The Issue Whether Petitioner is qualified to be licensed as a medical doctor in Florida by endorsement.
Findings Of Fact Petitioner Jeffrey Jad Gaier applied for licensure by endorsement in Florida by filing a written application in November of 1983 with the Board of Medical Examiners, which is within the Department of Professional Regulation. He made a personal appearance before the Foreign Graduate Committee of the Board of Medical Examiners in April 1984. After Petitioner's appearance before the Foreign Graduate Committee, the Foreign Graduate Committee made a favorable recommendation regarding Petitioner's application for licensure to the Board of Medical Examiners. However, the full Board of Medical Examiners voted to deny Petitioner's application for licensure. On May 21, 1984, the Board of Medical Examiners rendered an Order denying Petitioner's application for licensure as a physician by endorsement, stating as the grounds: Your application and supporting documentation does not provide sufficient information to demonstrate that you can practice medicine with reasonable skill and safety. See Section 458.331(3), F.S. More specifically, the clinical training you received while attending the American University of the Caribbean as disclosed within your documentation was determined to be insufficient insofar as the clinical training was not received at a hospital affiliated with a medical school approved by the Counsel [sic] on Medical Education of the American Medical Association. The denial of Petitioner's application for licensure by endorsement was taken before the Board of Medical Examiners for reconsideration on February 3, 1985. Counsel for Petitioner was present at the hearing. At that hearing, the discussion by the Board of Medical Examiners of the request for reconsideration clarified the basis for the denial of the medical license as being the overall inadequacy of the clinical training and not specifically because the clinical training was not obtained at teaching hospitals. Except for the purposes of clarifying the issue(s) herein the collegial actions of the board are irrelevant to the instant de novo proceedings. Petitioner received a B.S. degree from Clark University, Massachusetts and a Masters degree in science education from Florida Institute of Technology, August 1978. Petitioner was granted a medical degree by the American University of the Caribbean after being enrolled at that school for less than three years. During that time, Petitioner was on the campus of the American University in Montserrat, British West Indies for only eight months. There the class used prepared slides instead of gross tissue samples. Before that, Petitioner studied at the campus in Cincinnati, Ohio, where the class used rubber cadavers instead of human cadavers. All of the clinical training received by Petitioner as part of the requirements for the completion of the medical degree consisted of preceptorships at hospitals in south Florida which included Florida Medical Center, Plantation General Hospital, University Community Hospital, and Bennett Community Hospital. Dr. Neil Katz, Petitioner's principal expert medical witness, supervised Petitioner for six weeks in a preceptorship in Family Practice. Dr. Katz is a board-certified Family Physician and a fellow of the American Academy of Family Practice. He has been Chairman of the Emergency Room Department, a member of the Credentials and Qualifications Committee, and a member of the Intensive Care Unit Committee at University Hospital, Tamarac, Florida. He has taught both foreign medical students in a clinical setting and has briefly qualified as a preceptor for the University of Florida College of Medicine. Dr. Katz actually supervised Petitioner only for the six-week period at the very beginning of Petitioner's rotations. After that six-week period of time, he only "touched base" with Petitioner, seeing him on an informal basis in the cafeteria or at meetings. During the six weeks formal observation period, Petitioner accompanied Dr. Katz in his work in his office, during hospital rounds, at the emergency room, and for most other activities that Dr. Katz participated in, including committee meetings at the hospital. Petitioner took histories and did physicals on patients under direct supervision. Petitioner displayed enthusiasm and energy in his association with Dr. Katz and the rest of the program. Dr. Katz found Petitioner "barely acceptable" in three of the nine categories for which he was to evaluate Petitioner during the preceptorship. These categories were diagnostic acumen, therapeutics and management, and medical knowledge. In explaining that evaluation, Dr. Katz testified that although Petitioner was able to take a history and a physical examination, he was not able to make a diagnosis. In fact, Dr. Katz testified that Petitioner did not have truly acceptable knowledge at the time as to the various therapeutic modalities available to a physician. He encouraged Petitioner to do more reading. During his preceptorship with the University of Florida Medical School students in their first clinical semester, Dr. Katz also saw problems similar to those exhibited by Petitioner, specifically that the University of Florida students were not "super ready," so to speak, on diagnosing and doing differential diagnoses and therapeutics at that particular stage in medical school because they were still learning. I accept Dr. Katz' opinion that Petitioner had adequate exposure to the major diseases and injuries which are common to Family Medicine, sufficient for Petitioner to go into an internship, but in light of his lack of involvement with Respondent's other preceptorships in several different hospitals after the first six weeks, and in light of his specific testimony that in his professional opinion, American-trained students were far superior to the Caribbean-trained students at the same level in terms of general knowledge (TR-65-66), Dr. Katz' opinion that Petitioner did "quite good" at the end of the year and a half period is without adequate predicate and is not persuasive. Dr. Isidoro Dunn was the primary force in the arrangements for preceptorships. Dr. Dunn talked with each preceptor to work out areas which should be covered in their respective rotations. Each preceptor had a "fair amount of latitude" in deciding how to supervise the students. Petitioner was assigned by his school to do his clinical rotations in Florida. He did 14 weeks in internal medicine, 14 weeks in surgery, 10 weeks in pediatrics, 10 weeks in obstetrics/gynecology, 4 weeks in psychiatry, and 10 weeks in electives. This totals 62 weeks, not even close to two years which is the norm in medical schools in the United States. Petitioner was required to follow patients from admission to discharge in each specialty within each of these clinical rotations. Petitioner had didactic teaching on a daily basis, weekdays. Petitioner represents that he had specific didactic courses in hematology, EKG readings, pathology, orthopedics, cardiology, radiology, and gastrointestinal invasive procedures. In each subspecialty, he had a written examination after completion of the rotation, didactic teachings in each rotation, and was required to read medical journals. On Saturdays, Petitioner was required to participate in case conferences, make case presentations, and complete assigned reading from current medical journals. The case presentations necessitated review of patient records, laboratory tests, x-rays, and pathology slides. On "patient management reviews," the Petitioner was "exposed to" or "spent time in" the dialysis unit, pathology laboratory, intensive care unit, emergency room, gastrointestinal unit, blood lab, catherization department, radiology department, EKG unit, and cardiac surgery unit. Petitioner testified, and Dr. Katz confirmed, that there was an entity called the "Doctors' Club," which had a considerable amount of audiovisual equipment available for use 7 days a week, 24 hours each day. Practicing physicians used this media to obtain continuing medical education approved for credit by the American Medical Association. Petitioner represented that "on several days" he signed out equipment or reading material. There is no precise language in his testimony that he used the equipment or that he read the reading material, but drawing any other inference is straining the clear meaning of Petitioner's unrebutted testimony. Petitioner and the other students were required to use various materials from this service, but there is no evidence that Petitioner or other students were objectively checked by Dr. Dunn or their preceptors to verify that they had actually read or viewed the material assigned. Petitioner specifically testified that there was not necessarily any follow-up by the preceptors. Dr. Katz did talk with Petitioner about the reading assignments he gave. Petitioner was required to pass a competency examination for each rotation. Petitioner's clinical studies evaluation forms in his school records indicate no overall evaluation grades below "Good." Petitioner was required to attend and pass both a written and practical examination for a two-day Advanced Cardiac Life Support Course. This course is required even of board certified emergency room (ER) physicians. In Petitioner's opinion, this course was imperative for medical doctors who might work in an emergency room because they need to be very familiar with how to handle a patient presenting with a cardiac arrest, including the administration of drugs, "cardioversion" and "intubation." To the best of Petitioner's knowledge, Dr. Dunn was to report the students' progress to the dean of the American University of the Caribbean. However, the predicate for that testimony is hearsay, uncorroborated by any direct, credible evidence. As for the relationship with the university, Dr. Katz had no knowledge as to any arrangement between Dr. Dunn and the American University of the Caribbean or any counterpart-sponsoring organization in the United States. He did not know if there was any arrangement whatsoever. Dr. Katims was accepted as an expert physician witness, as an expert teaching fellow witness, and as an expert witness in medical applications and licensure. He testified that in the normal course of medical education in the United States, part of a student's medical education is clinical training, and that experience consists of bedside outpatient treatment and supervised training under the supervision of a faculty selected particularly for their knowledge, background, and interest in education and teaching. Dr. Katz testified unequivocally that a preceptorship is very different from a clinical rotation or a clerkship. A clerkship takes place in a teaching hospital, which is a very structured environment, wherein students make rounds in a very large hospital and are given instruction in an approved