Findings Of Fact Petitioner graduated from the Oral Roberts University with a degree of Doctor of Medicine on April 29, 1984. Thereafter, he successfully completed all examinations required for certification by the National Board of Medical Examiners. (NBME) On July 1, 1984, Petitioner embarked on a residency program in pathology at a University affiliated hospital of South Florida University (SFU). Petitioner also desired to obtain qualifications in family practice and the chairman of the pathology department and professor at SFU concurred that Petitioner's pathology residence should be interrupted with training in family practice. Prior to 1950, all medical school graduates were required to have one year of rotating internship before admission to practice medicine in all states. During the 1950's this practice changed and medical school graduates generally went directly into the residency in which they desired to qualify. More recently it has become recognized that practitioners of the various specialties in medicine are better prepared if they are exposed to different disciplines than the one in which they specialize. As a result some, but not all, residencies now require some form of rotating internship with their residency training. In July 1985, the American Medical Association Board changed the requirement for pathology residents to include training in family practice. In 1984, when Petitioner entered the pathology residency program, the joint program had not been approved by the AMA. However, the chairman of the pathology department at USF considered the family practice training which would interrupt Petitioner's pathology residence to be part and parcel of the pathology residency. Petitioner was enrolled in the pathology residency program at a University affiliated hospital on July 1, 1984, and trained as a pathologist until December 31, 1984. He again devoted his training to pathology from October 1, 1985 to December 31, 1985. On January 1, 1985, until September 30, 1985, (9 months) he was in the family practice residency program at Bayfront General Hospital. There he was under the direct supervision of the chairman of the family practice medicine at Bayfront General, Dr. Aucremann who also accepted Petitioner primarily as a pathology resident. From January 1, 1986, until March 31, 1986, Petitioner returned to the family practice residency program and on April 1, 1986, he resumed his pathology residency. While working in the family practice program Petitioner was paid a salary by the hospital from family practice funds, and while working in the pathology department his pay came from funds allocated to the pathology department. As a primary pathology resident Petitioner was not counted in the allowed quota of residents in the family practice residency program.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made to supplement the parties' factual stipulations: Petitioner's Pre-Immigration Activities In Nicaragua Petitioner is a native of Nicaragua. He obtained his medical education at the National University of Nicaragua (hereinafter referred to as the "University"). He graduated from the University in 1961 with a Doctor of Medicine and Surgery degree. Petitioner later received a Bachelor of Arts degree in psychology from Nicaragua's Central American University. Thereafter, he completed law school in Nicaragua; however, because he was an outspoken critic of the Sandinista government, he did not receive his law degree. Petitioner practiced medicine in Nicaragua for more than 26 years before immigrating to the United States for political reasons 3/ on March 10, 1988. His reputation as a physician in Nicaragua was excellent. Moreover, he provided at his "White Cross" (also referred to herein as "Cruz Blanca") clinic in the city of Managua, which he established in 1972, free medical services to those who were unable to pay for such services. He also volunteered his time and services to various organizations such as the Nicaraguan Professional Boxing Association, of which he was at one time the President, and the Nicaraguan national baseball team. Petitioner's Application For Licensure As A Physician Approximately 19 months after immigrating to the United States, Petitioner submitted to the Board an application for licensure as a physician pursuant to Section 458.311(10), Florida Statutes. On the application form, under the heading "Medical Education," Petitioner indicated that he had studied at the University's Leon, Nicaragua campus from April 1, 1952, to January 30, 1953, and at the University's Managua, Nicaragua campus from April 1, 1958, to January 30, 1959. He provided no other information under this heading. Under the heading "Practice/Employment," Petitioner indicated that from January 1, 1962, to October 30, 1972, he had seen "[p]rivate [p]atien[t]s" at his "[o]wn [c]linic" in Managua and that from November 1, 1972, to February 20, 1988, he had been the "Director of Internal and Famil[y] Medicine" of the "White Cross of Nicaragua" in Managua. He provided no other information under this heading. On December 1, 1989, the Board sent Petitioner written notification that his application was incomplete for the following reasons, among others: The World Directory of Medical Schools indicates duration of studies six years with one year being a rotating internship and one year social service before you are awarded the Doctor of Medicine and Surgery and registration with the Ministry of Public Health you may engage in private practice. In the form of a sworn affidavit please explain or answer the following questions regarding your application: It appears your studies only lasted 18 mos. (4-52 to 1-30-53) and (4-1-58 to 1-10-59). It is not apparent you completed the required 1 yr social service. Application indicates you were in medical school from 4-1-58 to 1-1-59 and in residency at General Hospital from 1-1-59 to 12-1-59. Please explain the apparent discrepancy. . . . 7. Account for the following time: 2-2-88 to the present. . . . Petitioner responded by writing the Board a letter. The Board received the letter, as well as the attachments Petitioner sent along with it, on January 6, 1990. Petitioner's letter provided in part as follows: Following your letter of December 1, 1989, here are my answers to the questions made to me in order to complete my Application No. 88, within the framework of the law No. 458.311, "Licensure by examination." SEE ENCLOSED ATTACH[MENT] ONE (1).- Studies: 4-1-52 to 12-31-58. I enclose evidence on intense medical practice; when I graduated there was not Social Service for graduated medicine students, however, in addition to the rotatory practice I have 2 internship years. See enclosed Attach[ments] two (2) and three (3) Residency General Hospital from 1-1-59 to 12-31-59. See Enclosed attach[ments] (1) and (3). . . . 7. Since 2-2-88 I live in Miami without practicing my profession; presently I am doing some research and writing two recently finished books. From Miami I am also managing the medical institution "CRUZ BLANCA," of which I am the Director - see enclosed Certificate-; the latter, together with other data-evidence confirms my medical professional practice since I graduated. -See Enclosed attach[ments] (4) and (3). . . . I hope I have completed all the information requested; I will be waiting to hear from you for any other point th[at] may arise regarding my request. Thanks. Attachment (1) referred to in Petitioner's letter was a written statement by Petitioner in which he stated the following: The Medical Education in Nicaragua was of seven years and one year of practice in the General Hospital. The Medical School had two locations respectively in Leon and Managua. My Medical Education was from April 1, 1952, to Dec. 31, 1958 = seven years. MEDICAL EDUCATION Name of Medical School: Medical School of the National University of Nicaragua: LEON- Nicaragua From: April 1, 1952 To: January 30, 1953 April 1, 1953 To: January 30, 1954 April 1, 1954 To: January 30, 1955 April 1, 1955 To: January 30, 1956 April 1, 1956 To: January 30, 1957 April 1, 1957 To: January 30, 1958 Managua- Nicaragua From: April 1, 1958 To: December 31, 1958 There are two months of vacations : February and March, every year. Leon and Managua Nicaragua are the same University in different localities. My INTERNSHIP: General Hospital of Managua from 1-1-59 to 12-31-59. On January 10, 1990, the Board sent Petitioner written notification that his application was still incomplete. In this written notification, the Board requested, among other things, that Petitioner have his letter, "retyped in the form of a sworn affidavit." Petitioner complied with this request and resubmitted the letter, in affidavit form, to the Board, along with other materials. Among the other materials he sent to the Board was a certificate from the Secretary of the Board of Directors of Cruz Blanca, which provided as follows: The undersigned Secretary of the Board of Directors of the Cruz Blanca Institution of Medical Social Service, established according to the laws of the Republic of Nicaragua, issues these presents to certify that Dr. Leon Cesar Delgadillo was our founder in the year nineteen hundred seventy-two and that he has acted as our Medical Director and Executive President of the Board of Directors since then, being also in charge of the responsibility of Internal Medicine. Dr. Leon Cesar Delgadillo is a well-known and experienced doctor in the Republic of Nicaragua. He attended seven years of academic studies at the National University of Nicaragua and one year as intern at the General Hospital of Managua which was destroyed by a devastating earthquake in nineteen hundred and seventy-two. He then became an intern at the Social Security Hospital for one more year followed by another year of residency at the Psychiatric Hospital of Managua, Nicaragua. At that time the Medical Social Service did not exist, but Dr. Delgadillo who has a great human sensibility has practiced Social Medicine at Cruz Blanca. His License to practice both private and institutionally as well as his diploma are legally registered at the Ministry of Health. Dr. Delgadillo is also author of "La Dieta Feliz" (The Happy Diet) a best seller in Nicaragua and Central America and presently he has finished writing two books which will soon be published "VIDA Y SALUD CON FISIODINAMIA" (LIFE AND HEALTH WITH PHYSIODYNAMICA) and an educational novel of intense drama about AIDS titled "INFIERNO EN LA TIERRA" (HELL ON EARTH). Due to political reasons, he has lived in the United States since February 2, 1988, but from there he directs our Institution and has been busy there, in the USA, with the abovementioned books of which he is the author. His degree of Medicine was signed by the President of the Republic because that was the law and practice at that time. On February 19, 1990, the Board, having determined that Petitioner had "substantially complied with the requirements set forth in Section 458.311(10)(a), Florida Statutes," and that it was "likely that [Petitioner would] be able to fully comply with all the requirements," issued an order granting "conditional certification of the application of [Petitioner] pursuant to Section 458.311(10)(a), Florida Statutes," thereby authorizing Petitioner to enroll in the University of Miami's Comprehensive Medical Review Program, which was designed to prepare foreign medical school graduates to take the FLEX licensure examination. Petitioner subsequently enrolled in and successfully completed the program. In response to a letter from the Board indicating what he needed to do to "fully comply with all of the requirements of Section 458.311(10)(a), Florida Statutes," Petitioner sent the Board a letter, dated March 26, 1990, in which he stated, among other things, the "corre[c]t date [he] left [his] country [was] 3- 10-88." On July 10, 1990, Petitioner sent another letter to the Board. In his letter, he stated, among other things, the following: My date and port of entry into E.U. is Miami, Mar. 10-86 and the same day arrived [in] San Francisco. I am newspaper reporter. (see page 3 Immigration Statement). Petitioner enclosed page 3 of the "Immigration Statement" to which he referred in his letter. On this page of the "Immigration Statement," Petitioner had indicated that he was a "travelling correspondent of the news radio 'El Momemto de Radio Mundial de Nicaragua.'" On July 26, 1990, the Board sent Petitioner a letter advising him that he had to submit the following material in order to complete his application file: In the form of a sworn affidavit please account for your activities from the date [you] entered the United States until the present[. Y]ou[r] application and other supporting documents contain discrepancies regarding the exact date, port of entry and your activities in the United [S]tates. INS verification indicates date of entry of 3/10/86. Your letter of July 10, 1990 is not acceptable. In response to this letter, Petitioner submitted to the Board a sworn affidavit, dated August 2, 1990, in which he stated the following: Since I entered [t]he United States [o]n 03-10-88, I have been working as a foreign journalist for a Nicaraguan news agency. On this date I entered into the United States by the International Airport in Miami, Florida. This information is in the Declaration signed by me on March 28th of 1988 and filed in your office. Petitioner applied to take the December 1990 FLEX examination. He submitted the completed application and a $500.00 examination fee to the Board. In a letter, dated October 19, 1990, accompanying the fee, Petitioner reiterated that he was working as a foreign journalist for a news agency. On November 7, 1990, the Board sent Petitioner a letter which contained the following advisement: Pursuant to the Final Order dated February 19, 1990 the following material is required to complete your application file. This material must be received in this office no later than November 14, 1990. The Office of Naturalization and Immigration verifies your date of entry as March 10, 1986; but you give your date of entry as March 10, 1988. Please have INS submit to this office a verification of your exact date of entry into the United States. Information requested above must be received in this office on or before 11/14/90 or you will not be allowed to take the December 1990 FLEX EXAM. Petitioner timely furnished the Board with documentation from the Immigration and Naturalization Service verifying that he entered the United States on March 