Findings Of Fact The following facts were stipulated by the parties and required no proof at hearing: Petitioner, University Hospital, Ltd., is a Florida limited partnership and is the licensee of University Hospital and University Pavilion Hospital, both located on North University Drive, Tamarac, Florida. Petitioner Sebastian Hospital, Inc., is a Florida corporation, and is the licensee of Sebastian Hospital and SandyPines Hospital. Both hospitals are located on separate premises. Petitioner Haines City HMA, Inc., is a Florida corporation, and is the licensee of Heart of Florida Hospital, Inc. and Palmview Hospital. Both hospitals are located on separate premises. Petitioners timely filed their respective Petitions to determine the invalidity of the proposed rules at issue. Petitioners would be regulated by the proposed rules and are substantially affected parties with standing to challenge the proposed rules at issue. No proof is necessary to prove the standing of these Petitioners. Prior Rule 59C-1.004(2)(i) (the "License Consolidation Rule") required CON application and approval for license consolidations pursuant to Section 395.003, F.S. It was declared invalid in University Hospital, Ltd., et al. v. AHCA, 16 F.A.L.R. 3312 (final order dated July 22, 1994). [This decision is referenced throughout as University Hospital.] Prior to invalidation of the License Consolidation Rule, six CON applicants sought issuance of a single, or consolidated, license to replace former separate licenses held by the same licensee for facilities located on separate premises. Each of these six prior applicants involved a general acute care hospital and a specialty psychiatric hospital. Those applicants resulted in an issuance of CON numbers 7303, 6954, 7712, 7311, 7167, and 7047. Each of those six applications was ulti- mately approved in the form of a single license. When the single licenses were issued, no restrictions were placed on the licensees regarding eligibility for Medicaid reimbursement. As reflected in the respective SAARS, a significant result of approval of each of these applications was that the formerly separately licensed psychiatric hospital became eligible for Medicaid reimbursement for treatment of Medicaid patients. All of these prior applicants had licenses issued and became eligible for Medicaid. Such Medicaid reimbursement was not available to the separately licensed psychiatric facilities prior to issuance of a single, or consolidated, license. Aside from the rules under challenge, there has been no change in pertinent state statutes or rules subsequent to the final order in University Hospital Ltd., v. AHCA 16 F.A.L.R. 3312. After invalidation of the Consolidated License Rule, AHCA's interpretation is that issuance of a single, or consolidated, license for a general acute care hospital and a psychiatric hospital does not result in Medicaid eligibility. Petitioners did not participate in any of the rule workshops conducted on June 22, July 7, and November 2, 1994 or the public hearing held on February 13, 1995. Petitioners did not send in any written comments, questions, or materials, or request an economic impact statement. A holding of the Final Order in University Hospital, was that a Certificate of Need was not required prior to the issuance of a single consol- idated license for multiple premises. University Hospital, 16 F.A.L.R. at 3321. The Agency has no discretion regarding rule- making pursuant to Section 120.535. (Joint Prehearing Stipulation, filed 3/14/95) Approximately eighteen months ago and well before the University Hospital decision, the Agency for Health Care Administration (AHCA) commenced a major rewrite of the hospital license rules that had been promulgated by its predecessor agency, the Department of Health and Rehabilitative Services (HRS). After a series of public workshops, the revisions were noticed in the January 20, 1995, Florida Administrative Weekly. These substantial revisions of rule chapter 59A-3 comprise about fifty pages of the Florida Administrative Weekly. The challenged portions comprise only several paragraphs of the revisions. The challenged portions of the proposed rules are: 59A-3.203 Licensure Procedure. (2) All persons requesting licensure for the operation of a hospital under the provisions of Chapter 395, F.S., shall make application to the Agency, on forms provided, AHCA Form 3130- 8003-January 1995, and AHCA Form 3130-8001-January 1995, and shall receive a regular or provisional license prior to the acceptance of patients for care or treatment. * * * (e) An application for the addition of beds or off-site outpatient facilities to a hospital's license must include: A valid certificate of need or letter of exemption as required by ss. 488.041 - 408.045, F.S., and Approval from the Agency's Office of Plans and Construction. * * * (i) A single license will be issued to a licensee for facilities located on separate premises, upon request of the applicant. The license will specifically state the location of the facilities, their services, and the licensed beds available on each separate premises. Such a license shall also specifically identify the general or specialty classification of hospitals located on separate premises. (6) Each license shall specifically state the name of the licensed operator of the hospital, the class of hospital, and the name and location of the hospital. Any beds in the hospital which are regulated under the certificate of need program, as specified in Chapter 59C-1, F.A.C., shall be listed, including the number of licensed beds by type. The license for hospitals having facilities on more than one premises shall specifically state the location of each facility, their general or specialty classification, their services, and the licensed beds available on each separate premises. * * * Specific Authority 395.003, 395.004, 455.239, F.S. Law Implemented, 395.001, 395.003, 395.004, 395.1005, 408.035, 408.036, 455.239, F.S. History New. (emphasis added) Prior to the decision in the University Hospital case in July 1994, the proposed revisions did not include the requirement that the license for facilities on separate premises identify separately the general or specialty classification of each. That provision was added by the agency because it concluded that when it could no longer require a CON for "consolidated" licenses, then general acute care beds and free-standing psychiatric beds could not be "consolidated" on a single license. It is uncontroverted that the substantial effect of the requirement that each facility retain its prior classification is that a facility classified as a class III (specialty) facility is not eligible for Medicaid reimbursement. The agency agrees that proposed rule is based on, and is compelled by section 395.003(2)(d), F.S., which provides as follows: (d) The Agency shall, at the request of a licensee, issue a single license to a licensee for facilities located on separate premises. Such a license shall specifically state the location of the facilities, the services, and the licensed beds available on each separate premises. If a licensee requests a single license, the licensee shall designate which facility or office is responsible for receipt of information, payment of fees, service of process, and all other activities necessary for the Agency to carry out the provision of this part. (Emphasis supplied). It is immediately obvious from a comparison of the text of the proposed rule and the text of the law implemented that the law does not require that the license state the general or specialty classification for the separate facilities. This distinction was not lost on the agency since it included in its legislative package for the 1995 legislative session a proposed amendment to section 395.003(2)(d), F.S. that would cure the inconsistency by adding the proposed rule language to the statute. (Petitioner's exhibit number 16, p. 25) There is a statute which restricts Medicaid reimbursement for treatment in free-standing psychiatric hospitals. The agency argues that the proposed rules give effect to that statute, section 409.905(5), F.S., which provides, in pertinent part: . . . A licensed hospital maintained primarily for the care and treatment of patients having mental disorders or mental diseases is not eligible to participate in the hospital inpatient portion of the Medicaid program except as provided in federal law. . . . (emphasis supplied). Reliance on Section 409.905(5) is misplaced, however, because it is nowhere cited in the proposed rules as authority or law implemented. Moreover, evidence presented at hearing describes federal policy that when two hospitals are consolidated under one license and have a total capacity that is less than 50 percent psychiatric in nature, the premises are both eligible for Medicaid reimbursement, even though one remains primarily for the treatment of mental disorders. (Petitioners' exhibits number 20-22) The federal policy on Medicaid reimbursement was in effect in 1993, prior to the University Hospital decision and prior to the current version of the proposed rules. Section 409.905(5), F.S. has been in effect since 1991, before the six consolidated licenses referenced in paragraph 1, above, were issued. Section 395.003(2)(d), F.S. has been in effect in its current form at all times material. Nothing in the law has changed to support the agency's contention that, after the University Hospital decision, it can no longer issue a single license with a single license classification for separate premises. No evidence nor specific argument was presented with regard to the alleged invalidity of proposed rule 59A-3.203(2)(e), which on its face relates to the addition of beds or an outpatient facility to a hospital's license. Issues related to that portion of the proposed rule are not the issues invoked in this proceeding with regard to Petitioner's facilities. (See Petitioners' exhibit 26, p. 71, deposition of Tanya Williams)
The Issue Whether Sandra Ann Lindstrom (“Ms. Lindstrom” or “Respondent”), a licensed physician assistant, prescribed Lorcet, a medication containing a controlled substance (hydrocodone), in violation of the Florida Statutes and the Florida Administrative Code as charged in the Amended Administrative Complaint filed at the Department of Health in DOH Case No. 2006-36542 on October 27, 2014. If so, what is the appropriate discipline?