clinical structure. In contrast, a preceptorship gives students more knowledge about what private practice is like and it gives students a view of direct patient care, but does not replace a formal teaching setting in clinical medicine. As recognized above, in Dr. Katz' opinion, American-trained students were far superior to the Caribbean-trained students at the same level in terms of general knowledge. In Dr. Katims' opinion, Petitioner's clinical studies consisting of only four semesters were not sufficient for him to practice medicine with reasonable skill and safety. Dr. Katims testified concerning the importance of clinical training in medical education, commenting that clinical training is the sine qua non of the practice of medicine. In the usual clinical rotation, medical students are assigned to a particular area of a hospital and perform under the full-time supervision of attending physicians. In teaching hospitals, faculties are selected for their ability, interest, and dedication to education, as well as to the practice of medicine. The attending staff at a teaching hospital include house physicians, interns, and residents. Dr. Katims himself has served as a preceptor and testified that a preceptorship is one method of obtaining a minor portion of clinical training, but is very unstructured and unsupervised. Dr. Katims testified that preceptorship training is an inferior method of training because the quality of training depends totally on the quality of the physician to whom the student is assigned and the program is unstructured. There was no testimony that any of the preceptors that supervised, or purportedly supervised, Petitioner were faculty members of any medical school, let alone the American University of the Caribbean. Upon the Requests for Admissions and the Joint Pre-Trial Stipulation of the parties, it is found that: the State of Florida Board of Medical Examiners has granted a medical license to a Dr. Flugsrud-Breckenridge and a Dr. Cobb, both having non-teaching clerkships. Three doctors, Adela Fernandez, Andrew Gonzalez, and Manuel E Garcia, did their clerkships principally at the International Hospital (Miami), a non-teaching/non-medical school-associated hospital, and obtained Florida medical licenses. At least 25 foreign graduates received Florida medical licenses within the years 1981-1984 and did their clerkships principally in non-teaching/non-medical school associated hospitals. No further information appears of record by which the undersigned may determine any other similarities or dissimilarities of these licensees to each other and/or to Petitioner. Nor does the record divulge what, if any, other facts may have been considered in these cases. Petitioner is licensed to practice medicine in Georgia and is a resident of Florida. Petitioner passed the first time his Educational Commission for Foreign Medical Graduates' (ECFMG) examination was given in June, 1981. The examination is a prerequisite to acceptance in a medical residency program. The Federation of State Medical Boards of the United States, Inc.'s (FLEX) examination is recognized by all 50 states, including Florida. Petitioner took this examination after completing his rotations in Florida. Petitioner passed the June 1982 FLEX examination with an 84 percentile ranking. Fifty percent of this test is on patient management. This clinical competence examination was taken before Petitioner started his first year of residency. Petitioner had passed the FLEX examination, completed one year of residency, and obtained a medical license in another state, Georgia, by the time of the April 1984 application hearing. In Dr. Katims' opinion, Petitioner's successful passage of the FLEX examination in the 84 percentile does not show Petitioner to have had good clinical rotations, even though the FLEX test consisted of 50 percent on patient management. Dr. Katims did not feel that by the time Petitioner was in his fourth year of residency, this would be curative of deficiencies in the clinical semesters at a non-teaching hospital, but expressed the opinion that if Petitioner passes his internal medicine board examination and becomes board certified, his clinical deficiencies would be cured and Petitioner should then be granted a Florida medical license by endorsement. Dr. Katz opined that Petitioner presently possesses the medical knowledge, judgment and competency to act with reasonable skill and safety in the practice of medicine in Florida. Affidavits of Ira Spiler, M.D. and John R. Middleton, M.D. support similar opinions of these New Jersey medical physicians. Petitioner has completed three years (July 1, 1982 to June 30, 1985) of Internal Medicine residency at Raritan Bay Medical Center, Perth Amboy General Hospital, New Jersey. Petitioner is presently enrolled in a Nephrology Fellowship program, Medical College of Georgia, a teaching hospital located at, and affiliated with, the University of Georgia Medical School. Petitioner is currently eligible for board certification in internal medicine and will be certified in the event he passes the board examination taken September 10-11, 1985. Petitioner has submitted letters of Ira Spiler, M.D. and Salvatore Chiaramida, M.D., both of New Jersey attesting to Petitioner's good moral character, and no contrary evidence was turned up by the Board's investigation. The parties have stipulated that Rule 21M-22.18, Florida Administrative Code, is not applicable to Petitioner's situation.
Recommendation That the Florida Board of Medical Examiners enter a final order denying Petitioner a medical license by endorsement. DONE and ORDERED this 16th day of January, 1986, in Tallahassee Florida. ELLA JANE P. DAVIS 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 16th day of January, 1986.
The Issue Whether the Petitioner has met the requirements for licensure as a medical doctor in the State of Florida set forth in Section 458.311(1)(f), Florida Statutes (1986 Supp.), as required by Section 458.313(1), Florida Statutes (1986 Supp.)?
Findings Of Fact The Petitioner applied for licensure by endorsement as a medical doctor in Florida in September of 1986. Following notification by the Respondent that additional materials were required to complete the Petitioner's application, the Petitioner timely submitted the materials. In March of 1987, the Petitioner appeared before the Foreign Medical Graduate Committee of the Respondent. On April 5, 1987, the Respondent entered an Order titled Notice of Intent to Deny the Application for Licensure by Endorsement of Hien B. Nguyen. The stated basis for the denial of the Petitioner's application was that the Petitioner had failed to demonstrate that he graduated from a medical school. The Petitioner began medical school in 1967 at the University of Saigon, Faculty of Medicine, in Saigon, Republic of Vietnam. The Petitioner Successfully completed the six years required course work in medicine at the University of Saigon, Faculty of Medicine, in 1974. Following the completion of the course work required to earn a medical degree at the University of Saigon, Faculty of Medicine, the Petitioner was drafted into the Republic of Vietnam's military. He attended training for approximately six months immediately following the completion of his medical degree course work. The Petitioner was required to complete a thesis before being eligible for a medical degree from the University of Saigon, Faculty of Medicine. Upon completion of military training, the Petitioner commenced and completed work on his thesis. The Petitioner's thesis consisted of a translation of "Central Nervous Disease in Children," of Nelson's Pediatric Textbook, from English into Vietnamese. The Petitioner presented his thesis on April 14, 1975. Thuc R. Bach, M.D. attended the presentation of his wife's thesis on April 14, 1975, and witnessed the Petitioner's thesis presentation. The Petitioner was awarded a Certificate from the University of Saigon, Faculty of Medicine, on April 14, 1975, which indicated that the Petitioner had completed work necessary to be awarded a medical degree. The Certificate was issued temporarily. After approximately five years the Petitioner was required to return the Certificate at which time he could be issued an official diploma. On approximately April 30, 1975, the government of the Republic of Vietnam fell to the army of North Vietnam. Following the fall of the Republic of Vietnam, the Petitioner was confined to a concentration camp where the Petitioner acted as camp doctor. Following the Petitioner's release from confinement in 1976, the Petitioner worked as a physician at Saint Paul Clinic in Saigon until 1979. From 1977 until 1980 the Petitioner also attended and taught at a medical training center in Saigon. In October, 1980, the Petitioner escaped from Vietnam. He resided in Galang, Indonesia until March, 1981, when he moved to the United States. The Petitioner has completed the following since his arrival in the United States: December, 1981: Sat for the Federation Licensing Examination and was subsequently certified by the Federation of State Medical Boards; January 24, 1983: Certified by the Educational Commission for Foreign Medical Graduates; July, 1984 - June, 1985: Interned at the Cook County Hospital, Chicago, Illinois; July, 1985 - June, 1987: Residency program at Cook County Hospital, and February 19, 1986: Licensed as a physician by the State of Illinois (the license is currently active and unrestricted). The Petitioner was presented with a certificate from the Faculty- Council-in-Exile of the Faculty of Medicine of the University of Saigon dated April 20, 1981. The certificate affirms that the Petitioner "Successfully completed the course of study leading to the degree of Doctor of Medicine..." The certificate is signed by the Dean Emeritus of the University and Dao Huu Anh, M.D., Associate Dean of the University. Prior to the fall of the government of the Republic of Vietnam, graduates of the University of Saigon, Faculty of Medicine, were presented with a certificate authorizing them to practice as a physician without restriction upon completion of the required courses of study and a thesis. Graduates were not issued an Official Diploma until five years had passed since the issuance of their certificate. Although the Petitioner completed the required courses of study, presented his thesis and received a certificate authorizing him to practice as a physician, the Petitioner was not able to obtain an Official Diploma five years later because of the fall of the government of the Republic of Vietnam. In light of the fall of the government of the Republic of Vietnam, it is doubtful that the records of the University of Saigon, Faculty of Medicine are available or that the Petitioner could obtain an Official Diploma. The Petitioner is a graduate of the University of Saigon, Faculty of Medicine, a medical school.