10, 1988. On November 21, 1990, the Board, through its Executive Director, sent Petitioner the following letter: This is to advise you that your application to take the Course developed by the University of Miami as directed in Chapter 89-374, Laws of Florida, is now complete. Based on your demonstration of full compliance with the requirements of Section 458.311(10)(a), F.S., as amended by 89-541, Laws of Florida, your application will be presented to the Board of Medicine for full certification for the Course at a meeting of the Board November 30,- December 2, 1990. You will not be required to be in attendance at this meeting. Should you have any questions whatsoever, please do not hesitate to contact this office. Petitioner took and failed the December 1990 FLEX examination. He contested his failing grade in a letter received by the Board on March 20, 1991. In his letter, he stated that he was a "Medical Doctor, Ps[y]chologist and Lawyer of Nicaragua" and he accused the Board of discriminating against him and infringing upon his civil rights. Petitioner's examination challenge was referred by the Board to the Division of Administrative Hearings, but was subsequently returned to the Board with the recommendation that the Board dismiss Petitioner's challenge. Petitioner's Application For Certification As A Physician Assistant On or about June 21, 1991, Petitioner filled out an Examination Application for Certification as a Physician Assistant (hereinafter referred to as the "Application"). He thereafter submitted the Application, along with a $400.00 application fee, to the Board. The Board received the Application and fee on June 24, 1991. On the first page of the Application, Petitioner indicated, among other things, that he had received his Doctor of Medicine and Surgery degree from the University on August 11, 1961. On the second page of the Application, Petitioner indicated that on July 1, 1990, his place of residence was Miami, Florida. He further indicated that he wished to be issued a temporary certificate. In response to the question on page 2 of the Application, "Did you attend a college or university," Petitioner answered "no." In response to the question on page 2 of the Application, "Did you receive a degree other than an M.D., to include undergraduate degree," Petitioner also answered "no." On pages 2 and 10 of the Application, Petitioner listed "all places of residence (where lived) during all periods of medical school" as follows: Leon, Leon Nicaragua from April 1, 1952 to January 30, 1958 Managua, Managua, Nicaragua from April 1, 1958 to Dec. 31, 1958 Miam[i], Florida from Feb. 24, 1990 to Nov. 20, 1990. February 24, 1990, to November 1990, was the period that Petitioner attended the University of Miami's Comprehensive Medical Review Program. Petitioner further indicated on pages 2 and 10 of the Application that had attended "medical school" at the Leon campus of the University from April 1, 1952, to January 30, 1958, at the Managua campus of the University from April 1, 1958, to December 31, 1958, and at the University of Miami School of Medicine from February 24, 1990, to November 20, 1990. On pages 2 and 3 of the application form, applicants were asked to provide information regarding their "Postgraduate Training" and "Practice Employment." They were instructed as follows: Account for all time from date of graduation from medical school to present. Do not leave out any time. Under "Postgraduate Training" applicants were requested to "[l]ist in chronological order from date of graduation to present date, all postgraduate training (Internship, Residency, Fellowship)." Petitioner indicated that he was in an internship program at the General Hospital of Managua from January 1, 1959, to December 31, 1959, a residency program at the Social Security Hospital of Managua from January 1, 1960, to December 31, 1960, and another residency program at the Mental Health Hospital in Managua from January 1, 1961, to December 31, 1961. Under "Practice Employment" applicants were requested to "[l]ist in chronological order from date of graduation to present date, all practice experience and/or employment." Petitioner indicated that from November 1, 1972, to February 20, 1988, he was the "Director of Familiar Medicine" at the "White Cross of Nicaragua" in Managua. He listed no other "practice experience and/or employment." On page 8 of the application form, applicants were asked to list their "clerkship(s)" and "all places of residence (where lived) during clerkship(s)." Petitioner indicated that he lived in Managua from January 1, 1959, to December 31, 1959, while in a University-supervised internship program at the General Hospital of Managua, that he lived in Managua from January 1, 1960, to December 31, 1960, while in a University-supervised residency program at the Social Security Hospital of Managua, that he lived in Managua from January 1, 1961 to December 31, 1961, while in a University-supervised residency program at the Mental Health Hospital, and that he lived in Managua from November 1, 1972, to December 20, 1988, while he was the "Director of Medicine Familiar" at the "White Cro[s]s of Nicaragua." On August 2, 1991, the Board's Physician Assistant Section (hereinafter referred to as the "Section") sent Petitioner a letter advising him that his Application was incomplete because he failed to submit the following: An accounting of your activities for the following period(s) of time: clerkships from 12/61 to 11/72, 2/88 to 12/88, 12/88 to 2/90, page 3 application practice employment 2/88 to present. page 2 application did you attend a college or university you marked NO explain. page 4 application question 8 you marked NO correct and resubmit. Petitioner responded to this letter by submitting to the Section an affidavit dated August 7, 1991, in which he stated the following: Page 2 application; I attend at the Universidad Nacional Autonoma de Nicaragua, UNAN. [University].- Leon and Managua, Nicaragua April 1, 52 to December 31, 58. Also I attend 5 years Universidad Centro- Americana, UCA [Central American University] degree Psichologist. Clerkships: from 12/61 to 11/72 own private medicine. From 2/88, 12/88 to 2/90, 2/88 to present: In E.U.; don't work in medicine. Question 8, page 4 application question: since I live in E.U. from 2/88 to present don't work in Medicine for do not have license of M.D. On August 26, 1991, the Section sent Petitioner a letter advising him that his Application was still incomplete. The letter further provided as follows: In your affidavit of August 7, 1991 (copy attached) you indicated that you attended Universidad Centro-Americana, UCA for 5 years and obtained a degree in Psichologist. Please submit diploma and transcripts and translations of transcripts, notarized as stated above, dates of attendance and where the university is located. Please resubmit pages 8 and 9 (attached) listing only core clerkships while attending medical school at Universidad Nacional Autonoma de Nicaragua UNAN. Be specific with dates, location of hospital, institution or individual where clerkship was performed or supervised. List affiliate University/College. We need one additional acceptable source of documentation of Florida residency on July 1, 1990, notarized as stated above. It must verify residency covering the period of July 1, 1990. Please account for your activities for the following periods of time, listing in chronological order from date of graduation to present date, including all practice experience and/or employment or unemployment: From February 20, 1988 to present. Petitioner responded by letter dated August 29, 1991. In his letter, Petitioner argued that it was not necessary for him to provide any additional information regarding his psychology degree because such information was "impertinent or irrelevant." He further contended that he had "sufficiently explained" the "other points [in the Section's August 26, 1991] letter (2,3,4)." In addition, he invited the Section, if it wanted more detailed information about his past, to examine the materials in his physician licensure application file (hereinafter referred to as "File No. 88"). The Section followed Petitioner's suggestion and reviewed his File No. 88. Not having received any response to his August 29, 1991, letter, Petitioner, on September 23, 1991, sent the Section another letter complaining about the "harassment and intimidation" to which, according to him, he was being subjected by the Section. The Section, on October 15, 1991, wrote to Petitioner and advised him that he needed to do the following to complete his Application: In your affidavit of August 7, 1991 and in your "declaration" notarized on March 26, 1990, you stated that you had completed a Bachelors degree in Psychology; and stated that you attended Jesuit University in Nicaragua where you "finished the school of law." Please substantiate these statements with the appropriate documentation and dates of attendance. You have submitted a certificate issued December 15, 1989 from the Nicaraguan Board of Pharmacy indicating your registration in their books. Please send a notarized copy of the license and/or certificate required to prescribe drugs in Nicaragua. In your declaration of March 26, 1990, you state that you are enclosing several documents, none of which were enclosed. Among those documents was a "medical file of U.C. Davis (University of California, Davis) Medical Center of Sacremento of March 19, 1988." Please provide all reports of treatment and/or evaluation from the Medical Center of Sacremento to include diagnosis and prognosis. We need one additional source of information of Florida residency on July 1, 1990, notarized as stated above. It must verify residency covering the period of July 1, 1990. Please resubmit pages 8 and 9 (enclosed) listing only core clerkships and rotations while attending medical school at Universidad Autonoma de Nicaragua. Be specific with dates, location of hospital, institution or individual where the clerkships was performed or supervised. List affiliate University or College. You have failed to respond adequately to questions concerning your activities from the time of your graduation from medical school until the present time. On page 3 of the application form (enclosed) please complete the information under "practice experience" as instructed. List all practice experience and/or employment, including month, day and year of practice and/or employment. Do not leave out any period of time. Your application will not be considered complete until you have adequately explained your activities from graduation until the present. You have reported your date of entry into the United States as a Nicaraguan exile as: March 10, 1986; February 6, 1988; February 23, 1987; February 2, 1988 and March 10, 1988, in letters and affidavits prepared by you. Please explain these discrepancies. Also we have received two conflicting statements from the Immigration and Naturalization Service regarding your date of entry as an exile. It will be necessary for you to request an explanation from the Immigration and Naturalization Service to clarify their conflicting documents. Petitioner responded by letter dated October 23, 1991. In his letter, he stated the following: I see you have my file 88 of the Board of Medicine. I am attempting to reconcile your accustomed hostility and for this reason I send you letter Nov. 21/90 of "full compliance from Dorothy Faircloth, Executive Director, Florida Board of Medicine. Please, you think, think, think . . . and you don't contradict and the Board of Medicine and its Executive Director. For politeness I send you "personal documents" and I feel you are intimidateing to me or also You are inciteing to me at to lie. Documents: Letter Florida Board of Medicine 11/21/90 Original FPL's Bill Jul. Aug. -Ju Jul. -May. Jun., 90 Medical File of U.C. Davis . . . Sacramento . . . "PRIVATE" Two Verifications of Information from Migration . . . Below Signed for Richard B. Smith (on Yellow) District Director. - You don't have jurisdiction in this. (Abuse of authority). -Bachelors in Psychology and "finihes the school of law" degree is impertinent and irrelevant to Physician Assistant Section and all this in Nicaragua. -I have only certificate from the Nic. Board of Pharmacy. -Clerkship only General Hospital of Managua, Social Security Hospital, and Mental Health Hospital. After private medicine all time. You are harassing to me, intimidateing and abuseing of my civil rights and I will have to go at the Judge; You are having to me damage. 4/ On November 14, 1991, the Section sent Petitioner a letter advising him that his application was still incomplete and repeating the requests made in numbered paragraphs 1, 5, 6 and 7 of its October 15, 1991, letter to Petitioner. The letter, like the previous letters the Section had sent him, was unsigned. Petitioner responded by letter dated November 18, 1991, in which he stated the following: I have full my file by Physician Assistant and please, I don't want "nobody else" your anonymous letter, without signature and full of bureaucratic harassment. My rights I will debate it in the instance of Law that it concern. At the bottom of the letter, under Petitioner's signature, was a "Postscript," dated November 20, 1991, which read as follows: I send you fotocopy of Immigration and Naturalization service; "fast" you will have original from Immigration by mail. You don't have jurisdiction on matter of Immigration and your hostility is it "abuse of authority" and also is illegal. You infringe my civil rights. "We have to avoid the risorgimento of the Nazism and the Ku Klux Klan (KKK) in all the sectors," this involve: Racialism, Prepotency, irrationality, intolerance, perversion, terrorism, intimidation . . . etc. and it is crime of hate (Law by crime of hate F.S. 1989) The Section next communicated with Petitioner by letter dated December 17, 1991. The letter advised Petitioner that he needed to do the following to complete his application: Translation of medical school diploma, prepared as instructed: The translation of the diploma is a copy and is not notarized as stated above; the translation does not indicate that it was done by a certified translator. Translations must be done by a certified translator and bear his seal or statement of certification. Please provide the translator with a copy of criteria for translation (enclosed). Translations or transcripts, prepared as instructed: The notary did not affix the seal to the translation of the transcripts. The translation is a copy and as such must be notarized as is stated above. On page 2 of the application under Medical Education your dates of attendance at the University of Nicaragua do not agree with your previous application, (exile file #88). PA Application: Med School: 4/1/52-1/30/58 Exile File #88: " " 4/1/52-1/30/53 and 4/1/58-1/30/59 Please clarify these discrepancies in affidavit form. Please resubmit pages 8 and 9 of the application to indicate your core clinical clerkships only. List specific date(s), type of rotation, and name and location of hospital, institution or individual where clerkship was performed or supervised. List affiliate University/College. An accounting of your activities for the following period(s) of time: 12/31/61 to 11/1/72. List all practice experience and/or employment, do not leave out any period of time. The Aids certificate submitted does not indicate AMA approved category I. Please submit proof of AMA Category I approved training, or request in affidavit form a 6 month extension in order to obtain AMA approved Category I course. Petitioner responded by affidavit dated December 31, 1991, to which he appended various documents, including a revised version of pages 8 and 9 of his Application as requested in numbered paragraph 4 of the Section's December 17, 1991, letter. In the affidavit, Petitioner stated the following: Translation of medical school diploma, prepared as instructed: notarized, the translation was done by a certified translator and it has or bear his seal and statement of certification. There are in Exile file No. 88 and my file for Certification as a Physician Assistant in each one, respective translation of the diploma "full criteria of law for translation." Translations was prepared by a Certified translator of Professional Traslating Services, Inc.