327(1)(a), Florida Statutes, and thereby violating Section 458.331(1)(x), Florida Statutes, by practicing medicine in the State of Florida after his license expired as alleged in Count Two of Case 93-6928. For this violation, Respondent should be reprimanded and assessed an administrative fine in the amount of $1,000.00, and placed on probation for a period of two years, to run concurrently with any other period of probation imposed on Respondent. Find Respondent guilty of violating the provisions of Section 458.331(1)(x), Florida Statutes, by failing to timely comply with an order of the Board of Medicine alleged in Case 93-6929. For this violation, Respondent should be reprimanded and assessed an administrative fine in the amount of $250.00. DONE AND ENTERED this 31st day of January, 1995, in Tallahassee, Leon County, Florida. 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 31st day of January, 1995.