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 endorsement as a medical doctor in the State of Florida. DONE AND ORDERED this 25th day of January, 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 28th day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2969 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 1. 2 2. 3 3. 4 4 and 5. 5 6. 6 7-10. 7 11-12. 13. The Petitioner worked at the training center from 1977 through 1980. 15. The Petitioner went from Vietnam to Indonesia in October of 1980. He did not travel to the United States until March of 1981. 10-12 Cummulative, summary of the evidence and unnecessary. Dr. Nghia Van Tran's letter was not accepted into evidence. 13 16. The last sentence is cummulative, a summary of evidence and unnecessary. The footnote is irrelevant. The burden of proof in this proceeding was on the Petitioner. The Respondent is not required to verify the signature of Dr. Dao. 14 10 and 17. 15 17-18. 16-18 Cummulative, summary of the evidence and unnecessary. The Respondent's Proposed Findings of Fact 1 1 and 3. 2-5 The Respondent's remaining proposed findings of fact are essentially summaries of the Respondent's inter- pretation of the evidence and argument concerning the evidence. The Respondent's interpretation of the evidence is rejected. The following is a brief discussion of why the Respondent's arguments have been rejected. The first two sentences are true and support the finding of fact that the Petitioner began medical school in 1967, completed his course work in 1974 and presented his thesis in April of 1975. See findings of fact 4-5 and 9. The third and fourth sentences are true but the Respondent has overlooked the fact that the Petitioner presented other evidence which supports his position. Therefore, even if the fifth sentence were correct, there is other evidence which supports findings of fact 4-5 and 9. The sixth sentence is irrelevant. Although the Board may have raised a question, the correct answer to that question is a matter of proof. The seventh sentence is true but irrelevant. The eighth sentence is not supported by the weight of the evidence. There was no testimony sufficient to support any finding of fact concerning Dr. Dao's signature on any document. Although the ninth sentence is correct, the weight of the evidence does not support the alleged fact set out in the tenth sentence. The eleventh sentence was taken into account in the weight given to Dr. Dao's statement. Although the twelfth sentence is correct the thirteenth and fourteenth sentences are not supported by the weight of the evidence. While it is true that the Petitioner's testimony with regard to when he completed his course work at the University of Saigon was not totally consistent, the weight of the evidence supports a conclusion that the Petitioner finished his course work in June of 1974. The Petitioner's explanation concerning the inconsistency in his testimony was credible. The first and second sentences are true. The third sentence is true but overlooks the fact that it corroborates non-hearsay evidence. The fourth sentence is law. The fifth sentence is true. The sixth and seventh sentences are true. The eight sentence is not supported by the weight of the evidence. The ninth and tenth sentences are true but they do not support the ultimate conclusion the Respondent suggests. It is possible that the Certificate in question could have been based upon other credible evidence. The first sentence is true. The second sentence is not supported by the weight of the evidence. The Petitioner testified that he completed his course work in 1974. The third sentence is true. The fourth and fifth sentences are not supported by the weight of the evidence. COPIES FURNISHED: Carolyn S. Raepple, Esquire Cheryl G. Stuart, Esquire Hopping, Boyd, Green & Sams 420 First Florida Bank Building Post Office Box 6526 Tallahassee, Florida 32314 M. Catherine Lannon, Esquire Assistant Attorney General Administrative Law Section Department of Legal Affairs Room 1601, The Capitol Tallahassee, Florida 32399-1050 Ms. Dorothy Faircloth Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Petitioner, David U. Ewing-Chow, filed an application for licensure by examination as a medical doctor with respondent, Department of Professional Regulation, Board of Medical Examiners, on February 24, 1984. The application was reviewed and considered by respondent at a meeting on December 2, 1984, and proposed agency action denying the application was issued on January 9, 1985. As grounds for denying the application, the agency stated that: . . . the applicant has not demonstrated to the Board that he is capable of safely engaging in the practice of medicine with reasonable skill and safety. See Section 458.311 (3), F.S. Further, the applicant has not graduated from medical school or college as required by Section 458.311(1)(b), F.S. The proposed agency action prompted this proceeding. In his request for a hearing, petitioner challenged the agency's signs, and contended he satisfied both objections raised by the agency. Petitioner first enrolled as a regular medical student in October, 1969 at the University of the West Indies in Kingston, Jamaica. He remained in the school's medical program until he failed the preclinical examination a second time in 1972. Because successful completion of that examination was required to remain in medical school, he withdrew from school and moved to England. There he successfully completed the conjoint preclinical examination administered by the Conjoint Society of Apothecaries Preclinicals in London, England. Having passed that examination, Ewing-Chow was readmitted in October, 1972 to the University of the West Indies as a non-degree seeking student to pursue clinical medical courses to qualify him to take the licensure examination in England. Although he was a special student, Ewing-Chow's curriculum was identical to the coursework required of medical degree seeking students. He completed the program in 1975, but did not receive a medical degree from the university. After completing his medical coursework, EwingChow returned to England where, based upon his medical education, he qualified to take the examination for a License in Medicine and Surgery administered by the Society of Apothecaries of London (Society). To qualify for this examination, one need not graduated from a medical school. The Society is not a school or university, and offers no instruction. Rather, it conducts examinations for a License in Medicine and Surgery, and is described in The World Directory of Medical Schools as a "nonuniversity licensing bod(y)." After passing the examination EwingChow received a "Diploma of Licentiate in Medicine and Surgery" from the Society. The Diploma of Licentiate is not a degree in medicine, but is a title or qualification which allows the individual to "temporarily" register for an internship. A one-year internship is required before one can be issued a certificate of registration by the General Medical Council (Council), a statutory body responsible for registering all medical practitioners in Great Britain. Like the Society, the Council grants no degrees, but merely issues a certificate of registration to qualified physicians. In the case at bar, Ewing-Chow completed a one-year internship program in both Trinidad and the University of West Indies. Thereafter, he was certified in full registration by the Council and was accordingly authorized to practice medicine in the United Kingdom. Full registration is the British equivalent to a license to practice medicine in the United States. He also received a license to practice in the European Economic Community. In addition, he is licensed to practice in Trinidad, Jamaica and Tobago. After spending some thirty months in Trinidad as a government physician, Ewing-Chow moved to Miami, Florida in September, 1980, and enrolled in the three-year residency program in the Department of Family Medicine at Jackson Memorial Hospital. He successfully completed this program in June. 1985 and is now chief resident in the family practice residency program. As such, he is in charge of supervising thirty-six other residents in the program. He is eligible to take the examination for board certification in the family practice specialty, but must first be licensed by the State of Florida in order to take the examination. Ewing-Chow has also submitted his credentials to the Educational Commission for Foreign Medical Graduates (ECFMG), and has passed the examination administered by that body. The evidence clearly demonstrates that Ewing-Chow is capable of safely engaging in the practice of medicine with reasonable skill and safety. This was attested to by the chief of family practice at the University of Miami School of Medicine at Jackson Memorial Hospital and is evident from Ewing-Chow's present responsibilities as chief resident in that program.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of David U. Ewing-Chow for licensure as a medical doctor by examination be DENIED. DONE and ORDERED this 26th day of March, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1986.
Findings Of Fact Jack I. Newcomer, a foreign medical school graduate, applied for licensure by endorsement and the Board of Medical Examiners considered his application on April 12, 1985. Newcomer's application was denied by Order of the Board dated May 9, 1985, on the following ground: The applicant's supervised clinical training was not obtained in either 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 Florida Administrative Code Rule 21M21.18[sic]. Pierre Andre, M.D., a foreign medical-school graduate certified by the Educational Commission for Foreign Medical Graduates (ECFMG) applied for licensure by endorsement. Andre had passed the ECFMG examination and also the Foreign Licensure Examination (FLEX). The Board considered his application, and denied said application on the ground that his supervised training 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 his clinical training was obtained as required by Rule 21M-22.18, Florida Administrative Code. The Board adopted Rule 21M-22.18, which took effect on November 28, 1984, and it provided: Foreign Medical Graduates: Qualification Requirements. Before any foreign medical school graduate, except a graduate of an approved school in Canada is admitted to take the written 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 medical school was obtained either in 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. 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 graduate of a medical school not accredited by the Liaison Committee on Medical Education, except a graduate of an accredited school in Canada, is admitted to take the written licensure 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 received in the United States as part of the curriculum 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 parties stipulated at the hearing that only Rule 21M-22.18 as originally enacted was applied to Petitioners and not the amendment which took effect March 13, 1985. According to Charles P. Gibbs, M.D., Assistant Dean for Curriculum at Shands Teaching Hospital and former chairman of the clerkship committee at Shands, 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. 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. Dr. Gibbs testified that written exams, such as FLEX or the National Board, are important in measuring a student's cognitive knowledge and determining minimum qualifications, but cannot measure clinical qualities of a doctor such as how he relates to patients and reacts in stress situations, how he works with colleagues, and how he communicates. Clerkships are important in determining a student's performance level in these clinical qualities. The Liaison Committee on Medical Education 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 required experiences in patient care (customarily called clerkships), are internal medicine, obstetrics and gynecology, pediatrics, psychiatry and surgery. Additionally, many schools require a clerkship in family medicine . . . . The curriculum must provide grounding in the body of knowledge represented in the disciplines that support the fundamental clinical subjects, for example, diagnostic imaging and clinical pathology. Students must have opportunities to gain knowledge in those content areas that incorporate several disciplines in providing medical care, for example, emergency medicine and the care of the elderly and disabled. In addition, students should have the opportunity to participate in research and other scholarly activities of the faculty. 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 schools that are not accredited and that are relatively new schools whose primary purpose is to train United States students rather than their own nationals. Dr. Katims observed that problems with the clinical experience offered at these schools arise because there are not enough teaching hospitals in some foreign countries, and therefore students cannot receive clinical training in those countries through a clerkship. Instead, they must arrange their own clinical experience, usually a preceptorship, in the United States. A preceptorship differs substantially from a clerkship in that it is usually either a one on one affiliation with a practicing physician with very little structured training, or occurs at an outpatient prepaid health plan facility. Dr. Katims testified that preceptorships do not meet the clinical training standards of the Liaison Committee on Medical Education, and do not represent supervised clinical training.
The Issue The issue in this case is whether Petitioner's application for a license by endorsement to practice medicine in the State of Florida should be granted or denied.
