Findings Of Fact Based upon the deposition testimony and documentary evidence from the petitioner's application file, the following relevant facts are found: Petitioner is a 1979 graduate of the University of Karachi and Dow Medical College in Pakistan. At the time of his application for Florida licensure by endorsement, he was licensed to practice medicine in Iowa. He is currently licensed to practice medicine in the states of Iowa, Georgia and Maryland. When the Florida Board of Medicine noticed its intent to deny petitioner's application, he had obtained a passing score on the federal licensing examination (FLEX). Contained within petitioner's application file are numerous letters from physicians who had, at one time or another, worked with the petitioner at various health care facilities. With one exception, all such letters recommended him for licensure in Florida and are quite positive regarding petitioner's competency as a physician. The one exception came from Dr. David W. Schultz, who was the director of petitioner's first year residency program at Lutheran Medical Center in Ohio. Petitioner participated in and completed a first year internal medicine residency program at Lutheran Medical Center from July 1, 1983 through June 30, 1984. Dr. David W. Schultz had held the position of director of the residency program for over twenty years. During petitioner's year of residency, Dr. Schultz taught the first year residents only one class. Other than his teacher/student relationship with petitioner during that one class in October and/or November of 1983, Dr. Schultz had no opportunity to directly and personally observe petitioner's ability to practice medicine. The entire faculty was involved in the teaching and observation of the residents. The "firm" or group to which petitioner was assigned as a first year resident did not manage or treat any of the patients admitted by Dr. Schultz. Other than his class observations, Dr. Schultz's opinions regarding petitioner's competency are based solely upon verbal reports and comments from other physicians and residents during the year. On January 13, 1984, Dr. Schultz wrote a letter "To Whom It May Concern," stating that petitioner is a "hard working and sincere physician" who "seems to get along with fellow residents and the Attending Staff." He recommended petitioner "for acceptance into your program." On or about February 10, 1984, Dr. Schultz completed and returned a form sent to him by the Florida Board of Medicine. The form advised Dr. Schultz that petitioner had applied for medical licensure in Florida and requested Dr. Schultz to rate petitioner in fifteen areas as either "poor," "fair," "good," "superior," or "don't know," and to provide an overall evaluation by checking one of the following: " 1. Recommend as outstanding applicant. 2. Recommended as qualified and competent. 3. Recommended with some reservation. 4. Cannot recommend." If either numbers 3 or 4 were checked, a written explanation was requested. Dr. Schultz rated petitioner "good" in all fifteen categories and checked item number 2 above -- "recommended as qualified and competent." On June 20, 1984, Dr. Schultz wrote a similar "To Whom It May Concern Letter" recommending petitioner "for acceptance into your program." On June 25, 1984, Dr. Schultz wrote a letter to the Florida Department of professional Regulation recommending petitioner "for a license in the State of Florida." Both of the June, 1984, letters again state that petitioner is "a hard working and sincere physician" and that "he seems to get along with fellow residents and the Attending Staff." In October of 1984, the Board of Medicine received a second completed form from Dr. Schultz regarding the petitioner. This form called for the identical information as the form completed by Dr. Schultz in February of 1984. However, this time Dr. Schultz rated petitioner as "fair" in thirteen categories, "poor" in one category (relationship with colleagues) and "good" in only one category (knowledge of English). As an overall evaluation, Dr. Schultz checked Item Number 3, "recommended with some reservation," but no written explanation was provided. At his deposition taken on September 17, 1987, Dr. Schultz attempted to explain the discrepancies between his evaluations of petitioner submitted in January, February and June of 1984 and his October, 1984, evaluation. When asked what happened between the two forms submitted in February and October of 1984, Dr. Schultz testified that it was only petitioner's failure to improve. Elaborating somewhat, Dr. Schultz stated: "I think, I admit to you it seems difficult to justify. I think if you have had the experience I've had over a period of many, many years in training residents and starting residents in what is a three-year program that you are always hopeful `that people who don't perform well at the first-year level may be able to find themselves, improve their basic knowledge level, and apply it better in the two years they have left in training, and that is the only justification I can give you for those letters. During his deposition, Dr. Schultz opined that petitioner was the "poorest" of the eight first year residents in the areas of basic medical knowledge, ability to apply knowledge to the effective management of patients and willingness to work hard. It was his opinion that, during the time of his first year residency, petitioner was not competent to independently practice medicine with skill and safety. The petitioner's application file also contains two letters written in January and February of 1984, from Dr. William T. Wilder, who was then an associate clinical director of the Medical Geropsychiatric Unit at Lutheran Medical Center. These letters represent that Dr. Wilder has worked closely with the petitioner during his residency program and that Dr. Wilder regards petitioner as having "excellent moral character" and "excellent qualifications to practice as a physician." He describes petitioner as a "very dedicated and thorough resident," "diligent in follow up on patient problems," and able to work well with patients. In 1983, Lutheran Medical Center was required to reduce the number of second year resident positions from eight to six. In the opinion of Dr. Schultz, even if Lutheran had had eight available second year residency positions, petitioner would not have been offered one of them because "his performance didn't warrant that." Petitioner was informed in October of 1983, that he would not be offered a second year residency position at Lutheran. Apparently, the month of October is a uniform appointment time throughout the country for residents in hospitals with approved medical programs. During the end of his second full month of residency at Lutheran Medical Center, petitioner underwent emergency eye surgery for a detached retina. It was petitioner's understanding that he was not offered a second year residency at Lutheran Medical because of his eye problems and because of the cutback in the number of second year residency positions. Although other residents were placed on probation due to unsatisfactory performance, petitioner was never placed on probation during his residency at Lutheran. On July 3, 1984, after the completion of his residency, petitioner filed a civil rights action against Lutheran Medical Center alleging that he had been discriminated against due to his eye problems. Dr. Schultz's deposition was taken in connection with that action in the summer of 1984. Since November of 1986, petitioner has been employed as a staff physician at the Georgia State Prison in Ridgeville, Georgia. In that capacity, petitioner sees approximately twenty to thirty male inmate patients per day and performs some minor surgery. His immediate supervisor is the medical director of the Georgia State Prison, Dr. Henry A. Robinson, who is board certified in obstetrics/gynecology and has been practicing medicine for 31 years. Dr. Robinson observes petitioner on a daily basis, and recommends him for licensure in Florida with no reservation. It is Dr. Robinson's opinion that petitioner is "very firm in his medical skills," has good medical knowledge which he applies very well, is willing to work, is cooperative and gets along well with his peers and his patients. Dr. Robinson has had fewer complaints from inmate patients regarding petitioner than any other health care worker. When asked to give an overall rating of petitioner as a physician, Dr. Robinson replied "I think he's well trained. He's motivated and does a fine job in the day-to-day practice."
