The Issue Whether the Petitioner has met the requirements for licensure as a medical doctor in the State of Florida set forth in Section 458.311(1)(f), Florida Statutes (1986 Supp.), as required by Section 458.313(1), Florida Statutes (1986 Supp.)?
Findings Of Fact The Petitioner applied for licensure by endorsement as a medical doctor in Florida in September of 1986. Following notification by the Respondent that additional materials were required to complete the Petitioner's application, the Petitioner timely submitted the materials. In March of 1987, the Petitioner appeared before the Foreign Medical Graduate Committee of the Respondent. On April 5, 1987, the Respondent entered an Order titled Notice of Intent to Deny the Application for Licensure by Endorsement of Hien B. Nguyen. The stated basis for the denial of the Petitioner's application was that the Petitioner had failed to demonstrate that he graduated from a medical school. The Petitioner began medical school in 1967 at the University of Saigon, Faculty of Medicine, in Saigon, Republic of Vietnam. The Petitioner Successfully completed the six years required course work in medicine at the University of Saigon, Faculty of Medicine, in 1974. Following the completion of the course work required to earn a medical degree at the University of Saigon, Faculty of Medicine, the Petitioner was drafted into the Republic of Vietnam's military. He attended training for approximately six months immediately following the completion of his medical degree course work. The Petitioner was required to complete a thesis before being eligible for a medical degree from the University of Saigon, Faculty of Medicine. Upon completion of military training, the Petitioner commenced and completed work on his thesis. The Petitioner's thesis consisted of a translation of "Central Nervous Disease in Children," of Nelson's Pediatric Textbook, from English into Vietnamese. The Petitioner presented his thesis on April 14, 1975. Thuc R. Bach, M.D. attended the presentation of his wife's thesis on April 14, 1975, and witnessed the Petitioner's thesis presentation. The Petitioner was awarded a Certificate from the University of Saigon, Faculty of Medicine, on April 14, 1975, which indicated that the Petitioner had completed work necessary to be awarded a medical degree. The Certificate was issued temporarily. After approximately five years the Petitioner was required to return the Certificate at which time he could be issued an official diploma. On approximately April 30, 1975, the government of the Republic of Vietnam fell to the army of North Vietnam. Following the fall of the Republic of Vietnam, the Petitioner was confined to a concentration camp where the Petitioner acted as camp doctor. Following the Petitioner's release from confinement in 1976, the Petitioner worked as a physician at Saint Paul Clinic in Saigon until 1979. From 1977 until 1980 the Petitioner also attended and taught at a medical training center in Saigon. In October, 1980, the Petitioner escaped from Vietnam. He resided in Galang, Indonesia until March, 1981, when he moved to the United States. The Petitioner has completed the following since his arrival in the United States: December, 1981: Sat for the Federation Licensing Examination and was subsequently certified by the Federation of State Medical Boards; January 24, 1983: Certified by the Educational Commission for Foreign Medical Graduates; July, 1984 - June, 1985: Interned at the Cook County Hospital, Chicago, Illinois; July, 1985 - June, 1987: Residency program at Cook County Hospital, and February 19, 1986: Licensed as a physician by the State of Illinois (the license is currently active and unrestricted). The Petitioner was presented with a certificate from the Faculty- Council-in-Exile of the Faculty of Medicine of the University of Saigon dated April 20, 1981. The certificate affirms that the Petitioner "Successfully completed the course of study leading to the degree of Doctor of Medicine..." The certificate is signed by the Dean Emeritus of the University and Dao Huu Anh, M.D., Associate Dean of the University. Prior to the fall of the government of the Republic of Vietnam, graduates of the University of Saigon, Faculty of Medicine, were presented with a certificate authorizing them to practice as a physician without restriction upon completion of the required courses of study and a thesis. Graduates were not issued an Official Diploma until five years had passed since the issuance of their certificate. Although the Petitioner completed the required courses of study, presented his thesis and received a certificate authorizing him to practice as a physician, the Petitioner was not able to obtain an Official Diploma five years later because of the fall of the government of the Republic of Vietnam. In light of the fall of the government of the Republic of Vietnam, it is doubtful that the records of the University of Saigon, Faculty of Medicine are available or that the Petitioner could obtain an Official Diploma. The Petitioner is a graduate of the University of Saigon, Faculty of Medicine, a medical school.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued GRANTING the Petitioner's application for licensure by endorsement as a medical doctor in the State of Florida. DONE AND ORDERED this 25th day of January, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2969 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2. 3 3. 4 4 and 5. 5 6. 6 7-10. 7 11-12. 13. The Petitioner worked at the training center from 1977 through 1980. 15. The Petitioner went from Vietnam to Indonesia in October of 1980. He did not travel to the United States until March of 1981. 10-12 Cummulative, summary of the evidence and unnecessary. Dr. Nghia Van Tran's letter was not accepted into evidence. 13 16. The last sentence is cummulative, a summary of evidence and unnecessary. The footnote is irrelevant. The burden of proof in this proceeding was on the Petitioner. The Respondent is not required to verify the signature of Dr. Dao. 14 10 and 17. 15 17-18. 