Findings Of Fact Petitioner is a medical doctor. Petitioner graduated medical school from the University of Miami in Miami, Florida, in May 1994. Petitioner signed an application for medical licensure by endorsement with the Board on January 9, 2003. On or about January 16, 2003, the Department of Health received Petitioner’s application for medical licensure by endorsement. Following receipt and review of the subject application, Petitioner was required to provide some additional information to the Board. Petitioner was eventually required to appear before the Credentials Committee of the Board to answer questions about his application. On October 17, 2003, the Board issued a Notice of Intent to Deny Licensure, in which the Board notified Petitioner of its intent to deny his application. That notice read as follows, in pertinent part: This matter came before the Credentials Committee of the Florida Board of Medicine at a duly-noticed public meeting on September 13, 2003 in Tampa, Florida[,] and the full Board on October 3-4, 2003, in Ft. Lauderdale, Florida. The applicant appeared before the Credentials Committee on September 13, 2003, and presented testimony regarding the application file. The application file shows: The applicant lied before the Committee and lied on the licensure application as to the following: the applicant took a leave of absence during his training; the applicant was placed on probation at 3 schools; the applicant did not finish his training in the normal time frame; and, the applicant answered #15 b, c, d and #31 incorrectly on the application. The applicant is guilty of violating Section 458.331(1)(gg), Florida Statutes, for misrepresenting or concealing multiple material facts at any time during any phase of a licensing or disciplinary process or procedure. Based on the foregoing, the Board may refuse to certify an applicant for licensure, or restrict the practice of the licensee, or impose a penalty, pursuant to Sections 458.3331(2) and 456.072(2), Florida Statutes. It is therefore ORDERED that the application for licensure be DENIED. Petitioner attended the following four postgraduate training programs (residency programs): Medical College of Pennsylvania; Sinai Hospital1; Wayne State University/Detroit Medical Center; and University of Medicine and Dentistry of New Jersey (“UMDNJ”). Petitioner’s dates of attendance in those four residency programs were as follows: Medical College of Pennsylvania from July 1, 1994 to June 30, 1995. Sinai Hospital from July 1, 1995 to June 30, 1999. Wayne State University/Detroit Medical from July 1, 1999 to June 30, 2001. UMDNJ from July 1, 2001 to June 30, 2003. Question number 15a on the application for medical licensure by endorsement asks, “Have you ever been dropped, suspended, placed on probation, expelled or requested to resign from a postgraduate training program?” Petitioner answered “yes” to question number 15a and submitted a written supplemental answer which stated, “I was placed on probation regarding the expectations of running a University service in a manner that kept attending physicians informed of patients’ clinical changes in July of 2000. Specific goals were given to me that I immediately fulfilled and was taken off probation in September of 2000 and remained in good academic standing until the time of my graduation.” On his application for licensure, Petitioner only admitted to being on probation at one residency program, Wayne State University/Detroit Medical Center. During the processing of the subject application, an employee of the Department of Health, Wendy Alls, advised Petitioner as follows by e-mail: “We are in receipt of your response to the inquiry from Wayne State University [Sinai Hospital], regarding your Residency from 7/95 to 6/99. It indicates that you were placed on probation and received negative reports. It also stated that limitations were placed upon you due to academic incompetence. Please respond.” On May 6, 2003, Petitioner submitted an e-mail response to Wendy Alls regarding his probation at Wayne State University [Sinai Hospital] which stated: “It is true that I did receive negative reports during my residency training from 7/95 to 6/99 for my work ethic. However, I was never formally placed on probation as per the guidelines of the Wayne State University. I, as well as the Graduate Medical Education Office, must receive formal written notification identifying the areas of deficiency and the duration of the probation period. Written notification must be submitted to both the GME office and myself after successful completion of the probation period. This was never done. In addition, no limitations or restriction were ever placed upon me due to academic incompetence or for any other reason for that matter.” Petitioner did not admit this on his initial application to the Florida Board of Medicine. Sinai Hospital submitted a Training Evaluation Form to the Board and stated on the form that Petitioner was on academic probation during his residency from 1996 to 1997. Sinai Hospital submitted a report to the Federation Credentials Verification Service (“FCVS”)2 and stated on the report that Petitioner was on academic probation during his residency from 1996 to 1997. Sinai Hospital reported that Petitioner was placed on probation during his residency in response to faculty concerns regarding both academics and behavior. While at Sinai Hospital, Petitioner was informed of the issues he needed to improve during his probationary period. These issues included, but are not limited to the following: Petitioner’s tardiness, sleeping during conferences, unavailability when on call, failing to follow hierarchy, and inability to carry his share of the workload. Petitioner admitted at the formal hearing he was told that he was on probation at Sinai Hospital. During his appearance before the Credentials Committee on September 13, 2003, Petitioner testified under oath, that he did not disclose the fact he was on probation at Sinai Hospital because he was never informed that he “was ever placed on probation.” A letter dated November 4, 1999, from Dr. Andrew Saxe (who was then the general surgery residency program director at Sinai Hospital) states that Petitioner was on “probationary status” at Sinai Hospital during his residency from 1996 to 1997. Dr. Andrew Saxe also noted Petitioner’s probationary status in a memo dated April 28, 1999, which Petitioner himself signed. Petitioner signed a memo dated December 18, 1996, stating that he was on “probationary status” at Sinai Hospital during his residency. Petitioner also signed a memo dated April 16, 1997, stating that he was “off probationary status” at Sinai Hospital during his residency. Wayne State University/Detroit Medical Center submitted a Training Evaluation Form to the Board and stated on the form that Petitioner was on academic probation during his residency from 1999 to 2000. Petitioner failed to fully disclose all of the reasons why he was placed on probation at Wayne State University/Detroit Medical Center. Wayne State University/Detroit Medical Center submitted a report to the FCVS and stated on the report that Petitioner was on academic probation during his residency for four months beginning in September 2000. The report stated that the probation was based on evaluations which cited “inadequate performances in clinical application of knowledge especially recognitions of own capabilities and limitations. There were also concerns over attention to details and work habits.” Petitioner’s supplemental answer to question 15a does not fully disclose his deficiencies in clinical knowledge and work habits at Wayne State University/Detroit Medical Center. At all times material to this case, Dr. Mark Granick has been the director of the plastic surgery program at UMDNJ. UMDNJ submitted a Training Evaluation Form to the Florida Board of Medicine and stated on the form that Petitioner was on academic probation during his residency “due to poor in-service exam scores.” After UMDNJ submitted the Training Evaluation Form, Petitioner contacted Dr. Mark Granick to discuss his probation at UMDNJ and the “program’s specifications in defining probation.” Dr. Mark Granick was prompted to send a second Training Evaluation Form to the Board, changing the substance of the first submitted Training Evaluation Form. The second Training Evaluation Form to the Board was submitted along with a letter from Dr. Mark Granick dated February 14, 2003, which stated he made an error in filling out the original form. When Dr. Mark Granick drafted Petitioner’s Fourth- Quarter Report on May 31, 2002, he was “documenting the reasons why I wanted him on a period of supervision, which I thought of as probation at that point in time.” Petitioner’s Fourth-Quarter Report dated May 31, 2002, was in fact signed by Petitioner. The Fourth-Quarter Report documented that Petitioner was “deficient on multiple occasions” with regard to Patient Care; Petitioner had a “poor acquisition of a central knowledge base in Plastic Surgery”; Petitioner’s tardiness needed to “stop”; Petitioner demonstrated “immaturity” in interpersonal skills; and, Petitioner had “been acting in an unprofessional manner.” Petitioner signed a memo dated January 8, 2003, stating that he was placed on “probation” at UMDNJ during his residency due to “poor performance on the in-service examination and overall perception of weakness in academic level.” Dr. Mark Granick testified that when he used the term “probation” in the January 8, 2003, memo, the word was consistent with his own thinking, and not consistent with university definitions. Dr. Mark Granick stated that Petitioner indicated to him during their meetings at UMDNJ that Petitioner understood he was on “probation” at UMDNJ. Dr. Mark Granick testified that in his mind he considered it “probation” when he put Petitioner under direct supervision, gave Petitioner academic support, and advised Petitioner of the areas in which he needed to improve. Although the period of academic supervision imposed on Petitioner did not qualify as probation at the university level, it did constitute “probation” in the mind of Dr. Mark Granick and was understood to be “probation” by the Petitioner himself. Petitioner misrepresented to the Board the circumstances which caused him to be placed on probation at Wayne State University/Detroit Medical Center. He also misrepresented his understanding of his probationary status at both Sinai Hospital and UMDNJ. Question number 15c on the subject application asks: “Did you take a leave of absence during a postgraduate training?” Petitioner answered “no” to question number 15c on the application. But Wayne State University/Detroit Medical Center documents show that Petitioner took a month-long leave of absence. Petitioner asserts that his month-long leave of absence from Wayne State University/Detroit Medical Center was not a “leave of absence” because he used a combination of sick time and vacation time. However, Petitioner signed a Family Medical Leave Act Certification asking for a leave of absence due to his being “unable to perform work of any kind” while training at Wayne State University/Detroit Medical Center. Petitioner requested a leave of absence for one month from his training program at Wayne State University/Detroit Medical Center in March of 2001. While on leave in March 2001, Petitioner was hospitalized for benzodiazepine poisoning, pace maker insertion, and possible seizure disorder secondary to cardiac rhythm disturbance. After Petitioner’s hospitalization, Petitioner needed to have a letter clearing him to resume unrestricted activity. During this period of time Petitioner was also told that he should avoid driving motor vehicles. Once questioned by the Credentials Committee, Petitioner admitted to taking a leave of absence in 2001 while training at Wayne State University/Detroit Medical Center. Prior to being questioned by the Credentials Committee, Petitioner concealed from the Florida Board of Medicine that he took a leave of absence while at Wayne State University/Detroit Medical Center. Question number 31 on the subject application asks “In the last five years, have you been treated for or had a recurrence of a diagnosed physical impairment?” Petitioner answered “no” to question number 31 on the application. However, after questioning by the Credentials Committee, Petitioner admitted he had a pacemaker. After his hospitalization, Petitioner had to be cleared by his doctors to return to his duties as a resident. Despite Petitioner’s own definition of “physical impairment,” he concealed his hospitalization, pacemaker, and possible seizure disorder from the Board. Question number 15b on the subject application asks “Was attendance in a postgraduate training program for a period other than the established time frame?” Petitioner answered “no” to question number 15b on the application. Petitioner attended the General Surgery postgraduate training program at Medical College of Pennsylvania for one year from July 1, 1994, to June 30, 1995. Petitioner attended the general surgery postgraduate training program at Sinai Hospital for four years from July 1, 1995, to June 30, 1999. Petitioner attended the general surgery postgraduate training program at Wayne State University/Detroit Medical Center