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner's application for licensure by endorsement be GRANTED. Respectfully submitted and entered this 25th day of February, 1988, in Tallahassee, Florida. DIANE D. TREMOR 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 25th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2680 The proposed findings of fact submitted by counsel have been carefully considered and are accepted and/or incorporated in the Recommended Order, except as noted below. Respondent 5, last sentence: Rejected; if respondent is referring to "approved" medical training, this is irrelevant and immaterial. The evidence does establish that petitioner has been practicing medicine since the time of his residency. 9. The first two sentences and the last four sentences are accepted. The last sentence is accepted as a reason stated by the Board, but not as a sufficient reason for denial. The remaining portions are rejected as contrary to the conclusions drawn by the undersigned upon a reading of the entire deposition. COPIES FURNISHED: Gary D. Fields, Esquire 230 Royal Palm Way Suite 400 Palm Beach, Florida 33480 M. Catherine Lannon, Esquire Assistant Attorney General Administrative Law Section Suite 1601 - The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth Executive Director Department of Professional Regulation Board of Medicine 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue in this case is whether the Petitioner, Rene Delgado Leon, M.D., is eligible for examination for licensure to practice medicine in the state of Florida. The Petitioner, of course, contends that he is eligible. The Respondent, Board of Medical Examiners, contends that the Petitioner has failed to demonstrate eligibility, having previously advised him, inter alia: Your application and supporting documentation contained substantial omissions of material information relative to your medical education. Additionally, your application and supporting documentation does not provide sufficient information to demonstrate that you can practice medicine with reasonable skill and safety. See Section 458.301, Florida Statutes.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. The Petitioner, Dr. Rene Pedizo Delgado Leon, was born on November 26, 1936, in Cuba. All of his formal education prior to medical school was obtained in Cuba. He attended medical schools, off and on, at various times and places between 1955 and June of 1980. His medical education commenced in 1955 at the Medical School of the University of Havana and ended when he-was awarded his medical degree from the University of Dominica in June of 1980. The Petitioner's first language was Spanish and he is not completely fluent in the English language. When communicating in English he appears to have a tendency to interpret statements and questions in a very literal manner. The Petitioner does not appear to have intended to deceive the Board of Medical Examiners or to misrepresent information about his education and experience. Nevertheless, he has not been very clear about a number of details. Since receiving his degree from the University of Dominica in 1980, the Petitioner has completed a residency in pathology, has passed the FLEX exam in conjunction with his application for licensure in the state of Georgia, and has been licensed to practice medicine in the state of Georgia. There were several discrepancies between information given by the Petitioner to the Board of Medical Examiners and to the Hearing Officer concerning various aspects of his background, particularly concerning his medical education. With regard to his medical education, Petitioner listed on his first application that he attended medical school in Havana, Cuba, from April 1954 until December 1962. On his second application he stated that he attended medical school in Havana, Cuba, from September 1955 until September 1960. He testified before the Foreign Medical Graduate Committee that he attended medical school at the University of Havana from 1955 until 1962. At the final hearing he testified that he attended the University of Havana from 1955 until 1962. On his first application, in response to the direction that he list all universities or colleges where he attended classes and received training as a medical student, he stated only that he attended the University of Dominica from June of 1977 until June of 1980. He subsequently filed a form, received by the Board on October 26, 1983, stating that he had attended the University of Zaragoza, Zaragoza, Spain, and received training as a medical student from November of 1974 until April of 1975. On his second application, he stated that he had attended the University of Zaragoza as a medical student from November of 1974 until April of 1975. At the final hearing he testified that in 1973 while he was in Zaragoza he applied to revalidate old courses taken in Havana and that thereafter he took all examinations up to the third year. He stated that he took other courses in Zaragoza, but that he did not take the examinations for any of the medical courses taken in Zaragoza. He also testified that he was given credit for courses at Zaragoza even though he did not take the examinations. The next segment of his medical education was consistently testified to as having been had at the Universidad Central del Este in the Dominican Republic. He attended the Universidad Central del Este for only one semester, during which he took six or seven subjects. He testified that Universidad Central del Este did give him some credit for the third year of medical school; in spite of the fact that he did not take examinations in any of the third-year courses he took in Zaragoza. In January of 1979 he transferred to Universidad Nordestana and spent approximately one year there. Univeraidad Nordestana gave him two and one half to three years of credit. Although his initial application showed that he had attended the University of Dominica in the West Indies from June of 1977 until June of 1980, his subsequent written and oral testimony was that he was enrolled at the University of Dominica only from January of 1980 until June of 1980. He testified before the Foreign Medical Graduate Committee that at the time he transferred from Nordestana, he was basically finished with his medical education and he said he transferred to Dominica because they did not talk in English in Santo Domingo. He also testified that he transferred to Dominica so that he could get some exposure to how medicine was practiced in the United States. Petitioner testified that although he transferred to the University of Dominica and he received his degree from the University of Dominica six months after he transferred there, he did not pay any monies to the University of Dominica. His explanation of why he did not pay money to the University of Dominica is that he wrote things for them, like a pathology booklet. The application form which Petitioner completed requested that he specify all places of residence since beginning medical training. On his first application he showed that he resided in Dominica, West Indies, from January of 1980 until June of 1980. On his second application he listed as residences since initiation of medical training only the University of Miami, Jackson Memorial, VA Hospital, and the University of South Florida, Tampa. In August of 1983 he followed up the second application with a letter to Mrs. Faircloth which stated that his place of residence while attending medical school was the "students quarters and dormitories" at Portsmouth, University of Dominica, West Indies. However, at the hearing before the Foreign Medical Graduate Committee and at the final hearing, Petitioner admitted that he was, in fact, on the campus of the University of Dominica only one day, and that was on graduation day. In fact, when he testified before the Foreign Medical Graduate Committee, he was