16-18 Cummulative, summary of the evidence and unnecessary. The Respondent's Proposed Findings of Fact 1 1 and 3. 2-5 The Respondent's remaining proposed findings of fact are essentially summaries of the Respondent's inter- pretation of the evidence and argument concerning the evidence. The Respondent's interpretation of the evidence is rejected. The following is a brief discussion of why the Respondent's arguments have been rejected. The first two sentences are true and support the finding of fact that the Petitioner began medical school in 1967, completed his course work in 1974 and presented his thesis in April of 1975. See findings of fact 4-5 and 9. The third and fourth sentences are true but the Respondent has overlooked the fact that the Petitioner presented other evidence which supports his position. Therefore, even if the fifth sentence were correct, there is other evidence which supports findings of fact 4-5 and 9. The sixth sentence is irrelevant. Although the Board may have raised a question, the correct answer to that question is a matter of proof. The seventh sentence is true but irrelevant. The eighth sentence is not supported by the weight of the evidence. There was no testimony sufficient to support any finding of fact concerning Dr. Dao's signature on any document. Although the ninth sentence is correct, the weight of the evidence does not support the alleged fact set out in the tenth sentence. The eleventh sentence was taken into account in the weight given to Dr. Dao's statement. Although the twelfth sentence is correct the thirteenth and fourteenth sentences are not supported by the weight of the evidence. While it is true that the Petitioner's testimony with regard to when he completed his course work at the University of Saigon was not totally consistent, the weight of the evidence supports a conclusion that the Petitioner finished his course work in June of 1974. The Petitioner's explanation concerning the inconsistency in his testimony was credible. The first and second sentences are true. The third sentence is true but overlooks the fact that it corroborates non-hearsay evidence. The fourth sentence is law. The fifth sentence is true. The sixth and seventh sentences are true. The eight sentence is not supported by the weight of the evidence. The ninth and tenth sentences are true but they do not support the ultimate conclusion the Respondent suggests. It is possible that the Certificate in question could have been based upon other credible evidence. The first sentence is true. The second sentence is not supported by the weight of the evidence. The Petitioner testified that he completed his course work in 1974. The third sentence is true. The fourth and fifth sentences are not supported by the weight of the evidence. COPIES FURNISHED: Carolyn S. Raepple, Esquire Cheryl G. Stuart, Esquire Hopping, Boyd, Green & Sams 420 First Florida Bank Building Post Office Box 6526 Tallahassee, Florida 32314 M. Catherine Lannon, Esquire Assistant Attorney General Administrative Law Section Department of Legal Affairs Room 1601, The Capitol Tallahassee, Florida 32399-1050 Ms. Dorothy Faircloth Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact The petition herein was filed by Petitioner with PERC on April 18, 1975. (Hearing Officer's Exhibit 1). The hearing in this case was scheduled by notice dated June 4, 1975. (Hearing Officer's Exhibit 2). The Southeast Volusia Hospital District d/b/a Fish Memorial Hospital is a public employer within the meaning of Florida Statutes, Section 447.002(2). (Stipulation TR 5-6). The Petitioner is an association which has sought to represent public employees in matters relating to their employment relationship with a public employer. The Petitioner has been certified by PERC to serve as the bargaining representative for public employees in Dade County. (TR Volume 3, 96-99). The Petitioner has requested recognition as the bargaining agent in the proposed unit. (Stipulation TR, Volume 1, 6). There is no contractual bar to holding an election in this case. (Stipulation, TR Volume 1, 6). There is no pertinent collective bargaining history that will affect this case. (Stipulation, TR 6, 7). PERC has previously determined that the petitioner is a duly registered employee organization. (Hearing Officer's Exhibit 3). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. PERC has previously determined that the Petitioner filed the requisite Showing of Interest with its petition. (Hearing Officer's, Exhibit 4). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. Registered Nurses are professional employees within the meaning of Florida Statutes, Section 447.002(13). (Stipulation, TR volume 1, 32-33). The Public Employer is a special taxing district created by the Florida Legislature. See: Laws of Florida, Chapter 65-2362 (1965). The governing body is a five member board of commissioners. The purpose of the district is to operate the Fish Memorial Hospital. It is a small hospital in the industry parlance, having 74 beds. The hospital offers traditional medical services, and is licensed by the State of Florida as a general acute care hospital. The hospital employs between 180 and 200 persons. Approximately 140 of the employees are involved directly in patient care. 109 of the employees are within the Department of Nursing Services. (TR Volume 1, 10-16). The hospital's chief executive officer is the Administrator, Mr. William Schneider. The Administrator reports directly to the Board of Trustees. He has the authority in the interest of the public employer to hire and discharge employees, and to finally resolve employee grievances. He is responsible for preparing a proposed budget, and has authority to authorize expenditures of up to $1,000. He is charged generally with the responsibility of managing the operation of the hospital. (TR, Volume 1 10-25). The Director of Nursing Services has the authority to hire and discharge employees within her department. She is the top management official within the Nursing Services Department, and is responsible, for