- Suite 540, Courthouse Tower Building.- 44 West Flaguer Street.- Miami, Florida 33130 Phone: (305) 371-7887 I ask for please, send to me fotocopy of each one, file No. 88 and PA application, in order to delimitate responsibility. Translations of transcripts, prepared as instructed: The notary affixed the seal to the translation of the transcripts and it was notarized. Please, send to me fotocopy of each one, file No. 88 and PA application to delimitate responsibility. The discrepancies of dates under Medical Education of attendance at the University of Nicaragua was clarified on letter notarized January 19, 1990 in reply letter of December 1, 1989 by William R. Flynn, Senior Clerk, Department of Professional Regulation Board of Medicine, paragraph No. 1 file No. 88 (attached fotocopy) and affidavit of the 7th day of August, 1991 in reply your letter of the august 2, 1991 paragraph No. 1, that have your OK on the left margin (to see attached fotocopy). Confirmation Date: Med. School, April 1, 1952 to December 31, 1958.- Application Physician Assistant Section. These discrepancies are result of mistake in the transcription and dates and numbers at the remote time and distance and it was in opportune moment clarified. But it is more important to appoint that the application for certification as a Physician Assistant of the 21 day of June, 1991 page 2 and 10 they are with its correct dates and that your letter 12/17/91 paragraph 3 are free Objections I am incorporating as pages 3 and 4 in this affidavit the corresponding pages 8 and 9 of the application to indicate my core clinical clerkships; really this question was formulate with confused and ambiguous terms. My application is concrete and certain, page "8" application for certification as Physician Assistant. From 12/31/61 to 11/1/72 own private medicine; See affidavit of the 7th day of August, 1991, attached fotocopy. The AIDS certificate of Miami Dade Community Dade, Medical Center Campus for Allied Health Professions. Attached program; You will receive direct information of the Miami-Dade Community College Med. Center Campus. Petitioner, after receiving the Section's December 17, 1991, letter, also sent a letter to Vytas Urba, an assistant general counsel with the Department of Professional Regulation. In his letter, he accused the Section of acting with "madness and hatred" and claimed that he was the victim of a "conspiracy" to violate his civil rights that had resulted in damages of $99,999.99. By affidavit dated January 14, 1992, Petitioner requested that the Section give him a "6 month extension in order to obtain an AMA, AIDS certificate approved Category I course." Among the documents appended to the affidavit was a translation of his "Medical School Diploma." On January 28, 1992, the Section sent Petitioner a letter, which indicated that "the following [was] necessary to complete [his] application:" While you have stated on several occasions that you have not practiced medicine since arriving in the United States, you have not responded to questions regarding your activity or employment. It is not enough to merely state that you are not practicing medicine, you must account for your activities from 3/10/88 until the present. You have previously stated that you are a correspondent for Nicaraguan newspaper and radio station but have not substantiated this employment with any information. This will be the THIRD REQUEST for you to account for your activities from 3/10/88 until the present. Please complete the enclosed page 3 of the application as instructed. You must identify, by address and location the names of all employers, or state in affidavit form that you have not been employed in any way since 3/10/88. You have previously stated that in the period from 12/61 to 11/72 that you had a private practice in Managua. You have not identified what type of practice this was. What specialty, or field of medicine did you practice during this time. Your affidavit of 7 August 1991 states that you attended for 5 years the Universidad Centro-Americana, and that you received a degree of "Psichologist" from this school. Please provide the location of this school and the dates of your attendance. Your previous response that this information is "irrelevant" is not acceptable. You have voluntarily submitted this affidavit, which conflicts with other statements that you have made regarding your activities and you must verify the location of the school and dates of attendance. The translation of your diploma recently submitted is returned; this document is obviously a copy. Any copy must be notarized as is stated above. Your previous application does not contain a copy of this translation that is notarized as required. Please resubmit a translation of your diploma that is either an original document or properly notarized. The translation of your transcripts was also a copy that was not notarized however there was an acceptable copy in your previous application. With regard to HIV/AIDS training your request for a six month extension is accepted. The instructions provided with the application clearly state that this training must be AMA Category I approved training. This information should be requested of the provider prior to taking any HIV/AIDS course. You may enquire of Miami Dade Community College as to whether they are authorized to provide AMA Category I training. If they can provide you with verification of this course being AMA Category I approved, the training will be accepted upon receipt of this verification. Petitioner responded by affidavit dated February 10, 1992, in which he stated the following: There are in file No. 88 letter January 19, 90 . . . . notarized DOCUMENTS with my activities from 3/10/88 until the present, question 1 and the period from 12/61 to 11/72 my private practice in Managua, question 2 (attached); also affidavit 22th day of August, 1990 and notarized letter January 19, 1990 (attached fotocopy) over-marked on green. Next page I ratify and complement question number 1 and I state that in the period from 12/61 to 11/72 I practiced Familiar Medicine, question number 2. I attended for 5 years at the Universidad Centro-Americana, - from 1969 to 1972, this University in Managua, Nicaragua, C.A. (Re: question number 3). - Psichology School. I resubmit (THIRD TIME) my diploma notarized as required; please send me two previous documents submitted. I requested at the Florida Board of Medicine, Physician Assistant Section through Cecilia Abrahansem (Director) . . . to eliminate the unlawful monopoly with HIV/AIDS AMA Category I course. I am foreign journalist for "El Momento" Nicaraguan news agency, Radioperiodico El Momento, RADIO MUNDIAL, Managua, Nicaragua. This activity until the present. (From 1/30/88 to present) Among the documents appended to the affidavit was a revised version of page 3 of Petitioner's Application, which reflected, in addition to his previously disclosed employment with the "White Cross" as its "Director of Familiar Medicine" from November 11, 1972, to February 20, 1998, his employment as a "Foreign Journalist" with "El Momemto Nicaraguan news agency" from "1/30/88 To: the present." By letter dated June 4, 1992, Petitioner was directed to appear before the Physician Assistant Committee of the Board (hereinafter referred to as the "Committee") at its June 12, 1992, meeting. Petitioner appeared before the Committee at its June 12, 1992, meeting as directed. Inasmuch as he has substantial difficulty understanding, and communicating effectively in, English, the Committee provided Petitioner with the services of an interpreter. Members of the Committee asked Petitioner various questions. The questions were asked in English and translated to Spanish, Petitioner's native language, by the interpreter. Petitioner responded in Spanish. The interpreter translated his responses to English for the benefit of the Committee. Asked when he had arrived in the United States, Petitioner responded, "March 10, 1988." He was then asked when he had last practiced medicine. His initial response was, "in Managua, Nicaragua." After the question was repeated, however, he answered, "before this time." In response to the question of whether he had had any exposure to the practice of medicine since his arrival in the United States, Petitioner stated, "never here in the States." Petitioner told the Committee, in response to their inquiry regarding the matter, that since his arrival in the United States he had been "a writer and a reporter." Petitioner responded in the affirmative when asked if his only exposure to medicine since he had been in the United States was the intensive review course he had taken at the University of Miami from February to November, 1990. Petitioner was asked whether he had gone to law school. After responding in the affirmative, he was asked when he had gone to law school. Petitioner answered that he was unable to give an "exact date," but it had been "about five years before he [had] left the country." He added that he had gone to law school at night. Asked whether he had received a law degree, Petitioner responded that he "couldn't" because it "wasn't possible . . . politically." At no time in responding to the Committee's questions or during any other phase of the application process did Petitioner knowingly provide false information or withhold pertinent information with the intent to mislead or deceive those evaluating his Application about his qualifications to be certified as a physician assistant. Any inaccuracies or omissions in the information he provided was the product of, not an intentional effort to defraud, but rather either inadvertence, carelessness, faulty or limited recall, misunderstanding, limited English language comprehension and communication skills, 5/ or a good faith belief that the information in question was not germane. After questioning Petitioner, the Committee voted to deny Petitioner's Application. On August 15, 1992, the Board issued a written order denying the Application on the following grounds: Your failure to submit a properly completed application. You have demonstrated a lack of good moral character based upon your testimony and inconsistent and evasive answers. The Board has also determined that based upon review of your application and documentation, and due to the extended length of time since you last worked in the field of medicine, and because of the length of time since any significant medical education or training has taken place, you have not established that you are currently able to practice as a physician assistant with reasonable skill and safety to the public. Petitioner's Other Activities Since His Arrival in the U.S. As he attempted to make clear during the application process, Petitioner has not engaged in the practice of medicine in the United States since his arrival in this country. He has studied medicine on his own, as well as performed medical- related research in connection with several books he has written, however. He has also done volunteer work for the Red Cross. Petitioner has continued to direct and administer from the United States the operations of the "White Cross" clinic. Recently, he has started to again visit the clinic on a fairly regular basis and treat patients. The first of these post-March 10, 1988, visits occurred sometime in 1992. Since 1988, Petitioner has not received any compensation for the work he has performed for the clinic. In addition to the foregoing activities, Petitioner has worked as a journalist since coming to the United States as he indicated on the revised version of page 3 of his Application. Petitioner has not lost the ability he demonstrated throughout his many years of practice in Nicaragua before immigrating to the United States to treat patients in a safe and effective manner. He is currently able to practice as a physician assistant with reasonable skill and safety to the public, notwithstanding that he may have had some difficulty in following the instructions he was given (in English) by the Section during the application process and providing the Section with the information he desired. 6/ Furthermore, Petitioner is of good moral character.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board enter a final order certifying that Petitioner is eligible to take the examination for certification as a physician assistant pursuant to Section 458.347(7)(b), Florida Statutes, and granting him temporary certification pursuant to Section 458.347(7)(b)2., Florida Statutes, pending the results of the examination. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of June, 1993. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1993.
