The Issue At the commencement of the final hearing the parties stipulated that the specific issue for determination is whether Dr. Walker's medical clerkships constituted allopathic medical education. Counsel for respondent argued that this proceeding affects only Dr. Walker's eligibility to take the licensure exam. For the reasons set forth below, that characterization is rejected.
Findings Of Fact Ralph Waldo Walker II graduated from the American University of the Caribbean in Plymouth, Montserrat, British West Indies. He obtained his medical school diploma in May 1982. As part of the curriculum in medical school he partiipated in clinical clerkship training at Mercy Medical Center in Des Moines, Iowa. All of his clerkships, except psychiatry, were at that hospital and were completed during 1981 and 1982. (Exhibit 1) In Iowa, hospitals are not licensed as osteopathic or allopathic, but rather are simply licensed as hospitals. In Des Moines there is only one hospital that is identified as osteopathic: Des Moines General. Unless a hospital is specifically identified as osteopathic, it is considered allopathic. It is possible, however, for both allopathic medical doctors and osteopaths to practice at either hospital. (transcript, p. 17, 18; Deposition of Dr. Gay, p. 5-7) During the time that Dr. Walker served his clerkship, Mercy Hospital had medical students from the medical school in Guadalajara, Mexico, the American University of the Caribbean, and the University of Osteopathic Medicine and Health Sciences in Des Moines. Less than half of the students rotating on a regularly scheduled basis were from the osteopathic school. Less than half of the students at Mercy during 1981 and 1982 were under the direct supervision of an osteopathic physician. (deposition of Dr. Gay, pp. 8, 10) In his clerkship experience at Mercy Medical Center, Dr. Walker was never supervised by an osteopathic physician. (transcript, p. 17) Mercy Medical Center is listed in the 1980-81 Directory of Residency Training Programs as a hospital approved by the American Medical Association for allopathic residency training in the speciality area of pathology. (deposition of Dorothy Faircloth, pp. 10-11) Dr. Waldo first applied for licensure in Florida in 1983. He paid the $350 application fee, and on February 10, 1984, he appeared before the Board of Medical Examiners' Foreign Medical Graduate Committee where he was guestioned at length regarding his background and education. Upon the affirmative recommendation of that committee, the full board voted to allow him to take the examination. (Exhibit 1, including transcript of the February 10, 1984, appearance) He took the June 1984 exam and failed; he repeated the process and failed the December 1984 exam. He applied for the June 1985 exam and was sent an admission card, but he decided instead to stay out and study. He applied again in August l985, and was sent an admission card for the December 1985 exam. (Exhibit 1) He was a1so reguired to appear again before the Board on November 23, 1985. The basis for the appearance, as stated by Executive Director Dorothy Faircloth, was a letter from a patient in Georgia. The letter was discussed and explained, and the Board questioned Dr. Waldo regarding his clerkships at Mercy Medical Center. The outcome of this appearance was denial of Dr. Waldo's application for licensure. The grounds for denial stated in the Board's order filed on February 6, 1986 are: The applicant's supervised clinical 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 the clinical training is being obtained, as required by Florida Administrative Code Rule 21M-22.18. Furthermore, the applicant's core clerkships were performed in an osteopathic institution, rather than an allopathic institution and do not constitute medical education as that term is used in Chapter 458, Florida Statutes. (Exhibit 1, including transcript of November 23, 1985, appearance before the Board) Dr. Walker. took the Federation licensing Examination (FLEX) in the State of Iowa and passed with scores of 78 and 81. A score of 75 on each component is considered a passing score in Florida. Dr. Walker became licenced to practice medicine in Iowa on August 22 1986. (Exhibit l, transcript, pp. 14, 26)
Recommendation Based on the foregoing, it is recommended that a final order be entered approving Ralph Waldo Walker's application for licensure to practice medicine in the state of Florida. DONE and RECOMMENDED this 31st day of December, 1986 in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1986.
The Issue The issues presented here are based upon an Administrative Complaint filed by the Petitioner against the Respondent seeking the revocation, suspension, or other disciplinary action against the Respondent, and his license to practice medicine in the State of Florida. Count I to the Administrative Complaint accuses the Respondent of making misleading, deceptive, untrue and fraudulent representations in obtaining his license to practice medicine in the State of Florida. It is further contended that Respondent has not and cannot demonstrate that he graduated from medical school, and alleges that Respondent cannot demonstrate that he has met the minimal medical education, training and experience necessary for licensure by the Petitioner. Based upon these allegations, Respondent has purportedly violated Subsection 455.1201(1)(a), Florida Statutes (1977), by failing to demonstrate qualifications and standards for licensure contained in Chapter 455, Florida Statutes, or the rules and regulations of the Board of Medical Examiners. Count II, utilizing the same factual basis as has been alleged in the initial count, accuses the Respondent of violating Subsection 455.1201(1)(b) , Florida Statutes (1977), by practicing fraud or deceit in obtaining a license to practice medicine. Count III accuses the Respondent, based upon the aforementioned facts, with violating Subsection 458.1201(1) Florida Statutes (1977), by engaging in unethical, deceptive or deleterious conduct or practice harmful to the public. Count IV is based upon the facts as related in Count I and asserts that Respondent has violated Subsection 455.1201(1)(m), Florida Statutes (1977), by being guilty of immoral or unprofessional conduct, negligence or willful misconduct. Count V, utilizing the facts related in Count I, alleges that Respondent has violated Subsection 455.327(2)(c), Florida Statutes (1951), and thereby violated Subsection 458.331(1)(x), Florida Statutes (1981), by violating a provision of Chapter 455, Florida Statutes. Finally, Count VI, asserting the facts as discussed herein, alleges that Respondent has violated Subsection 455.331(1)(a), Florida Statutes (1951), by attempting to obtain and obtaining a license to practice medicine by fraudulent misrepresentations CASE HISTORY On September 24, 1981, the Petitioner filed the Administrative Complaint against the Respondent which is the subject of this proceeding and which is referred to in summary fashion by the Issues statement to this Recommended Order. Subsequently, Respondent requested a hearing in this cause on November 11, 1981, by indicating, in substance, that he disputed the allegations as contained in the Administrative Complaint. On that same date, Respondent, through counsel, answered the Administrative Complaint. This answer was made a part of the record in the course of the final hearing and is being forwarded with the Recommended Order in this action. On November 30, 1981, the Division of Administrative Hearings received the case from Petitioner, the Petitioner having requested the Division to conduct a formal hearing in this matter. On December 3, 1981, Respondent's initial counsel withdrew from representation of Respondent. Respondent subsequently obtained the assistance of his present counsel, Rodney Smith, Esquire, and a final hearing was conducted on March 9, 1982, in keeping with Subsection 120.57(1), Florida Statutes. Petitioner's presentation consisted of testimony by Dorothy J. Faircloth, Executive Director, Board of Medical Examiners, State of Florida. Petitioner also offered seven (7) items as evidence. All those items, with the exception of Nos. 5 and 6, have been received. Respondent gave testimony and presented as witnesses Edward M. Crawford, President, High Springs, Florida, Chamber of Commerce; Lorna J. Peters, resident, High Springs, Florida; Leslie Ann Morgan, X-Ray Technologist in the office of Respondent; Angela Anderson, employee of Respondent; Mireya Braga, Respondent's wife; Lacey William Register, Mayor, High Springs, Florida; a Mr. Westmoreland, resident, High Springs, Florida; Cybil M. Crawford, Vice- President, High Springs Bank, High Springs, Florida; and Thomas William Wolfe, Chief of Police, High Springs, Florida. Respondent offered six (6) items of evidence. All items have been received. The parties, in the person of counsel, have offered proposed recommended orders and supporting argument. Those matters have been reviewed prior to the entry of this Recommended Order. To the extent that those items are consistent with this Recommended Order, they have been utilized. To the extent that the matters are inconsistent with this Recommended Order, they are hereby rejected.