evaluating, promoting, or suspending employees in her department. She prepares the budget for her department. In the absence of the Hospital Administrator she has charge of the total hospital operations. She participates in the planning and development of administrative and personnel policies and procedures effecting her department, and other hospital services. (TR Volume 1 26-48, 67-72, Public Employer's Exhibit 2-G). Shift supervisors report directly to the Director of Nursing Services. They are responsible for supervising nursing activities on the wards during their shifts. They allocate the available staff of registered nurses, licensed practical nurses, and other employees. Depending upon which shift they work, the shift supervisor may have from 3 to 5 registered nurses working under her. Shift supervisors participate in the evaluation of employees on their shift. The evaluations must ultimately be approved by the Director of Nursing Services. The evaluations are used by the Public Employer to determine whether pay increases will be granted to an employee. Shift supervisors give some input into the budgetary process by advising the Director of Nursing as to needs. Shift supervisors attend regularly scheduled meetings with the Director of Nursing, and head nurses. During these meetings the performance of individual employees, and policies or potential policies which would apply throughout nursing services are discussed. (TR Volume 1 10-94, Volume 2 3-40, Public Employer's Exhibit 2-G). The head nurses answer to the shift supervisors, and are generally charged with administering nursing services on a hospital floor, or in a specialty area, such as the Intensive Care Unit or Emergency Room. At the beginning of each shift, the head nurse is responsible for securing information from the prior shift with respect to patients on the floor. Head nurses typically have one or two registered nurses under their supervision. One head nurse has four registered nurses under her supervision. The head nurse cannot hire, fire, transfer, suspend, or promote employees; however, she can make recommendations to the shift supervisors or to the Director of Nursing. In the case of specialized units, such as the Intensive Care Unit, head nurses may conduct job interviews, and their evaluations respecting new employees and old employees are given special consideration. Head nurses evaluate registered nurses and licensed practical nurses who work on their shifts. These evaluations are subject to review by the shift supervisor, and by the Director of Nursing Services, and are not routinely adopted by the Director of Nursing Services if the evaluation is a negative one. The evaluations are used to determine whether pay increases should be granted, and can be used in making a decision respecting continued employability. The head nurse serves as the first step in the grievance procedure. If she is unable to resolve grievances she refers them to the Director of Nursing Services. The head nurse can remove an employee from duty on the spot if special circumstances, such as intoxication, warrant it. The head nurse has access to the personnel files of other other employees. The head nurse makes holiday schedules, which must be approved by the supervisor, and by the Director of Nursing. The head nurse does not have a private office. In the absence of the shift supervisor a head nurse will serve as shift supervisor. This regularly occurs during weekend shifts. Head nurses are requested to provide information respecting budgetary needs. Head nurses spend a good portion of their active duty working day rendering direct patient services. (TR Volume 1 30-32, 77-94, volume 2 15-20, 42-60, Volume 3 4-95, Public Employer's Exhibit 2-G, Public Employer's Exhibit 6). Licensed practical nurses work at the hospital with registered nurses. Generally a registered nurse can perform every task that a licensed practical nurse is authorized to perform, but a licensed practical nurse cannot perform many functions that are performed by a registered nurse. For example, a licensed practical nurse cannot perform intravenous injections, or dispense drugs to a patient. A licensed practical nurse reports to a registered nurse for decision making respecting patient care. Registered nurses supervise the activities of licensed, practical nurses. Generally licensed practical nurses dispense medication, including administering shots, give bed baths, BM care, and are assigned to postpartum and nursery care. In order to be classified as a licensed practical nurse, a person must pursue a one-year course off study. The educational program includes a basic introduction to nursing, practical theoretical instruction, and applied practice in hospital study. They study basic nursing skills, specific diseases, and basic pharmacology. The curriculum is not so in depth as the course of study pursued by registered nurses, which includes basic college courses, and courses relating to specific kinds of nursing assignments. Occasionally a licensed practical nurse will be in charge of a floor at the Fish Memorial Hospital, but this is not routine, and they generally report to a registered nurse. (TR Volume 1 57-67, Volume 2 6-14, Volume 3 22-26, 32-33, public Employer's Exhibit 2-G). Radiological Technicians pursue an 18 month training and educational program. Nuclear Medicine Technicians pursue an Associate Degree program in nuclear medicine. Pharmacists pursue a Baccalaureate Degree program followed by an internship. Radiological Technicians, Nuclear Medicine Technicians, Laboratory Technicians, and Pharmacists are all directly engaged in patient care as are Registered Nurses and Licensed Practical Nurses. There is considerable communication and contact among these people. Their functions are not, however, identical. Although a registered nurse may, under certain circumstances, perform the functions of a pharmacist, she would not perform the functions of a radiological technician, a nuclear medicine technician, or a laboratory technician. Nor would pharmacists, laboratory