Findings Of Fact The Parties The Department of Health is the state agency responsible for regulating the practice of physician assistants in the State of Florida. The regulation is pursuant to both chapter 456 (“Health Professions and Occupations, General Provisions”) and chapter 458 (“Medical Practice”), Florida Statutes. Respondent is licensed as a physician assistant by the Board of Medicine. Her license number is PA 9103823. The license was effective on August 3, 2006, with an expiration date of March 31, 2008. Her license has been continuously renewed since its effective date. See Pet’r’s Ex. A. Ms. Lindstrom is not licensed to practice medicine as a physician. Id. Physician Assistants Physician assistants are governed by section 458.347, a section within the chapter of the Florida Statutes that governs Medical Practice. Physician assistant licensure is provided for in section 458.347(7), and the Board of Medicine is authorized to “impose any of the penalties authorized under ss. 456.072 and 458.331(2) upon a physician assistant if the physician assistant or the supervising physician has been found guilty of or is being investigated for any act that constitutes a violation of this chapter [Ch. 458] or chapter 456.” § 456.347(7)(g), Fla. Stat. A physician assistant’s supervisory physician may delegate authority to conduct aspects of medical practice to a physician assistant under circumstances expressed in the statutes. The limited medical practice that may be delegated to a physician assistant includes certain practices at county health departments. Whether conducting the delegated practice of medicine at a county health department, or not, physician assistants may be delegated authority to prescribe medications provided they are not listed on a formulary created pursuant to section 458.347(7)(f). See § 458.347(7)(d) and (e), Fla. Stat. The formulary must include “controlled substances as defined in chapter 893.” § 458.347(7)(f)1., Fla. Stat. In sum, physicians may not delegate to physician assistants the prescription of medications which are controlled substances as defined in chapter 893, Florida Statutes. The Department’s Investigative Office The Department has an investigative office charged with looking into regulatory complaints. In a typical regulatory investigation, the investigator discloses his identity to any party interviewed, whether the party is the source of the complaint, a witness, or, if amenable to an interview, the licensee who is the subject of the complaint. Aside from interviews, the investigations include record reviews, the obtaining of evidence, and the preparation of an investigative report. In addition to investigating complaints of regulatory violations by licensed health care practitioners, the investigative office looks into cases of unauthorized practice by unlicensed individuals. Investigations of unlicensed activity are conducted by what is known as the “ULA” section of the office. Commonly, ULA investigations are done by investigators who are “undercover,” that is, the investigators hide their identity as investigators and use pseudonyms rather than their actual names. Typically, undercover ULA investigators present at the offices of the subjects of investigation. If the unlicensed subject of the investigation offers to perform services that require a license or engages in practice that requires a license, the Department pursues remedies, including an order that the subject cease and desist from the unlawful, unlicensed activity. Investigations of a licensee for practicing outside the scope of the licensed activity may be viewed as something of a hybrid of a typical regulatory investigation and a ULA investigation. It is regulatory since the subject is a licensee, but it is usually done undercover in the same manner in which a ULA investigation is conducted. One such investigation was conducted by Ryan Heal, an employee of the Department between August and December of 2006. Mr. Heal conducted the investigation undercover using a pseudonym referred to in Department documents as “RJ.” RJ and the 2006 Investigation of JHS Mr. Heal has been a medical malpractice investigator for the Department since November 2000. During the course of his more than 15 years as a Department investigator, Mr. Heal has investigated both regulatory violations and unauthorized practice violations. In 2006, allegations reached the Department that prescriptions were being written at Jacksonville Health Systems (“JHS”), a clinic located on Baymeadows Road in Jacksonville, Florida, by a physician assistant without the supervision of a physician. In response, the Department launched an investigation. The investigation was conducted undercover by Mr. Heal using his pseudonym RJ. Commenced in August of 2006, the investigation lasted until the following December. August 10, 2006 On August 10, 2006, Mr. Heal, using his fictitious name, presented at JHS. A woman behind the counter in the reception area accepted a cash payment for the visit. She took RJ’s blood pressure and requested the name of the pharmacy for any medicine prescribed. To the best of Mr. Heal’s recollection, the receptionist recorded some of the information. After the interaction with staff in the reception room, Mr. Heal took a seat and waited to be called back to the examination room. Shortly thereafter, Ms. Lindstrom emerged and asked for RJ. Mr. Heal “stood up and went over to her.” Hr’g Tr. 19. Ms. Lindstrom identified herself by her first name and said, “I’m the provider here.” Id. Ms. Lindstrom accompanied Mr. Heal to the examination room where only she and Mr. Heal were present. After Mr. Heal complained of back pain, Ms. Lindstrom asked where in his back the pain was located and what caused it, but she did not conduct a physical examination. As Mr. Heal testified at hearing, “[t]here was no examination. She never touched my back. Never took vitals or anything.” Hr’g Tr. 20. Ms. Lindstrom suggested that Mr. Heal use a chair with lumbar support, try stretching, lose weight, and have an MRI. Ms. Lindstrom then stated that she would prescribe medication to treat the pain: Lorcet, Flexeril, and Motrin. With the visit in the examination room concluded, Ms. Lindstrom took Mr. Heal back to the receptionist. The meeting in the examination room and his first visit to the JHS offices being over, Mr. Heal departed the JHS facility. He did not return until the following October. October 31, 2006 Mr. Heal returned to the JHS facility on October 31, 2006. The process during the second visit was similar to the one followed during the visit the previous August. He presented as “RJ.” A staff member took his blood pressure in the reception area and he paid her $90 in cash. Mr. Heal sat down and waited to be called. Again, Ms. Lindstrom appeared in the reception area and took him to the examination room in the back. The visit was shorter than it had been in August. Ms. Lindstrom asked if his pain had improved and if an MRI had been done. With the intention of calling in his prescriptions, Ms. Lindstrom showed Mr. Heal a list of five pharmacies from which to choose. Mr. Heal, however, took a tack that was different from Ms. Lindstrom’s intention and from his first visit: I explained to her that I did not have reliable transportation and asked [for] . . . handwritten prescriptions . . . so that I could take them to whatever pharmacy was convenient . . . . She agreed that she could write them that time, but that on the next visit, I would have to arrange for proper transportation to get to the pharmacy or wherever they needed to be called into. Hr’g Tr. 23. Ms. Lindstrom wrote out three prescriptions: Two of them were for “Flexeril 10mg (ten) #30 (thirty)” and “Ibprofen (sic) [Ibuprofen] 800mg #120 (one twenty).” Pet’r’s Ex. B. The third prescription was for “Lorcet 10/650 #90 (Ninety).” Id. Ms. Lindstrom explained to Mr. Heal that he should use one of the five pharmacies on her list because “several [of the Clinic’s patients] had been kicked out of