Findings Of Fact Dr. Siham K. Toma is a Florida licensed physician practicing in St. Augustine, Florida. She specializes in pediatrics. Dr. Toma is a provider of physician services to the Medicaid program administered by HRS. During the period of January 1, 1979 to October 27, 1980, she submitted bills to HRS for services she rendered to Medicaid patients. In 424 instances during that time Dr. Toma billed as "new patient" services the care she rendered to patients whom she had treated previously. An example is the billing for Dr. Toma's patient, Hazel Hardy. Dr. Toma billed "new patient" services for Hazel Hardy on September 12, 1978. Subsequently she again billed for "new patient" services given to Hazel Hardy on January 12, 1979 and later Dr. Toma billed for "new patient" services rendered to Hazel Hardy on September 15, 1980. Dr. Toma's billing for the patient Amile Harris provides another example of multiple "new patient" billing. Between December 29, 1978 and August 26, 1980, she made claims for twelve "new patient" office visits. In one instance these visits were as close together as two days apart (January 22, 1979 and January 24, 1979). As a result of the foregoing 424 claims Dr. Toma has been paid $2,047.72 more than she would have been paid if she had filed the claims as "established patient" visits. HRS seeks to recover for incorrect billing in the period of January 1, 1979 until October 27, 1980 pursuant to that portion of Section 10C-7.38, Florida Administrative Code which became effective on January 1, 1979, and established the distinction between new patients and established patients. In January, 1979 a "Medicaid Information Update" was sent by SDC Integrated Services, Inc. 1/ to all Medicaid service providers. It stated in part: Procedure Codes 90000 - 90026 are to be used when billing for new patients only. Once a patient has been seen by a physician, subsequent office visits are to be billed with procedure codes 90030 - 90087 (Florida Relative Value Studies, page 23.) Dr. Toma does not remember receiving the January, 1979 Update. Once she was individually notified by the Department in March, 1981 concerning the Department's interpretation of this rule, Section 10C-7.38, Florida Administrative Code, she modified her billing practices to follow the Department's directions. The notice to Dr. Toma sent on March 31, 1981 states in part: Ref. (a) Florida Administrative Rule 10C-7.38, Revised effective January 1, 1978 1975 Florida Relative Value Studies, page 23, February 1976 Medicaid Information Update, Number 6, January 1979 Dear Dr. Toma: Reference (a) stipulates that "Medicine charges will be computed by utilizing the appropriate procedure codes listed in the Florida Medical Association's 1975 Florida Relative Value Studies. Reference (b) defines a "new patient" as one "new to the physician, office, or facility." An "established patient" is defined as one "known to the physician and/or whose records are normally available." Reference (c) states that procedure codes 90000 through 90026 are to be used when billing for new patients only, and once a patient has been seen by a physician, subsequent office visits are to be billed using procedure codes 90030 through 90087. An analysis of Medicaid claims submitted by your office for services provided on and after January 1, 1979 and paid (adjudicated) by Medicaid through October 27, 1980 (review period) has indicated that in some instances you billed and were paid for more than one new patient office visit for the same reci- pient during that period. A total number of 424 excess new patient office visit claims has been identified, resulting in an overpayment to your office of $2,047.72. The specific claims submitted by your office resulting in excess payments for new patient office visits are indicated in the enclosed printout. Please note that if a recipient/patient was seen for an initial office visit in 1978, that person is considered to be an established patient for the purpose of evalua- ting payments for office visits during the review period. It is frequently true that the examination and treatment of a child patient by a physician takes more of the doctor's time than would the similar treatment of an adult patient. Children are more volatile in their physical changes than adults. As a result a pediatrician must spend more time bringing the patient's medical history up to date when a child comes in on subsequent office visits. Additionally, young children are unable to relate or explain symptoms to the treating physician in the manner that an adult can. This fact means more diagnostic time is required for a child patient. The claim codes under which physician service providers submit claims to HRS make no distinction between services rendered to adult patients and services provided to children. No Medicaid payments to Dr. Toma have been withheld from her because of the Department's belief that she was overpaid for those claims she designated as new patient" services between January 1, 1979 and October 27, 1980.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT THE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES: Enter a final order requiring Dr. Toma to repay $2,047.72 to the Department pursuant to Section 409.335, Florida Statutes (Supp. 1980). DONE and RECOMMENDED this 15th day of October, 1981, in Tallahassee, Florida. MICHAEL P. DODSON 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 15th day of October, 1981.
The Issue Whether Respondent committed an unlawful employment practice against Petitioner in violation of Section 760.10 et. seq., Florida Statutes, as set forth in Petitioner's Petition for Relief filed with the Florida Commission on Human Relations (FCHR) and, if so, the penalties that should be imposed.
Findings Of Fact Petitioner is a female African-American who has completed medical school. On March 19, 1997, Petitioner completed an "Application for Residency," seeking to participate in Respondent's clinical anesthesiology residency program. That program is operated in conjunction with the Public Health Trust. Applicants selected to participate in the residency program become employees of Respondent. The terms and conditions of employment are subject to the policies of both Respondent and the Public Health Trust. Petitioner's application to participate in the residency program related that she had completed an internship at University of Maryland/Harbor Hospital (Harbor) and two years of anesthesiology residency at King/Drew University, Los Angles (King). Petitioner signed the application on March 19, 1997. On April 30, 1997, Petitioner submitted an "Application for Graduate Medical Education at the Jackson Memorial Medical Center" that required her to "list chronologically your activities from time of graduation from Medical School to present. Specify type of post graduate training if any." Petitioner listed the internship at Harbor and the residency at King. She signed the application under the declaration: "I hereby declare that I have examined this application; and to the best of my knowledge and belief, it is true, correct, and complete." Petitioner was accepted into Respondent's clinical anesthesiology residency program based, in part, on the information reflected in the foregoing applications. That acceptance created an employee/employer relationship between Petitioner and Respondent. On July 17, 1997, Petitioner submitted a completed "Personnel Form" to Respondent. The Personnel Form required her to disclose all her activities since her completion of medical school. On that form Petitioner listed her previous internship at Harbor and her previous residency training at King. She verified it was correct to the best of her knowledge and signed the form. At the times pertinent to this proceeding, Dr. Brian Craythorne was a Professor of Medicine at the University of Miami and the Chairman of Respondent's Department of Anesthesiology. Dr. Craythorne had supervisory responsibility for Petitioner and was instrumental in selecting her to participate in the residency program. In April 1998, Dr. Craythorne received routine information from the American Board of Anesthesiology (ABA) setting forth the number of hours of training from other anesthesiology residency programs for which each resident participating in Respondent's residency program had received credit. The information from the ABA also set forth the number of hours of training for which each resident had received no credit. From that information, Dr. Craythorne learned that Petitioner had a total of 39 hours of residency training in anesthesiology from other programs for which she had received no credit. Three of the 39 hours of training for which she had no training were at King, which was reflected on her application and related paperwork. The training at King is not an issue in this proceeding. The additional 36 hours of residency training for which she received no credit was from Howard Hospital. 1/ The program at Howard, which was equivalent to a three-year program, was not reflected on any application or related document Petitioner submitted to Respondent before April 1998. Petitioner's failure to disclose her participation in the residency program at Howard was intentional. Petitioner's failure to disclose her participation in the residency program at Howard violated the clear policies of both Respondent and the Public Health Trust that require applications and related documents to be truthful, correct, and complete. Dr. Craythorne confronted Petitioner about the foregoing omissions in her applications and associated paperwork. In response, Petitioner submitted a letter dated May 27, 1998, in which she tried to explain why she did not obtain credit at Howard and why she had not divulged that information to Respondent. Petitioner asserted that she had sued Howard and had subsequently settled the litigation with instructions from her attorney that she could not discuss the litigation. 2/ Petitioner's letter of May 27, 1998, was not satisfactory to Dr. Craythorne. On June 3, 1998, Dr. Craythorne issued to Petitioner a "Disciplinary Action Report" (DAR) advising he was recommending that Petitioner be dismissed from the residency program (thereby terminating her employment with Respondent). The grounds for the action were her violation of Respondent's policies by making a false statement or statements on her application for employment and related documents and her violation of Public Health Trust Policy #305 pertaining to falsifying records or any other record of the Trust. Referencing Respondent's Department of Anesthesiology, the DAR also contained the following: Our department's recruiting and hiring practices . . . includes a policy/practice not to accept residents [sic] who have had more than one prior anesthesia residency experience for the clinical anesthesia years 1 through 3. [3/]] On June 29, 1998, Dr. Craythorne wrote a letter to Petitioner terminating her employment on the grounds set forth in the DAR. The termination letter advised Petitioner that she could request the Senior Vice President for Medical Affairs (Dr. Gerard A. Kaiser) to review the decision to terminate her participation. The letter also advised Petitioner that "[u]nless the Senior Vice President rescinds the proposed action, it will become effective following his review and decision." On July 21, 1998, Dr. Kaiser advised Petitioner that he had reviewed the facts surrounding her termination and agreed with the termination decision. Consistent with her rights pursuant to the applicable collective bargaining agreement, Petitioner requested and received a hearing before the Peer Review Committee, which was composed of other participants in the anesthesiology residency program. On December 1, 1998, the Peer Review Committee issued its report upholding Petitioner's termination for the reasons cited by Dr. Craythorne. On December 23, 1998, Ira C. Clark, president of the Public Health Trust, advised Petitioner that he had upheld her dismissal based on his review of the Peer Review Committee's findings and recommendation. Petitioner thereafter filed a grievance pursuant to her collective bargaining rights. On October 21, 1999, an evidentiary hearing was conducted before an arbitrator. On November 1, 1999, the arbitrator entered his Opinion and Award upholding Petitioner's termination of employment. Petitioner thereafter filed a complaint of discrimination with the FCHR on or about March 27, 2000. The gravamen of the complaint was that Respondent fired her in retaliation for her complaint to Dr. Craythorne that another resident had made a derogatory racial comment towards her. On December 10, 2001, the FCHR entered a determination of "no cause," determining that there was no cause to believe that an unlawful employment practice had occurred. On January 14, 2002, Petitioner filed a Petition for Relief from an unlawful employment practice with the FCHR. The Petition alleged the following facts in support of her claim of discrimination: On April 1, 1998, a racial remark was made to me by Dr. Kirsten O'Neal, which was, "we know how lazy you Blacks are." I reported it (the statement) to Dr. Craythorne and Dr. Brindle, as well as in writing (copies are in my file). Dr. Craythorne asked me if I had any witnesses, I said yes. The following month they decided to investigate my application, and terminated me on July 1998 (sic). The Petition described the disputed issues of fact as follows: I was terminated because I did not put on my application that I had worked for Howard Hospital in Washington, D. C. They stated the reason I was terminated is because the ABA (American Board of Anesthesiology) requires that you only attend two programs if you have received credit. I did not receive any credit. Please see the enclosed pamphlet from the ABA at page 9. The Petition set forth the following ultimate facts entitling Petitioner to relief: When JMH terminated me, it was because I made a claim of racial discrimination, which I reported prior to investigation of my application. Had I not complained of racial remarks that was made to me by the above Dr. Kirsten O'Neal, it would not have come up about my application. The evidence established that Petitioner complained to Dr. Craythorne that Dr. O'Neal had made the derogatory, racial remark set forth in the Petition. 4/ There was no evidence to establish a link between the complaint made by Petitioner to Dr. Craythorne pertaining to Dr. O'Neal and the decision to terminate her participation in the residency program. Respondent established that Petitioner was terminated because she failed to adhere to Respondent's and the Public Health Trust's clear policies requiring applications and other employment documents to be truthful, correct, and complete.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 16th day of August, 2002, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 2002.
The Issue The issue in the case is whether the conditions that Respondent imposed on Petitioner's license as a physician violate Sections 458.301, 458.311(5) and (8), and 458.331(1)(c), , and (2), Florida Statutes (2001). (All section references are to Florida Statutes (2001) unless otherwise stated.)