for two years from July 1, 1999, to June 30, 2001. As indicated by the foregoing, Petitioner spent seven years attending general surgery postgraduate training programs. Physicians applying for licensure by endorsement in Florida are required to show that they have completed an “approved residency program” in a “slotted” position. The Accreditation Council for Graduate Medical Education (“ACGME”) accredits postgraduate training programs, sets the standards for training programs, and determines the number of “slotted” positions a program has. The Board considers an “approved residency program” to be one that has been accredited by the ACGME. The Board relies on the ACGME in making determinations for licensure. The Board relies on the information provided in the ACGME directory when processing applications. The ACGME established time frame for completing a general surgery postgraduate training program is five years. The ACGME-established time frame for completing the postgraduate training program in general surgery at Medical College of Pennsylvania, Sinai Hospital, and Wayne State University/Detroit Medical Center was five years when Petitioner attended these programs. Thus, a five-year general surgery residency was considered standard by ACGME, the Medical College of Pennsylvania, Sinai Hospital, Wayne State University/Detroit Medical Center, medical educators, and residents like Petitioner. Therefore, Petitioner would have had to complete all his postgraduate training in general surgery within five years in order to have finished his training within the “established time frame.” It took Petitioner seven years to complete all of his postgraduate training in general surgery. Petitioner’s attendance in his general surgery postgraduate training programs was for a period other than the normal time frame established by both ACGME and by the programs he attended. Question number 15d on the subject application asks, “Were you required to repeat any of your postgraduate training?” Petitioner answered “no” to question number 15d on the application. A memo dated December 3, 1997, written by Dr. Andrew Saxe (general surgery residency programs director at Sinai Hospital) and placed in Petitioner's training file, included the observation that "this is a consequence of his being asked to repeat the current clinical year." In a memo dated April 28, 1999, also written by Dr. Andrew Saxe and also placed in Petitioner’s training file, Dr. Saxe stated, “in light of prior probation and concerns regarding clinical competency an additional year of training would be of service to him.” At final hearing, Petitioner himself explained that each postgraduate year (“PGY”) runs from July 1st of one year to June 30th of the following year. On the Verification of Postgraduate Medical Education form submitted to FCVS, Sinai Hospital listed Petitioner as only completing PGY 2 through PGY 4 while attending their program. On the Verification of Postgraduate Medical Education form submitted to FCVS Wayne State University/Detroit Medical Center listed Petitioner as completing PGY 4 and PGY 5 in their program. While attending his postgraduate training programs, Petitioner was continuously evaluated, as evidenced in his training files. A review of Petitioner’s evaluation forms demonstrates that Petitioner was evaluated as a PGY 2 from July 1995 through June 1997. That means Petitioner was a PGY 2 for two years. A review of Petitioner’s evaluation forms demonstrates that Petitioner was evaluated as a PGY 4 from July 1998 through June 2000. That means Petitioner was a PGY 4 for two years. Therefore, Petitioner repeated both PGY 2 and PGY 4 levels of training. As demonstrated by Petitioner’s postgraduate training files, Petitioner’s education levels of training did not consistently progress through the calendar years. Petitioner concealed from the Board that he had to repeat PGY 2 and PGY 4. Over the course of the last year, the Board has licensed at least 55 applicants who were found to have made one or more material misrepresentations on their licensure applications, or in the course of the licensure process.3 Over the course of the last year, the Board has licensed a number of applicants alleged to have made material misrepresentations regarding one or more of the issues raised in this matter. In a few cases that are arguably similar to the facts presented in this case, the Board has granted the license application, but with conditions that required the applicant to file a new application, to pay a new application fee, and to pay an administrative fine in the amount of $5,000.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order denying Petitioner’s application for medical licensure by endorsement. DONE AND ENTERED this 29th day of April, 2004, 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 29th day of April, 2004.
Findings Of Fact The Petitioner made application to the Board and its physician assistant committee for certification as a physician assistant, pursuant to Section 458.347(7)(b), Florida Statutes. After three appearances before the committee, the committee recommended and the Board voted to deny his application by order of February 9, 1993. That order indicated that the Petitioner had failed to demonstrate to the committee's satisfaction that he had received a medical education, as the term is defined and employed in Chapter 458, Florida Statutes (specific citations omitted). The Petitioner timely sought a formal proceeding to contest that denial, which resulted in the matter being referred to the Division of Administrative Hearings and the undersigned Hearing Officer for conduct of that proceeding. The Respondent is an agency of the State of Florida charged, in pertinent part, with administering the provisions of Chapter 458, Florida Statutes, and related rules involved in regulating entry and licensing of persons entering the physician assistant professional field. Among other duties, the Respondent agency is charged with ascertaining whether an applicant for certification has completed an appropriate medical education so as to be entitled under the relevant statutes for admission to the certification examination. Such a determination was made in this case, which resulted in the denial of the application and this formal proceeding. In addition to finding in its order of February 9, 1993 that, in effect, the medical education of the Petitioner was deficient under the relevant statutes, the Board also determined that there were discrepancies in the applications on file with the Board and in the supporting documentation and testimony before the Physician Assistant Committee (Committee). The Board also determined that due to the extended length of time since the Petitioner last worked in the field of clinical medicine and because of the length of time since any significant medical education or training had taken place, the Petitioner had not established that he was currently able to practice as a physician assistant with reasonable skill and safety to the public, as envisioned by Sections 458.331(4) and 458.301, Florida Statutes (1991). Prior to the hearing, the Hearing Officer granted a motion to amend the denial order to add as a basis for denial the Petitioner's alleged ineligibility to sit for the examination for certification because of failure to pay the required fee. See Section 458.347(7)(b), Florida Statutes. A passing score on the certification examination is a prerequisite to being certified as a physician assistant. There are certain discrepancies between the applications that the Petitioner filed with the Board, as well as with regard to documentation submitted to the Committee and to the Board. The Petitioner filed three applications with the Board. On each, he, in essence, swore that he had carefully read the questions on the application, had answered them completely without reservation, and that all statements were true and correct. On all of the applications, the questions required the applicant Petitioner to be specific as to the medical schools attended, to account for each year, and to list all universities and colleges attended where medical training was received. On the first application, the Petitioner stated, in response to the question to list all universities or colleges attended or where medical training was received, that he attended Universidad Central De Este (UCE) from November 1977 to August 1980, and that he attended CETEC University from August 1980 to June 1982. When he appeared before the Committee, he acknowledged also attending classes or receiving training at Ross University (formerly known as the University of Dominica). After that appearance before the Committee, he filed a second application and in response to the same question concerning his medical education, he responded that he had attended UCE from November 29, 1977 to August 24, 1980; that he attended the University of Dominica (Ross) from August 24, 1980 to August 7, 1981; and that he attended CETEC University from August 24, 1980 to June 12, 1982. Thus, he claimed that his attendance at Ross and CETEC actually overlapped. Documentation submitted, contained in Petitioner's exhibit 17 and in the Respondent's composite exhibit, reveals that he was not accepted as a student at CETEC until August 7, 1981, however. Subsequently, he filed a third application. On this application, he, in response to that same question, as pertinent to this issue, listed attendance at UCE from November 29, 1977 to August 24, 1980; at University of Dominica from August 24, 1980 to August 6, 1981; at CETEC from August 7, 1981 to June 12, 1982; at CJ Institute from April 26, 1982 to June 8, 1982; at Adelphi University from April 4, 1981 to June 12, 1981; and CETEC (graduation) on June 12, 1982. The Petitioner, at the hearing, admitted that he had not completed an application listing Ross University until after the Committee already knew he had attended Ross. When asked at the hearing why he omitted Ross from his first application, he testified that he did not put it on the application because he did not consider that he had attended Ross. This response as to why he had made a misrepresentation on his initial application is lacking in credibility. His own testimony and evidence established that he took examinations at Ross on August 24 and 25, 1980, but he paid $9,000.00 in entrance fees to Ross in the fall of 1980, that Ross arranged a psychiatry clerkship, that he took a course in physical diagnosis specifically because Ross informed him that he needed to do so in order to take future medical clerkships; that he paid $75.00 in the spring of 1981 for malpractice coverage for those clerkships under the alleged auspices of Ross and that he was still considered a student at Ross when he began his pediatric clerkship. If he did all of this educational effort supposedly in connection with Ross University, according to his own testimony and other evidence, it is unbelievable that he could not have considered that he had attended Ross University when he filled out the subject application. His own sworn affidavit submitted to the Board explaining why he did not list Ross on the applications stated that he did not list Ross University because he did not think that there were any transcripts to indicate that he had attended Ross. He testified and stated on affidavits to the Board that the reason he transferred from Ross to CETEC was because of a sudden demand by Ross for an additional $24,000.00 in order for him to continue his education there, in excess of the amount the initial agreement had provided for. Even if that is the case, it does not change the fact that, by his own testimony, he knew that he had attended Ross University and did, in fact, attend it. Thus, under all of these circumstances, it is apparent that, for whatever reason, he intentionally misrepresented this portion of his educational history. Another discrepancy or area of misrepresentation occurred on the three applications concerning the medical clerkships which the Petitioner supposedly completed. On all three applications, he was requested to specifically describe and account for each clerkship, giving specific dates, type of rotation, the name and location of the hospital, institution or individual where or with whom the clerkship was performed or supervised. He was required to list all affiliated universities or colleges. In responding to this question, he listed on his first application the following: Psychiatry October 13, 1980 to January 1, 1981. Pediatrics July 13, 1981 to December 4, 1981. Internal medicine September 7, 1981 to October 5, 1981. Internal medicine October 5, 1981 to February 1, 1982. Surgery February 1, 1982 to April 30, 1982. OB/GYN May 1, 1982 to June 6, 1982. On the second application, he added a third internal medicine clerkship stating that it took place from October 3, 1981 to February 28, 1982. It thus overlapped his surgery clerkship. On his fourth application, he added a clerkship for radiology, showing that that clerkship had taken place from February 1, 1982 to April 30, 1982. During parts of February 1982, the Petitioner was taking clerkships in three subject areas at the same time, internal medicine, surgery, and radiology, if the disclosures on his third application are true. In discussing the radiology