pharmacies . . . [that] were refusing to fill the prescriptions.” Hr’g Tr. 25. Ms. Lindstrom also “mentioned that a couple of her patients had been arrested for forging prescriptions.” Hr’g Tr. 25-6. At no time during his visit to JHS on October 31, 2006, did Mr. Heal see a physician. No one entered the examination room where Ms. Lindstrom met with Mr. Heal that day. Nor did Ms. Lindstrom leave the examination room while Mr. Heal was present in the room. Like the first visit the previous August, Ms. Lindstrom recommended that Mr. Heal have an MRI. She explained that results from an MRI were needed “in case the DEA wanted to look at the file, to show that [she and JHS] were actually treating [Mr. Heal] for something.” Hr’g Tr. 28. December 1, 2006 Little more than a month later on December 1, Mr. Heal made a third visit to JHS. The reception process was the same. The receptionist took his blood pressure, he paid $90 in cash, and waited in the reception area for Ms. Lindstrom to call him back. While waiting, he was informed that the number of pharmacies that would accept JHS prescriptions had been drastically reduced. Only one pharmacy would now accept JHS prescriptions: a pharmacy called New Horizon. Subsequent to the third visit, Mr. Heal presented to the pharmacy identified as New Horizon. In the company of law enforcement and with its supervision, Mr. Heal had the prescriptions filled for three medications: Flexeril, Ibuprofen at a prescription-strength dosage, and Lorcet. Supervising Physician and Other Claims At hearing under oath, Ms. Lindstrom admitted that she treated Mr. Heal once at the JHS facility and admitted that she prescribed Flexeril and Ibuprofen for him. She claimed under oath that the supervising physician for the 2006 visit in which she prescribed the two medications was James Hendrick, M.D. The Department produced documentation in the Department’s official business records that shows that Dr. Hendrick cancelled his Professional Liability Insurance Policy effective October 1, 2005, the year before Ms. Lindstrom claims to have seen Mr. Heal at the JHS facility under Dr. Hendrick’s supervision. The reason for the cancellation of the policy is listed on the letter from the insurer to the Department as “Retired.” Pet’r’s Ex. F, letter dated October 17, 2005, from FPIC, First Professionals Insurance Company. Department records also include an “Address Change” form that contains a section entitled “Financial Responsibility” dated November 21, 2005, the year before the incidents in this case. No boxes are checked in the section that shows “Financial Responsibility Coverage.” Under a section on the form entitled, “Category II: Financial Responsibility Exemptions,” Dr. Hendrick checked a box that indicated he was “retired or maintain[ed] part-time practice,” id., at least as of late November 2005, 11 months or more before the October 31, 2006, visit by Mr. Heal. Ms. Lindstrom made other claims with regard to RJ’s visit that she asserted occurred on October 3, 2006, rather than October 31, 2006, as charged. Among them was that she left the examination room after completing the prescriptions for Flexeril and Ibuprofen and partially completing a third prescription by inserting all the information, including her signature, except for the medicine to be prescribed and how often it should be taken. Ms. Lindstrom claimed that she intended to write a prescription for Lodine, but failed to write down “Lodine” on the third prescription form because she was distracted by a discussion with Mr. Heal about the need for RJ to have an MRI. She says she left the room to make arrangements for an MRI and when she returned, RJ was gone, together with the two filled out prescriptions, the third incomplete prescription, and her prescription pad. Ms. Lindstrom’s testimony about the theft of the pad and other details about the event, including when it occurred, is not credible. In contrast, Mr. Heal’s testimony about the visits he made to the JHS facility, seeing Ms. Lindstrom, and her prescription of Lorcet, is credited as truthful. Lorcet Lorcet contains hydrocodone, which is a controlled substance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order: Finding that Respondent Sandra A. Lindstrom, P.A., violated section 458.331(1)(nn), Florida Statutes (2006), by violating Florida Administrative Code Rule 64B8-30.008 (2006), as charged in the Amended Administrative Complaint; Imposing a $2,500 fine; and Revoking Respondent’s license as a physician assistant. DONE AND ENTERED this 30th day of March, 2016, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2016. COPIES FURNISHED: Sandra Ann Lindstrom 6726 Pomeroy Circle Orlando, Florida 32810 Yolonda Y. Green, Esquire Maciej Lewandowski, Esquire Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265 (eServed) Andre Ourso, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin C03 Tallahassee, Florida 32399-3253 (eServed) Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed)
Findings Of Fact The findings of fact stipulated to by the parties are as follows: The Respondent's license was suspended for a period of three years by Final Order of the Board of Medical Examiners filed on or about June 25, 1985. The Respondent filed a timely Notice of Appeal of the foregoing Final Order. The Respondent filed a Motion to Stay the Final Order with the Board of Medical Examiners, through appellate counsel, but said motion was not ruled upon by the Board of Medical Examiners at any time pertinent to the dates related to the Administrative Complaint. No petition for stay was filed by the Respondent until August 6, 1985, with the appellate court having jurisdiction of the direct appeal, when said motion was filed by appellate counsel. The District Court of Appeal, First District, entered a temporary stay of the Final Order of the Board of Medical Examiners on August 6, 1985, but dissolved the stay on August 9, 1995, upon written response from the Department of Professional Regulation. No other stay was in effect at any time pertinent to the times material to the matters raised in the Administrative Complaint filed herein. The Respondent continued to practice medicine subsequent to the filing of the Motion to Stay filed with the Board of Medical Examiners until contacted in person by investigators of the Department of Professional Regulation who informed the Respondent, on August 12, 1985, that no stay of the Final Order was in effect. At that point, the Respondent immediately surrendered his medical license to the investigators of the Department of Professional Regulation and informed said investigators that the investigators should contact his appellate Counsel because of the "Confusion." The Respondent believed, and was specifically advised by appellate Counsel, that the Final Order of the Board of Medical Examiners filed June 25, 1985, was stayed automatically by the District Court of Appeal, First District, notwithstanding the fact that the only stay entered by the District Court of Appeal, First District, was from August 6 to August 9, 1985. Not only was the Respondent advised by appellate counsel orally that such a stay was automatically effected by the filing of the Notice of Appeal with the District Court of Appeal, First District, but appellate counsel provided written confirmation of the alleged existence of such a stay to Jacksonville hospitals providing medical privileges to the Respondent. An example of such written confirmation is a letter dated July 30, 1985, to the President, Board of Trustees of St. Vincent's Medical Center advising St. Vincent's Medical Center that the Final Order of the Board of Medical Examiners was automatically stayed by operation of Section 120.68(3), Florida Statutes. In that letter, appellate counsel not only advised St. Vincent's Medical Center of the existence of an alleged automatic stay, but copied the Respondent with said advice, confirming to the Respondent that the Final Order of the Board of Medical Examiners had in fact been stayed.