Findings Of Fact Petitioner is a licensed physician in Florida. The Board licensed Petitioner on December 20, 2001. The Board imposed several conditions on Petitioner's license pursuant to a mandatory PRN contract. In relevant part, the conditions require Petitioner to undergo psychiatric monitoring, counseling, urinalysis, and treatment for two years. The Board must exercise any specific statutory authority to impose conditions on Petitioner's license in a manner that implements the legislative purpose and intent for the act expressed in Section 458.301. Section 458.301 provides, in relevant part: The Legislature recognizes that the practice of medicine is potentially dangerous to the public if conducted by unsafe and incompetent practitioners. The primary legislative purpose in enacting this chapter is to ensure that every physician practicing in this state meets minimum requirements for safe practice. It is the legislative intent that physicians who fall below minimum competency or who otherwise present a danger to the public shall be prohibited from practicing in this state. Section 458.301 essentially prescribes two purposes for the imposition of conditions on Petitioner's license. The conditions must address either the minimum requirements for competency or some danger to the public. Respondent does not contend that Petitioner is incompetent or falls below the minimum competency required to practice medicine in the state. Respondent stipulates that Petitioner meets the minimum competency requirements for licensure. The conditions imposed by the Board on Petitioner's license must implement the remaining legislative purpose in Section 458.301. The conditions must ensure that Petitioner is not a danger to the public. If Petitioner were a person "who otherwise present[s] a danger to the public," irrespective of the conditions on his license, Section 458.301 does not state that the legislature intends for the Board to impose conditions on Petitioner's license. Rather, Section 458.301 provides that Petitioner "shall be prohibited from practicing in this state." (emphasis supplied) Therefore, the conditions imposed on Petitioner's license must be reasonably necessary to ensure that Petitioner is not a danger to the public. Petitioner may prevail in this case through two alternative courses. Petitioner may show that he is not a danger to the public and that the conditions imposed on his license do not implement any relevant legislative purpose in Section 458.301. If Petitioner were unable to show that he is not a danger to the public in the absence of a conditional license, Petitioner may prevail by showing that the specific conditions imposed on his license are not rationally related to the potential danger and, therefore, do not implement any relevant legislative purpose in Section 458.301. Respondent relies on Sections 458.311(5) and 458.331(2) as the specific statutory authority to impose conditions on Petitioner's license. For reasons stated in the Conclusions of Law, Section 458.311(5) is the relevant legal authority for the conditions at issue in this case. Respondent relies on the last sentence of Section 458.311(5) and Section 458.311(8) to impose conditions on Petitioner's license. The last sentence in Section 458.311(5) states: When the board finds that an individual has committed an act or offense in any jurisdiction which would constitute the basis for disciplining a physician pursuant to s. 458.331, then the board may enter an order imposing one or more of the terms set forth in subsection (8). Section 458.311(8)(c), in relevant part, authorizes the Board to impose: . . . such conditions as the board may specify, including, but not limited to, requiring the physician to submit to treatment . . . . Respondent alleges that Petitioner committed an act or offense that constitutes a basis for disciplining Petitioner pursuant to Section 458.331(1)(c) and (s). Section 458.331(1) provides, in relevant part, that the following acts constitute grounds for disciplinary action: (c) Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of medicine or to the ability to practice medicine. * * * (s) Being unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol or as a result of any mental condition. On June 1, 1997, a law enforcement officer arrested Petitioner in the Ybor City district of Tampa, Florida, for driving under the influence of alcohol (DUI). On November 23, 1997, law enforcement personnel charged Petitioner with misdemeanor assault in Hillsborough County. The Hillsborough County State Attorney dismissed the DUI charge, and the court found Petitioner guilty of assault. Neither the DUI charge nor the assault conviction are directly related to either the practice of medicine or the ability to practice medicine within the meaning of Section 458.331(1)(c). Neither incident has adversely affected Petitioner's treatment of his patients. Petitioner entered the residency program in general surgery at the University of South Florida College of Medicine (USF) on July 1, 1996, and completed the program on June 30, 2001. The DUI charge and assault conviction occurred approximately 12 and 17 months, respectively, after Petitioner entered the residency program. After the last incident on November 23, 1997, Petitioner successfully completed the remaining 43 months of the five-year residency program at USF. Of the six medical graduates who entered the residency program on July 1, 1996, Petitioner was the only entrant to successfully complete the program. During the residency program, Petitioner worked between 100 and 164 hours a week and safely completed approximately 1,336 operative procedures without endangering any of his patients. After successfully completing the residency program and obtaining his license to practice, Petitioner has worked at the Gessler Clinic in Winter Haven, Florida. Petitioner has safely completed an average of 100 surgeries a week without endangering any of his patients. The DUI charge and assault conviction are isolated incidents. The surrounding facts and circumstances do not show that either incident is directly related to either the practice of medicine or the ability to practice medicine. The arresting officer in the DUI charge failed to procure any sample of either breath or blood to indicate Petitioner's blood alcohol level. Petitioner requested law enforcement personnel to test his blood alcohol level. The Hillsborough County State Attorney's office dismissed the case by Nolle Prosequi. Respondent stipulates that Petitioner is not a substance abuser. The requirement in the PRN for urinalysis is not rationally related to any potential danger to the public from substance abuse and therefore exceeds the scope of legislative intent in Section 458.301. On November 23, 1997, law enforcement personnel charged Petitioner with misdemeanor assault in Hillsborough County. The charge arose out of a verbal altercation between Petitioner and another motorist in Tampa, Florida, approximately six months earlier in May, 1997. The motorist "cut-off" Petitioner on his motorcycle while Petitioner was on a date with his girlfriend. At the next intersection, Petitioner and the motorist exchanged loud verbal insults. No physical violence was involved, and the participants were separated at all times by a lane of traffic. Petitioner appeared for trial of the assault charge on March 4, 1998, without a lawyer. Petitioner failed to call his principal witness, lost the case, and was convicted of misdemeanor assault. The court placed Petitioner on probation for a period of three months. Petitioner successfully completed the probation on June 1, 1998. Neither the DUI charge nor the assault conviction evince a potential danger to the public from the practice of medicine within the meaning of Section 458.301. Any condition on Petitioner's license based on the DUI charge and assault conviction exceed the scope of legislative intent in Section 458.301. Neither the DUI charge nor the assault conviction is an act or offense which would constitute the basis for disciplining Petitioner within the meaning of Section 458.311(5). Neither incident is directly related to the practice of medicine or the ability to practice medicine within the meaning of Section 458.331(1)(c). Respondent alleges that Petitioner is unable to practice medicine with reasonable skill and safety to patients within the meaning of Section 458.331(1)(s). Respondent stipulates that Petitioner is not an alcohol or substance abuser, but claims that Petitioner has a mental condition that renders him unable to practice medicine with reasonable skill and safety to patients. Petitioner does not have a mental condition that renders him unable to practice medicine with reasonable skill and safety to patients within the meaning of Section 458.331(1)(s). As previously found, Petitioner was the only one of six entrants to successfully complete the USF residency program. During that time, Petitioner safely completed approximately 1,336 operative procedures and, in private practice, now safely completes approximately 100 operative procedures each week. As part of the PRN contract, Dr. James Edgar performed a psychiatric evaluation of Petitioner and issued a written report to Dr. Raymond Pomm, M.D., Director of the PRN program, on October 15, 2001. Petitioner is "capable of practicing with reasonable skill and safety from a psychiatric perspective." Petitioner "shows no evidence of an Axis I psychiatric disorder, no cognitive impairment and no gross problem with reality testing, no sense of delusional thinking, excessive self- absorption, etc." The most striking findings of the clinical examination and psychological testing by Dr. Edgar are rather strong narcissistic and histrionic traits. Although these traits exhibit psychological dysfunction of a mild to moderate severity, the traits do not reach the level of a narcissistic or histrionic personality disorder. There is no adequate basis to recommend psychotherapy for Petitioner. The PRN contract requires Petitioner to attend regular sessions of psychotherapy with Dr. Kevin Kindelan, a professional psychologist. Dr. Kindelan testified at the administrative hearing. There is no reason for the psychotherapy that Dr. Kindelan provides. Petitioner has no psychological problems. Dr. Pomm is the Director of the PRN program. He is responsible for its successful implementation. Dr. Pomm testified at the administrative hearing. Dr. Pomm concluded that Petitioner is a "disruptive physician." The PRN contract that is a condition of Petitioner's license is a "disruptive physician" contract. The term "disruptive physician" is not defined by statute or any rule that the Board has adopted in accordance with the rulemaking procedures prescribed in Section 120.54. However, the Board's use of the term as a basis for imposing conditions on physician licenses satisfies the statutory definition of a rule in Section 120.52(15). The Board's use of the term "disruptive physician" as a ground for imposing conditions on physician licenses is an agency statement. The substance of the statement is that disruptive physicians have a mental condition, within the meaning of Section 458.331(1)(s), that renders them unable to practice medicine with reasonable skill and safety to patients and requires the imposition of conditions on their license authorized in Section 458.311(5) and (8). The agency statement satisfies the statutory requirement in Section 120.52(15) for general applicability. Since 1998, the Board has consistently applied the agency statement in approximately 200 cases, with the force and effect of law, as the sole basis for placing physicians under PRN contracts as "disruptive physicians." The Board has applied the agency statement concerning "disruptive physicians" in every case in which the physician has no chemical dependency or Axis I diagnosis but exhibits behavior that others have found problematic. In each case when a PRN contract has been required, the PRN program has obtained an evaluation from a competent evaluator such as Dr. Edgar. The agency statement concerning "disruptive physicians" implements, interprets, or prescribes the law enacted by the legislature in Section 458.331(1)(s). The Board interprets and implements the term "mental condition" in Section 458.331(1)(s) to mean "disruptive physician." The agency statement does not satisfy the requirements for any of the exceptions to the definition of a rule in Section 120.52(15) (a)-(c). The Board has not adopted its "disruptive physician" rule in accordance with the rulemaking procedures prescribed in Section 120.54. Agency action based on an unadopted rule concerning "disruptive physicians" determines the substantial interests of Petitioner. Any agency action that relies on an unadopted rule to determine the substantial interests of a party must satisfy the requirements of Section 120.57(1)(e)2. In relevant part, the agency must demonstrate that the unadopted rule: c. Is not vague, establishes adequate standards for agency decisions, or does not vest unbridled discretion in the agency; [and] f. Is supported by competent and substantial evidence. The unadopted rule is vague and fails to establish adequate standards for agency decisions within the meaning of Section 120.57(1)(e)2c. The Board has never defined the term "disruptive physician." Nor can the Board list any criteria to determine who is a "disruptive physician." There is no psychiatric or psychological definition of the term "disruptive physician." Dr. Pomm actually coined the term. Dr. Pomm defines a "disruptive physician" as: One whose behavior has been such to interfere with a healthcare team's ability to safely afford medical care to patients. The definition effectively equates behavior with the "mental condition" in Section 458.331(1)(s). Dr. Pomm has related this definition to the Board, and the Board concurs with it. No written criteria exist for determining who falls under the Board's definition of "disruptive physician." Rather, the term describes a "general cadre of repetitive behaviors" or "behavior patterns." The Board cannot provide a complete list of behaviors. Moreover, it is not possible to state to what degree a certain behavior, i.e., yelling or arguing, must be demonstrated to satisfy the definition of a "disruptive physician." While "narcissistic personality traits" are associated with "disruptive physicians," those traits are not a sufficient indicator because they can also be associated with proper behaviors. The lack of objective criteria and the resulting uncertainty surrounding the determination of who is, or is not, a "disruptive physician" leaves the ultimate determination largely to the discretion of Dr. Pomm as the Director of the PRN program. Dr. Pomm admitted that there is substantial imprecision and lack of specificity in defining the term "disruptive physician." The agency statement that Petitioner is a "disruptive physician" is not supported by competent and substantial evidence within the meaning of Section 120.57(1)(e)2f. Even if it were determined that the agency statement is not a rule, within the meaning of Section 120.52(15), but is emerging agency policy, Respondent failed to explicate the emerging policy with competent and substantial evidence. Dr. Pomm did not examine or evaluate Petitioner. Rather, Dr. Pomm relied on excerpts of the written report by Dr. Edgar, the DUI and assault incidents, and evaluations of Petitioner by the chief residents and attending physicians in the residency program at USF. However, Dr. Pomm testified that the DUI and assault incidents alone were inadequate to support a determination that Petitioner is a "disruptive physician." As previously found, Petitioner has no psychiatric or psychological disorder that renders him unable to practice medicine with reasonable skill and safety to patients. However, Dr. Edgar stated in his written report to Dr. Pomm: The closest I can come to placing him in a category that PRN deals with regularly is possible "disruptive physician." Dr. Pomm considered adverse evaluations from Petitioner's supervising physicians during the residency program at USF. Testimony at the hearing identified the physicians as: Drs. Back, Beaver, Carey, Cox, Fabri, Flint, Grossbard, Johnson, Mendez, Novitsky, Rodriquez, Rosemurgy, and Wright. Although Petitioner successfully completed the residency program, Dr. Pomm considered the adverse evaluations as evidence that Petitioner's behavior interfered with the ability of the medical teams to safely afford medical care to patients. On May 19, 1997, Petitioner rotated in the cardiac service and worked over 100 hours a week. Petitioner had a disagreement with two attending physicians as to the advisability of their patient orders. There was no violent or improper conduct associated with these disagreements, and the physicians did not complain about the disagreements. Petitioner's advisor met with him in May 1997 to discuss poor evaluations of Petitioner on the cardiac service due to a "dustup" with two attending physicians. Petitioner's advisor explained that the perception by the attending physicians was that Petitioner was less than enthusiastic when he was on a service that he did not enjoy and that he needed to be more attentive to his responsibilities. On May 15, 1998, Dr. Wright noted that Petitioner needed to "work on his interpersonal skills." On February 3, 1999, Dr. Fabri, Chief of Surgery at the Tampa V.A. Hospital, advised Petitioner that, due to his failure to dictate two operative reports, Dr. Fabri would suspend Petitioner's