Findings Of Fact In February, 1976, Respondent made his initial application to the Board of Medical Examiners to become a licensed physician in the State of Florida. A copy of that application may be found as Petitioner's Exhibit No. 1, admitted into evidence. This application was received beyond the time of the deadline for filing and as a consequence, Respondent was required to submit a further application. The second application was made on January 17, 1977. A copy of that application may be found as Petitioner's Exhibit No. 2, admitted into evidence. Both applications were prepared by the Respondent and sworn to as to their accuracy. This attestation also acknowledged that if false information was given in the application, that Respondent agreed that the act of falsifying the application constituted cause for denial, suspension or revocation of his license to practice medicine in the State of Florida. Following the submission of the second application for licensure, Braga stood the Board of Medical Examiners' license examination, given in English, and was a successful candidate for licensure. He was awarded License No. ME0032004 and has renewed that license by the payment of applicable fees since the initial award of the license in 1978. The Administrative Complaint which has been discussed in the course of this Recommended Order challenges the accuracy of the information presented in the applications which were submitted by Respondent. In the initial application filed by the Respondent for licensure dating from February, 1976, Braga states that he attended Faculdade de Ciencias Medicas de Santos in Sao Paulo, Brazil, from February, 1971, through December, 1967. In the application, Respondent indicates that he practiced and/or was employed at the INPS (Institute National of Providence Social) , Sao Paulo, Brazil, in General Practice, between 1970 through 1972; Clinica Nuesta Senora, Sao Paulo, Brazil, in General Practice, between 1971 through 1972; Heliopolis Hospital, Sao Paulo, Brazil, between 1969 through 1970, and the Fundacao Centro Nacional, San Paulo, Brazil, between January, 1968 and December, 1968. The initial application of February, 1976, also contained a document written in Portuguese, which was sworn and certified to by Braga as being a true, authentic and legitimate photocopy of the original of his medical diploma issued by Medic Sciences of Santos in Brazil. (See Petitioner's Exhibit No. 1) There is also contained in the application of February, 1976, an indication, under oath by Respondent, concerning a document as attached, purportedly issued by Heliopolis Hospital in San Paulo, Brazil. Finally, Respondent had attached to the form application, and found in Petitioner's Exhibit No. 1, affidavits from three physicians; Antonio J. Maniglia, Jorge Macedo and Humberto Munoz. These affidavits indicated that the physicians swore and affirmed that, by their personal knowledge, Respondent attended and graduated from Faculdade de Ciencias Medicas de Santos, and practiced lawfully in the profession of medicine in Brazil in the years 1968 through 1972, and further indicated that the physicians had practiced in Brazil during that time. It has been proven and Respondent acknowledges that the application of February, 1976, Petitioner's Exhibit No. 1, was false to the extent that it indicated his attendance at Faculdade de Ciencias Medicas de Santos in Sao Paulo, Brazil, during the years 1971 through 1967; to the extent that the application indicated he practiced in the hospitals and clinics as set forth above, and to the extent that the application indicated that the physicians who had signed the affidavits had personal knowledge of Respondent's graduation from the medical school and his practice of medicine in Brazil. In the January, 1977, application with associated documents, found as Petitioner's Exhibit No. 2, admitted into evidence, Respondent indicates to the Board of Medical Examiners that he attended Faculdade de Ciencias Medicas de Santos, Sao Paulo, Brazil, from December 1967 to February, 1971, and received his degree of Doctor of Medicine from that school on January 7, 1967. He indicates in the application, on the subject of residency or other postgraduate training, that he worked at the Fundacao Lusiada, Faculdade de Ciencias Medicas de Santos, from January, 1967, through October, 1967; and attended a Vascular Surgery Course, in the Heliopolis Hospital, Sao Paulo, Brazil, November, 1970. His employment was described in the application as being at the INPS (Institute National of Providence Social) Hospital, Sao Paulo, Brazil, General Practice, 1970 through 1972; at Clinica Nuestra Senora, Sao Paulo, Brazil, General Practice, 1971 through 1972; at Heliopolis Hospital, Sao Paulo, Brazil, General Practice, 1969 through 1970; and Fundacao Centro Nacional, General Practice, January, 1968 through December, 1968. The second application, which is found as Petitioner's Exhibit No. 2, attached a medical diploma purportedly from the School of Medical Sciences of Santos (Faculdade de Ciencias Medicas de Santos). This document shows a date of January 7, 1967, and was dissimilar to the diploma document which was attached to the February, 1976, application. There were certain affidavits with the January, 1977, application from physicians Jose A. Pardo, Jaime Motta and Pedro Melo, which affidavits indicated that the physicians had personal knowledge of Braga's attendance and graduation from Faculdade de Ciencias Medicas de Santos, in Sao Paulo, Brazil, and that he had lawfully practiced the profession of medicine in Brazil in the years 1967 through 1972. It was shown and Respondent admits that the January, 1977 application for licensure was false, in that Respondent did not attend the Faculdade de Ciencias Medicas de Santos in Sao Paulo, Brazil, from December 1967 through February, 1971; that be had not practiced medicine in the hospitals and clinics as listed; that be had not attended residency or postgraduate training programs as shown in the application; and that the physicians who signed the affidavits for Respondent did not have personal knowledge of his graduation from medical school or his practice of medicine in Brazil. In reality, while it is accepted, that Respondent, who is a native of Brazil, has obtained a medical doctor's knowledge, Braga is not found to have graduated from a medical school either in that country or elsewhere or to have, following graduation from a medical school, practiced medicine as a general practitioner for five years or practiced in a one-year internship