The Issue Whether or not Petitioner is entitled to a license by endorsement to practice medicine pursuant to Section 458.313(1) F.S.
Findings Of Fact Petitioner William D. Plummer is an applicant for licensure as a physician by endorsement in Florida. On May 2, 1991, Petitioner filed a licensure application with the Department of Professional Regulation. On page one of the application is the question: Are you now or have you ever been licensed in any State, Canada, Guam, Puerto Rico or U.S. Virgin Islands? Yes No . Petitioner marked the "No" answer to this question on his application. On page four of the application is the question: Have you ever been denied an application for licensure to practice medicine by any state board or other governmental agency of any state or country? Yes No . Petitioner marked the "No" answer to this question on his application. On June 11, 1991, Petitioner was sent a notice that his application was incomplete. In that notice, he was asked: Are you now, or have you ever been licensed to practice medicine in any State? In response, Petitioner sent a letter stating only that he had received a Pennsylvania medical license on July 3, 1991. This date was subsequent to his making the initial Florida application on May 2, 1991. As part of the application process in Florida, Petitioner was asked to appear before the Credentials Committee of the Board of Medicine on January 25, 1992, in Tampa, to discuss various matters regarding his application. In the course of discussing various issues with the Credentials Committee Petitioner was asked: Were you ever denied a license to practice medicine in another state? In response, Petitioner stated, No. I have my Pennsylvania license. In my training initially--my medical training license took some time, and I think that was in 1985 and it was because we didn't have a program in Pennsylvania to work with the State Board. Later, Petitioner told the Committee, I thought there was a difference between a medical training license and a medical license. A medical training license is under supervision at a hospital. In point of fact, in 1985, Petitioner had applied for a graduate medical license in Pennsylvania in order to enter the residency program at Misercordia, Mercy Hospital where he had already been accepted. The Pennsylvania graduate medical license allows the licensee to work as a physician under supervision only as a resident in the institution named on the license. Petitioner's application for this license was rejected because the Pennsylvania Board found that Petitioner had "knowingly falsified" an answer regarding his addiction to alcohol. The Pennsylvania Board further prohibited Petitioner from reapplying for a graduate medical license until June 6, 1986. After formal hearing, the Pennsylvania Board entered its order as follows: ... an Applicant with a proclivity toward engaging in word ploys in these important matters runs the risk, as here, of being in error and thus committing an active concealment and misrepresentation. A more prudent course perhaps for such an Applicant would be to err on the side of giving excess (voluntary) information in responding to such a formal and serious written questionnaire. Medical residents in training programs "practice medicine." In Pennsylvania, residents are prohibited from practicing medicine unless they receive a graduate medical license from the State of Pennsylvania. Because of the Pennsylvania Board's denial of Petitioner's application for a graduate medical license, he was unable to accept the position at Mercy Catholic Hospital. However, in 1986, Petitioner reapplied for a graduate medical training license in Pennsylvania and the application was granted. This graduate medical training license was renewed annually thereafter while Petitioner continued to train in Pennsylvania. Petitioner still held the latest renewed graduate medical training license when he applied for Florida licensure in May 1991. Petitioner was granted his permanent unrestricted medical license in Pennsylvania in July 1991. (See Findings of Fact 2 and 5 supra.) At formal hearing, Petitioner explained that because Pennsylvania's graduate medical training license only allows participation in a residency training program at an approved institution named on the face of the license, he did not consider it to be a "license to practice medicine," and accordingly he did not disclose to Florida the Pennsylvania Board's 1985 denial of such license. He represented that he believed that because the Pennsylvania graduate medical training license was institution-specific, limited to one year in scope, and only a prerequisite to supervised additional medical education, it did not constitute what Florida's inquiries were all about. By common English usage, Pennsylvania law, and Florida law, the authority that Dr. Plummer was denied in 1985 and granted in 1986 by the Pennsylvania Board constitutes a "license to practice medicine," contrary to his interpretation of that term when he filled out his Florida application and responded to inquiries during the course of Florida's licensure investigation. He should have identified it in response to each relevant question or inquiry. However, Petitioner's interpretation of Florida's questions and his answers thereto do not constitute attempting to obtain a license to practice medicine by fraudulent misrepresentation or concealment of a material fact for the following reasons: Petitioner's formal hearing testimony was credible and unrefuted. Petitioner was consistent in his interpretation of the questions on this subject in that he also did not disclose to Florida the "good" facts that the Pennsylvania Board had subsequently granted him the graduate medical license in 1986 and had renewed it annually and that he still held such a license at the time of filling out his Florida application. Also, in the Florida application, he readily and fully disclosed to Florida the "bad" facts of his detrimental past history of alcoholism. Dr. Lee testified as a medical physician licensed to practice in New York, Pennsylvania, and Iowa, that he considered Petitioner's interpretation of the Florida application questions concerning prior medical licensing reasonable and that he also considered Petitioner's answers to those questions reasonable. No contrary testimony was presented. The American Medical Association profile does not list Petitioner's Pennsylvania graduate medical training license as a "license to practice medicine." Various qualified credible witnesses acknowledged that Petitioner's failure to disclose his alcoholism to the Pennsylvania Board in 1985 was a denial symptom of his alcoholism at that time and was not symptomatic of his character makeup now that his alcoholism is in remission or at any time he responded during the Florida licensing process. Respondent presented no direct evidence to prove that Petitioner had a fraudulent intent in answering as he did. Although fraudulent intent may sometimes be inferred from the circumstances, the circumstances herein do not permit such an inference. On his initial Florida application, Petitioner could not correctly recall the dates of his medical training because he had not kept accurate records himself and because of his alcoholic condition in prior years. One representative error he made is that he listed a full year in one program which he attended for only four months. However, he approximated the dates as best he could and revealed all training programs, even those in which he was unsuccessful, and he consistently responded to the Board that he would defer to whatever the training institutions' records showed. He also concealed no rehabilitation programs he had been in. No intent to defraud or conceal can be inferred from these circumstances. Petitioner is an alcoholic. Petitioner's alcoholism had its inception sometime during his childhood, possibly as early as the age of eight years. Petitioner graduated from Pennsylvania State University summa cum laude, in 1976. He matriculated from the Uniformed Services University in 1980. Toward the end of his time in medical school, approximately 1980, Petitioner began to realize that he had a problem with alcohol. In 1980, Petitioner entered a surgical training program at Balboa Hospital in San Diego, California. As a direct result of his problems with alcohol, Petitioner left that surgical training program in 1981 without completing his training. Between 1981 and 1983, Petitioner was partially supported by his parents, performed odd jobs as a handyman and searched for a new training program. In July, 1983, Petitioner entered an internal medicine training program at St. Raphael Hospital in New Haven, Connecticut. After approximately five months and prior to completion of training in New Haven, Petitioner's problems with alcohol forced him to terminate participation in the internal medicine training program. In December 1983, Petitioner entered a rehabilitation program at Marworth in Waverly, Pennsylvania. He remained as an inpatient at Marworth until February 1984 when he was discharged to Little Hill--Alina Lodge, a continuing care facility in Blairstown, New Jersey, where he remained as an inpatient until May 1984. Petitioner left Little Hill--Alina Lodge with staff approval. Between May 1984 and November 1986, Petitioner worked at various odd jobs as a handyman and helped his parents relocate and build in Florida. He