specifically asked, "When you left Nordestana, where did you go?" To that question he replied, "Oh, to Dominica." However, he later admitted that when he left Nordestana, he went to Miami and he did not go to Dominica until he went six months later in order to graduate. On both of his written applications, Petitioner was asked to list the degrees earned other than M.D. On neither application did he list a bachelor's degree. Yet, in testimony before the Committee and at the final hearing, he testified that he had earned the equivalent of a B.S. in chemistry at the University of Havana. He testified that the reason that he omitted it was that he thought the question referred to medical education. However; in response to the same question, he listed that he had obtained a Licensee in Science and a Doctor in Science from the University of Zaragoza. With regard to the matter of what clerkships, if any, Petitioner performed as part of his medical education, the record shows that he was enrolled at the University of Dominica, the school from which he received a medical degree, from January or February of 1980 until June of 1980. The record also shows that during that five- or six-month period he performed what purported to be clerkships at the VA Hospital and at Coral Gables Hospital, in Miami, and at the same time was an employee of the VA Hospital. He testified that his clerkship at the VA Hospital was in pathology and that he was employed full time in the same area as he was receiving clerkship credit. He arranged the clerkships himself and informed the university of the clerkships. He testified that he did the same activities as the other clerks did, but he worked approximately forty hours and they worked thirty to forty hours. He effected his transfer to the University of Dominica by writing to the New York office and by taking some "required" examinations in basic sciences and clinical studies. He took the examinations in Miami and passed everything but gynecology. He eventually passed gynecology, but not until May of 1980 after he had almost completed clerkships. He testified that when he did his "rotation" at the VA Hospital, he was told that he could "moonlight." He testified that he did all of the autopsies while the other medical students watched. He testified that he went in to work at about 7:00 a.m. and left around 4:00 p.m. and that the other residents did not arrive until about 8:00 a.m. However, he did testify that the clerks arrived at 6:00 a.m. Petitioner testified that he was doing a clerkship at the time, not a residency, and that it was the extra time that he put in that justified his being both paid and given credit for an educational experience. Dr. Robert M. Clark was Petitioner's supervisor during the period of approximately January of 1980 until June of 1980. Petitioner worked in the morgue as a Physician's Assistant and also did "resident physician work." Petitioner was paid at the same time as he was doing a rotation because there was a shortage of residents. Petitioner had the same exposure to pathology as the other residents, all of whom were from the University of Miami. None of the other students were paid employees. A Physician's Assistant requires two years of medical school. Dr. Clark was introduced to Petitioner by Dr. Kuhnhardt. Dr. Kuhnhardt was not connected in any way with the medical school at the University of Dominica. The only other purported clerkship about which there was testimony at the hearing related to a clerkship at Coral Gables Hospital. That clerkship was under Dr. Hurst. That clerkship was done from January of 1980 until June of 1980, the same period during which the clerkship at the VA Hospital was done. Petitioner testified that he went to Coral Gables Hospital after he left the VA Hospital, usually after 4:00 p.m., and stayed however long was necessary, possibly as late as 8:00 or midnight. Dr. Hurst only let the students observe medical procedures. That clerkship was conducted in a community hospital. As for the supervision by the school, the testimony was that the school played no role in arranging the clerkships. Petitioner testified that people from the school came for general meetings every once in a while during the clerkships. As for evaluation, Petitioner testified that the school sent evaluation forms to him and he distributed the forms to whoever was supervising him.
Recommendation Based upon all of the foregoing it is my recommendation, because of the contradictions and uncertainties on the record in this case regarding the nature of the Petitioner's medical education, that the Board of Medical Examiner issue a final order denying the Petitioner's application for licensure by examination without prejudice to the filing of any future application for licensure by examination or endorsement, unless; for reasons analogous to those set forth in the Lopez decision, supra, the Board is persuaded that the shortcomings in the application and its supporting evidence may be overlooked in light of the Petitioner's achievements since 1980. DONE AND ORDERED this 3rd day of January, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1986. COPIES FURNISHED: M. Catherine Lannon, Esquire Assistant Attorney General Department of Legal Affairs Room LL-04, The Capitol Tallahassee, Florida 32301 Jorge A. Sibila, Esquire 2751 Coral Way Miami, Florida 33145 Dorothy Faircloth; Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche; Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 APPENDIX The following are my specific rulings on each of the proposed findings of fact submitted by each of the parties. Rulings on Petitioner's proposed findings: The Petitioner's proposed findings of fact consist of a two- line introductory clause and six unnumbered indented paragraphs. The six unnumbered indented paragraphs are addressed below in the order in which they appear in the Petitioner's proposed findings of fact. First Paragraph: Rejected. This paragraph is merely a commentary on the state of the record and does not contain any proposed finding of fact. Second Paragraph: Rejected for the same reason as the first paragraph. Third Paragraph: Rejected in part and accepted in part. Rejected portions are rejected for the most part for the same reason as the rejection of the first two paragraphs. The "fully explained" portion of this paragraph is rejected as not supported by the greater weight of the evidence. Findings have been made consistent with the portions of this paragraph relating to when Petitioner's medical education began and ended, his completion of a residency in pathology, and his passing of the FLEX examination. Fourth Paragraph: The first sentence of this paragraph is rejected in part because it is merely a commentary on the state of the record and in part because it is inconsistent with the evidence of record. Dr. Clark did not explain the Petitioner's work in detail: to the contrary, his testimony was rather vague about a number of the details and he failed to recall a number of specific details. The last sentence of this paragraph is rejected because it is not supported by competent substantial evidence. Fifth Paragraph: Rejected for the same reason as the first paragraph. Sixth paragraph: The first sentence of this paragraph is rejected because the Petitioner's explanations were incomplete. With regard to the second sentence of this paragraph, it is accepted that the Petitioner is "not fluent/native in the English language or in legal terminology," and that the Petitioner did not intend to deceive the Board or misrepresent information to the Board. m e remainder of the second sentence is rejected on the grounds that it is in part irrelevant and immaterial as well as on the grounds that the ultimate factual conclusion urged in the second sentence is not warranted by the evidence in the record. Rulings on Respondent's proposed findings: The Respondent's proposed findings of fact consist