Findings Of Fact The following findings of fact, stipulated to by the parties, are hereby accepted: NHL is a Delaware corporation headquartered in La Jolla, California and is registered to do business in Florida. It provides clinical laboratory services to physicians and their patients. Examples of Florida public entities for whom NHL has rendered services, include the Florida Department of Health and Rehabilitative Services, the University of Florida and health services units in various Florida counties, such as Dade and Broward. On or about December 18, 1992, NHL was convicted of a public entity crime as described within paragraph 287.133(1)(g), Florida Statutes. This conviction occurred in the United States District Court, Southern District of California. (See Exhibits "A", "B", "C", "D", "E", "F", and "FF") The NHL conviction arose out of investigations initiated by the United States Justice Department in conjunction with the Inspector General and the U.S. Attorney's Office for the Southern District of California. On February 8, 1993, the Department, by letter, informed NHL of the Department's duty to conduct an investigation pursuant to paragraph 287.133(3)(c), Florida Statutes, into the circumstances involving NHL's conviction. (See Exhibit "G") Pursuant to subparagraph 287.133(3)(e)1., Florida Statutes, the Department shall investigate and determine whether good cause exists to place NHL on the Convicted Vendor List. Subparagraph 287.133(3)(e)3., Florida Statutes, establishes factors which, if applicable to a convicted vendor, will mitigate against placement of that vendor on the Convicted Vendor List. (See Exhibit "H") Subsubparagraph 287.133(3)(e)3.b., Florida Statutes, establishes "[t]he nature and details of the public entity crime" as a factor mitigating against placement on the Convicted Vendor List. The Plea Agreement entered into between the United States and NHL contains a Stipulated Statement of Facts between the parties. (See Exhibit "A") Subsubparagraph 287.133(3)(e)3.c., Florida Statutes, establishes "[t]he degree of culpability of the person or affiliate proposed to be placed on the Convicted Vendor List" as a factor mitigating against placement on the Convicted Vendor List. NHL began investigating the medical efficacy of a test for high- density lipoprotein cholesterol (HDL) in September, 1978. NHL continued its study and in 1987 placed the HDL on NHL test requisition forms. A copy of the HDL NHL Information Pamphlet, the HDL chronology, and the synopsis of selected HDL cholesterol scientific papers are hereto attached as Exhibits "I", "J", and "K". NHL began investigating the medical efficacy of a serum ferritin test in place of serum iron when a number of NHL clients had inquired in June of 1988 as to whether NHL could offer the test on chemistry profiles. NHL immediately began investigation and study of serum ferritin. NHL continued its study and concluded that the serum ferritin test was a more valuable test and in June 1989 placed the test on NHL test requisition forms. A copy of the Serum Ferritin NHL Information Pamphlet, the serum Ferritin Chronology, the selected Serum Ferritin Scientific Papers, the Serum Ferritin Medical Perspective, and the US News article titled "Iron and Your Heart" are hereto attached as Exhibits "L", "M", "N", "O", "P", and "Q". NHL did send in April 1987 over 30,000 medical information packets with an accompanying letter to all physician clients announcing the addition of the HDL test to the SMAC chemistry profile. The accompanying letter clearly explained that the HDL would be automatically performed in conjunction with all SMAC chemistry profiles. It disclosed that physician and patient charges would be adjusted to reflect the addition of the HDL test. (See Exhibit "R") NHL did send in June 1989 over 40,000 medical information packets with an accompanying letter to all physician clients announcing the addition of the serum ferritin test to the SMAC chemistry profile. The accompanying letter clearly explained that NHL would now automatically perform the serum ferritin test as part of the basic chemistry profile. It disclosed that physician and patient charges would be adjusted to reflect the addition of the serum ferritin test. (See Exhibit "S") Subsubparagraph 287.133(3)(e)3.d., Florida Statutes, establishes "[p]rompt or voluntary payment of any damages or penalty as a result of the conviction" as a factor mitigating against placement on the Convicted Vendor List. As a result of its conviction, NHL has been directed and has agreed to pay $100,000,000 as recoupment to the Federal Government, $65,000,000 paid with balance paid in quarterly installments of $4,000,000 each plus interest through the third quarter of 1995. A $1,000,000 fine and approximately $10,000,000 has been paid to various state Medicaid agencies. (See Exhibits "A", "D", "E" and "F") NHL has timely paid all civil and criminal damages owed to the Federal Government as they have become due. (See Exhibits "E" and "F") NHL entered into an Agreement Not to Terminate with Department of Health and Rehabilitative Services. NHL paid to the Florida Medicaid Program the sum of $1,470,917.00, representing all ferritin payments made to NHL by the Florida State Medicaid Program. NHL timely paid said amount. (See Exhibit "T") NHL was not required to post any bond in relation to any charges herein mentioned due to the good faith effort exhibited by NHL. (See Exhibit "A") Subsubparaghraph 287.133(3)(e)3.e., Florida Statutes, establishes "[c]ooperation with state or federal investigation or prosecution of any public entity crime" as a mitigating factor. NHL cooperated with the federal authorities in connection with the investigation as described in the Plea Agreement. (See Exhibit "A") NHL