operative privileges until Petitioner dictated the reports. However, the threatened suspension never occurred. Rather, Dr. Fabri routinely used such notices to residents as a means of getting past-due operative reports dictated. On April 2, 1999, Dr. Mendez observed that Petitioner needed to "learn to be more of a team player." Dr. Beaver observed that Petitioner was "[v]ery irreverent; actions unprofessional." Dr. Novitsky stated that Petitioner needed a lot of improvement "mainly in the attending-resident relationship." Dr. Novitsky gave as an example Petitioner leaving the OR during a heart surgery without the approval of the attending physician. However, no evidence showed that Petitioner's departure from the operating room interfered with the ability of the health team to safely afford medical care to a patient. In July 1999, Petitioner's supervising physician advised him to meet with his advisors every four to six weeks. The directions constituted official policy. However, Petitioner failed to meet with his advisors for months. The failure of Petitioner to meet with his advisors was not a volitional choice by Petitioner. Rather, the busy schedules followed by Petitioner and his advisors at several hospitals in the Tampa area prevented them from meeting with each other regularly. During the five-year residency program, Petitioner performed approximately 1,336 surgical procedures; or approximately one surgical procedure every 1.3 days. During the same period, the chief residents that supervised Petitioner maintained a caseload of approximately 1,800 to 2,500 patients. The caseloads were spread between several area hospitals. Petitioner chose the residency program at USF based on his belief that the program provides the most extensive clinical and surgical experience available in a residency program. An evaluation on August 16, 1999, includes the comment from Dr. Cox that Petitioner was, "[p]leasant, assertive, but sometimes misdirected. Asking questions before engaging in decisions would be well advised." An evaluation dated January 3, 2000, included comments by Dr. Back that Petitioner was "[u]nreliable, avoids responsibility, poor work effort . . . [Petitioner] should not be promoted further in this program." Dr. Mendez found that "[Petitioner] needs to work on organization, communication and accountability." Dr. Rodriquez noted that "[Petitioner] lacks judgment and common sense and is below part [sic] in fund of knowledge." An evaluation dated October 2, 2000, contains several adverse comments. Dr. Fabri states that Petitioner, "Can be very good when he wants to be." Dr. Grossbard states, "I wish there were a way to redirect his energy into surgery which is clearly in second place." Dr. Mendez states, "[Petitioner] . . . is lacking in organizational skills and does not seem to take ownership of the service." Dr. Rodriquez states, "[Petitioner] has shown some improvement but still has a long way to go." Dr. Back states, "Not present for most operative cases and not involved in details of patient care. He is not fulfilling duties of chief resident." Dr. Johnson states, "Should not be allowed to perform vascular surgery when he graduates." On November 12, 2000, Petitioner's assessment of a patient with bowel obstruction was questioned by Dr. Flint, the attending physician. Dr. Flint accused Petitioner of misrepresenting an assessment. In response, Petitioner had his assessment verified by another attending physician. Dr. Flint became abusive of Petitioner and, during the incident, Petitioner yelled at the attending nurse. In correspondence dated November 14, 2000, Dr. Flint reported that Petitioner had been angry and insubordinate. Dr. Flint also reported that Petitioner had been abusive to a nurse. Petitioner admits that he was insubordinate to Dr. Flint and yelled at the nurse. However, the actions were integral to the provision of safe medical care to a patient during exigent circumstances. On November 21, 2000, Petitioner's advisor met with him to discuss his poor performance on the trauma service. Dr. Rosemurgy advised Petitioner he was "held in low regard by many." Dr. Rosemurgy noted in his report that Petitioner did not appear to realize how others perceived him, and appeared to choose not to see the shortcomings perceived by others. In a handwritten addendum, Dr. Rosemurgy expressed concern that Petitioner did not "hear" him and doubted that he would improve. In an evaluation dated March 5, 2001, Drs. Fabri, Flint, Grossbard, Johnson, and Wright, rated Petitioner's communication skills as "below expectations." Drs. Back, Fabri, Flint, Grossbard, and Johnson rated Petitioner's interactions with staff as "below expectations." Drs. Back, Fabri, Flint, Grossbard, and Wright rated Petitioner's dependability as "below expectations." On March 5, 2001, attending physicians made several negative comments in their evaluations. Dr. Flint stated Petitioner, "essentially abdicated the Chief resident function, misses rounds, avoid[s] the OR and does not teach." Dr. Back stated that Petitioner, "refuses to accept responsibility for patient care and management that is expected for residents at his level." Dr. Johnson stated that Petitioner, "should not practice Vascular surgery without supervision when he leaves this program." Dr. Fabri stated, "unfortunately, his personal interactions often get in the way." The incidents underlying the evaluations of Petitioner during his residency program are competent and substantial evidence that Petitioner has narcissistic personality traits. Narcissistic personality traits include: self-absorption; haughtiness; arrogance; lack of empathy; lack of understanding actions towards others; and demanding and disrespectful behavior regardless of the impact on others. The incidents underlying the evaluations of Petitioner during his residency program are not competent and substantial evidence that Petitioner satisfied Dr. Pomm's definition of a "disruptive physician." No evidence shows that Petitioner's behavior actually interfered with a healthcare team's ability to safely afford medical care to patients. Dr. Pomm's definition of a "disruptive physician" does not identify a single behavior, in isolation, that interferes with the safe delivery of medical care. Rather, the continuum of behavior, or repetitive behavior is the safety issue. Therefore, in determining whether a physician's behavior impacts the safe delivery of medical care, it is important to view the individual's behavior over time. Over time and during stressful situations, narcissistic personality traits may manifest a cadre of behaviors that collectively interfere with the ability of a health care team to safely provide medical care to a patient. When viewed over time, Petitioner's behavior has not interfered with the safe delivery of medical care to patients. The residency program at USF is one of the most stressful and difficult residency programs available. During the five-year residency program, Petitioner safely afforded medical care to patients in approximately 1,336 operative procedures. His behavior did not interfere with the ability of the chief residents in the program and attending physicians to maintain an average caseload of 1,800 to 2,500 patients and to safely deliver medical care to those patients. After leaving the residency program at USF, Petitioner has, over time, safely afforded medical care to patients in approximately 100 operative procedures each week. There is competent and substantial evidence that the incidents underlying the adverse evaluations of Petitioner during the residency program represent either honest disagreement relating to patient care or ordinary academic discipline. While they may evince narcissistic personality traits by Petitioner, they do not evince behavior that interferes with the ability of health care teams to provide safe medical care to patients. Several physicians who completed the residency program at USF testified at the hearing. The incidents underlying the adverse evaluations of Petitioner during the residency program arose from difficulties inherent in the residency program itself and the conduct of chief residents and attending physicians toward residents. For example, Dr. Flint and certain other staff physicians in the residency program were generally disrespectful and abusive toward residents and other hospital staff. Petitioner has been practicing general surgery in Winter Haven, Florida, with the Gessler Clinic. Petitioner's colleagues who practice regularly with him in surgery testified at the administrative hearing. Petitioner is not disruptive in his current practice. He does not engage in behavior that interferes with the ability of a health care team to safely afford medical care to patients. The Board did not place any conditions on Petitioner's license as a result of the application submitted by Petitioner. However, Respondent's PRO raises certain issues surrounding the application that should be addressed in the interest of preserving a complete evidentiary record. As Petitioner neared the successful completion of his residency, Petitioner filed his application for medical license with the Board on April 4, 2001. The Board made numerous requests for additional information. Petitioner answered all of those requests. One of the questions answered by Petitioner during the application process was whether Petitioner had been placed on probation during any medical training program. Petitioner answered "No" to this question. Prior to providing the answer, Petitioner checked with administrators in the residency program who told Petitioner that the records did not disclose probation at any time during the residency program at USF. Personnel in the residency program confirmed to the Board that Petitioner had never been on probation. However, the information provided to both Petitioner and the Board was an administrative error. Petitioner was briefly on "academic probation" during the residency program. Based on the misdemeanor assault conviction and the erroneous information provided by Petitioner concerning academic probation, the Board ordered Petitioner to: (a) file a corrected application; (b) pay a new application fee; (c) pay an administrative fine of $1000; and (d) submit to evaluation by PRN. Petitioner complied with all of these conditions, including a psychiatric evaluation through PRN which was conducted on October 15, 2001. Respondent stipulated at the administrative hearing that the Board does not contend that it imposed any condition on Petitioner's license as a result of any misrepresentations of fact on Petitioner's application for a license to practice medicine. There are certain procedural issues for which findings of fact may be appropriate. Based in part upon Dr. Edgar's report, Dr. Pomm rendered his written report to the Board on October 22, 2001. Dr. Pomm adopted Dr. Edgar's conclusion that Petitioner is capable of practicing with "reasonable skill and safety." However, Dr. Pomm recommended that the Board place Petitioner on a "disruptive physician contract" with PRN. In his written report to the Board, Dr. Pomm related Dr. Edgar's conclusion that Petitioner has "narcissistic personality traits." However, Dr. Pomm failed to include in his report the remainder of Dr. Edgar's statement that Petitioner did not have any identifiable Narcissistic Personality Disorder. Nor did Dr. Pomm include the conclusion by Dr. Edgar that Dr. Edgar did not recommend any form of psychotherapy for the Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine, enter a final order granting Petitioner's application for licensure to practice medicine without condition. DONE AND ENTERED this 23rd day of May, 2002, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 2002. COPIES FURNISHED: J. Davis Connor, Esquire Peterson & Myers, P.A. Post Office Drawer 7608 Winter Haven, Florida 33883-7608 Lee Ann Gustafson, Esquire Office of the Attorney General Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Jon M. Pellett, Esquire Barr, Murman, Tonelli, Slother and Sleet, P.A. 201 East Kennedy Boulevard Suite 1750 Tampa, Florida 33602 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 M. Catherine Lannon, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact On May 10, 1983, the Petitioner Florida Psychiatric Centers submitted two letters of intent to the Respondent Department of Health and Rehabilitative Services to construct psychiatric hospitals in Palm Beach and Marion Counties. On June 10, 1983, the Petitioner timely submitted both applications for certificates of need to the Department. On February 11, 1983, the Department imposed an administrative moratorium with respect to the construction of new hospitals or the addition of new beds to existing hospitals. As a result, letters of intent for hospital projects involving new beds which were filed prior to February 11, 1983, which pursuant to Rule 10-5.08, Florida Administrative Code, would normally have an application deadline of March 15, were extended to a June 15 deadline with a review in September. Letters of intent which were received after February 14 and prior to May 16, which pursuant to the Department rules would have had a deadline of June 15, were instructed to file applications by August 15 to receive a November review. The moratorium, which was administratively imposed by the Department, had the effect of changing the application deadline the Petitioner's batching cycle from June 15, 1983, to August 15, 1983. In the absence of the Department's administrative moratorium, the Petitioner's applications would have been reviewed in the June 15 batch cycle pursuant to Rule 10-5.08, Florida Administrative Code. As a result of the administrative moratorium, the Department developed a letter of instructions which was forwarded to each of the 71 applicants who filed letters of intent between February 14 and May 16. The letter informed the applicants of the moratorium, the inapplicability of the June 15 deadline specified in the Department's rules, and requested applicants to file applications with the Department and appropriate local health council by August 15, 1983. The Department responded to Petitioner's letters of intent by forwarding letters of instruction dated May 18, 1983 and May 19, 1983. These two instruction letters were mailed to the Petitioner in the ordinary course of business by Ms. Diane Spooner, secretary to the certificate of need application review coordinator for the Department. Notwithstanding his receipt of the letters of instruction, the Petitioner forwarded his applications to the Department for review under cover letter dated June 10, 1983. These applications were received by the Department of June 15, 1983 and returned to the Petitioner. The Petitioner, however, did not receive the returned applications with cover letters or the application fees of $4,000 each from the Department. Subsequently, the Petitioner became aware that the applications were not included in the June or August batch and sent a letter to the Department requesting that the applications be included in the August batch. Neither the Department's rule nor Chapter 381, Florida Statutes, restrict an applicant from filing an early application. Accordingly, by filing its application on June 15, the Petitioner complied with the rules by filing on or before August 15. Had the Petitioner's applications been included in the August 15 batch cycle, its applications would have been comparatively reviewed with applications from Horsham Corporation in Palm Beach County and Citrus Community in Marion County.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the Department placing the Petitioner within the batching cycle for which applications were due by August 15, 1983, and within ninety days, comparatively review the Petitioner's applications with those competitive applications filed and accepted by the Department for the August 15, 1983 batch. DONE and ENTERED this 6th day of June, 1984, in Tallahassee, Florida. SHARYN L. SMITH 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 6th day of June, 1984. COPIES FURNISHED: Kenneth G. Oertel, Esquire Oertel and Hoffman 646 Lewis State Bank Building Tallahassee, Florida 32301 Doug Mannheimer, Esquire Post Office Drawer 591 Tallahassee, Florida 32302
The Issue The issue in this case is whether the Petitioner is entitled to licensure by endorsement as a physician in the State of Florida. At the hearing, the parties stipulated that the Petitioner meets all requirements for licensure by endorsement with the exception of the residency requirements of Sections 458.311(1)(f) and 458.313(1), Florida Statutes, and Rule 21M-22.004, Florida Administrative Code. The Petitioner testified as the only witness on his own behalf and offered nine exhibits. Each exhibit was received in evidence over the timely objections of counsel for the Board. Mrs. Dorothy Faircloth testified as the only witness for the Board. Four exhibits offered by the Board were received in evidence without objection. Upon the request of the Board, official recognition is taken of Sections 458.311 and 458.313, Florida Statutes, and Rule 21M-22.004, Florida Administrative Code. At the conclusion of the formal hearing, the Petitioner waived the filing of a proposed recommended order. The Board was allowed 14 days within which to file a proposed recommended order. On July 8, 1988, the Board filed its proposed recommended order containing proposed findings of fact and conclusions of law. All proposed findings of fact are addressed in the appendix to this recommended order.