of seventeen separately numbered paragraphs. The paragraph numbers which follow correspond to the numbers of the paragraphs of the Respondent's proposed findings. Accepted in substance with certain gratuitous editorial material deleted. Accepted in substance. Accepted in substance with the exception of the sentence reading: "In contradiction, he testified at the final hearing, on both direct and cross-examination, that he furthered his medical education in Spain in 1970." The quoted sentence is rejected because it does not accurately reflect the totality of the Petitioner's testimony on this subject. Some other redundant material in this paragraph is also rejected. Rejected on the grounds that it consists of irrelevant and cumulative details which are not necessary to the disposition of this case. Accepted in substance with certain gratuitous editorial material deleted. The first sentence of this paragraph is accepted. The second sentence is accepted with the exception of the words ". . . at which time he needed three years." The quoted language is rejected as not being supported by persuasive competent substantial evidence. Accepted. The first two sentences of this paragraph are accepted in substance. The last sentence is rejected as irrelevant in part, cumulative in part, and not supported by competent substantial evidence in part. Accepted in substance with certain gratuitous editorial material deleted. Accepted. Accepted in part and rejected in part. Reasons for rejection include the feet that although most of this paragraph is an accurate summary of portions of the Petitioner's testimony; some of the testimony on this subject was not persuasive and has not been used as the basis for findings of fact. The parenthetical mention of the pathology booklet is rejected because there is no competent substantial evidence as to when Petitioner wrote any pathology books Accepted in substance. Accepted in part and rejected in part. Reasons for rejection include the fact that although much of this paragraph is an accurate summary of portions of Dr. Clark's testimony, much of the testimony on this subject was not persuasive and has not been used as the basis for findings of fact. Portions of this paragraph have also been rejected on the grounds that they constitute commentary on the quality of the testimony or argument and are not proposed findings of fact. Accepted in part and rejected in part. Reasons for rejection include the fact that although most of this paragraph is an accurate summery of portions of the Petitioner's testimony, much of the testimony on this subject was not persuasive and has not been used as the basis for findings of fact. Accepted. Rejected as findings of fact because it constitutes argument rather than proposed findings of fact. [Much of the argument is well taken, but it is argument nevertheless and not appropriately part of the findings of fact.] Rejected for the same reason as Paragraph 16.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings. Gladys Soledad Valladares (Petitioner) applied for licensure as a physician through endorsement by application dated September 23, 1985. (Joint Exhibit 1). On page (4) of the application is the question: Are you now or have you ever been emotionally/mental ill? Have you ever received psychotherapy? (Joint Exhibit 1). Petitioner filled both blanks with the word "No". (Joint Exhibit 1). Also on page (4) of the application is the question: Have you ever had to discontinue practice for any reasons for a period of one month or longer? (Joint Exhibit 1). Petitioner answered this question "yes." (Narrative Report attached to Joint Exhibit 1). Petitioner provided an explanation for discontinuing practice in March, 1981, citing personal reasons and her parents' health problems. In support of her application, Petitioner had Dr. Franklin Behrle, former director of the New Jersey residence program at the College of Medicine and Dentistry, submit an evaluation form on which he commented that "Petitioner did not complete her first year of pediatric residency; showed signs of inability to cope with the demands and pressures of residency and finally terminated April 26, 1981." (Joint Exhibit 3). Specifically, the Board denied Petitioner's application based on the following grounds: You submitted false information on your application for licensure and your response to the question, "have you ever received psychotherapy?" See, Section 458.331(1)(a) and (2), Florida Statutes. The application and supporting documentation does not provide sufficient information to demonstrate that you can practice medicine with reasonable skills and safety. See Section 458.331(3), Florida Statutes. Specifically, the poor recommendations submitted in support of your application for licensure indicates your lack of ability to practice with skills and safety. Dr. Valladares failed to make reference in her application to counseling received from Dr. Jorge Guerra in 1983 while she was in residency in Jacksonville. The Board of Medicine interprets that counseling as psychotherapy and takes the position that Dr. Valladares should have answered the application question about psychotherapy in the affirmative. Dr. Valladares did not consider those visits to be psychotherapy because to her, it seemed minor. Psychotherapy meant to her something more than what she received from Dr. Guerra. Dr. Valladares attended medical school in Havana, Cuba, after which she immigrated to the United States. She continued her medical education in Seville, Spain, where she received her medical degree. Dr. Valladares took and passed the ECFMG examination in July, 1979. She twice took the FLEX examination, once in December, 1984, and again in June, 1985, when she finally passed it. In November and December, 1983, Dr. Valladares saw Dr. Jorge Guerra, a psychiatrist, five times. She saw Dr. Guerra because of difficulty in dealing with stress she underwent while enrolled in a residency program at University Hospital in Jacksonville, Florida. Dr. Guerra prescribed dexyrel and xanax for Dr. Valladares to be taken over a six week period. Dr. Valladares took voluntary leave from her residency during part of this time. The leave was taken because the prescribed medication made her drowsy and too sleepy to satisfactorily perform her residency duties. After returning from leave, she satisfactorily completed one year of residency for which she was awarded a certificate. (TR 85-88; Exhibit 9). Due to the brief duration of Dr. Guerra's treatment, Dr. Valladares did not consider his treatment of her to be psychotherapy as she considered that psychotherapy related to "more serious conditions which she did not have." She did not consider her stress to be serious because of her observation of other residents who also experienced stress and were not labeled psychic. Dr. Guerra, who testified by deposition, related that Dr. Valladares did not have an emotional or mental condition that would preclude her from safely practicing medicine. He initially treated her and diagnosed her condition as manic-depression however, near the end of his treatment the diagnosis was changed to a dysthymic disorder. (Depo. p. 13). Dr. Guerra came to treat Dr. Valladares based on a referral from Dr. Gladys P. Soler, Chief, Ambulatory Pediatrics at the Jacksonville Health Education Program. In making the referral, Dr. Soler advised Dr. Guerra that Petitioner thought that she was not coping at the time because she was too demanding of herself and had placed unrealistically high expectations upon herself. Upon checking with Dr. Soler as well as the chief resident at University Hospital, Dr. Guerra found that Petitioner was in fact performing satisfactorily but basically had a "tendency to be a perfectionist and she wanted to do a perfect job, even though there was not (sic) complaint of her performance, she was demanding too much of [herself]" (Depo. p. 10). Dr. Valladares