technicians, nuclear medicine technicians or radiological technicians serve as registered nurses. Radiological technicians, nuclear medicine technicians, laboratory technicians, and pharmacists are all licensed by the State of Florida. (TR Volume 1 28-29, 43-45, 49-66, Volume 2 7-9, Volume 3 22-46, Public Employee's Exhibits 2-C, 2-E, 2-F). ENTERED this 20th day of October, 1975, in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact After the hearing was called to order in the above styled cause, the parties submitted the following stipulation: Sometime in December of 1978, the Petitioner, MARY KANNER applied tot he DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Clinical Laboratory Registra- tion and Licensure Program, for a Clinical Laboratory Technologist License. After reviewing the petitioner's application and supporting documents, the DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES discovered that she did not have the sixty (60) semester hours required by Section 10D-41.25(9). MRS. KANNER was notified of her failure to qualify for the requested Technologist license by letter from the Department dated January 30, 1979. Subsequently, MRS. KANNER requested an Administrative hearing. Pursuant to her inquires, Mrs. Kanner received several communications from the Respondent Department. One letter dated January 30, 1979, from Nathan B. Schneider, Director of the Office of Laboratory Services, stated that it was the finding of the Respondent Department that Mrs. Kanner might be eligible for licensure as a clinical laboratory technician, and the letter authorized her to work in that capacity until the next scheduled examination, or no later than July 1, 1979. The letter stated that Mrs. Kanner would be notified in advance of the time and place of the examination. A second letter dated January 30, 1979, to Mrs. Kanner from Nathan B. Schneider, acknowledged the receipt of her application for licensure as a technologist but informed her that she was apparently ineligible because she did not have the required sixty (60) semester hours, but also advised her of her entitlement to an administrative hearing. Petitioner submitted letters as follows: a letter to Dr. Schneider from Alice Browner, Registrar of the Canadian Sociaety of Laboratory Technologist. The letter stated in pat that Petitioner had trained for a period of six (6) months, mainly September, 1966, to March of 1967, in a training program in the hematology department. The training was listed as follows: Bacteriology 1 evening a week February - May Biochemistry Sunday afternoons March - June Histology Saturday mornings March - Middle of May Blood Bank One evening a week January, February & March Hematology 6 months formal training Experience - 23 months (excluding formal training) (Resume in Hematology written previously) A letter dated March 29, 1979, to Dr. Schneider from Arthur Rosenberg, Chief of the Department of Hematology at the Sir Mortimer B. Davis - Jewish General Hospital, stated in part that Petitioner started her course in medical technology in 1966, and that in 1969, she wrote the hematology subject examination and received her Canadian registration. She worked as a hematology technologist until 1971, and as a department supervisor from 1971, to 1974. The letter stated that the preparation time prior to writing her examination subject would be the "equivalent of 60-plus semester hours of study." A letter was submitted to Counsel for the Respondent Department dated July 16, 1979, in which John V. Briscoe, Director of Hospital Services for the Sir Mortimer B. Davis - Jewish General Hospital, supplied a document which stated that the Jewish General Hospital is "an affiliated teaching hospital with McGill University, Montreal, Quebec, and is fully accredited by the Canadian Council on Hospital Accreditation, the date of the last accreditation survey being September 26, 1977." In answer to the statement by the Respondent Department that the Petitioner did not have documented evidence of the required sixty (60) semester hours direct from a university, Petitioner explained that in Montreal, Canada, in 1966, all English-speaking schools for nursing and technology took place in various accredited hospitals, using the same format as would be used at a university. In a separate section of the hospital was the school of nursing and the school of technology, but in recent years all of the schools were at the universities. Dr. Howard R. Rarick, Chief of the Clinical Laboratory Improvement Program for the Respondent Department, reviewed Petitioners application and supporting documents and did not find a transcript showing completion of sixty (60) hours credit or its equivalent as required by the State statute and rule promulgated thereunder. The Respondent Department does not evaluate the credits from foreign schools or institutions but forwards the credits to the International Education Research Foundation, which evaluates and determines the equivalent American credits that should be allowed. The Petitioner had no certified transcript from the hospital or university in which the foreign credits were earned and, therefore, was unable to send this to the Research Foundation to convert the foreign credits. The letters submitted by Petitioner are insufficient to substitute for a certified transcript for evaluation purposes. Both parties submitted a stipulation of facts, and the Respondent Department submitted a memorandum of law. These instruments were considered in the writing of this Order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this Order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and conclusions of Law, the Hearing Officer recommends that the application of the Petitioner, Mary Kanner, to sit for examination as a technologist be denied. DONE and ORDERED this 30th day of August, 1979, in Tallahassee, Leon County, Florida. DELPHIAN C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Harold L. Braynon, Esquire Department of HRS 201 West Broward Boulevard Fort Lauderdale, Florida 33301 Mrs. Mary Kanner 1901 North 51st Avenue Hollywood, Florida 33021