Findings Of Fact Based on the stipulations of the parties and on the testimony and exhibits received at the hearing, I make the following findings of fact. The Petitioner is an applicant for licensure by endorsement as a physician in the State of Florida. The parties have stipulated that the Petitioner meets all requirements for such licensure other than the residency requirements. The Petitioner served as a "Resident 2" in medicine at the Westminster Hospital in London, Ontario, from July 27, 1976, to June 30, 1977. During the time period from July 1976 to June 1977, the residency program at Westminster Hospital was not approved by the American Medical Association. During the time period from July 1976 to June 1977, the residency program at Westminster Hospital was not approved by the Royal College of Physicians and Surgeons of Canada. There is no evidence that the Petitioner completed any other approved one year residency program. The Petitioner is a diplomate certified in internal medicine by the American Board of Internal Medicine. The American Board of Internal Medicine permits certification based on experience without requiring completion of a one year residency approved by the American Medical Association. The Petitioner is licensed as a physician by the State of Michigan.
Recommendation For all of the foregoing reasons, it is recommended that the Board of Medicine issue a final order in this case denying the Petitioner's application for licensure by endorsement as a physician in the State of Florida. DONE AND ENTERED this 14th day of July, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 14th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1476 The following are my specific rulings on all of the proposed findings of fact submitted by the parties. Findings submitted by Petitioner (None submitted by Petitioner) Findings submitted by Respondent Paragraph 1: Accepted. Paragraph 2: Covered in introductory paragraphs. Paragraphs 3, 4, and 5: Accepted. Paragraph 6: Omitted as subordinate and unnecessary details. Paragraphs 7, 8, 9, and 10: Accepted. Paragraph 11: Omitted as repetitious. COPIES FURNISHED: Shio Narayanlal Agrawal, M.D. 4140 North West 64th Street Gainesville, Florida 33612 Allen R. Grossman, Esquire Assistant Attorney General Department of Legal Affairs Room 1603, The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue is whether Respondent properly denied Petitioner's application for licensure as a physician by endorsement.
Findings Of Fact Petitioner is presently licensed to practice medicine in Maryland. He has been licensed there since 1990. The Maryland licensing board has never investigated him on any ground. Petitioner has passed all of his medical examinations on the first try. He passed the Educational Commission for Foreign Medical Graduates Examination in 1981 and the United States Medical Licensing Examination in 1987. He passed the examination for board certification in internal medicine in 1992. Petitioner has published articles in peer review journals. He teaches medical students in residency programs at two separate hospitals. Petitioner has a busy practice, seeing approximately 20- 25 patients per day. He has staff privileges at two hospitals. He is an approved provider with a number of insurance companies and managed care organizations. Petitioner has never had any Medicare or Medicaid complaints brought against him. He has never been sued for malpractice. A hospital peer review board has never investigated him for any reason. Petitioner requested an application for licensure as a physician by endorsement sometime before March 21, 1997. Respondent sent him a packet of materials containing an application form, last revised on January 1995, together with application instructions, supplemental documentation forms, and selected laws.1 Section one of the application materials contained the application instructions. The instructions included the following relevant statements: PITFALLS: The following items in the application process cause delays in the process, therefore we strongly recommend: . . . Please remember the applicant is responsible for completing the application process and that as pieces/parts of the application are received they sometimes generate additional questions to be answered. * * * APPLICATION PROCESSING: Once the application is received in the Board office . . . , an initial review of the application and the supporting documentation is made. Then, the applicant is notified, in writing, of any deficiencies or any additional documentation that is or may be necessary either from the applicant or from any other source. The applicant is responsible for requesting the following information: * * * 3. American Medical Association Data Profile (AMA). * * * Certain responses from any source may require additional clarification from the applicant. When all the requested information is received for a licensure application file, a supervisory second review is made for completeness and for eligibility determination. PERSONAL APPEARANCE: Appearances before the Credentials Committee or the Board of Medicine may be required for a variety of reasons, . . . If an appearance is required, written notification will be mailed . . . . * * * COMPLETING THE APPLICATION * * * 11. PROFESSIONAL OR MEDICAL EDUCATION: Answer each question and complete the table by listing the name of each and every institution attended; the location of the institution, address, dates of attendance by month and year, domicile (where lived), did you graduate, if so degree received. * * * INTERNATIONAL MEDICAL GRADUATES CONTINUE WITH INSTRUCTIONS 12 THROUGH 43 * * * NOTE: Questions 11, 15, 16, and 17 should contain and account for all periods of time from the date of graduation from Medical School to present date. Omission of this information will cause a delay in the application process. * * * PROFESSIONAL OR POSTGRADUATE TRAINING: Answer each question. In the section provided, list chronologically each program attended starting with the first program and ending with the last or current program. List all programs you began whether or not you completed or received credit for the program. Omission of any professional or medical postgraduate training program(s) will cause a delay in the application process. * * * International Medical Graduates. Submit certificates of completion for each year. Additionally, a letter from the Program Director is required confirming postgraduate training level and that the position was allocated. PRACTICE or EMPLOYMENT: List in the space provided all current and past practice and employment settings to include moonlighting and locum tenens. Also utilize this space to delineate any unaccounted period of time from date of matriculation into Medical School to present date. * * * After a correspondent reviews the application and the explanation provided you will be notified of any evaluation and/or documentation needed to complete the application process. * * * DOCUMENTS TO BE SUBMITTED WITH THE APPLICATION * * * 8. CERTIFICATES OF COMPLETION FROM ALL PROFESSIONAL, MEDICAL-INTERNSHIP, RESIDENCY, FELLOWSHIP AND PGY LEVELS -- submit certificates of completion of all levels of training. * * * 19. Contact each applicable agency listed below on the form provided, to request the appropriate information be sent to the Florida Board of Medicine: . . . * * * AMERICAN MEDICAL ASSOCIATION DATA PROFILE ON FORM PROVIDED * * * A COPY OF EACH REQUEST MUST ACCOMPANY YOUR APPLICATION Section two of the application materials is the application form. It requests the following relevant information: 11. PROFESSIONAL/MEDICAL EDUCATION: MEDICAL EDUCATION: List all medical schools and universities attended, whether completed or not. [Table provided to include information required in application instructions] * * * PROFESSIONAL/POSTGRADUATE TRAINING: List all professional/postgraduate training program(s) began, whether completed or not. * * * List in chronological order from date of graduation from medical school all professional/postgraduate training (Internship, Residency, Fellowship) to the present. [Table provided to include information required in the application instructions] PRACTICE/EMPLOYMENT: List in chronological order from date of graduation to present date, all practice employment, non-employment and/or any unaccounted period of time from date of matriculation into medical school. [Table included to provide information required in application instructions] The last page of the application form contains an affidavit, which requires an applicant to swear as follows in relevant part: I have carefully read the questions in the foregoing application and have answered them completely, without reservations of any kind, and I declare under penalty of perjury that my answers and all statements made by me herein are true and correct. Should I furnish any false information in the application, I hereby agree that such act shall constitute cause for denial, suspension or revocation of my license to practice medicine/surgery in the State of Florida. On February 22, 1997, Petitioner signed the affidavit at the end of his application form. Section three of the application materials includes the form for applicants to use to request the AMA physician data profile. After receiving the request form, the AMA sends the requested information directly to Respondent. On March 21, 1997, Respondent received Petitioner's AMA physician data profile directly from the AMA. This information reflected, among other things, that Petitioner was in an anatomic and clinical pathology postgraduate training program at the University of Maryland Medical System (University of Maryland) from July 1, 1988 through June 30, 1989. On March 24, 1997, Respondent received Petitioner's application for licensure by endorsement, along with an attached copy of his curriculum vitae (CV). The CV was not required as part of the application process. In response to question 15 on the application form, Petitioner listed the following: (a) an internship at Harbor Hospital Center in Baltimore Maryland from July 1989 to June 1990; and (b) a residency at Harbor Hospital Center in internal medicine from July 1991 to June 1992. Petitioner did not list his participation in a postgraduate training program at the University of Maryland in anatomic and clinical pathology from July 1, 1988 to approximately June 15, 1989, in his application form or CV. Petitioner's CV represented that he was an associate professor of pre-clinical medicine and co-director of student health services at Ross University of Medicine in the Commonwealth of Dominica, West Indies, from July 1982 through June 1989. This information was incorrect. In response to question 16 on the application form, Petitioner stated that he was employed at Ross University School of Medicine as an associate professor in internal medicine from June 1982 to June 1989 in Dominica, West Indies. This information was incorrect because Petitioner resided in Maryland in 1988 through 1989. As stated above, he actually attended the University of Maryland from July 1, 1988 to approximately June 15, 1989. Respondent processed Petitioner's application in the usual and customary manner. His application file was subject to the same scrutiny that is customary for all applications. Petitioner does not contend that Respondent treated him any differently than other applicants. There were no gaps in dates, blank spaces, or questions left unanswered in Petitioner's application form. Petitioner's application form, on its face, did not contain any apparent errors or omissions relative to his training program at the University of Maryland. In fact, Petitioner's application form listed other activities accounting for all of the time in question here. Respondent discovered the apparent inconsistencies contained within Petitioner's application file by comparing his application form and CV with the AMA physician data profile. Because the documents were inconsistent, Respondent had reason to initiate an investigation to determine whether Petitioner had intentionally misrepresented information on his application form and CV. By letter dated April 28, 1997, Respondent requested the current program director of the University of Maryland's pathology department to furnish information as to why Petitioner left the four-year residency program in pathology after one year. Respondent sought responses to the following questions: Why did he leave the program? Did he leave the program in good standing? Did he break his contract? Did he receive full credit for his training? Please confirm the dates and the PGY level of his training. Was any disciplinary action ever taken against him? If yes, please explain. On April 28, 1997, 35 days after Petitioner filed his application, Respondent sent Petitioner a letter2 commencing with the following notice in relevant part: NO APPLICATION WILL BE CONSIDERED COMPLETE UNTIL ALL OF THE REQUESTED INFORMATION HAS BEEN RECEIVED IN THE BOARD OFFICE. The April 28, 1997, letter informed Petitioner that he needed to furnish Respondent with numerous documents before his application would be complete. It requested additional information on several items. The letter also sought an explanation for Petitioner's failure to list his pathology training at the University