received a number of favorable recommendations in support of her application from doctors who worked with her during her residency. These recommendations are from Dr. Julia F. Pons; Dr. Tajvar Joudarzi, Assistant Professor in the Pediatric Ambulatory Department, University Hospital, Jacksonville; Dr. Sidney Levin, Professor and Chairman of the Department of Pediatrics, University Hospital, Jacksonville and Dr. Gladys P. Soler. The letter from Dr. Soler is particularly favorable. Dr. Soler writes: I have always found her to be extremely reliable regarding her responsibilities and duties and able to manage both staff and patients very well. During this time I have had the pleasure to observe her fast development, competent all-round pediatrician with deep medical knowledge, high ethical standards and devoted to her patients... Dr. Valladares has a very likeable and pleasant personality, she is positive, mature and is able to accept constructive criticism well. Her clinical judgments and abilities, her insight and observations about issues surrounding the patient as well as her concern and sensitivity to the needs of the children and parents is remarkable. The Board of Medicine asked the Director of Medical Education at University Hospital for a routine residency evaluation. That evaluation was completed by Dr. Levin, the Chairman of Pediatrics. Dr. Levin wrote one of the four letters of recommendation referred to above. On the evaluation form, he scored her residency as mostly "good" with one "fair" and two as "don't know." (TR 227). Dr. Levin recommended her with some reservation. His comments are that Dr. Valladares had "some emotional problems which impaired function." Although he mentioned Dr. Valladares as having two episodes of severe depression and had trouble handling stress, in fact, she only had one episode of depression which was not severe. Dr. Levin also wrote that Dr. Valladares was not allowed to stay beyond the first year of residency, a fact contradicted at hearing. Dr. Levin testified at hearing that Dr. Valladares satisfactorily completed the first year of residency and that he signed her certificate. He also wrote a letter of recommendation for Dr. Valladares dated August 22, 1984, stating that during her residency she was known to be a person of good moral character. (Exhibit D, TR 218.) Notwithstanding his letter of recommendation, Dr. Levin recommended that the Board evaluate her present psychiatric status. (Exhibit 4) Pursuant to Dr. Levin's recommendation, the Board asked Dr. Valladares to submit to a psychiatric evaluation. This was done and the evaluation was completed by Dr. Norma M. Campos. Dr. Campos is a Board certified psychiatrist who attended the University of Madrid, Madrid, Spain. Dr. Campos completed a three year residency at Vanderbilt University and is licensed in the State of North Carolina, Tennessee and Florida. She is Board certified and was tendered and received as an expert in psychiatry. Dr. Campos examined Dr. Valladares during March 1986. Dr. Valladares underwent the formal psychiatric evaluation at the Board's request. Dr. Campos' report and evaluation related to the problems of depression that Dr. Valladares suffered during March, 1983. Dr. Campos found, at the time of her treatment of Dr. Valladares, no psychological problems, no showing of any inability to practice medicine at the time and related that the dysthymic disorder that Dr. Valladares, suffered was merely a state of depression, without psychotic features, which stemmed from exposure to stressful situations. Dr. Campos found it common for everyone to suffer depression at times and this was especially so with residents due to the demanding training programs that they must undergo and endure, coupled with the long hours of duty that they serve. Concluding, Dr. Campos highly recommended Dr. Valladares without reservation. She found her to be totally competent to practice medicine with reasonable skill and safety. Dr. Campos' evaluation was filed with the Board during March, 1986. (Exhibit 5). Despite her recommendation, the Board denied Dr. Valladares' application. Lest there be any doubt as to her ability to satisfactorily function as a medical doctor, Dr. Valladares voluntarily sought evaluations from Dr. Charles Kram, Ph.D., a psychologist at the University of Miami and David G. Pinosky, M.D., a psychiatrist. Both were recommended by the Board's staff. Dr. Valladares asked the Board's staff to recommend someone to evaluate her as she wanted the Board to have complete confidence in their reports. Both professionals submitted reports to the Board. Dr. Kram's report concludes: There is no indication present in these test data to suggest the presence of mental nor of emotional pathology. Dr. Pinosky's report concludes as follows: I found no evidence of a significant emotional or mental disorder that would preclude Dr. Valladares from safely practicing medicine. (Exhibits 6 and 7). Dr. Pinosky also commented about the negative answer on Dr. Valladeres' application and concluded as follows: Dr. Valladares' application was denied because of the Board's concern regarding her emotional status and also because she answered "No" to the' question regarding previous "psychotherapy." Dr. Valladares had misinterpreted this question to mean more prolonged psychiatric intervention for more chronic and severe psychiatric disorders. She considered brief psychiatrist intervention to be outside the scope of that question. She denies any fraudulent attempt at deception and is now painfully aware of her confusion regarding this matter. Prior to performing her residency at University Hospital in Jacksonville, Dr. Valladares served in a residency program in New Jersey. A routine evaluation request was sent to the head of the New Jersey residency program. Dr. Franklin Behrle wrote that Dr. Valladares left her residency for an inability to cope with the demands and stresses, was terminated after nine months, and would not have been accepted back into the program. However, Dr. Behrle's testimony respecting this point was contradicted at the hearing. During hearing, Dr. Behrle testified that he had no first hand observation of Dr. Valladares' residency; that she was given an executed copy of the second year residency contract; that there was never issued a written document to Dr. Valladares that her second year contract was cancelled; that she satisfactorily completed nine months of the residency program for which she received a certificate; and, that he wrote and signed a letter of recommendation for Dr. Valladares dated May 13, 1981, saying that she withdrew from residency for personal reasons and that he recommends her for "any future residency program she will enroll in the future." (Exhibit 10).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent issue a license to practice medicine to Dr. Valladares based on her showing, during the hearing herein, that she meets all qualifications for licensure by endorsement pursuant to Subsection 458.313(1), Florida Statutes, provided she satisfy any other necessary criteria for licensure. RECOMMENDED this 1st day of March, 1988, in Tallahassee, Florida. JAMES E. BRADWELL 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 1st day of March, 1988. COPIES FURNISHED: Paul Watson Lambert, Esquire Taylor, Brion, Buker & Greene Post Office Box 11189 Tallahassee, Florida 32302-3189 Allen R. Grossman, Esquire Assistant Attorney General 1601, The Capitol Tallahassee, Florida 32399-1050 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel 130 North Monroe Street Tallahassee, Florida 32399-0750 Dorothy Faircloth, Executive Director Department of Professional Regulation Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32399-0750
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
The Issue The issue in the case is whether the Petitioner is entitled to licensure as a psychologist by the State of Florida.