Findings Of Fact Ruth Rogers is a licensed medical physician authorized to practice medicine in this state. The Complaint allegations centered around testimony of the Respondent, Ruth Rogers, during a custody proceeding in which the Child Protective Services (a State Agency) was attempting to gain custody of one Dena (Nikki) Decker based on facts which will be set forth in detail hereinafter. Jack McGowan, a medical doctor engaged primarily in pediatrics in Fort Pierce, Florida, testified that he first treated Dena Decker during August of 1973, at which time Decker was approximately seven weeks old. Dr. McGowan made subsequent treatments of Dena Deckur on a regular basis through December of 1976. During December, Dr. McGowan noted that Decker's lymph glands were enlarged and he ordered that certain lab work be performed, the results of which were returned to him sometime during early January of 1977. Based on the lab results, Dr. McGowan tentatively diagnosed Dena Decker as being a patient suffering from acute leukemia. To confirm this diagnosis, he referred her to the Shands Teaching Medical Center in Gainesville, wherein Dr. McGowan's diagnosis was confirmed. The treating physicians of Patient Decker at Shands Teaching Hospital were Drs. Jerry L. Arbosa and David Pockmore. It was their medical opinion that Dena was in fact suffering from acute lymphoblastic leukemia and that this disease should be treated by chemotherapy at Shands Teaching Hospital in Gainesville. Drs. Barbosa and Rockmore explained to the parents of Dena Decker the benefits and side effects of chemotherapy treatment, and they suggested that this was the best method of treating a patient such as Dena Decker, who was suffering from acute lymphoblastic leukemia. They noted, however, that there were some side effects, such as loss of hair and the destruction of certain "good" cells as well as "bad" cells. Dema Decker's parents requested time to consider the chemotherapy treatment and Drs. Barbosa and Rockmore stressed to her parents that "time was of the essence". After a few days, the parents of Dena Decker declined the treatment and at that juncture, Drs. Barbosa and Rockmore called in the Child Protective Services of Gainesville wherein a custody proceeding was convened, with the State seeking a custody award of Dena Decker. During that proceeding, Dr. Ruth Rogers, Respondent, testified that she would treat such a patient suffering from acute lymphoblastic leukemia with natural foods, herbs and optimal psychological support. It was Drs. Barbosa and Rockmore's opinion that the method of treatment outlined by the Respondent would be futile and that the patient would die in a short period of time. There was no evidence that the Respondent, Ruth Rogers, counseled with Dena Decker's parents or that she at any time treated Dena Decker by the method to which she testified during the custody proceeding in Gainesville. Following the conclusion of the Petitioner's case, Respondent's counsel moved for a directed verdict, summary judgment, or a judgment based on a failure on the Petitioner's part to establish a prima facie case. After some consideration, the undersigned concluded that, based on the evidence adduced during the Petitioner's case in chief, insufficient evidence was offered to establish that the Respondent had violated Chapter 458.1201(m), Florida Statutes, as alleged. Section 458.1201 is the section of the Medical Practices Act which deals with the power of the Board in the denial, suspension, revocation of license, and other discipline of medical practitioners. It reads, in pertinent part: "458.1201l--Demial, suspension, revocation of license; disciplinary powers-- The board shall have authority to deny an application for a license or to discipline a physician licensed under this chapter or any antecedent law who, after hearing, has been adjudged unqualified or guilty of the follow- ing: (Here is set forth several categories of disqualification or misconduct included in which is subsection (m))." Subsection (m) sets forth as grounds for. . . discipline of a physician, the following facets of misconduct: "(m) Being guilty of immoral or unprofessional conduct, incompetence, negligence or will- ful misconduct. Unprofessional conduct shall be any departure from, or the failure to conform to, the standards of acceptable and prevailing medical practice in his area of expertise as determined by the board, in which proceeding actual injury to a patient need not be established; when the same is committed in the course of his practice whether committed within or without this state." (Emphasis supplied) The administrative charge herein claimed to be proscribed by the above- quoted section of the statutes deals only with the testimony of the Respondent as to a method of treatment that she would use for treating acute lymphoblastic leukemia. Based on my examination of this record and an analysis of the reported case law, I conclude that the giving of such testimony is not proscribed unprofessional conduct as that term is included within this particular subsection of Chapter 485.1201(m). As the Court of Appeals stated in Lester v. Department of Professional and Occupational Regulation, Fla.App., 348 So.2d 923 (1977), the Court stated: "In construing the language and import of this statute we must bear in mind that it is, in effect, a penal statute since it imposes sanctions and penalties in the nature of denial of license, suspension from practice, revocation of license to practice, private or public reprimand, or probation, upon those found guilty of violating its prescriptions. This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably pro- scribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the applicant or licensee." This being so, I conclude that the above-cited conduct claimed to be violative of Chapter 458 is not proscribed by Chapter 458.1201(m) and I shall recommend that the Board enter a final administrative order dismissing the instant action against the Respondent.