program, prior to licensure in Florida. Respondent departed Brazil sometime either in 1968 or 1969. Fe did so in the face of circumstances in his country, in which Respondent had been imprisoned. After gaining his freedom he migrated to the United States. When Braga arrived in the United States, he moved to Chicago, Illinois, and practiced medicine in that community without the benefit of a medical license. He subsequently left the State of Illinois and moved to Florida. After arriving in Florida and while employed in the Milagrosa Clinic in Miami, Florida, practiced medicine. At that time he had not been licensed by the State of Florida to practice medicine. Prior to the date of licensure by the State of Florida, Respondent attended and successfully completed the Florida State Board of Medical Examiners' continuing education program for 1977, which was offered by the Office of International Medical Education, University of Miami, School of Medicine, In turn, he successfully stood the requisite medical examination offered in English and was licensed. After receiving his medical license in 1975, Respondent moved to High Springs, Florida, and opened a medical practice which is primarily involved with the general practice of medicine. In the course of his practice, he has treated some 15,000 to 20,000 patients. Respondent offered as witnesses many persons from the community of High Springs, Florida, who, from the point of view of these individuals, are impressed with his good moral character. No evidence was presented from either side on the subject of Respondent's reputation as a medical practitioners as perceived by members of his profession.
Findings Of Fact The Petitioner, James K. Hester, applied for licensure as a medical doctor in Florida. The Respondent is an agency of the State of Florida charged with administering and enforcing the statutory and regulatory standards by which physicians enter the practice of medicine in Florida as well as by which the practice of medicine by licensed physicians in Florida is regulated and enforced. The Petitioner's application was for licensure by endorsement. That application was denied on the basis that the Petitioner's supervised clinical training was not obtained in either a hospital affiliated with a medical school accredited by the LCME or in a residency program accredited by the ACGME in a specialty area in which the Petitioner's clinical training was done. This requirement is set forth in Rule 21M-22.018 (a substantial reenactment of former Rule 21M-22.18), Florida Administrative Code, the so-called "clerkship rule." The Petitioner's supervised clinical training at issue in this proceeding involved clerkships in internal medicine, surgery, obstetrics and gynecology, and pediatrics. The Petitioner performed the clerkships in 1983 and 1984. The parties have stipulated that the clinical clerkship performed by the Petitioner at Englewood Hospital in New Jersey in the area of internal medicine was an approved clerkship under the requirements of the above Rule. Therefore, the only clerkships at issue concern those in surgery, obstetrics and gynecology, and pediatrics, which were performed at Englewood Hospital by the Petitioner. In determining which clerkships comply with the Rule, and thus which hospitals are affiliated with accredited medical schools in certain specialty areas and in determining which residency programs are accredited by the ACGME in specified specialty areas, the board commonly and customarily relies on a directory or compilation of accredited programs which depicts medical training programs on a nationwide basis which are accredited by the ACGME. This compilation is generally relied upon by professionals in the medical education field as well as by medical licensing regulatory agencies nationwide. Its compilations of accredited medical schools and affiliated hospitals and accredited residency programs are compiled by the ACGME which organization in turn is accepted as authoritative in determining such matters, as is depicted on the face of the above-cited Rule. 1/ Englewood Hospital is not affiliated with a medical school which is accredited by the liaison committee on medical education in the specialty areas in which the Petitioner's disputed clinical training was performed. The hospital does not have a residency program accredited by the ACGME in the specialty areas in which the Petitioner's clinical training was performed. Although residents training in a residency program of other hospitals in the area accredited by the ACGME rotated through Englewood Hospital and took training in the relevant specialty areas in which the Petitioner participated, the Petitioner was not a participant or enrolled member in those residency programs of the other hospitals whose residents trained in part at Englewood Hospital. Although the Petitioner participated in some of the clinical training programs which residents affiliated with training programs at other hospitals participated in at Englewood, in addition to not being enrolled in residency training with those other hospitals and accredited programs, it was not shown he participated in all of the required "rotations" of those accredited training programs which full complement of rotations was the essential basis for the accreditation of those residency programs. Although Englewood Hospital had a relationship with the unaccredited medical school from which Petitioner graduated and certified the completion of his clerkships at Englewood, the Petitioner's training was not certified by an accredited residency program or hospital, because the Petitioner and his medical school had no affiliation with those accredited hospitals and residency programs who happened to have participants training at Englewood. Thus the Petitioner's clerkships in the disputed specialty areas were not verified as to their completion by any hospital affiliated with an accredited medical school or whose residency program was accredited by the above organization. Englewood Hospital was not approved or accredited for training in surgery, obstetrics and gynecology, or pediatrics for the years 1983-1984 at issue, as clearly shown by Respondent's Exhibit 1 in evidence.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that a Final Order be entered by the Board of Medical Examiners denying the application of James K. Hester for licensure as a medical doctor in the State of Florida. DONE and ORDERED this 28th day of October, 1986 in Tallahassee, Florida. P. MICHAEL RUFF 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 October, 1986.