Findings Of Fact On February 6, 1995, the Petitioner filed an application for licensure by examination as a psychologist in the State of Florida. During its regular meeting of February 9-11, 1995, the Respondent considered and rejected the Petitioner's application. By letter dated February 13, 1995, the Respondent notified the Petitioner that his application had been denied. On May 11, 1995, the Respondent filed a Notice of Intent to Deny the application. The Notice appears to have been signed on April 20, 1995. The Notice of Intent identifies the basis for the denial as follows: In voting to deny the application, the Board found that the applicant's program did not require coursework in biological bases of behavior, cognitive-affective bases of behavior, or statistics. Moreover, the program did not require an internship that met the requirements of Rule 59AA-11.0061(3)(j), F.A.C. Prior to commencement of the hearing, the parties resolved the issue related to coursework in the Petitioner's favor. The issue remaining for hearing is whether the Petitioner's educational program required an internship that met the requirements of the cited rule. The parties have stipulated that the Petitioner has 1660 of acceptable pre-doctoral internship hours. The Petitioner has also submitted 2340 hours of post-doctoral supervised experience. Post-doctoral experience may be used to augment pre-doctoral hours if the post-doctoral experience meets the requirements of Rule 59AA-11.003(30(j), Florida Administrative Code. The evidence fails to establish that any of the 2340 hours meet the requirements set forth for pre-doctoral experience. The evidence is insufficient to establish that, beyond those hours to which the parties have agreed, any of the Petitioner's remaining internship/experience hours meet the applicable requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration, Board of Psychological Examiners, enter a Final Order denying the Petitioner's application for licensure by examination as a psychologist in Florida. RECOMMENDED this 19th day of December, 1996, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1996. COPIES FURNISHED: Dr. Kaye Howerton Executive Director Board of Psychological Examiners Agency for Health Care Administration Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jerome Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3 Tallahassee, Florida 32308 Robert Jacobs, Pro Se 1114 Evening Trail Drive Wesley Chapel, Florida 33543 Allen R. Grossman Assistant Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399
The Issue The issue presented is whether Petitioner's application for licensure as a physician by examination pursuant to Section 458.311(8), Florida Statutes, should be granted.
Findings Of Fact Petitioner attended medical school in Cuba from September 1978 through July 1984. In that country, the academic year commences in September and ends in July. The medical school program in Cuba is a six-year curriculum which is divided into three phases, with each phase lasting two years. Phase I involves the study of normal structures and functions of the human body (basic science courses); Phase II involves the study of pathological structures and functions (clinical rotations in hospitals); and Phase III involves integral medical care. Clinical rotations continue through the first half of Phase III, the student's fifth year in medical school. During the second half of Phase III, the medical student undertakes a rotating internship in four disciplines or a vertical internship in an individual discipline. The four disciplines are internal medicine, pediatrics, obstetrics and gynecology, and surgery. The student must pass a theoretical and practical examination in each discipline in order to proceed to the next rotation. After the medical student successfully completes each Phase, including the internship, the student is awarded the degree of Doctor en Medicina. During Phase III, instruction is given in the form of lectures, small group seminars, individual instruction, practical training, and problem-oriented instruction. Students rotate to different teaching hospitals and polyclinics. At the teaching hospitals, students review clinical records with the principal professors and discuss, as a group, patient symptoms, diagnoses, and treatment. The polyclinics are neighborhood clinics emphasizing preventative medicine. While students are working at the polyclinics, they are not members of the staff; rather, the staff doctors supervise and consult with the medical students rotating through the various polyclinics. A medical student graduates after completion of the sixth year's curriculum without the necessity of taking a written examination. To practice medicine in Cuba, however, it is necessary for the medical school graduate to obtain a license and register with the national health registry. Upon registering, the physician receives a medical card, which carries the picture and signature of the physician. Petitioner completed a rotating internship from September 1983 through July 1984 as part of her medical education. She was assigned to a physician/specialist in each field of study during her internship rotation. She examined patients in front of her fellow students and/or the professor. She participated in discussions regarding pathology or symptoms, particular diagnoses, and appropriate treatments. She interviewed patients, performed physical examinations, and ordered laboratory tests if indicated. She did not participate in surgical procedures during the surgical rotation of her internship. Although Petitioner completed her medical school curriculum in July 1984, she did not receive a diploma. She did not register with the national registry and, therefore, did not receive a medical card. In September 1984 Petitioner left Cuba and went to Venezuela. Petitioner offered no evidence as to her activities from July 1984 when she completed her medical school curriculum until September 1984 when she left Cuba. Petitioner has taken the examination offered by the Educational Commission for Foreign Medical Graduates once, but she did not receive a passing grade on that examination.
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 pursuant to Section 458.311(8), Florida Statutes. DONE and ENTERED this 22nd day of June, 1995, at Tallahassee, 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 22nd day of June, 1995. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1, 4, 5, and 5 [sic] have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 2 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Petitioner's proposed finding of fact numbered 3 has been rejected as not being supported by the evidence in this cause. Respondent's proposed findings of fact numbered 2-9 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 1 and 10 have been rejected as not constituting findings of fact but rather as constituting conclusions of law. COPIES FURNISHED: Frank Valladares, Esquire 2955 Southwest 8th Street Suite 204 Miami, Florida 33135 Gregory A. Chaires, Esquire Christopher E. Butler, Legal Intern Office of the Attorney General Suite PL01, The Capitol Tallahassee, Florida 32399-1050 Dr. Marm Harris, Executive Director Agency for Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0770 Tom Wallace, Assistant Director Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