also waited for his graduate medical training license in Pennsylvania. (See Finding of Fact 7, supra) Petitioner described both the periods of 1981-1983 (See Finding of Fact 18 supra.) and 1984-1986 as periods of "self-employment" whereas "unemployment" might have been more accurate. This discrepancy was neither "fraud" nor "concealment," as those terms are generally understood. In November, 1986, Petitioner entered an internal medicine training program at Misercordia, Mercy Catholic Medical Center in Philadelphia, Pennsylvania. Petitioner's problem with alcohol caused him to behave in a manner which indicated the presence of an active physical impairment of alcoholism and resulted in Petitioner's suspension and later resignation from that program after approximately three and a half months and prior to completion of training. In June 1987, Petitioner returned to Marworth as an inpatient. He remained under treatment for approximately one month and then stayed on at Marworth as an inpatient for approximately a month. Thereafter, he worked as a janitor and groundskeeper for nearly two years while concentrating on his life problems that had contributed to his alcoholism. Many professionals reviewing his case have been favorably impressed with Petitioner's dedication and sacrifice during this period of time. In 1989, Petitioner entered an internal medicine training program at Robert Packer Hospital in Sayre, Pennsylvania. This hospital is part of the Guthrie Healthcare System where Petitioner is currently employed. (See Findings of Fact 28, 43, 49 infra.). In June 1990, Petitioner took a vacation to the Florida keys and while on vacation went on a four day drinking binge. Petitioner voluntarily reported himself for further treatment and returned to Pennsylvania. While awaiting placement in another rehabilitation program, he suffered an alcohol withdrawal induced seizure. In July 1990, Petitioner entered his fourth inpatient treatment program for alcoholism at Bethany Center in Homesdale, Pennsylvania, where he remained for one month. His absence was counted as vacation and sick time while he was able to complete his internal medicine training program at Robert Packer Hospital on schedule in April 1992. The Guthrie Health Care System immediately offered him his current position, with full knowledge of his excellent academic record and clinical references and his alcohol recovery history. (See, Findings of Fact 43 and 49 infra). Currently, Petitioner participates in the Physician's Health Program of the Pennsylvania Medical Society and since January 1991 has been participating, through counseling, in a program of recovery from alcoholism with the Bradford Sullivan Drug and Alcohol Program. Both the Florida Physician Resource Network and the Pennsylvania Physician's Health Program impaired physicians programs have opined that Petitioner's history of alcoholism should not bar his licensure in Florida at the current time. (See, Findings of Fact 31-39 infra.) Dr. Roger Goetz is the Director of Florida's PRN and is the Department of Professional Regulation's consultant charged with implementing Florida's Impaired Practitioner Program. The Physician Resource Network includes the Physician Recovery Network (PRN). In the past five years, the PRN has evaluated approximately 350 physicians with impairments at the request of the Board of Medicine. Over this period, Dr. Goetz cannot recall a single instance where an applicant endorsed by PRN has failed to maintain sobriety. PRN statistics show that at least 97 per cent of the practitioners on contract have not reverted to alcohol or chemical use. Petitioner is willing to enter such a contract with PRN if he is licensed. Dr. Goetz believes Petitioner will be able to practice medicine with skill and safety to patients in Florida, provided he enters into a contract with the PRN. Dr. Goetz opined that Petitioner's relapse in 1990 does not indicate the likelihood of future relapses because Petitioner has continued with a more effective treatment program and support system geared to his needs as a physician. Dr. Goetz, on behalf of PRN, recommended a five-year contract for Petitioner designed to identify pre-relapse behavior and entail that he remain chemically abstinent, be subjected to random body fluid analysis, establish a doctor/patient relationship and receive care from another physician for his personal health, obtain a monitoring physician, attend group therapy, attend Alcoholics Anonymous meetings, have significant family members involved in his recovery, notify the PRN of any problems in his life, including changes in his physical health, be willing to withdraw immediately should there be any problems surrounding his practice, and participate and cooperate with the PRN at all times. Such a contract would provide Petitioner with an environment in Florida which is similar to his current recovery environment in Pennsylvania. Dr. Goetz testified that to the extent of his knowledge Petitioner has a good reputation for truth and veracity. At the request of PRN, Petitioner was evaluated for chemical dependency by Leah H. Williams, M.D. in July 1991. Dr. Williams reported to PRN that she was in favor of Florida licensure for Petitioner. In September 1991, Petitioner received a thorough outpatient evaluation from Dr. Lynn Hankes, PRN's approved evaluator. Dr. Hankes also endorsed Florida licensure for Petitioner, contingent upon Petitioner entering the PRN program and participating in ongoing psychotherapy. Penny Ziegler, M.D., Medical Director of the Pennsylvania Physician's Health Program, supports Petitioner's application for licensure in Florida. Nicholas F. Colangelo, Ph.D., a psychologist, supports Petitioner's application for licensure in Florida. Dr. Colangelo may be considered as a past and currently treating psychologist for Petitioner. They have known each other since Petitioner was at Marworth. Dr. Colangelo is a nationally certified alcohol and drug counselor who is Vice-President of Clearbrook, Inc., an alcohol and drug addiction treatment facility. He is a recovering alcoholic who has been sober for over seventeen years. Twenty-five to thirty-five per cent of his addiction counseling focuses on professionals. According to Dr. Colangelo, professionals and other high-achieving individuals like Petitioner often have difficulty accepting that they must submit to the whole program for recovery from alcoholism but once they do, they recover at a higher than average rate. In Dr. Colangelo's opinion, Petitioner has demonstrated conduct which gives him a better than average prospect for continued sobriety. Dr. Colangelo opined that Petitioner's current employment in a tertiary care facility, the Guthrie Clinic, coupled with the management of the ongoing licensure proceedings in Florida, provide Petitioner with as much environmental stress as he has ever experienced, but the existence of environmental stress does not play a significant role in Petitioner's continued sobriety. Dr. Colangelo perceived Petitioner as a person of truth and veracity. Petitioner is currently employed by the Guthrie Healthcare System, a multi-specialty private medical practice clinic employing approximately 110 physicians in non-surgical areas of medicine. Petitioner is responsible for the initial evaluation of nonsurgical patients. It is within his job duties to determine the type of medical care to be provided to each nonsurgical patient entering the clinic. In that position, he sometimes provides all primary care to the patient or directs the patient to the appropriate subspecialist. Apart from the four days in 1990, Petitioner has been continuously sober for five and one-half years. That 1990 four day relapse did not detrimentally affect his patient care. At that time, Petitioner contacted Florida's PRN. He has maintained contact with Dr. Goetz ever since. According to Dr. Colangelo and Dr. Goetz, two years of continuous sobriety is a benchmark most professional associations accept for granting a license or privilege. The American Board of Internal Medicine uses such a two year benchmark. Petitioner has met all credentialing requirements to obtain certification by the American Board of Internal Medicine. Dr. Ferrol Lee currently is responsible for the nonsurgical quality of medicine at Guthrie, with overall supervision of the 110 physicians employed there, including Petitioner. He has worked with Petitioner both during Petitioner's residency at Robert Packer and during his current employment. He views Petitioner as a hard worker whose personal struggle with alcoholism gives him valuable insight into the care of patients who struggle with similar problems. He ranks Petitioner within the top 5-10 residents of the 100 he has worked with over the past nine years. Dr. Lee testified that Petitioner has continually demonstrated good moral character and has a flawless reputation for truth and veracity. Dr. Lee endorses Petitioner's licensure in Florida. The State of Pennsylvania has never taken disciplinary action against Respondent's license to practice medicine in that state.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered certifying Petitioner for licensure with placement of Petitioner on probation for five years subject to his entering into and abiding by a contract acceptable to the Physicians Recovery Network. RECOMMENDED this 20th day of April, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1993.