clerkship on cross- examination, the Petitioner acknowledged that it was somewhat of a combined surgery and obstetrics and gynecology clerkship as part of the same program. The Petitioner received an M.D. degree from CETEC. He began his medical education at UCE. He attended this university as a resident student on its campus. His transcript from UCE shows a lack of a passing score on nine courses. Ross University wrote a letter to him dated June 16, 1981, which he, in turn, provided to the Board, to the effect that he needed transcripts from UCE showing passing scores in histology, biochemistry, neuroanatomy, micro- biology, or that he would otherwise receive F's in those courses. However, the later CETEC transcript shows that CETEC "convalidated" those four courses, even though there was no evidence that he passed them. Convalidation means that the courses were accepted as having been taken and passed at another school. In fact, the accuracy and sufficiency of his medical education is complicated by the fact that his CETEC transcript credits him with courses as having actually been taken at CETEC that even the Petitioner acknowledges were not actually taken at CETEC, such as: community health III and IV, human behavior III, physiopathology, and family medicine. His speculation as to what courses he took at UCE must have counted at CETEC misses the point that CETEC does not "count" them as convalidated, but as taken at CETEC. These discrepancies bring into question the validity of his CETEC education and the documentation submitted regarding it. Whether the inaccuracy is the Petitioner's or attributable to the fault of CETEC is of no moment in determining whether the Petitioner actually received the medical education claimed or the medical education actually "documented". The Petitioner called into question Ross University's record-keeping accuracy, blamed Ross for changing its requirements, for losing his records, and allegedly reneging on certain promises, such as counting courses he supposedly previously took at UCE. However, the Petitioner has not shown any explanation of the CETEC record-keeping "errors" which give him credit for completion of courses at CETEC which he did not even take at CETEC, for his completion of courses at UCE which UCE documents as incomplete, nor for his completion of courses or credits at Ross for which there is no documentation either. It is also noted that he "attended Ross" without ever going to its campus and attended "CETEC" by only appearing on campus for his graduation. Additionally, besides the discrepancies in the academic courses established, there were a number of discrepancies related to the clerkships and preparation for the clerkships. The first of these was that he stated that he had to take a course in physical diagnosis before he could take a pediatrics clerkship through Ross. He therefore obtained an old family friend, Dr. Fleisher, to teach him physical diagnosis. Additionally, he took two nursing courses in physical diagnosis at Adelphi University. Dr. Fleisher is not an M.D., however, but rather is a podiatrist. Dr. Winchester, testifying as an expert in the medical field at hearing, established that a podiatrist cannot teach a physical diagnosis course sufficiently detailed and thorough for a medical student seeking an M.D. degree because a podiatrist is trained, experienced and qualified only to practice at or below the knee. When podiatrists are on hospital staffs in Florida, they may admit patients for surgery, but they must have an M.D. perform the history and the physical examination because of their limited expertise. See, Section 461.003(3), Florida Statutes. A medical student cannot obtain the appropriate education and physical diagnosis by taking a nursing course. In fact, physical diagnosis is an integral part of any quality medical education program and, although it may not be taught as a separate course in all of the accredited medical schools in the United States, it is taught as part of the ongoing education by the faculty of the medical school itself. Students are not sent off to find their own tutors or to attempt to obtain physical diagnosis training from taking nursing school courses in medical schools or medical education programs which are deemed in Florida to be programs or schools which have furnished their successful graduates an adequate medical education. It is thus found, based upon Dr. Winchester's testimony, that the Petitioner's education under the auspices of Ross or CETEC, whichever it was, did not constitute a medical education with regard to the physical diagnosis education. The clerkships were not taught by faculty members of medical schools or in teaching hospitals. In fact, the Petitioner began the pediatrics clerkship under the auspices of one school and finished under the auspices of another school. As established by Dr. Winchester at hearing, this would be unheard of in an accredited medical school in the United States. Since the clerkships are supervised by faculty of the medical school, a student would not transfer medical schools without having to change from one school's clerkship program to another. In addition, the clerkships are characterized by physicians writing letters of verification as to their clerkships or observerships. An observership is an educational experience in which a student only observes what is going on with regard to a particular procedure and does not actually participate. Finally, the testimony revealed that the Petitioner received clinical credit for taking an examination preparation course. This, too, would be unacceptable in a legitimate medical education setting, as shown by Dr. Winchester. Additionally, it is noted that three of the clerkships, internal medicine, surgery, and radiology all overlapped in some point in time, with all three being taken during February of 1982. A clerkship is essentially a full- time experience. A medical education, as that term is used in Florida, does not contemplate taking multiple clerkships at the same time. It is expected that a medical student will give full attention to the area of study and to the patients to which the student is assigned during the clerkship. This cannot be done if three clerkships are being performed at the same time. That this might be perceived as inadequate, even by the Petitioner, is evident in his letter of November 11, 1992 to the Board in which he stated that he had not mentioned his radiology clerkship previously because it overlapped his surgery clerkship. In summary, as to the clerkships, it is determined that they were not of the quality required to be considered a medical education in the State of Florida. This finding is based upon the testimony of Dr. Winchester, which is accepted over that of the Petitioner. Ability to Practice with Reasonable Skill and Safety The testimony and evidence of record does not indicate that the Petitioner has had an adequate medical education. In addition to the inadequacies in his medical education described in the above Findings of Fact, he has not practiced medicine since his graduation from medical school in 1982 nor has he had employment or practice experience related to the field of medicine. He has not worked in a hospital, doctor's office, clinical laboratory, or any other setting in which he might keep his medical knowledge current. He has taken a large number of continuing medical education courses of late, since he filed his initial application. The concept of continuing medical education, however, is that a person should be continually building on an actual basic medical education. The Petitioner has not demonstrated that he is currently able to practice medicine with reasonable skill and safety because of this lack of continuing medical experience and education when added to the basic inadequacy of his underlying medical education, as proven by the evidence in this record. Examination Fee Section 458.347(7)(b)1., Florida Statutes, requires that an applicant pay the application fee and the examination fee. This statutory provision specifically provides that the applicant must pay the fee for the examination and if he is later deemed ineligible to take the examination, then the fee will be refunded. The Petitioner admits that he never paid the examination fee. He insists that he should not have to pay the fee until after he is declared eligible for the examination. While one can understand the applicant feeling that he should not have to pay the fee until after being ruled eligible, the legislature decided otherwise and directed that the fee be paid in order for an applicant to be considered eligible for the examination on a threshold basis. Ms. Faircloth testified that the names of students who were to take the examination have to be sent to the Bureau of Examination Services prior to the examination so that expense and other arrangements can be made for the correct number of examination booklets and proctors for the practical examination. This is a practical policy reason underlying the passage of the statute providing for the advance payment of the fee and for the manner in which the agency interprets that statute. Educational Commission for Foreign Medical Graduates Examination. The Petitioner submitted evidence that he had obtained a score of 65 on the Educational Commission for Foreign Medical Graduates Examination (ECFMGE). He thus maintained at hearing that he was eligible for certification as a physician assistant simply because he had received a score of 65. This evidence was presented and admitted over objection by the Respondent on the grounds that the Respondent had not been placed on notice of such issue because it was not raised in the petition. Be that as it may, the Petitioner has failed to establish eligibility for examination under that provision for the reasons stated in the Conclusions of Law below.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that a Final Order be entered by the Board of Medicine denying the Petitioner's application for certification as a physician assistant. DONE AND ENTERED this 12th day of October, 1993, in Tallahassee, Florida. P. MICHAEL RUFF 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 13th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1310 Petitioner's Proposed Findings of Fact 1-5. Accepted. 6. Rejected, as not in itself dispositive of the issue presented. 7-15. Accepted. 16. Rejected, as unnecessary and immaterial. 17-23. Accepted. 24. Accepted, but not itself dispositive of material issues. 25-30. Accepted, in part, but subordinate to the Hearing Officer's findings of fact on this subject matter and to some degree not supported by the preponderant evidence of record. 31-33. Rejected, as immaterial. 34-35. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, although the fact that he took a physical diagnosis course from Dr. Fleischer is accepted. Rejected, as not itself materially dispositive of the relevant issues. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not in itself dispositive of material issues. 39-43. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter and not in themselves materially dispositive findings of fact. 44. Rejected, as not supported by the preponderant evidence of record. 45-46. Accepted, but not in themselves materially dispositive. 47. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 48-50. Accepted, but not in themselves materially dispositive findings of fact. 51-60. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely in accord with the preponderant evidence of record. 61-73. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter and not in their entirety materially dispositive. Rejected, as not entirely in accord with the preponderant evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not itself material, and subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not itself materially dispositive. 77-84. Accepted, in part, but subordinate to the Hearing Officer's findings of fact on this subject matter and not in themselves materially dispositive. 85. Accepted. 86-98. Accepted, but not in themselves materially dispositive, and subordinate to the Hearing Officer's findings of fact on this subject matter. 99-101. Accepted, but not in themselves material. Respondent's Proposed Findings of Fact 1-31. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. COPIES FURNISHED: Robert J. Boyd, Esquire BOND & BOYD 411 East College Avenue Post Office Box 26 Tallahassee, FL 32302 M. Catherine Lannon, Esquire Assistant Attorney General The Capitol, PL-01 Tallahassee, Florida 32399-1050 Ms. Dorothy Faircloth Executive Director Board of Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esquire General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The issues presented concern the question of whether Dr. Paul Joseph Rucinski (Petitioner) has completed the prerequisites for standing the license examination of the State of Florida, Department of Professional Regulation, Board of Medicine (Respondent). This examination is known as the FLEX examination. In particular, Petitioner has been denied the opportunity to take this examination based upon the perception held by the Respondent that Petitioner did not complete core clerkship training in internal medicine, one of the prerequisites to undergo the examination session.