Findings Of Fact Petitioner Marshall J. Barker filed an application for licensure by endorsement with Respondent Department of Professional Regulation, Board of Medical Examiners on July 27, 1981. The application reflected that he sought licensure on the basis of certification by licensure examination of the Federation of State Medical Boards of the United States, Inc. (FLEX). The application further showed that Petitioner had obtained the degree of Doctor of Osteopathic Medicine from the West Virginia School of Osteopathic Medicine on May 30, 1980, and that he had interned at various hospitals in Pensacola under the Pensacola Educational Program from July 1, 1980 through June 30, 1981. The internship was one approved by the American Medical Association. Petitioner was certified by licensure examination of the Federation of State Medical Boards of the United States, Inc. on July 27, 1981. He was licensed to practice medicine in the State of North Carolina in June, 1981, and in the State of Alabama on July 16, 1981. (Respondent's Exhibit 5) Petitioner personally appeared before the Respondent Board of Medical Examiners on September 13, 1981 at its meeting when his application was considered. In a written submission, Petitioner pointed out to the Board that he could not be licensed in Florida as an osteopath because he had engaged in a medical internship rather than one in osteopathic medicine. He urged, however, that he be licensed to practice medicine because Section 458.311, Florida Statutes, had been changed in 1979 to permit recognition of graduation from a medical school or college recognized and approved by an accrediting agency recognized by the United States Office of Education, and that the West Virginia School of Osteopathic Medicine is recognized by the American Osteopathic Association and by the Council on Post-Secondary Accreditation under the U.S. Department of Education. He also sought to amend his application to be one for licensure by examination rather than by endorsement. (Respondent's Exhibit 5). By Order, dated October 2, 1981, Respondent denied Petitioner's application for licensure by endorsement on the ground that he is not specialty board certified, or a graduate of a medical school or college recognized and approved by an accrediting agency recognized by the United States Office of Education. It was therefore concluded by the Board that he had not met the statutory requirements for licensure by endorsement pursuant to Sections 458.313 and 458.311(4), Florida Statutes. The Petitioner was informed in the Order that he could petition for a hearing under Sections 120.57 and 120.60, Florida Statutes. Petitioner did not request an administrative hearing, but appealed the decision of the Board to the First District Court of Appeal. (Respondent's Exhibits 4-5) Prior to 1979, the Medical Practice Act required an applicant for licensure to be a graduate of a medical school or college approved by the Board of Medical Examiners. (Sections 458.05 and 458.08, F.S.) The Board had implemented the statute by promulgation of Rule 21M-1.06, Florida Administrative Code, which read as follows: 21M-1.06 Approved Medical Schools - An approved medical school or college is one located within the United States or Canada, maintaining a standard and reputability as that adopted by the Council on Medical Education and Hospitals of the American Medical Association and the Association of American Medical Colleges. The rule was repealed in 1980 as a result of the repeal of Chapter 458, Florida Statutes (1978), and the enactment of Chapters 79-36 and 79-302 Laws of Florida, which required new rules regarding requirements for admission to the practice of medicine. New rules on the accreditation of medical schools have not yet been adopted by the Board. However, current Board policy recognizes those medical schools or colleges approved by the Liaison Committee on Medical Education (LCME) of the Council on Medical Education of the American Medical Association. (Testimony of Faircloth, Respondent's Exhibits 1-2) The United States Department of Education recognizes separate accrediting agencies for "medicine" and "osteopathic medicine" as reliable authorities concerning the quality of education or training offered by educational institutions or programs. In its publication "Accredited Postsecondary Institutions and Programs," the Department of Education recognizes the Liaison Committee on Medical Education of the Council on Medical Education of the American Medical Association and the Executive Council of the Association of American Medical Colleges as the accrediting agency for medicine, and the American Osteopathic Association as the accrediting agency for osteopathic medicine. (Respondent's Exhibit 3) No evidence was presented by the parties concerning the legislative history of subsection 458.311(1)(b), Florida Statutes. The West Virginia School of Osteopathic Medicine is not recognized by the American Medical Association as a school offering an accredited program leading to an MD degree. (Respondent's Exhibit 6)
Recommendation It is recommended that the Board of Medical Examiners deny the application of Petitioner, Marshall J. Barker. DONE and ENTERED this 1st day of December, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 1982. COPIES FURNISHED: Bruce A. McDonald, Esquire Emmanuel, Sheppard & Condon Post Office Drawer 1271 Pensacola, Florida 32596 Chris D. Rolle, Esquire Department of Legal Affairs The Capitol, Suite 1602 Tallahassee, Florida 32301 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Petitioner has met the requirements for licensure by examination as set forth in Chapter 458, Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary adduced at the hearing, the following relevant facts are found: Petitioner is 48 years old and resides at 210 Tibet Avenue, No.L-2, Savannah, Georgia 312406. Petitioner attended City College of Medicine, Cebu City, Philippines during the 1962-63 school year. While at City College, Petitioner failed four out of the five courses he was taking which, along with his father's financial hardship, forced Petitioner to drop out of medical school. Petitioner enrolled in medical school at Southwestern University, Matias H. Azklnar, Memorial College of Medicine, Inc., Villa Aznar, Cebu City, Philippines (Southwestern) for the school year 1965-66. During the 1965-66 school year at Southwestern Petitioner passed, among others, those courses which he had failed at City College during the 1962-63 school year. During the 1966-67 school year Petitioner failed pharmacology 2 and physical diagnosis but passed those courses during the 1967-68 school year, while failing surgical pathology which he passed during the 1968-69 school year. During the 1968-69 school year Petitioner failed pharmacology 3 in the first and second semester. Although Petitioner testified that he passed pharmacology 3, Petitioner's transcript from Southwestern does not indicate that Petitioner passed pharmacology 3 before graduating from Southwestern University in 1971. Petitioner graduated from and received his medical degree from Southwestern in 1971. Southwestern is registered by the World Health Organization. Petitioner served an internship at Detroit-Macomb Hospital Association from July 1, 1982 until June 30, 1983. Petitioner received an overall evaluation