of Maryland on his application form. On May 19, 1997, Respondent received a form from the University of Maryland, verifying that Petitioner completed a residency in pathology from July 1, 1988 through June 8, 1989. Petitioner sent Respondent a letter dated May 31, 1997. Respondent received this letter on June 3, 1997. Petitioner's letter states as follows in pertinent part: I apologize for the discrepancy regarding the dates in training/teaching. I was enrolled in the Pathology Department of the University of Maryland from 7/1/88 - 6/30/89. Consequently, my Internal Medicine training was from 7/1/89 - 6/30/92. The certificates from Harbor Hospital support that. Also, I joined the Northwest Primary Care Group on July 1, 1995, not 7/94, as listed in my c.v. On June 30, 1997, Respondent received a letter from Dr. Sanford A. Stass, M.D., Pathology Resident Program Director and Director of Pathology Laboratories at the University of Maryland. This letter states as follows: I was not the Pathology Resident Training Program Director during Dr. Desai's residency. It was noted in his file by the previous Program Director, Seena Aisner, M.D., that Dr. Desai would not be given credit for the year from July 1, 1988 - June 30, 1989 since he did not fulfill his contractual year. Respondent sent Petitioner a letter dated July 1, 1997. This letter states as follows in pertinent part: Please explain why you left the Pathology program at the Univ. of Maryland after one year. Did you leave in good standing? Did you break your contract? Were you given full credit for your training? Respondent's letters dated July 23, 1997, and August 5, 1997, made an identical inquiry. The August 5, 1997, letter3 contains an additional notice at its conclusion, which states as follows: YOUR APPLICATION REMAINS INCOMPLETE FOR THE ABOVE. PLEASE BE ADVISED THAT YOUR APPLICATION WILL EXPIRE March 26, 1998. The application fee is non-refundable. Petitioner sent Respondent a letter dated August 24, 1997. Respondent received this letter on September 10, 1997. The letter states as follows in pertinent part: I did not break my contract at the University of Maryland. I was offered an internship at Harbor Hospital Center in Baltimore, and I took the vacation due to me and transferred over into clinical medicine. This response was incomplete. It did not state whether Petitioner left the program at the University of Maryland in good-standing or whether he received credit for the program. Respondent sent Petitioner a letter dated September 11, 1997, which states as follows in relevant part: Did you leave the Pathology program at the Univ. of Maryland in good standing? Did you receive full credit for your training? Why did you not list this training on your application? By letter dated October 6, 1997, Petitioner indicated that he was enclosing additional documents for his application file and that documents related to his staff privileges at Harbor Hospital would be sent as soon as Respondent provided the hospital with the required paperwork. This letter did not reference Respondent's inquiry regarding the incomplete residency program in pathology. Respondent sent Petitioner a letter dated October 15, 1997, which states as follows in relevant part: Did you leave the Pathology program at the Univ. of Maryland in good standing? Did you receive full credit for your training? Why did you not list this training on your application? Petitioner sent Respondent a letter dated October 23, 1997. Respondent received this letter on November 3, 1997. It states as follows in pertinent part: 3. I have mentioned to you previously that I did one year of residency in Pathology, and left at the end, when my accrued vacation was due to me, to pursue clinical medicine. Whether I got credit for this or not is irrelevant, since it would not have counted towards my Internal Medicine training. I apologize if I did not list it in the application. This explanation does not state whether Petitioner left the program in good standing or whether he received credit for the program. Respondent determined that Petitioner's application file was complete on November 5, 1997. Respondent sent Petitioner a letter dated November 5, 1997. This letter states as follows: Your application is pending a secondary supervisory review. Please be advised you will be required to make a personal appearance before the Credentials Committee to discuss your postgraduate training at the University of Maryland and any relevant issues the Board may deem necessary. Pending passage of the above mentioned second review, and provided that no further issues need to be clarified, nor additional documentation submitted, your name will be placed on the agenda for the next scheduled Credentials Committee meeting of the Florida Board of Medicine. Your will be advised of the specific date, time, and location of the scheduled appearance. By letter dated November 6, 1997, Respondent advised Petitioner that he would be required to appear before the credentials committee to discuss his failure to list his training at the University of Maryland on his licensure application and his CV. Petitioner was to appear before the committee on November 22, 1997. He was advised that Respondent would consider the committee's recommendation and take final action on Petitioner's application at Respondent's meeting on December 6-7, 1997.4 Petitioner sent Respondent a letter dated November 10, 1997. This letter states as follows in pertinent part: Because of previous commitments to my on- call group, I will not be able to attend the meeting on 11/22/97. I will need at least 4- 6 weeks notice to make arrangements, if I am required to make a personal appearance. If you can provide me with a rational and pertinent reason for my personal appearance to explain the lapse in the c.v. and the application as regards the training at the University of Maryland in the Pathology program, I shall be happy to respond. As stated previously, I made an error in not listing this aspect of my career, but it was not applied towards any credit to the Internal Medicine residency that I later completed. In this day of instant communication, a phone conference would be just as appropriate. Please have the Board present me the necessary information so that I can justify a trip to Tallahassee. Respondent sent Petitioner a letter dated December 8, 1997. This letter states in relevant part: At a meeting on November 22, 1997 the Board of Medicine accepted the recommendation of it's [sic] Credentials Committee to defer action on your application until the next meeting of the Credentials Committee at which time you must appear to discuss the issues. The next meeting of the Credentials Committee is scheduled for January 17, 1998 in Miami, Florida. By letter dated December 15, 1997, Respondent advised Petitioner to appear before the credentials committee on January 17, 1998. Petitioner was also advised that the recommendation of the committee would be presented to Respondent on February 6-8, 1998, for final action. Petitioner agreed to attend the scheduled meeting in a letter dated December 19, 1997. At the meeting with the credentials committee on January 17, 1998, Petitioner revealed for the first time that he began receiving anonymous letters during the last two months of his pathology residency. The letters threatened him with physical harm if he did not leave the program. Petitioner got along very well with his colleagues and faculty members when he began his residency program in pathology in July 1988. Petitioner stated that he was not aware that he had problems with anyone in the residency program or hospital when he began receiving the letters. Petitioner discussed the anonymous letters with the director of the training program. Petitioner took no action until he was due for two weeks of vacation at the end of the first year of the program. On or about June 15, 1989, he decided to take his vacation and not return to the program. The program director of the residency program in pathology did not object to Petitioner's withdrawal from the program. Petitioner was not failing at the time of his withdrawal. However, he did not receive credit for his residency training in pathology because he technically withdrew from the program before he completed his first year. Petitioner subsequently transferred to another residency training program in internal medicine at the University of Maryland. He successfully completed that program. At the meeting of the credentials committee, Petitioner alleged that he had repressed his memory of the incomplete residency when he filed his application form on March 24, 1997. At the conclusion of the meeting, the committee advised Petitioner that his application would be denied based on misrepresentations and falsifications in the application. He was advised that a full report would be sent to Respondent. The decision by the credentials committee on January 17, 1998, marked the end of Respondent's investigation. By letter dated February 13, 1998, 27 days after Respondent completed its investigation and seven days after Respondent made its decision, Respondent advised Petitioner that it denied his application at a meeting on February 6-7, 1998. The letter purports to be unofficial notification of Respondent's action. It states that Petitioner would receive an order outlining his rights under Sections 120.57(1) and 120.57(2), Florida Statutes. On March 18, 1998, 60 days after Respondent completed its investigation and 39 days after Respondent made its decision, Respondent issued a formal Notice of Intent to Deny Petitioner's application. The denial was based on the following: . . . your inability to practice medicine with reasonable skill and safety, and your fraudulent misrepresentations or falsification on your application, as demonstrated by your application [which] failed to document your training at the University of Maryland Medical System, your application failed to reflect your residency location or your practice in Maryland during 1988 and failed to account for the period of time between 1989 and 1995; your curriculum vitae failed to reflect: your "Educational Qualifications" at the University of Maryland Medical System, the conclusion of your "Appointments" at Ross University of Medicine in 1988, the conclusions of your "Teaching Experience" at Ross University of Medicine in 1988, and the conclusion of your "Clinical Experience" at Ross University of Medicine in 1988. In 1990, Petitioner applied for licensure in Maryland. He notified the Maryland Medical Board of his incomplete residency program. Petitioner disclosed his incomplete residency in pathology when he applied for staff privileges at Northwood Hospital in 1992. Petitioner revealed his incomplete residency in pathology when he underwent the application process to become a teacher at the University of Maryland in 1995. In 1998, after filing his application with Respondent, Petitioner disclosed his incomplete residency when he applied to Sinai Hospital. In this case, the evidence demonstrates that Petitioner made intentional or fraudulent misrepresentations on his application and CV by omitting information relative to his training in pathology at the University of Maryland. In an attempt to conceal his omission, Petitioner falsified other sections of his application and CV as outlined in Respondent's Notice of Intent to Deny. When Respondent began its investigation, Petitioner acknowledged his mistake. He explained that he entered a training program in internal medicine after leaving the pathology program. That was a truthful but incomplete statement. In subsequent correspondence with Respondent, Petitioner deliberately concealed his private reason for leaving the pathology program and transferring to an internal medicine program. He failed to answer direct questions about his withdrawal from the pathology program such as whether he left the program in good-standing or whether he received full credit for his training in 1988-1989. He stated that he had not broken his contract for the first year of his pathology residency even though he had not met all requirements to receive credit for his work. He took the position that it was irrelevant whether he received credit for the incomplete residency. After Respondent advised Petitioner that he would have to make a personal appearance before the credentials committee, Petitioner continued to assert that there was no "pertinent reason" for his personal appearance. At the meeting of the credentials committee meeting on January 17, 1998, Petitioner revealed the real reason that he withdrew from the pathology program for the first time. Petitioner's testimony that he repressed his memory of the incomplete residency when he filed his application is not credible. During the formal hearing, Petitioner stated that he did not answer the questions in Respondent's letters because he did not feel that it was appropriate to answer them. He stated that he did not want to answer the questions because of the nature of the reasons for his withdrawal from the program.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent enter a final order denying Petitioner a license to practice medicine by endorsement. DONE AND ENTERED this 11th day of June, 1999, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1999.