Findings Of Fact Dr. Koplin initially filed an application for a Public Health Certificate on May 20, 1986. As part of the application review process in effect at the time of the application, a candidate for certification was required to take an abbreviated oral examination, which was to be administered by the Board. Dr. Koplin's application was not formally reviewed by the Board until April 5, 1987. By this date, the legislature had amended the statute which pertained to the granting of Public Health Certificates. An abbreviated oral examination was no longer required. Instead, the candidate was required to meet all of the requirements of Section 458.311(1)(a) - (f) and (s), Florida Statutes. Under the new requirements, a candidate was required to complete an approved residency of at least 12 months. Dr. Koplin was unable to meet this new requirement because his formal medical education internship occurred during World War II, and his residency was completed in January, 1944, under a concentrated ten-month program. Dr. Koplin's application, Petitioner's Exhibit No. 1, provides the Board with publications regarding the accelerated program. During this era, the medical schools in the United States and the Surgeons General of the Army and Navy recognized that an accelerated internship and residency program was the most feasible method to use during wartime conditions when medical education deferments had to be balanced against the need for commissioned medical officers, commissioned officers, and the need for residents in civilian hospitals to assist with the growth in patient loads. Immediately after Dr. Koplin completed his ten-month accelerated residency and his additional two-month internship in pathology, his military deferment ended. His active duty in the Public Health Service began on March 15, 1944. The Board did not address the wartime exception to the twelve-month residency program during the formal review of Dr. Koplin's application on April 5, 1987. Instead, the Board chose to apply the law in effect at the filing of the application as opposed to the law in effect during the time of the Board's review. The decision to administer an impromptu abbreviated oral examination was made at the time of review. Dr. Koplin had not been made aware that an oral examination would be administered to him on that date, and he was given no notice of the areas to be covered by the examination. The examination administered by the Board on April 5, 1987, consisted of a few open ended, general questions in the area of public health. Dr. Koplin was asked to tell the Board about the modern treatment of tuberculosis and the treatment of venereal disease. During the course of the examination, it became apparent through Dr. Koplin's answers to the questions and his own admissions, that he had not been involved in primary patient care for over ten years. He was unable to answer the examination questions to the Board's satisfaction. The Board voted unanimously to deny the application for the Public Health Certificate based upon the Board's belief that Dr. Koplin was not currently qualified to provide adequate primary medical care to indigents in Florida. Dr. Koplin was present during the Board's vote on the application, and he was aware that he would not be granted a certificate. In spite of verbal and written notice to Dr. Koplin that the Board would deny his application, no written Final Order was ever issued by the Board with respect to that application. On December 28, 1987, Dr. Koplin submitted a new application for Public Health Certification to the Board. On August 6, 1988, the Board reviewed and considered Dr. Koplin's application and determined that the license should be denied for the following reasons: In regard to Dr. Koplin's previous application for Public Health Certificate in 1987, the Board of Medicine found Dr. Koplin to be unable to demonstrate that he was capable of practicing with reasonable skill and safety because of his lack of medical knowledge. The Board finds now that Dr. Koplin has failed to present any evidence that he is currently capable of safely engaging in the practice of medicine. See Section 458.301 and 458.331(4), Florida Statutes (1988). Dr. Koplin presently holds a temporary medical certificate under Section 458.315, Florida Statutes, which was issued on December 12, 1987. This certificate allows him to practice medicine in Glades County, Florida, an area of critical medical need. He has been practicing medicine in Glades County since the license was issued until the date of the hearing. During the administrative hearing, Dr. Koplin presented the deposition testimony of three physicians who have worked with him in Florida, and who have had an opportunity to consult with him and review his patient charts. These physicians gave their opinions that Dr. Koplin is a competent physician who provides quality medical care. In addition, Dr. Koplin submitted an updated transcript of medical courses he has taken since his original application to the present in order to update his medical knowledge in the public health field. Dr. Koplin presented himself at hearing, and gave more complete answers to the questions originally asked by the Board in the abbreviated oral examination.
Recommendation Accordingly, based upon the foregoing, it is RECOMMENDED: That a Final Order be entered by the Board of Medicine approving Dr. Koplin's application for a Public Health Certificate based upon his initial application filed on May 20, 1986, and reviewed on April 5, 1987. DONE AND ENTERED this 8th day of June, 1989, in Tallahassee, Leon County, Florida. VERONICA DONNELLY 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 8th day of June, 1989. APPENDIX TO THE RECOMMENDED ORDER The Petitioner's proposed findings of fact are addressed as follows: Accepted. Accepted. See paragraph 3 and paragraph 5. Accepted. See paragraph 12. Accepted. See paragraph 11. Accept all but the last sentence. See paragraph 9 and paragraph 10. Accepted. See paragraph 7 and paragraph 8. Accepted. Accepted. See paragraph 11. The Respondent's proposed findings of fact are addressed as follows: Accepted. See paragraph 1. Accepted. Accepted. See paragraph 12. Accepted. See paragraph 2, paragraph 6 and paragraph 9. Accepted. See paragraph 9. Accepted. Accepted. Accepted. Accepted. See paragraph 11. Rejected. Irrelevant. Accepted. See paragraph 11. Accepted. See paragraph 11. Accepted. See Preliminary Matters. Accepted. See HO #9. Accepted. See HO #9. Accepted. See HO #9. Accepted. See HO #9. Accepted. Rejected. Improper conclusion. Contrary to factual determination by Hearing Officer. Accepted. See HO #9. Accepted. Rejected. Speculative. Rejected. Contrary to fact. Accepted that Dr. Koplin has been providing primary care since he received his temporary Florida license. Rejected that this testimony is in conflict with prior testimony. Contrary to fact. See HO #12. Accepted. See HO #13. Accepted. Rejected. Improper conclusion. Rejected. Goes to weight as opposed to sufficiency. See HO #13. Rejected. Sufficiency to be determined by Hearing Officer. Accepted. Rejected. Sufficiency to be determined by Hearing Officer. Accepted. Rejected. Sufficiency to be determined by Hearing Officer. Rejected. Sufficiency to be determined by Hearing Officer. See HO #13. Accepted. See HO #3 - #6. Accepted. See HO #5. Accepted. See HO #13. Accepted. See HO #7. Accepted. Accepted. See HO #8. Accepted. See HO #7. Accepted. See HO #9. Rejected. Improper summary. Accepted. Rejected. Irrelevant. Not a factual matter. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire CUMMINGS, LAWRENCE & VEZINA, P.A. Post Office Box 589 Tallahassee, FL 32302-0589 Allen R. Grossman, Esquire Assistant Attorney General The Capitol, Suite 1603 Tallahassee, FL 32399-1050 Dorothy Faircloth, Executive Director Florida Board of Medicine Department of Professional Regulation 1940 N. Monroe Street, Suite 60 Tallahassee, Florida 32399-0729 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0729 =================================================================
The Issue Whether the Petitioner meets the requirements for licensure as a medical doctor set forth in Section 458.311(1)(c), Florida Statutes (1985), as required by Section 458.313(1), Florida Statutes (1985)?