Recommendation Based on the foregoing findings and conclusions, hereby RECOMMEND: That the Administrative Complaint filed herein against the Respondent be DISMISSED. RECOMMENDED this 28th day of August, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Michael I. Schwartz, Esquire Suite 201 Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301 David Rogers, Esquire 3101 Maguire Boulevard Post Office Box 20065 Orlando, Florida 32814 George S. Palmer, M.D. Execuivo Director State of Florida, Board of Medical Examiners 2009 Apalachee Parkway, Suite 220 Tallahassee, Florida 32301
Findings Of Fact Petitioner is licensed by the State of Florida as a Clinical Laboratory Technician. Petitioner applied to the Respondent for licensure as a Clinical Laboratory Technologist with specialties in microbiology, serology, clinical chemistry, hematology, immunohematology and chemistry. On February 11, 1980, Respondent denied Petitioner's application for a technologist's license for the reason that Petitioner does not have the sixty semester hours or HEW exam required under Section 10D-41.25(9) or (10), Florida Administrative Code. Petitioner holds a high school equivalency diploma. Petitioner attended the Manhattan Medical Assistants' School in 1960-1961 and graduated from that school, receiving a diploma as a Laboratory Technologist. When Petitioner attempted to obtain a transcript of his studies at that school, he discovered that the school is no longer in business; and, accordingly, he is unable to obtain a transcript reflecting his studies there. Petitioner does not have a bachelor's degree from an a"credited college or university. Through the years, Petitioner has taken a number of continuing education courses, but these courses have not been affiliated with an accredited college or university. Prior to moving to Florida, petitioner was employed for seventeen years as a Laboratory Technologist at the New Rochelle Hospital Medical Center and was a supervisor of the evening and night shifts at that Center. Petitioner's witnesses testified as to the quality of Petitioner's work as an employee of the Department of Pathology at South Miami Hospital. Petitioner has taken the U. S. Public Health Service proficiency examination in clinical laboratory technology. A satisfactory score on all sections of that examination must be obtained in order to Pass the examination. Petitioner passed each section of the examination except for the hematology section. He attempted to retake the examination but was advised that the March 30, 1979, examination was the last test scheduled by HEW. That examination has been administered on five different occasions between the years 1975 and 1979. There is no information available as to whether the HEW examination will or will not ever be administered again. That examination is not the same as the licensure examination given by the Respondent but can act as a prerequisite, if satisfactorily completed, to the state licensure examination. An approved course of study is available to Petitioner at Miami-Dade Community College. Personnel at that school have advised him that he would receive thirty-two credits for his life's work and that he would be required to take six or seven examinations plus approximately a year's worth of courses. Petitioner does not desire to attend that college even on a part-time basis several times a week, since he is employed at two full-time jobs at this time.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered denying Petitioner's application for a technologist's license pursuant to the provisions of The Florida Clinical Laboratory Law. RECOMMENDED this 10th day of October, 1980, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Collins Building Room 101 Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 1980. COPIES FURNISHED: Richard N. Krinzian, Esquire 8585 Sunset Drive, Suite 190 Miami, Florida 33143 Morton Laitner, Esquire Dade County Department of Public Health 1350 N.W. 14th Street Miami, Florida 33125 Mr. Alvin J. Taylor, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue At issue in this proceeding is whether petitioner's application for a medical license by endorsement should be approved.
Findings Of Fact The Findings of the Facts of tbe Recommended Order are adopted by the Board of Medicine as being based on competent substantial evidence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered certifying petitioner's application to the Department of Professional Regulation, for licensure by endorsement with, should the Board be persuaded that such is appropriate, placement of petitioner on probation for such term and subject to such conditions as the Board may reasonably specify. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of April 1991. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April 1991.