Findings Of Fact Petitioner attended medical school at Ross University in the British West Indies and received his medical degree. Consequently, for purposes of license examination in Florida, Dr. Rucinski is considered to be a foreign medical graduate. Part of the medical training in his undergraduate course work was received in the United States. This education was in association with completion of clerkships necessary to obtain his medical degree. An organization known as the Jacksonville Health Education Program, constituted of certain hospitals in the city of Jacksonville, Florida, was providing clerkship training for medical students during the time within which Petitioner received his clerkship training. The Jacksonville Health Education Program (JHEP) was affiliated with the University of Florida School of Medicine and as such was part of that institution's educational program. In this connection, Petitioner was referred to JHEP as an organization which could arrange for his clinical clerkship training. As described in Petitioner's Exhibit 4 admitted into evidence, Petitioner received clerkship training in psychiatry, ob/gyn, surgery, pediatrics, family practice, dermatology, anesthesiology, general surgery, emergency room medicine and critical care, all through JHEP. Respondent takes no issue with the sufficiency of that training to establish credentials for license examination in Florida. This point of view is held because Respondent is convinced that the institutions within which the training in the various specialties was conducted were allopathic institutions. The only contention in this cause arises based upon the Respondent's belief that the clerkship training which Petitioner received in internal medicine was not given in an institution associated with JHEP and did not have allopathic emphasis. Instead, the focus of the training in internal medicine was alleged by the Respondent to be osteopathic. This speaks to core clerkship training the Petitioner received in internal medicine at Jacksonville General Hospital, Jacksonville, Florida, now known as Jacksonville Medical Center. The period of time within which the training was received was November 5, 1982, to January 27, 1983, and again on April 11, 1983, to June 17, 1983. The clerkship in internal medicine was supervised by Dr. Glenn J. Gerber, an osteopathic physician. According to Dr. Gerber, Petitioner successfully completed his core clerkship training in internal medicine as evidenced by the evaluation forms set forth in Petitioner's composite Exhibit 7 admitted into evidence. Although Dr. Gerber is not licensed pursuant to Chapter 458, Florida Statutes, to practice allopathic medicine, he was board certified by the American Board of Internal Medicine in the field of internal medicine effective 1978. This board is a board pertaining to allopathic medicine. Moreover, Dr. Gerber's unrefuted testimony establishes that training in internal medicine for allopathic medical students versus osteopathic medical students does not differ. To his understanding, textbooks do not exist which deal with osteopathic internal medicine separate and apart from allopathic internal medicine. During the time that Dr. Gerber taught at the Jacksonville General Hospital, to include the time of instruction pertaining to Petitioner, other students who sought medical degrees in allopathic medicine were involved in training which he conducted. Dr. Gerber served as the director of clinical education for the Jacksonville General Hospital during the period 1981 through 1984. The nature of the internal medicine training which Petitioner received through Jacksonville General Hospital was under the auspices of an internal medicine service for students as well as residents. The daily functions of the core internal medicine training included daily rounds where patients were met who had been admitted the night before and involvement with patients who were being managed on an ongoing basis. This training included frequent pathology rounds, cardiology rounds almost daily and radiology rounds daily. Typically, different topics were considered which had been assigned the night before. An example would be miocardial infraction. Discussions were entered into on current management and therapy. On October 18, 1976, Jacksonville General Hospital was informed by letter that it had been accepted as a member of the JHEP Consortium. This correspondence was from D. J. Lanahan, president of the JHEP Board of Trustees and appears on the stationery of J. Hillis Miller Health Center, College of Medicine, University of Florida, Jacksonville Division. A copy of the letter is found as Petitioner's Exhibit 10 admitted into evidence. This correspondence does not set forth a circumstance whereby Jacksonville General Hospital is received as a member for purposes of offering core clerkship training in allopathic medicine, nor does it establish a contrary position. On the other hand, Lois Gray, director of medical legal affairs at Jacksonville Medical Center, offered unrefuted testimony that Dr. Gerber held a faculty appointment with JHEP. Petitioner's Exhibit 11 admitted into evidence, which describes the nature of JHEP's affiliation with the University of Florida, J. Hillis Miller Health Center, speaks to the concept of undergraduate medical education but it is silent on the question of Jacksonville General Hospital's involvement in the education of undergraduate medical students and their clinical clerkship training. Respondent's Exhibit 4 admitted into evidence concerns the fact that the Jacksonville General Hospital in the years 1982 and 1983 was associated with the American Osteopathic Association and provided internship programs and residency programs related to osteopathic medicine; however, this excerpt of the yearbook and directory of osteopathic physicians does not exclude the possibility of affiliation with the accrediting organization related to hospitals that provide allopathic care. In fact, Jacksonville General Hospital was recognized as an allopathic facility by the Joint Commission on Accreditation of Hospitals in the relevant time frame. Further, an excerpt of the 1982-83 directory of residency training programs accredited by the accreditation council of graduate medical education, a complimentary copy from the American Medical Association, was offered and received as Respondent's Exhibit 5 admitted into evidence. This document speaks to the provision of residency training by Jacksonville hospitals affiliated with JHEP. It does not include an indication that Jacksonville General Hospital was one of the institutions providing residency training in the Jacksonville, Florida, area in the relevant years. However, it does not speak to undergraduate medical training. Therefore, it does not establish the fact that Jacksonville General Hospital did not offer allopathic medical training in internal medicine to the Petitioner as part of core clerkship training. Finally, Respondent's attempt to introduce the remarks of Dr. Will Neal of the University of Florida, School of Medicine, does not serve to corroborate competent evidence offered by the Respondent on the subject of Jacksonville General Hospital's lack of affiliation with JHEP and failure to provide undergraduate medical training in allopathic medicine. His remarks are hearsay and stand alone and cannot be utilized in fact finding for reasons explained in the conclusions of law. Jacksonville General Hospital, in 1982, had among its active staff, 40 M.D.s and 31 D.O.s. On the whole, Dr. Rucinski is found to have received appropriate allopathic medical training in his core clerkship in internal medicine. Dr. Rucinski is currently undergoing training at the University of Wisconsin, affiliated hospitals program, St. Luke's Hospital, Milwaukee, Wisconsin. This is a hospital that has association with the American Medical Association. Dr. Rucinski is a resident in postgraduate year 3. Dr. Rucinski is interested in general medicine, family practice. As part of his postgraduate training, he has had extensive training in internal medicine which he has successfully responded to. He has not been able to discern differences in the underlying emphasis in the internal medicine training received as a resident in St. Luke's Hospital and that received at Jacksonville General Hospital. Against this background, prior to August 15, 1986, Petitioner made timely application to take the FLEX examination to gain a license to practice medicine in the state of Florida. This examination was to be given December 2- 4, 1986. On November 12, 1986, Dr. Rucinski was invited to appear before the Foreign Medical Graduate Committee of the Board of Medicine. A copy of that invitation may be found as part of Petitioner's Exhibit 6 admitted into evidence. In addition to the invitation, a second item within that exhibit describes the subjects upon which he could be interrogated and makes specific reference to items which could be submitted in furtherance of this session, but these items were not exclusive. This speaks to his passport and visa involved with time periods when he was out of the United States during his medical training. The second page indicated that the Petitioner should be prepared to provide documentation of his physical location for periods of medical education. Petitioner made the appearance on November 21, 1986, and was examined by members of the Foreign Medical Graduate Committee, and it was determined to deny Petitioner's opportunity to stand the FLEX examination based upon the belief held by the committee members that his internal medicine clerkship was osteopathic training and unacceptable. Petitioner was made aware that the committee would recommend to the Board of Medicine that he not be allowed to take the FLEX examination. These remarks were offered at the time of Petitioner's appearance before the foreign medical graduate committee on November 21, 1986. On the next day, the Board of Medicine, in furtherance of the recommendation of the committee, declared Petitioner ineligible to stand examination. On November 24, 1986, Petitioner was advised in writing of the decision of the Board of Medicine. A copy of that exhibit may be found as Petitioner's Exhibit 5 admitted into evidence, and it states that the request to stand examination is denied. It goes on to suggest that an order would be prepared which set forth the reasons for denial. The letter identifies the fact that the Petitioner could then request a hearing pursuant to Section 120.57, Florida Statutes, following receipt of the final order. That final order was entered on February 19, 1987, and may be found as part of Respondent's composite Exhibit 1 admitted into evidence. It indicates that the reason for denial is that the Petitioner had failed to complete allopathic medical education as described in Chapter 458, Florida Statutes, related to the inadequacy, as the Board of Medicine saw it, of Petitioner's core clerkship in internal medicine, in that the training was osteopathic in nature and not allopathic medical education. The Petitioner received a copy of the order of denial in late February 1987. Petitioner took issue with this point of view and petitioned for a formal Section 120.57(1), Florida Statutes, hearing. That petition was received as filed before the Respondent on March 15, 1987. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes. Respondent's Exhibit 4 is admitted into evidence. The proffered testimony of Dr. Will Neal is not accepted as evidence which can lead to factual findings. This determination is made in accordance with Section 120.58, Florida Statutes. Although a reasonably prudent person might expect the individual who is associated with the University of Florida medical school, such as Dr. Neal, would have some understanding of those institutions which are part of the JHEP program, his remarks do not constitute an exception to the proposition that hearsay evidence is not competent evidence. Furthermore, his remarks do not serve to supplement, corroborate or explain otherwise competent evidence. Consequently, they cannot be relied upon in determining relevant facts in this inquiry. In the deposition of Dr. Gerber wherein he attempts to explain the similarities between the core clerkship program in internal medicine at Jacksonville General Hospital and the residency program in internal medicine that he had some involvement with at St. Vincent's Hospital in Jacksonville, Florida, is not accepted, based upon the belief that it is irrelevant testimony. Petitioner, who seeks licensure, has the burden to prove his entitlement to stand the FLEX examination. See Balino vs. Dept. of Health & Rehab. Serv., 348 So.2d 349 (Fla. 1st DCA 1977). To that end, Respondent has accepted his candidacy for licensure with the exception of the question of his training in internal medicine while a medical student. That training must have been allopathic medical education as envisioned by Section 458.331(3), Florida Statutes (Supp. 1986). On balance, Petitioner has carried the burden. He received training in an institution which he was led to believe had affiliation with JHEP, an accepted educational outreach from the University of Florida medical school. The institution where he received internal medicine training and core clerkship was one accredited by the accrediting agency for allopathic hospitals. The training was supervised by an osteopathic physician. Nonetheless, this physician and the Petitioner have established that the nature of training in internal medicine for allopaths and osteopaths at the student level is akin. Moreover, the expertise of Dr. Gerber in internal medicine had been recognized by the board certifying organization related to allopathic internal medicine practice. It is not unreasonable to expect that these credentials could be brought to bear in the training of Dr. Rucinski. Finally, although it does not speak directly to the question of his competence gained through undergraduate medical training at the point in time wherein he sought the opportunity to take the FLEX examination, Dr. Rucinski's successful performance in his residency program in an allopathic hospital in the subject area of internal medicine should allay any fears that he is not a fit candidate to stand examination at this point in time. Respondent, in considering the fitness of the Petitioner to stand license examination in the December 1986 examination session did not act contrary to the purposes of Section 120.60, Florida Statutes. Based upon a consideration of the facts found and conclusions of law reached, it is, RECOMMENDED: That a final order be entered which grants the Petitioner the opportunity to take the FLEX examination for licensure to practice medicine in the state of Florida in accordance with Section 458, Florida Statutes. DONE AND ENTERED this 10th day of September, 1987, at Tallahassee, Florida. CHARLES C. ADAMS, 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 10th day of September, 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-1593 Having considered the fact proposals of the parties, those proposals were accepted with the following exceptions: Petitioner's facts At paragraph 2, the reference to December 21, 1986, is corrected to November 21, 1986. Paragraph 5 is subordinate to facts found. Paragraph 6 is a recitation of a statutory provision. It is not fact finding. Paragraphs 7 through 18 are subordinate to facts found. Paragraph 19 constitutes legal argument and not fact finding. Respondent's facts Paragraphs 1, 2 and 3 are subordinate to facts found. Paragraph 4 is accurate, but it is also noted that Jacksonville General Hospital offered allopathic care as well. Paragraphs 5 and 6 are subordinate to facts found. Paragraph 7 is contrary to facts found. Paragraph 8 is subordinate to facts found. COPIES FURNISHED: Frank M. Gafford, Esquire Post Office Box 1789 34 North Marion Street Lake City, Florida 32056-1789 Patricia V. Russo, Esquire M. Catherine Lannon, Esquire Assistant Attorneys General Department of Legal Affairs Room 1601, The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
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 The issue posed for decision herein is whether or not the Respondent is able to practice medicine with reasonable skill and safety to patients based on his mental condition. Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence introduced, and the post-hearing memoranda, I hereby make the following:
Findings Of Fact By its Administrative Complaint filed herein dated July 2, 1982, Petitioner, Board of Medical Examiners, seeks to suspend, revoke or take other disciplinary action against the Respondent, Gordon Allen Genoe, as licensee and against his license as a physician under the laws of Florida, based on an alleged violation of Section 458.331(1)(s), Florida Statutes. Respondent is a physician and has been issued license No. ME0017002. The last known address of the Respondent is 1015 Southwest 9th Street, #F-2, Gainesville, Florida 32604 2/. Respondent suffers from a hi-polar, or manic depressive disorder, or possibly a borderline personality disorder, with a history of problems associated therewith which have been evident in an increasing fashion since birth. A manic depressive illness is an emotional or mental illness characterized by mood swings which leave such a person depressed. During the manic phase, that person is in lay terms, "high or accelerated" and displays a fast thinking process. He has been voluntarily admitted for psychiatric evaluation and treatment on numerous occasions for relatively short periods of time. On or about January 6, 1982, Judge Richard Miller, in and for the Circuit Court of Pinellas County, Florida, ordered that Respondent be admitted involuntarily to a mental health facility pursuant to Section 394.463(1)(b)1, Florida Statutes. The Order was based upon the sworn affidavit of three witnesses who swore to being witness to, or having knowledge of, aggressive, threatening, irrational, and unusual behavior on Respondent's part 3/. Following the entry of said Order, Respondent was admitted to Horizon Hospital in Clearwater, Florida, and was immediately discharged by the attending physician, Dr. Harry L. Sauers, a psychiatrist. At that time, Respondent represented to Dr. Sauers that he would immediately seek further psychiatric treatment at Goodwood Manor Psychiatric Center in Tallahassee, Florida. However, Respondent failed to submit himself to treatment at Goodwood Manor in Tallahassee. During July, 1982, Respondent made a serious attempt at suicide while under the care of Dr. Alfredo Hernandez, psychiatrist, and required emergency hospitalization and subsequent inpatient psychiatric treatment. Pursuant to an order of the Board of Medical Examiners, Respondent was examined by Sidney I. Holzberg, M.D., a psychiatrist. Dr. Holzberg, as did two other medical doctors trained in psychiatry, found that the Respondent suffers from either a bipolar, mixed mental disorder, or a personality disorder characterized as severe, either of which, when not under control, may seriously affect Respondent's ability to practice medicine consistently with reasonable skill and safety to patients. Dr. Holzberg's examination was conducted on November 4, 1982. At that time, Respondent presented himself as a calm and cooperative person whose mood was serious. There was no evidence of mental illness. Respondent's appearance was neat and he was able to intelligently comprehend questions and provide appropriate answers during that examination. At present, Respondent is receiving treatment from Dr. Hernandez for his mental condition and is being administered the drug lithium carbonate. Lithium carbonate is considered effective in the treatment and management of hi- polar disorders and has a success rate of between 60 and 80 percent, depending upon the phase of the mental condition that the patient is then suffering. Respondent appears to be in a state of remission from the symptoms of this chronic mental condition. Respondent has consented to continue ongoing treatment for his mental condition. Further, he has expressed a willingness to undergo reasonable detection and monitoring measures as required by the Petitioner. While the Respondent's mental disorder is under control, he poses no threat of danger to patients to the extent that he is actively practicing medicine. In this regard, Respondent has only practiced radiology for brief periods consisting of two temporary positions during the period 1980-1981. However, his license remains current and he may resume his practice of medicine at any time. Since 1981, to keep his knowledge of radiology and nuclear medicine current, Respondent reviews medical books and journals on a regular basis. Respondent's Educational Background Respondent has an exemplary educational background. He graduated in the top 2 percent of his high school graduating class. He attended his freshman year of college studies at Arizona State University where he received all A's with the exception of two B's in English. Respondent was highly sought after by college recruiters for graduate studies and from the Army for an appointment as a commissioned officer. After completing his freshman year at Arizona State University, Respondent transferred to Northwestern University (Illinois) and earned a grade point average of 3.4 out of a possible 4 points during his sophomore and junior years. Respondent was accepted in medical school at Northwestern after his junior year and earned sufficient credits during his first year in medical school to graduate from the undergraduate program at Northwestern. Respondent attended medical school at Northwestern University in Chicago. Respondent served an internship at Los Angeles County Hospital and completed two years of public health service. Following an appointment as a commissioned officer in the armed services, Respondent was accepted in the radiology program at the University of Chicago. He completed a two year residency in diagnostic and therapeutic radiology. That program is considered to be one of the leading radiology centers in the country. Following his residency, Respondent was appointed to the staff at the University of Chicago as a radiology instructor. In addition to his teaching duties, Respondent studied nuclear medicine, angiography research and wrote a scientific paper about the use of a technique called "bronchial brushing" in the diagnosis of various diseases such as lung cancer and infections. Respondent sat for and passed the medical licensure examination in Florida in 1971 on his first sitting. He thereafter joined the staff of University Medical Hospital in Jacksonville where he served as Chief of the Nuclear Medicine Department. While at University Hospital, Respondent was responsible for setting up the radiology department and instructed residents in phases of radiology, and more particularly nuclear medicine. Respondent also wrote a paper on the diagnosis of lung carcinoma utilizing the technique of bronchial brushing while at University Hospital. That paper was published in a major radiology journal. After serving two years at University Hospital, Respondent entered private practice at Doctors Hospital in Lake Worth, Florida. Respondent served as chief radiologist at Doctors Hospital. Respondent was also responsible for instituting both the radiology and nuclear medicine departments at Doctors Hospital. Respondent served in numerous positions at various hospitals, primarily in the south Florida area and based on contractual difficulties with professional associations (primarily financial in nature) Respondent became disenchanted with the practice of medicine and decided to pursue a career in law. Respondent has completed approximately two years of legal studies at the University of Florida and Stetson Law School.