of "good" on his internship and was recommended as qualified and competent. Petitioner took the Federation Licensing Examination (FLEX) in December 1982, June 1983, December 1983 and December 1984, and failed the examination each time. In June 1985, Petitioner took the FLEX examination again and passed Component 2 but failed Component 1 by one point. In December 1985, Petitioner took Component 1 again and passed. Petitioner successfully passed the medical examination portion of the Educational Commission For Foreign Medical Graduates (ECFMG) examination on January 21, 1981 and the English examination portion on July 22, 1981 and was issued certificate number 245-840-4 on January 8, 1982. That ECFMG has remained valid since that date. Before passing the ECFMG examination in 1981, Petitioner had failed that examination six times. Petitioner is licensed to practice medicine in the states of Michigan and Georgia, and has been licensed in those states since March 3, 1986 and June 11, 1986, respectively. However, other than serving an internship, Petitioner has never practiced medicine in the state of Michigan. Petitioner's licenses to practice medicine in the state of Michigan and Georgia have never had any disciplinary action taken against them. Petitioner practiced medicine at Central State Hospital (a mental institution) at Milledgville, Georgia as a general physician in family practice, working also in the area of psychiatry, from April 1, 1988 until his resignation on October 24, 1988. At the time of the hearing, Petitioner had been practicing medicine as an emergency room physician for approximately 8 months at Stattanall Memorial Hospital near Savannah, Georgia, and had been working as the physician in charge at the Immediate Med Clinic near Savannah, Georgia for a couple of months. Petitioner also practiced medicine for a brief period at Folkston Memorial Hospital in Folkston, Georgia, but terminated this employment due to the long distance from Savannah, Georgia where Petitioner resided. Although Petitioner was a staff member at Central State Hospital, he did not have staff privileges in that he was not authorized to admit patients to Central State Hospital. Petitioner did not have staff privileges at any other hospital or clinic where he practiced medicine in that he was not authorized to admit patients. Petitioner is an active member of the American Medical Association (AMA) in good standing. Petitioner has never been a defendant in a medical malpractice suit. Petitioner has established facts to show that he is qualified and competent to practice medicine with reasonable skill and safety, notwithstanding that it took him 7 years to complete a five-year medical curriculum, that it took him 6 tries before passing the ECFMG examination, that it took him 5 tries before passing the FLEX examination, that he has practiced in Georgia for only approximately 2 years mainly in general practice and, his performance in his medical education and training. There was no evidence that Petitioner had "exhibited a consistent pattern of less than successful or borderline performance" in his "medical education and training". Respondent Board did not present any evidence from an expert or "person with special expertise" or anyone else to show a rational relation between Petitioner taking 7 years to complete a 5-year medical school curriculum, Petitioner failing the ECFMG examination 6 times before passing, Petitioner failing the FLEX examination 5 times before passing, Petitioner's practice in Georgia and his medical school education and training performance; and the ability of Petitioner to practice medicine with reasonable skill and safety.
Findings Of Fact Petitioner 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
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 The issue in this case is whether the Petitioner, Rene Delgado Leon, M.D., is eligible for examination for licensure to practice medicine in the state of Florida. The Petitioner, of course, contends that he is eligible. The Respondent, Board of Medical Examiners, contends that the Petitioner has failed to demonstrate eligibility, having previously advised him, inter alia: Your application and supporting documentation contained substantial omissions of material information relative to your medical education. Additionally, your application and supporting documentation does not provide sufficient information to demonstrate that you can practice medicine with reasonable skill and safety. See Section 458.301, Florida Statutes.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. The Petitioner, Dr. Rene Pedizo Delgado Leon, was born on November 26, 1936, in Cuba. All of his formal education prior to medical school was obtained in Cuba. He attended medical schools, off and on, at various times and places between 1955 and June of 1980. His medical education commenced in 1955 at the Medical School of the University of Havana and ended when he-was awarded his medical degree from the University of Dominica in June of 1980. The Petitioner's first language was Spanish and he is not completely fluent in the English language. When communicating in English he appears to have a tendency to interpret statements and questions in a very literal manner. The Petitioner does not appear to have intended to deceive the Board of Medical Examiners or to misrepresent information about his education and experience. Nevertheless, he has not been very clear about a number of details. Since receiving his degree from the University of Dominica in 1980, the Petitioner has completed a residency in pathology, has passed the FLEX exam in conjunction with his application for licensure in the state of Georgia, and has been licensed to practice medicine in the state of Georgia. There were several discrepancies between information given by the Petitioner to the Board of Medical Examiners and to the Hearing Officer concerning various aspects of his background, particularly concerning his medical education. With regard to his medical education, Petitioner listed on his first application that he attended medical school in Havana, Cuba, from April 1954 until December 1962. On his second application he stated that he attended medical school in Havana, Cuba, from September 1955 until September 1960. He testified before the Foreign Medical Graduate Committee that he attended medical school at the University of Havana from 1955 until 1962. At the final hearing he testified that he attended the University of Havana from 1955 until 1962. On his first application, in response to the direction that he list all universities or colleges where he attended classes and received training as a medical student, he stated only that he attended the University of Dominica from June of 1977 until June of 1980. He subsequently filed a form, received by the Board on October 26, 1983, stating that he had attended the University of Zaragoza, Zaragoza, Spain, and received training as a medical student from November of 1974 until April of 1975. On his second application, he stated that he had attended the University of Zaragoza as a medical student from November of 1974 until April of 1975. At the final hearing he testified that in 1973 while he was in Zaragoza he applied to revalidate old courses taken in Havana and that thereafter he took all examinations up to