Findings Of Fact In July of 1984, the Petitioner applied for licensure as a medical doctor by endorsement. The Petitioner's application was denied by the predecessor of the Respondent on June 17, 1985, for the following reason: The applicant has not completed an approved internship of at least one year or at least five years of licensed practice as required by Section 458.311(1)(c), Florida Statutes and Section 458.313(1), Florida Statutes. The Petitioner began postgraduate training at the University of Alberta on August 1, 1960, as a "Straight Intern - Division of Internal Medicine." The training program the Petitioner participated in was part of a four year program at the University of Alberta. The portion of the program which the Petitioner began started on July 1, 1960 and ended on June 30, 1961. Most of the students in the program began on July 1, 1960. The Petitioner was not able to begin on July 1, 1960 because of visa problems. Based upon a form filed with the Respondent by Dr. L. M. Anholt, Assistant Dean, Director, Division of Postgraduate Medical Education, at the University of Alberta, the Petitioner began the program on August 1, 1980, and ". . . continued in that program until 30 June 1981 at which time he did further two months (until 31 August 1981 in Paediatrics) at his request." [Emphasis added]. According to Dr Anholt, the Petitioner requested pediatrics training "because he was leaving the Department of Medicine and desired the additional experience prior to returning to the United Kingdom and continuing training." Based upon a letter from the Petitioner to the Respondent, dated November 13, 1984, the Petitioner took the two months of pediatrics training in order to obtain a license to practice medicine in Canada where he had passed the licensing exam. The Petitioner gave the following explanation for why he took the two months of pediatrics training: For an unrestricted license to practice medicine here in Alberta I had taken to complete a second post graduation year to include at least 2 months paediatrics, 2 months surgery and 2 months obstetrics. Dr. Anholt's predecessor as Director of Post Graduate Training assisted in arranging for me 2 months paediatrics but was unable to arrange the surgery or obstetrics. The University of Alberta subsequently issued a certificate to the Petitioner indicating that the Petitioner had satisfactorily performed the duties of "Straight Intern - Division of Internal Medicine" from August 1, 1980 until July 31, 1981. Based upon the foregoing the Petitioner completed 11 months of a program as a Straight Intern in the Division of Internal Medicine and two months of training in pediatrics as part of a second year of post graduate training.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medical Examiners enter an order denying the application of James McDonald for licensure by endorsement. DONE and ORDERED this 29th day of October, 1986, in Tallahassee, Florida. LARRY J. SARTIN 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 29th day of October, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0811 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 were accepted. Those proposed findings of fact which have been rejected and the reasons for their rejection have also been noted. Paragraph numbers in the Recommended Order are referred to as "RO Petitioner's Proposed Findings of Fact First Sentence: First Sentence: The first sentence of the Petitioner's proposed recommended order is a final recommendation and not a finding of fact. Second Sentence: The second sentence is accepted in RO 7. Third Sentence: The alleged steps followed before issuing "Statements of Training" are not supported by the record of the hearing in this case and are therefore rejected. Fourth Sentence: The fourth sentence is not supported by the record of the hearing in this case and is therefore rejected. Fifth Sentence: The fifth sentence is not a finding of fact and is therefore rejected. Sixth Sentence: The sixth sentence is not a finding of fact and is therefore rejected. Respondent's Proposed Findings of Fact Paragraph Number: Accepted in RO 1 and 2. Accepted in RO 3 and 4. Accepted in RO 5 and 6. Accepted in RO 7. Accepted in RO 8. COPIES FURNISHED: M. Catherine Lannon, Esquire Assistant General Counsel Administrative Law Section Department of Legal Affairs Room LL-04 - The Capitol Tallahassee, Florida 32399-1050 James McDonald Box 400 Leduc T9E2Y2 Alberta, Canada Ms. Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
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.
Findings Of Fact The Petitioner, James K. Hester, applied for licensure as a medical doctor in Florida. The Respondent is an agency of the State of Florida charged with administering and enforcing the statutory and regulatory standards by which physicians enter the practice of medicine in Florida as well as by which the practice of medicine by licensed physicians in Florida is regulated and enforced. The Petitioner's application was for licensure by endorsement. That application was denied on the basis that the Petitioner's supervised clinical training was not obtained in either a hospital affiliated with a medical school accredited by the LCME or in a residency program accredited by the ACGME in a specialty area in which the Petitioner's clinical training was done. This requirement is set forth in Rule 21M-22.018 (a substantial reenactment of former Rule 21M-22.18), Florida Administrative Code, the so-called "clerkship rule." The Petitioner's supervised clinical training at issue in this proceeding involved clerkships in internal medicine, surgery, obstetrics and gynecology, and pediatrics. The Petitioner performed the clerkships in 1983 and 1984. The parties have stipulated that the clinical clerkship performed by the Petitioner at Englewood Hospital in New Jersey in the area of internal medicine was an approved clerkship under the requirements of the above Rule. Therefore, the only clerkships at issue concern those in surgery, obstetrics and gynecology, and pediatrics, which were performed at Englewood Hospital by the Petitioner. In determining which clerkships comply with the Rule, and thus which hospitals are affiliated with accredited medical schools in certain specialty areas and in determining which residency programs are accredited by the ACGME in specified specialty areas, the board commonly and customarily relies on a directory or compilation of accredited programs which depicts medical training programs on a nationwide basis which are accredited by the ACGME. This compilation is generally relied upon by professionals in the medical education field as well as by medical licensing regulatory agencies nationwide. Its compilations of accredited medical schools and affiliated hospitals and accredited residency programs are compiled by the ACGME which organization in turn is accepted as authoritative in determining such matters, as is depicted on the face of the above-cited Rule. 1/ Englewood Hospital is not affiliated with a medical school which is accredited by the liaison committee on medical education in the specialty areas in which the Petitioner's disputed clinical training was performed. The hospital does not have a residency program accredited by the ACGME in the specialty areas in which the Petitioner's clinical training was performed. Although residents training in a residency program of other hospitals in the area accredited by the ACGME rotated through Englewood Hospital and took training in the relevant specialty areas in which the Petitioner participated, the Petitioner was not a participant or enrolled member in those residency programs of the other hospitals whose residents trained in part at Englewood Hospital. Although the Petitioner participated in some of the clinical training programs which residents affiliated with training programs at other hospitals participated in at Englewood, in addition to not being enrolled in residency training with those other hospitals and accredited programs, it was not shown he participated in all of the required "rotations" of those accredited training programs which full complement of rotations was the essential basis for the accreditation of those residency programs. Although Englewood Hospital had a relationship with the unaccredited medical school from which Petitioner graduated and certified the completion of his clerkships at Englewood, the Petitioner's training was not certified by an accredited residency program or hospital, because the Petitioner and his medical school had no affiliation with those accredited hospitals and residency programs who happened to have participants training at Englewood. Thus the Petitioner's clerkships in the disputed specialty areas were not verified as to their completion by any hospital affiliated with an accredited medical school or whose residency program was accredited by the above organization. Englewood Hospital was not approved or accredited for training in surgery, obstetrics and gynecology, or pediatrics for the years 1983-1984 at issue, as clearly shown by Respondent's Exhibit 1 in evidence.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that a Final Order be entered by the Board of Medical Examiners denying the application of James K. Hester for licensure as a medical doctor in the State of Florida. DONE and ORDERED this 28th day of October, 1986 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1986.