The Issue The issue presented is whether Petitioner is entitled to licensure as a clinical laboratory technologist in microbiology.
Findings Of Fact Applications for licensure as a medical technologist in microbiology are available from the Board's office. With the application, the Board staff sends directions for completing the application form, a copy of the relevant statutes and Board rules, the names and addresses of accredited and Board-approved medical technology training programs, and other materials. Petitioner's application for licensure as a medical technologist is dated January 20, 1999. She submitted that application and all required fees for licensure to the Board. Petitioner received her degree as a doctor of medicine from the Higher Institute of Medical Sciences in Havana, Cuba. That degree satisfies the educational requirements for licensure as a medical technologist in the State of Florida. In addition to minimum educational requirements, licensure as a technologist requires certain minimum experience working in a clinical laboratory performing a wide array of tests or completion of a technologist-level accredited or Board- approved medical technology training program. This requirement is clearly set forth in the materials the Board forwarded to Petitioner as part of her application package. The training program Petitioner completed in Cuba is not on the list of the Board's approved or accredited medical technology training programs. Petitioner acknowledges that she has not enrolled in, or completed, a technologist-level accredited or Board-approved technology training program. Therefore, in order to take the licensure examination and qualify for licensure Petitioner must have completed three years of full-time employment in a clinical laboratory performing a wide array of tests. None of Petitioner's work experience has been in the United States. With her application, Petitioner did not submit any employment verification forms from her employers. Instead, Petitioner submitted affidavits from people who knew her in Cuba and in Nicaragua. These affidavits conflict with each other, with Petitioner's resumé she submitted to the Board along with her application, and with Petitioner's testimony at the final hearing. On her application, Petitioner represented under oath that she was employed from June 1994 to July 1996 at the Institute of Tropical Medicine Pedro Kouri in Havana, from August 1996 to July 1997 at the Julio Trigo General Hospital in Havana, and from October 1997 to July 1998 at the National Center of Diagnostic and References in Managua, Nicaragua. She represented that she performed a wide variety of testing at each of these institutions, processing patient samples. However, on her resumé, which she submitted to the Board along with her application, Petitioner represents that at these three institutions, she was employed as a laboratory supervisor, charged with assessing laboratory personnel, and as a researcher. Her resumé also lists extensively the research studies she performed and her teaching experience. In support of her testimony at the final hearing that she possesses the required three years of pertinent clinical experience performing the required testing, Petitioner presented the testimony of Caridad Gonzalez and Biarda Villaverde. Ms. Gonzalez is a licensed medical technologist currently employed in the State of Florida. She testified that she worked with Petitioner at the Institute of Tropical Medicine Pedro Kouri from 1994 through 1996 and at the Julio Trigo General Hospital from 1996 through 1998. These dates conflict with those set forth in two affidavits Gonzalez provided to the Board as part of Petitioner's application for licensure. Further, in her own sworn application for licensure filed with the Board, Gonzalez never mentioned having been employed at the Institute of Tropical Medicine Pedro Kouri. Additionally, Gonzalez left Cuba and came to the United States in April 1997 and was not, therefore, employed in Cuba with Petitioner through 1998. Her testimony at final hearing, therefore, lacks credibility. Biarda Villaverde testified that she worked with Petitioner at the Institute of Tropical Medicine Pedro Kouri from June 1994 to June 1995 in a clinical setting. However, Villaverde and Petitioner worked in different laboratories at that institution. Villaverde, therefore, cannot support Petitioner's testimony as to the work performed by Petitioner since she did not work in the same laboratory. Further, the facility was a diagnostic, research, and teaching facility, where some tests were performed on animals, depending upon the type of research conducted. Villaverde testified that Petitioner was assigned to the research division at this facility. Research does not qualify for the work experience required for licensure as a medical technologist. Even if some of Petitioner's research experience could be counted toward the required clinical experience, Petitioner both admitted and denied at the final hearing that she performed research, primarily representing that she worked full-time performing the required array of testing on patient samples. Several of the accredited or Board-approved technologist training programs are located in South Florida, where Petitioner resides. A training program takes one to two years to complete, depending upon the program. Although Petitioner expressed her unhappiness with the length of time her application for licensure has been pending, she could have completed a program, thus obtaining the minimum required experience for licensure, had she chosen to do so upon learning the minimum requirements for licensure. Petitioner's argument that she should be given credit for her work in the laboratories in Cuba and Nicaragua since they complied with World