the third year. He stated that he took other courses in Zaragoza, but that he did not take the examinations for any of the medical courses taken in Zaragoza. He also testified that he was given credit for courses at Zaragoza even though he did not take the examinations. The next segment of his medical education was consistently testified to as having been had at the Universidad Central del Este in the Dominican Republic. He attended the Universidad Central del Este for only one semester, during which he took six or seven subjects. He testified that Universidad Central del Este did give him some credit for the third year of medical school; in spite of the fact that he did not take examinations in any of the third-year courses he took in Zaragoza. In January of 1979 he transferred to Universidad Nordestana and spent approximately one year there. Univeraidad Nordestana gave him two and one half to three years of credit. Although his initial application showed that he had attended the University of Dominica in the West Indies from June of 1977 until June of 1980, his subsequent written and oral testimony was that he was enrolled at the University of Dominica only from January of 1980 until June of 1980. He testified before the Foreign Medical Graduate Committee that at the time he transferred from Nordestana, he was basically finished with his medical education and he said he transferred to Dominica because they did not talk in English in Santo Domingo. He also testified that he transferred to Dominica so that he could get some exposure to how medicine was practiced in the United States. Petitioner testified that although he transferred to the University of Dominica and he received his degree from the University of Dominica six months after he transferred there, he did not pay any monies to the University of Dominica. His explanation of why he did not pay money to the University of Dominica is that he wrote things for them, like a pathology booklet. The application form which Petitioner completed requested that he specify all places of residence since beginning medical training. On his first application he showed that he resided in Dominica, West Indies, from January of 1980 until June of 1980. On his second application he listed as residences since initiation of medical training only the University of Miami, Jackson Memorial, VA Hospital, and the University of South Florida, Tampa. In August of 1983 he followed up the second application with a letter to Mrs. Faircloth which stated that his place of residence while attending medical school was the "students quarters and dormitories" at Portsmouth, University of Dominica, West Indies. However, at the hearing before the Foreign Medical Graduate Committee and at the final hearing, Petitioner admitted that he was, in fact, on the campus of the University of Dominica only one day, and that was on graduation day. In fact, when he testified before the Foreign Medical Graduate Committee, he was specifically asked, "When you left Nordestana, where did you go?" To that question he replied, "Oh, to Dominica." However, he later admitted that when he left Nordestana, he went to Miami and he did not go to Dominica until he went six months later in order to graduate. On both of his written applications, Petitioner was asked to list the degrees earned other than M.D. On neither application did he list a bachelor's degree. Yet, in testimony before the Committee and at the final hearing, he testified that he had earned the equivalent of a B.S. in chemistry at the University of Havana. He testified that the reason that he omitted it was that he thought the question referred to medical education. However; in response to the same question, he listed that he had obtained a Licensee in Science and a Doctor in Science from the University of Zaragoza. With regard to the matter of what clerkships, if any, Petitioner performed as part of his medical education, the record shows that he was enrolled at the University of Dominica, the school from which he received a medical degree, from January or February of 1980 until June of 1980. The record also shows that during that five- or six-month period he performed what purported to be clerkships at the VA Hospital and at Coral Gables Hospital, in Miami, and at the same time was an employee of the VA Hospital. He testified that his clerkship at the VA Hospital was in pathology and that he was employed full time in the same area as he was receiving clerkship credit. He arranged the clerkships himself and informed the university of the clerkships. He testified that he did the same activities as the other clerks did, but he worked approximately forty hours and they worked thirty to forty hours. He effected his transfer to the University of Dominica by writing to the New York office and by taking some "required" examinations in basic sciences and clinical studies. He took the examinations in Miami and passed everything but gynecology. He eventually passed gynecology, but not until May of 1980 after he had almost completed clerkships. He testified that when he did his "rotation" at the VA Hospital, he was told that he could "moonlight." He testified that he did all of the autopsies while the other medical students watched. He testified that he went in to work at about 7:00 a.m. and left around 4:00 p.m. and that the other residents did not arrive until about 8:00 a.m. However, he did testify that the clerks arrived at 6:00 a.m. Petitioner testified that he was doing a clerkship at the time, not a residency, and that it was the extra time that he put in that justified his being both paid and given credit for an educational experience. Dr. Robert M. Clark was Petitioner's supervisor during the period of approximately January of 1980 until June of 1980. Petitioner worked in the morgue as a Physician's Assistant and also did "resident physician work." Petitioner was paid at the same time as he was doing a rotation because there was a shortage of residents. Petitioner had the same exposure to pathology as the other residents, all of whom were from the University of Miami. None of the other students were paid employees. A Physician's Assistant requires two years of medical school. Dr. Clark was introduced to Petitioner by Dr. Kuhnhardt. Dr. Kuhnhardt was not connected in any way with the medical school at the University of Dominica. The only other purported clerkship about which there was testimony at the hearing related to a clerkship at Coral Gables Hospital. That clerkship was under Dr. Hurst. That clerkship was done from January of 1980 until June of 1980, the same period during which the clerkship at the VA Hospital was done. Petitioner testified that he went to Coral Gables Hospital after he left the VA Hospital, usually after 4:00 p.m., and stayed however long was necessary, possibly as late as 8:00 or midnight. Dr. Hurst only let the students observe medical procedures. That clerkship was conducted in a community hospital. As for the supervision by the school, the testimony was that the school played no role in arranging the clerkships. Petitioner testified that people from the school came for general meetings every once in a while during the clerkships. As for evaluation, Petitioner testified that the school sent evaluation forms to him and he distributed the forms to whoever was supervising him.