Findings Of Fact Petitioner Jose A. Torres was a licensed medical doctor, having been issued License No. ME0029982. By Administrative Complaint filed March 23, 1982, he was charged with 31~counts of violations of Chapter 458, Florida Statutes. Dr. Torres entered an admission as to seven counts of that Administrative Complaint and the other counts were dismissed prior to hearing. The matter came before the Board of Medical Examiners as an informal hearing and the Board voted to revoke Dr. Torres' license to practice medicine (P-3). The undersigned ruled at formal hearing, contrary to Petitioner's urging, that it is inappropriate to go behind the formal final order of revocation to vary the circumstances leading up to that revocation.9 At that time, by requesting an informal proceeding pursuant to Section 120.57(2), Torres admitted not simply to conclusions of law as to what statutory violation was found, but also to there being no disputed issues of material fact as alleged in the Administrative Complaint. Accordingly, the specific facts admitted by Torres related to the treatment of seven different patients and the prescription of controlled substances to each of those patients in the following amounts over the following time period: John Dodge 852 Dilaudid Less than 3 months Joann Diaz 425 Dilaudid Less than 2 months Robert Pendegar 427 Dilaudid Two and one half months Richard Pendegar 168 Dilaudid Less than 1 month Charles Penno 330 Dilaudid Less than 3 months Robin Simpson 174 Dilaudid Less than 6 months Graham Boylan 130 Dilaudid Less than 1 month In addition to admitting the facts relating to the number of pills prescribed over a specified period of time as to each individual patient, Torres admitted (See P-3-4) that each patient: Was a drug abuser, a fact that was or should have been known to Respondent [Dr. Torres]. Respondent did not prescribe above- prescribed controlled substance for a medically-justified purpose. Said prescriptions were inappropriate or excessive and inappropriate quantities.10 It was based upon those admissions of fact that the Board of Medical Examiners determined that Torres had violated Section 458.331(1)(q), Florida Statutes, for prescribing a controlled substance other than in the course of his professional practice in each of the seven counts and revoked his medical license. He has been without his license for approximately 29 months at this writing. It was stipulated, and is accordingly found, that Petitioner has never previously nor subsequently been charged with or been found in violation of any provision of the Medical Practices Act (Chapter 458, Florida Statutes) nor any rule of the Board of Medical Examiners, other than those which were committed in 1981 and which led to the revocation of Petitioner's license on June 15, 1983. It was stipulated, and is accordingly found, that Petitioner falls in the category of persons applying for and eligible for reinstatement pursuant to Board policy in effect prior to June 5, 1983. There are no statutes or written rules or policies of Respondent defining what is a "grave" violation nor what "grave" violation(s) would show "such a lack of judgment and lack of ability or willingness to conform to the law" so as to guide Petitioner in applying such criteria in the reinstatement process. Both Drs. Katims and Bass testified that each Board member's decision on what was or was not a "grave" offense was based upon their own subjective interpretation and criteria, and that for persons in the Petitioner's pre-June 5, 1983 category, the Board did not consider any particular formula nor any one factor but looked at the totality of the circumstances in arriving at conclusions concerning who should be reinstated and who should not be reinstated. Respondent had not, prior to the time Petitioner filed his Petition for Reinstatement, adopted any written reinstatement rules which covered persons in Petitioner's category of those applying for reinstatement. Rule 21M-20.03 Florida Administrative Code became effective on January 3, 1985. Any effect or lack of effect thereof is considered infra under "Conclusions of Law". Petitioner's Exhibit 6 seeks to establish incipient policy by a summary of prior actions taken by the Board of Medical Examiners. Of the seventeen cases listed in the summary, all but one involved charges of inappropriate and excessive prescriptions. Only three involved revoked licenses. One of those three with revoked license was Petitioner herein; one was Dr. Richard S. Flatt, one was Dr. Newell Griffith.ll All of the other cases documented in P-6 were ones in which the initial discipline imposed fell short of revocation,l2 and one of those was the acceptance of a voluntary relinquishment of licensure with leave to request reinstatement. In addition, documentation on which the summary was based was introduced as Composite P-17. A review of those materials reveals that procedurally, only five of the cases cited, in addition to the case of Petitioner Torres, were before the Board for informal proceedings. Five were stipulations accepted by the Board, none of which contained admissions as to the truth of the allegations of fact in the Administrative Complaint. Four were before the Board after formal hearings at which the case was fully tried and evidence of violations or defenses thereto was fully available. The remaining cases involved one voluntary relinquishment (Major) and one case (Flats) in which the documents relate to reinstatement and do not reveal the procedural posture of the underlying discipline. Of all of the informal hearings reflected in the documentation, only two of the Respondents failed to make an appearance, either in person or through counsel, to offer an explanation of their conduct or offer evidence in mitigation at the time the Board was imposing discipline: this Petitioner Torres and Dr. Newell Griffith. Petitioner Torres states that he did not appear at his April 9, 1983, hearing due to faulty advice concerning the date thereof given him by his former attorney. Dr. Newell Griffith's situation is discussed in greater detail, infra. In only one of the other cases (Seller) involving an informal hearing did the Administrative Complaint contain the specific allegations of fact that the patient was a known drug abuser and that the Respondent did not prescribe the controlled substance for a medically-justified purpose (Seller). In one other case (Waldheim) the allegations did include an allegation that the prescriptions were not for a medically-justified purpose, but there was no allegation therein with respect to the fact that the patient was a known drug abuser. Although both parties have argued a variety of similarities of the various aspects, issues, Respondents, etc. of the seventeen cases by which Petitioner has attempted to demonstrate incipient policy, the only ones specifically found relevant and material are those involving revocation: Torres, Flatt and Griffith.l3 The charges against Dr. Richard S. Flatt were couched in terms of bargaining with not-medically justified prescriptions for the sexual favors of a single female patient. Although Dr. Flatt's license was revoked, the initial revocation was stayed and the license was suspended for three years. A specific time limit was placed on the revocation (which probably is more correctly termed a suspension) with no further conditions for the stay imposed, but nonetheless it is found, for purposes of comparison re incipient policy, to be a revocation case. Dr. Flatt was without his license for 35 months. Thus, we come to the sole case which appears to be closely comparable, in any real sense, to the circumstances of Petitioner Torres: the case of Newell Jerome Griffith. Dr. Griffith was initially charged in 1981 with excessive and inappropriate prescribing of controlled substances to three patients, and was, at that time, given a disciplinary penalty of a revocation of the privilege to prescribe Schedule II controlled substances, with stay of such revocation, and