Health Organization quality control standards is without merit. The World Health Organization does not regulate or set quality control standards for clinical laboratories. The World Health Organization only gathers statistical data and publishes studies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's application for licensure as a clinical laboratory technologist in microbiology. DONE AND ENTERED this 4thday of December, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 4th day of December, 2000. COPIES FURNISHED: Zenia Flores de Apodaca 1698 West 65th Street Hialeah, Florida 33012 Mary S. Miller, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Joe Baker, Jr., Executive Director Board of Clinical Laboratory Personnel Department of Health 4052 Bald Cypress Way Bin A07 Tallahassee, Florida 32399-3257 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way A02 Tallahassee, Florida 32399-1701
Findings Of Fact This cause was scheduled for formal hearing to commence at 9:30 a.m. on August 19, 1996, by Notice of Hearing entered June 7, 1996. Although Respondent appeared for the formal hearing, Petitioner did not and no one appeared on Petitioner's behalf. The hearing was adjourned at 10:25 a.m. To date, Petitioner has made no contact and has filed no document or other pleading regarding Petitioner's failure to appear. As a result of Petitioner's failure to respond to Respondent's Request for Admissions, the following statements, inter alia, have been deemed admitted: Petitioner did not graduate from high school and does not have a graduation equivalency diploma (GED). Petitioner has not completed a Board- approved school-based ABHES program, a Board-approved laboratory-based training program with 400 hours in the specialty for which Petitioner seeks licensure plus a completed Board-approved general clinical laboratory course, or a medical licensed technician program accredited by CAHEA or CAAHEP or NAACLS. Petitioner has not completed coursework on HIV/AIDS.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure as a clinical laboratory technician. DONE and ENTERED this 23rd day of September, 1996, at Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 23rd day of September, 1996. COPIES FURNISHED: Diane Orcutt, Executive Director Agency for Health Care Administration Board of Clinical Laboratory Personnel 1940 North Monroe Street Tallahassee, Florida 32399-0792 Mr. Jose N. Gonzalez 12820 Southwest 43rd Drive Apartment 232D Miami, Florida 33175 Michael Mone, Esquire Office of the Attorney General The Capitol PL-01 Tallahassee, Florida 32399-1050
The Issue The primary issue in this case is whether Petitioner is qualified for reinstatement of his license to practice medicine in the State of Florida. There are two principal areas of concern: Petitioner's conviction of illegally dispensing a controlled substance in Dougherty County, Georgia, on March 19, 1982; and Whether Petitioner has obtained the 36 hours of Class I Continuing Medical Education (CME) credit required (12 hours for each year his license was inactive since 1979).
Findings Of Fact The Petitioner, Fred Louis Vidal, M.D., obtained licensure in Florida in 1949, holding License #4369. In 1966, Petitioner's license was suspended for nonpayment of fees. Section 458.321, Florida Statutes (1979), requires the Board of Medical Examiners to adopt a rule setting forth the type and required number of hours of Continuing Medical Education (CME) needed to reactivate a license. The Board's rule concerning this is Rule 21M-28.01, Florida Administrative Code, which requires 12 hours per year for each year the license is inactive. Therefore, Petitioner must show evidence of 36 hours of Class I, American Medical Association CME. Petitioner's request for reinstatement was denied by Order of the Board rendered March 9, 1982. The Board's Order contained a typographical error which was corrected by its Amended Order rendered on March 22, 1982. Petitioner offered no evidence at the hearing or before the record was closed on June 7, 1982, proving his attendance at any Class I, AMA approved CME courses. Petitioner testified that on March 19, 1982, he was convicted for illegally dispensing a controlled substance in Dougherty County, Georgia. The sentence ordered by the court in this case placed Petitioner on probation for five years and provided that he not practice medicine in the State of Georgia during that period of probation. Regarding his conviction, Petitioner was convicted of prescribing Percodan to a nurse who worked for the group of physicians employing the Petitioner. He prescribed Percodan for this nurse because she was suffering from severe headaches associated with tension. Petitioner stopped prescribing for the woman when he ceased to work for the group. Petitioner had warned the woman about depending upon the drug, but while working with her he saw no evidence that she was abusing it. At the time he left the group he ceased to write prescriptions for this woman.
Recommendation Having failed to show that he has the required number of Continuing Medical Education units, it is determined that the Petitioner, Fred Louis Vidal, M.D., is not qualified at this time for reinstatement of his license, and it is recommended that his application be denied. DONE and ORDERED this 22nd day of July, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 22nd day of July, 1982. COPIES FURNISHED: Fred Louis Vidal, M. D. 20 Wayah Street Franklin, North Carolina 28734 Chris D. Rolle, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1602 Tallahassee, Florida 32301 Dorothy Faircloth, Executive Samuel Shorstein, Secretary Director Department of Professional Board of Medical Examiners Regulation 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32301 Tallahassee, Florida 32301