Recommendation Based upon all of the foregoing it is my recommendation, because of the contradictions and uncertainties on the record in this case regarding the nature of the Petitioner's medical education, that the Board of Medical Examiner issue a final order denying the Petitioner's application for licensure by examination without prejudice to the filing of any future application for licensure by examination or endorsement, unless; for reasons analogous to those set forth in the Lopez decision, supra, the Board is persuaded that the shortcomings in the application and its supporting evidence may be overlooked in light of the Petitioner's achievements since 1980. DONE AND ORDERED this 3rd day of January, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1986. COPIES FURNISHED: M. Catherine Lannon, Esquire Assistant Attorney General Department of Legal Affairs Room LL-04, The Capitol Tallahassee, Florida 32301 Jorge A. Sibila, Esquire 2751 Coral Way Miami, Florida 33145 Dorothy Faircloth; Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche; Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 APPENDIX The following are my specific rulings on each of the proposed findings of fact submitted by each of the parties. Rulings on Petitioner's proposed findings: The Petitioner's proposed findings of fact consist of a two- line introductory clause and six unnumbered indented paragraphs. The six unnumbered indented paragraphs are addressed below in the order in which they appear in the Petitioner's proposed findings of fact. First Paragraph: Rejected. This paragraph is merely a commentary on the state of the record and does not contain any proposed finding of fact. Second Paragraph: Rejected for the same reason as the first paragraph. Third Paragraph: Rejected in part and accepted in part. Rejected portions are rejected for the most part for the same reason as the rejection of the first two paragraphs. The "fully explained" portion of this paragraph is rejected as not supported by the greater weight of the evidence. Findings have been made consistent with the portions of this paragraph relating to when Petitioner's medical education began and ended, his completion of a residency in pathology, and his passing of the FLEX examination. Fourth Paragraph: The first sentence of this paragraph is rejected in part because it is merely a commentary on the state of the record and in part because it is inconsistent with the evidence of record. Dr. Clark did not explain the Petitioner's work in detail: to the contrary, his testimony was rather vague about a number of the details and he failed to recall a number of specific details. The last sentence of this paragraph is rejected because it is not supported by competent substantial evidence. Fifth Paragraph: Rejected for the same reason as the first paragraph. Sixth paragraph: The first sentence of this paragraph is rejected because the Petitioner's explanations were incomplete. With regard to the second sentence of this paragraph, it is accepted that the Petitioner is "not fluent/native in the English language or in legal terminology," and that the Petitioner did not intend to deceive the Board or misrepresent information to the Board. m e remainder of the second sentence is rejected on the grounds that it is in part irrelevant and immaterial as well as on the grounds that the ultimate factual conclusion urged in the second sentence is not warranted by the evidence in the record. Rulings on Respondent's proposed findings: The Respondent's proposed findings of fact consist of seventeen separately numbered paragraphs. The paragraph numbers which follow correspond to the numbers of the paragraphs of the Respondent's proposed findings. Accepted in substance with certain gratuitous editorial material deleted. Accepted in substance. Accepted in substance with the exception of the sentence reading: "In contradiction, he testified at the final hearing, on both direct and cross-examination, that he furthered his medical education in Spain in 1970." The quoted sentence is rejected because it does not accurately reflect the totality of the Petitioner's testimony on this subject. Some other redundant material in this paragraph is also rejected. Rejected on the grounds that it consists of irrelevant and cumulative details which are not necessary to the disposition of this case. Accepted in substance with certain gratuitous editorial material deleted. The first sentence of this paragraph is accepted. The second sentence is accepted with the exception of the words ". . . at which time he needed three years." The quoted language is rejected as not being supported by persuasive competent substantial evidence. Accepted. The first two sentences of this paragraph are accepted in substance. The last sentence is rejected as irrelevant in part, cumulative in part, and not supported by competent substantial evidence in part. Accepted in substance with certain gratuitous editorial material deleted. Accepted. Accepted in part and rejected in part. Reasons for rejection include the feet that although most of this paragraph is an accurate summary of portions of the Petitioner's testimony; some of the testimony on this subject was not persuasive and has not been used as the basis for findings of fact. The parenthetical mention of the pathology booklet is rejected because there is no competent substantial evidence as to when Petitioner wrote any pathology books Accepted in substance. Accepted in part and rejected in part. Reasons for rejection include the fact that although much of this paragraph is an accurate summary of portions of Dr. Clark's testimony, much of the testimony on this subject was not persuasive and has not been used as the basis for findings of fact. Portions of this paragraph have also been rejected on the grounds that they constitute commentary on the quality of the testimony or argument and are not proposed findings of fact. Accepted in part and rejected in part. Reasons for rejection include the fact that although most of this paragraph is an accurate summery of portions of the Petitioner's testimony, much of the testimony on this subject was not persuasive and has not been used as the basis for findings of fact. Accepted. Rejected as findings of fact because it constitutes argument rather than proposed findings of fact. [Much of the argument is well taken, but it is argument nevertheless and not appropriately part of the findings of fact.] Rejected for the same reason as Paragraph 16.
Findings Of Fact At all times pertinent to the issues herein, the FBM, Respondent herein, was the state agency responsible for the licensing of medical doctors in Florida and the regulation of the practice of medicine in this state. Petitioner is a medical doctor licensed by the Board to practice in Florida. The parties stipulated to the following facts, and it is so found: The Florida Board of Medicine employs no specific criteria for the recognition of practitioners as specialists for advertising purposes other than the rule. The Board of Medicine has not reviewed the activities of the ABMS as it relates to its criteria for the recognition of specialists. The FBM has never adopted written standards, policies or guidelines governing the actions of the ABMS or their separately incorporated, financially independent member boards. The ABMS has never petitioned or applied to the FBM to be considered as a recognizing agency pursuant to Rule 61F6-24.001(2)(f), formerly rule 21M-24.001(2)(f). There are no written standards relating to qualifications for "recognizing agencies" as the term is used in the above-mentioned rule. Pursuant to the rule, the FBM designated specialty boards of the ABMS, a private organization, to be recognizing agencies without establishing any written standards or guidelines for the recognition of a physician as a specialist. The ABMS does not, itself, establish specific criteria standards or requirements for the certification of particular physician specialists. The ABMS utilizes guidelines and requirements established by separately incorporated, financially independent bodies known as specialty boards. The FBM has established no written standards, policies or guidelines to which the ABMS must adhere relating to the recognition of individual practitioners as specialists. The FBM has adopted no rules relating to the regulation or recognizing agencies as defined by the rule. The FBM has not established criteria relating to the qualification of non-ABMS organizations as recognizing agencies under the rule. The FBM has no input into the standards employed by the separately incorporated boards. There are no FBM rules requiring ABMS compliance. The