a suspension of those privileges until after certain continuing medical education courses were completed, at which time the privileges would be reinstated on probation. Subsequently, Dr. Griffith was charged with prescribing Schedule II controlled substances to five patients while his privilege to do so was revoked. The final order in that cause indicates that Dr. Griffith did not attend the hearing on the charges, either in person or through counsel, that Dr. Griffith was found guilty after filing an Election of Rights admitting the facts, and that Dr. Griffith's license to practice medicine was revoked. When Dr. Griffith was asked by the Respondent in a second disciplinary action whether he knew at the time of the subsequent prescriptions that his license to do so was suspended and why under those circumstances he did so, Dr. Griffith replied: "I guessed I hoped it would not be picked up . . ." (P- 7, page 19). The final revocation was because Dr. Griffith prescribed 488 tablets of Schedule II drugs to five patients while his privileges to prescribe Schedule II drugs had been suspended. Respondent's proposals concede "that particular offense does appear to show an inability or unwillingness to conform to law," and it is so found. It is also found that the quantity and gravity of the drugs involved in Dr. Griffith's ultimate revocation case is less than those which led to Petitioner Torres' license revocation. When both the suspension and revocation cases are considered there is great similarity in quality and quantity of Griffith's prescriptions with those of Torres. In the revocation situation of Griffith however, there was no showing of prescription to drug abusers or prescription for a non-medically justifiable purpose and it involved fewer patients and pills than prescribed by Petitioner. Despite the fact that Dr. Griffith has violated the Medical Practices Act on two separate occasions (Petitioner having done so only once), and prescribed similar total quantities of controlled substances, including Dilaudid, and despite the fact that Dr. Griffith the second time around expressly engaged in conduct clearly showing "lack of judgment" and "his unwillingness to conform to the law", the Respondent has permitted Dr. Griffith to be reinstated and he is now practicing medicine. His license revocation was for a total of 24 months (P-6). Dr. Griffith's license was reinstated by the Board of Medical Examiners after repeated Petitions for Reinstatement had been denied and the appellate court had ordered the Board to articulate a basis for the denial and standards for Dr. Griffith to use in determining when the Petition for Reinstatement would be "mature" for presentation to the Board.14 After Petitioner Torres was charged with the specific violations of the Medical Practices Act involving improper prescription of controlled substances, he took and successfully completed a six and one- half hour Continuing Medical Education (CME) course involving the specific activities (prescription of controlled substances) for which his license was revoked. After successfully completing this Drug Law Seminar, Petitioner continued to take and complete continuing medical education courses including attendance at conferences and seminars and the reading of numerous medical periodicals and journals. These included three books or pamphlets concerning drug abuse, heroin, and other aspects of drug dependence. After the revocation of his license, the Petitioner and his wife jointly agreed that he would do everything he could to stay in touch with the medical profession so as to enhance the possibility of eventual reinstatement of his license. Both the Petitioner and his wife have continuously struggled at menial jobs to support their family of four children. Petitioner took a job providing audio visual materials at Hollywood Memorial Hospital for other doctors. Dr. Seidel, Director of Medical Education and In-House Chief of Staff for Hollywood Memorial Hospital, found the Petitioner to be an honest and hardworking person who completed all audio visual, chart review auditing, and quality assurance tasks assigned to him in an exemplary fashion. Petitioner viewed many of the continuing medical education programs and courses as part of this audio visual job. Petitioner urges that over 100 hours of CME have been completed, but Respondent argues these hours should be discounted because many hours were admittedly part of Petitioner's audio visual tasks. Based on the testimony and exhibits, it is impossible to separate which "hat" Petitioner was wearing for which topics or for how many hours, but it appears most logical that he was present in the room while at least 54 hours of Florida Medical Association-approved CME material was being presented by audio visual techniques. Without contrary evidence, one must assume Petitioner was at least as attentive as the Hollywood Memorial Hospital physicians required to attend these presentations by the hospital's quality assurance program. Certainly, hope of reinstatement of his license must have been an effective motivator for Petitioner. Even if there were some question concerning Petitioner's attention to these audio visual programs, which there is not, there remain 46 hours of CME accomplished by the Petitioner through other means. Most of the letters and petitions signed by physicians (P-1C) in support of Petitioner being permitted to practice medicine, though admitted into evidence by stipulation, are simply not probative of the basic issue of current safety to practice. Their probative value on this point is diminished on the same weight and credibility grounds as are most of the physicians' live and deposition testimony, or they fail because they are undated, stale, or at least confused about the fact that revocation has already occurred. By expert testimony, of Drs. Coopersmith, Shabanah, Di Giorgi, Piskur, Rand, and Bautista,l5 all testified that in their opinions, the Petitioner could now safely engage in the practice of medicine. Drs. Coopersmith, and Shabanah base their opinions upon Petitioner's CME hours and qualify the Petitioner's safety to practice in terms of being properly supervised or monitored. With the exception of Dr. Seidel and Dr. Bautista, most of the physicians who testified or gave affidavits in support of Petitioner Torres testified that he had practiced with reasonable skill and safety all along: this clearly was not so. These physicians' assertions show a lack of awareness of the full nature of Torres' practice before revocation, and, therefore, a lessened ability to judge whether Torres has changed in a manner sufficient to assure the Board and the public that he will practice with reasonable skill and safety within the confines of the requirements of the applicable Florida Statutes. Testimony by Drs. Coopersmith, Shabanah, Di Giorgi, Piskur and Rand specifically fall in this category of lessened weight and credibility. For the same reasons, the testimony of Mr. Tom Mulroney, a retirement village operator, and Mr. Lawrence Esteban, a paramedic/fireman, is equally lacking in weight and credibility. All written as well as oral evidence originating with Dr. Seidel has been weighed. Although Dr. Seidel apparently knew the entire prescribing history of Petitioner's medical career and of this case, he expressed the opinion that Petitioner's license should be reinstated and it is found that inherent in that opinion of Dr. Seidel is his belief that Petitioner can now safely practice medicine even though Dr. Seidel did not employ those "magic words." Dr. Seidel has known Petitioner for many years and his opinion in favor of reinstatement is particularly impressive in light of his almost daily observation of Petitioner since his license revocation and in light of Dr. Seidel's past knowledgeable observation and supervision of him as a house physician at Hollywood Memorial Hospital when Torres was first practicing there in 1977. The weight of Dr. Seidel's opinion is further amplified by Dr. Seidel's continuing service on peer review committees for this hospital. Dr. Bautista's knowledge of Petitioner's entire past prescribing went beyond just talking to Petitioner. Although she had agreed to oversee him if a probationary period were ordered with reinstatement, she also gave her unqualified professional opinion that Torres may now safely practice medicine. Since revocation, Petitioner has taken and passed both a physical and mental examination. Each examining physician concluded he could now safely engage in the practice of medicine. The description in psychiatrist James S. Weiner's report of the status of Petitioner's legal case before the Board and/or theDivision of Administrative Hearings and the apparent discrepancies between the facts as established by the initial final order of revocation by the Board and Petitioner's explanation to Dr. Weiner of what had occurred from Petitioner's point of view are as attributable to a non-lawyer's misunderstanding of the legal terms "suspension" and "revocation" and of the finality and legal consequences of the Board's 6/15/83 order as they are attributable to any alleged misrepresentation or lack of candor by Petitioner. Contrary to Respondent's urging in its proposals, Petitioner's credibility is not thereby diminished. While there were many patients who testified through affidavit or whose testimony was proffered without admission, as to how much they liked Petitioner and how much they wanted him back in practice, patients are not in a position either to judge Petitioner's ability to practice with reasonable skill and safety before revocation where, as here, they had no clear knowledge of his prescribing practices before revocation, and where, as here, they were not knowledgeable concerning his rehabilitation efforts, if any, since revocation. However, it is clear that despite newspaper publicity, Petitioner continues to enjoy a good reputation among many in the community. Petitioner's Plan of Re-Instatement was part of his Petition for Reinstatement affixed to his Petition for Administrative Hearing. It contains two (2) distinct Plans of Supervision during any probationary period Respondent might elect to set as a condition for Petitioner's re-instatement, including one plan where the practicing physician would supervise the Petitioner on a day-to-day basis and the other plan would include direct supervision within the confines of a publicly-owned and regulated medical facility with the parameters of that supervision to be set by the Respondent. As part of the first Plan of Supervision, an affidavit of a presently practicing physician in good standing with the Respondent, Videonia Bautista, M.D. was provided. She agreed, within her affidavit (and in live testimony recounted, supra) to supervise Petitioner on a day-to-day basis in her own office for as long as the Respondent felt such supervision was reasonably necessary. Petitioner also testified personally regarding his rehabilitation. Petitioner readily and candidly admitted that what he did in 1981 was wrong. The totality of his testimony and his general demeanor reveal that the acute embarrassment and subsequent financial and familial hardships and sacrifices that he and his family have endured since his downfall have instilled in him a valuable lesson which will constantly serve as a reminder to him of the standards of conduct required of one licensed in the medical profession. The Petitioner expressed remorse and regret for the actions he took in 1981. He apologized to his family, his peers and his patients. He expressed his frustration and disappointment in not being able to continue to serve his patients because of what he views as his past errors in judgment. Petitioner admitted to having a flaw in his character, that flaw being too trusting and too naive as to the subjective complaints of his former patients. Such a flaw of character is not inconsistent with the earlier disjunctive admission/finding that Torres "knew or should have known" (emphasis supplied) that he was prescribing to drug abusers. Torres explained that the experience he has endured has brought that flaw vividly to his attention and he has done everything within his power to reasonably ensure that the same problem never happens again. When the Petitioner was asked if he had learned anything from his experience, he testified: I have each and every time of the day pondered upon the mistake that I committed and the result that it has done to me and my family and my patients. That because of that, I will never do it again. Petitioner, a church-goer, and his wife and four children have suffered newspaper publicity, public humiliation, and a drastic reduction in their standard of living throughout this lengthy revocation period. Petitioner acknowledged and agreed to adhere to the Plan for Re-Instatement contained in the Exhibits to his Petition. He also agreed to abide by any reasonable requirements set by the Respondent to ensure that he would continue to safely engage in the practice of medicine and would not repeat the errors in judgment which led to the revocation of his license. The potential for Petitioner, if reinstated, to commit the same offense(s) is very dim.
Recommendation It is recommended that the Florida Board of Medical Examiners enter a final order reinstating Petitioner's license to practice. DONE and ORDERED this 24th day of October, 1985, in Tallahassee Florida. ELLA JANE P.DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Pursuant to a sworn application for a limited license filed by Petitioner on approximately March 5, 1982, and received by the Respondent on March 12, 1982, the Respondent, Board of Medical Examiners (herein sometimes referred to as the "Board") on April 17, 1982, considered Petitioner's application for limited licensure. By a Final Order of the Board dated May 11, 1982, Petitioner was advised that he did not meet the statutory requirements for limited licensure pursuant to Section 458.137, Florida Statutes, and therefore his application for limited licensure was being denied. Petitioner was further advised of his rights pursuant to Sections 120.57 and 120.60, Florida Statutes, to petition for a hearing and otherwise seek review of the Board's decision. Petitioner timely filed a request for a Section 120.57(1), Florida Statutes, hearing concerning whether or not he is in fact entitled to a limited license. The Petitioner, on June 1, 1981, retired from the position of Corporate Medical Director for Abbott Laboratories in North Chicago, Illinois. The Petitioner has been a licensed medical doctor since approximately 1945. Since his admission to practice medicine, Petitioner has enjoyed an illustrious career. His professional qualifications are not at issue herein. Petitioner wants a retired physician's license to "lend dignity to his status as a retired physician." The Petitioner does not desire to practice medicine and, in fact, represented that pursuant to his retirement plan with Abbott Laboratories, he would be forced to return to Abbott Laboratories all monies earned from any medical practice. During the hearing herein, when Petitioner was advised that Florida has no procedure to obtain a limited license such as that which he now seeks, Petitioner requested (1) that a refund of his $100 application fee be returned or (2) that the $100 fee be applied to his application to sit for the next medical licensing examination. During a brief period since he retired in June, 1981, the Petitioner was employed on a part-time basis at the Veterans Administration Hospital in Broward County, Florida. As stated, Petitioner does not now seek to practice medicine at that center or any other public or private institution.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: 1. That the Respondent enter a Final Order denying Petitioner's application for a limited license to practice medicine in this State. 3/ RECOMMENDED this 28th day of January 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January 1983.