FBM has no mechanism for review of the actions of either the ABMS or its separately incorporated boards. Regardless of standards employed by groups which recognize physicians as specialists, if the groups are not member organizations of the ABMS, advertising specialty achievements of these groups is not permitted under Florida law. Petitioner has been licensed as a physician by the FBM since 1976. He has completed a residency program in orthopedics but has not been certified in this specialty by a member board of the ABMS. However, he identifies himself as a diplomate of the American Academy of Neurological and Orthopedic Surgeons on his letterhead on correspondence mailed from his office and on various correspondence sent to Associated Insurance Brokers Claims Management in regard to a patient. Though he claims he did not intend his letterhead identification as a board diplomate to be advertising, he acknowledged such designation enhanced his stature as an orthopedic surgeon and many insurance carriers approve higher patient charges for various specialists. Thereafter, the FBM initiated disciplinary action against Petitioner on the basis that his "advertising" was in violation of rule 61F6-24.001(2)(f), F.A.C. which prohibited false, deceptive or misleading advertising, and which implied those conditions if the advertising stated or implied the physician was formally recognized as a specialist in a medical specialization unless such recognition was by an agency recognized by the ABMS or another FBM approved agency. Petitioner subsequently filed this challenge to that rule. In the interim, a Division of Administrative Hearings Hearing Officer held a formal hearing on the disciplinary administrative Complaint and on December 20, 1993, entered a Recommended Order in which he found that Petitioner had disseminated the alleged letterhead and that constituted advertising. Since the specialty certification was by an agency not recognized by the ABMS or any other approved recognizing agency, Petitioner was in violation of the rule. The FBM was scheduled to act on the Recommended Order at its meeting to be held on February 4 - 6, 1994. Whether such action was taken, or the nature thereof are not known to the undersigned. Dr. Michael Rask, a medical doctor licensed to practice in Oregon, California, Nevada, and Arizona, and certified in orthopedic surgery by an ABMS recognized board, is Chairman of the Board of the American Academy of Neurological and Orthopedic Surgeons, (Academy). The Academy is an educational, nonprofit, eleemosynary society of physicians and surgeons across America located in Las Vegas, Nevada. It has some international members. It is accredited by the American Federation for Medical Accreditation, (Federation), of which Dr. Rask is also the Chairman. The Federation has close to 50 specialty and sub-specialty boards in its membership, 35 of which are also members of the Academy. Membership in the Academy is neither illegal nor inconsistent with the lawful practice of medicine in Florida. Petitioner, Dr. Feldman, has been a member of the Academy since 1980. The Academy has approximately 650 certified members. For certification in orthopedic surgery as a specialty, the Academy requires completion of a five year residency in that service, in addition to 3 years practice experience. Both a written and an oral examination are required. The tests are formulated by the Academy's national examination committee who are members of the Academy. Between 50 and 60 percent of the committee members are also certified by ABMS recognized specialty boards, but Dr. Rask was unable to identify the members without reference to the Academy's archives, which were not available. Failure rate on the examinations runs from 25 to 28 percent and Dr. Rask feels the tests are comparable to those administered by ABMS member boards. The Academy publishes periodic medical journals edited by Dr. Rask as a part of its educational program and certifies continuing medical education courses accepted by both Texas and California as well as, "maybe some others." The Academy specialty board criteria have been approved by the US Department of Labor which, by letter dated December 18, 1984, recognized the Academy as a "bona fide medical specialty board" and indicated its diplomates could be accorded status equivalent to that of ABMS diplomates in their respective fields. Educational organizations have also recognized the Academy including the International College of Surgeons, United States Section. Nonetheless, it has not been recognized by the ABMS nor has any other recognition board sought approval from the FBM during the period between 1980 through April 1993. Since that time, four requests, including one from the American Academy of Neurologic and Orthopedic Surgeons, have been received by the FBM but they have been held in abeyance pending FBM rulemaking activity to develop appropriate criteria for approval. 10. Rule 61F-24.001(2)(f), F.A.C., formerly 21M-24.01, F.A.C., which is challenged in this matter, was adopted by the FBM in 1980 and amended the same year. In 1988 it was again amended to require ABMS recognition of specialty boards which certified individual physicians. At the time of adoption of the rule and of the amendment thereto, the FBM members recognized the organization and purpose of the ABMS and intended it to be the recognition agency for specialty certification as it relates to physician advertising. Dr. J. Lee Dockery has been Executive Vice-president of ABMS since July, 1991. Before that time he was in the private practice of medicine in Florida and a member of the Florida Board of Medicine. The ABMS is a nonprofit private organization not governmentally regulated, incorporated in Illinois. It is made up of 24 separately incorporated and financially independent specialty boards. There are approximately 126 other self-designated boards for the purposes of certification. The ABMS maintains no files on the standards of certification of these self-designated boards. According to Dr. Dockery, these self-designating boards are not accepted by the medical profession. The independent specialty boards within the ABMS framework develop the criteria for admission to the certifying examinations they administer. They also develop the examinations, determine the examinations' validity, score them, and report the passing scores to the individual physicians, along with certificates of qualification. The ABMS, on the other hand, is the agency which approves the establishment of a specialty or sub-specialty and the independent board for that specialty establishes the criteria and requirements for certification in that specialty. The ABMS does not prepare or grade specialty examinations nor does it review the results of the tests. It also does not establish the requirements for admission to specialty examinations. This is done by the individual certifying board. There are uniform standards among the 24 member boards which relate to the completion of required educational programs under which that specialty was approved for authorization purposes. These standards may vary in terms of length of years of training required but not as to the accreditation of that training. All member specialty boards require initial specialty training for sub-specialties in addition to the training for initial certification in the specialty. Once a physician is certified based on the requirements in place at the time, he does not lose that certification if the requirements for certification are subsequently increased. None of the fee paid by physicians to specialty boards is paid to the ABMS. The ABMS does not lobby, though it has, in some cases, given testimony before state medical boards concerning proposed legislation which, it feels, would inappropriately diminish the qualifications for certification, in order to insure the health of the public is protected. There is an organization for osteopathic physicians similar to the ABMS. It is called the American Osteopathic Association. The American Academy of Neurological and Orthopedic Surgeons is not and never has been recognized by ABMS, nor has the American Federation for Medical Accreditation. Using the term "diplomate" of an organization not affiliated with the ABMS is not improper since that term signifies only the passage of an examination and not certification of expertise. Also, placement of a credential in a cirriculum vitae is different from placing it in a letterhead. The issue is how the placement is to be used. Whereas the former has limited application, the latter may be widely disseminated.
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.