produced documents requested from the Federal Government during the investigation, further, made employees available for interview, provided analyses of various charges, and voluminous scientific documentation to prove the efficacy of the tests involved. NHL negotiated in good faith with the Federal Government and with the various state Medicaid programs to reach a resolution with all parties concerned. NHL fully cooperated with the Department in connection with its investigation initiated pursuant to Section 287.133, Florida Statutes. Subsubparagraph 287.133(3)(e)3.f., Florida Statutes, establishes "[d]isassociation from any other persons or affiliates convicted of the public entity crime" as a mitigating factor. Individuals convicted of wrongdoing which gave rise to the pleas in question are no longer employed by NHL. As described in paragraph 5 of the Plea Agreement: NHL agrees that Robert E. Draper (former President) and Vance Randy White (former Vice President) will not be considered for reemployment or consulting purposes by NHL. (See Exhibit "A") On December 16, 1992, both Robert E. Draper and Randy White resigned from NHL. NHL accepted the resignations. (See Exhibits "U" and "V") Subsubparagraph 287.133(3)(e)3.g., Florida Statutes, establishes "[p]rior or future self-policing by the person or affiliate to prevent public entity crimes" as a mitigating factor. NHL has created a position of Director of Corporate Compliance. The position is held by Executive Vice President and General Counsel, James G. Richmond, who reports directly to the CEO and the Board of Directors. NHL's Board of Directors has adopted a Corporate-wide Compliance Program. Included within this program are training programs for all NHL employees. (See Exhibit "W") NHL has an active Ethics Compliance and Training Program. NHL has made both past and present efforts to ensure the highest standard of business conduct by NHL and its employees, as shown within NHL Code of Business Conduct. (See Exhibit "X") NHL distributed to all Regional Directors, Controllers, Sales Managers, Sales Representatives, Client Service Managers and Client Service Coordinators, a memorandum regarding prohibited client incentives in an effort to further police any improper activities. (See Exhibit "Y") Each physician/client was sent a letter along with a new test requisition form which clearly informed the physician of his ability to order stand-alone Automated Chemistry Panels. (See Exhibits "R", "S", "Z", and "AA") Each physician was sent information which clearly explained the billing practices to Medicare and Medicaid. (See Exhibits "R", "S", "Z", and "AA") Subsubparagraph 287.133(3)(e)3.h., Florida Statutes, establishes "[r]einstatement or clemency in any jurisdiction in relation to the public entity crime at issue in the proceeding" as a mitigating factor. NHL has not received pardon or clemency in any jurisdiction as it relates to its guilty plea. However, due to NHL's cooperation in the Plea Agreement and Settlement, including all the states concerned, NHL has not been nor will be suspended or debarred from Medicare or any Federal program or any state Medicaid program. (See Exhibit "T") Subsubparagraph 287.133(3)(e)3.k., Florida Statutes, establishes "[a]ny demonstration of good citizenship" as a mitigating factor. NHL has in the past and continues to provide gratuitous laboratory testing services to indigent patients in Florida. A contract exists between NHL and HRS wherein NHL provides approximately $3,000 per month gratuitous lab work for indigent patients. (See Exhibit "BB") NHL has in the past and continues to disseminate gratuitous medical literature on the efficacy of NHL testing. (See Exhibit "CC") After Hurricane Andrew destroyed much of South Florida, NHL provided six to seven weeks of gratuitous laboratory service, supplies and a computer printer so that doctors could receive laboratory results as quickly as possible. (See Exhibit "DD") This Joint Stipulation provides a full and complete factual basis for determining whether NHL should be placed on a Convicted Vendor List. In light of the facts of the criteria set forth in subparagraph 287.133(3)(e)3.a-k., Florida Statutes, there are no disputed issues of material fact between Department and NHL which would require a formal hearing.
The Issue The issue in this case is whether Petitioner, Frank W. Fender, should have received a passing grade on the March 1997 Clinical Chemistry Technologist examination.
Findings Of Fact Petitioner, Frank W. Fender, took the Clinical Chemistry Technologist examination in March 1997 (hereinafter referred to as the "Examination"). The Examination consists of fifty multiple choice questions. The instructions for the Examination specifically informed persons taking the examination that they were to "[a]lways choose the BEST answer." It was determined that Mr. Fender had answered twenty- seven of the Examination questions correctly. Mr. Fender was, therefore, awarded a score of 349. A score of 350 or more was required for a passing score. If Mr. Fender were determined to have answered one more question correctly, he would receive a passing score. Mr. Fender was informed that he had not passed the Examination. By letter dated July 25, 1997, Mr. Fender requested a formal administrative hearing to contest his failing score. In particular, Mr. Fender challenged the determination that he did not answer questions 3, 9, 16, and 21 correctly. Question 3: Question 3 involved obtaining "true serum triglyceride results." Mr. Fender selected answer "D" which was: "measure a blank in which the dye-coupling is omitted." The answer considered correct was "B." The evidence failed to prove that answer "D" was the best answer. While the use of blanks in triglyceride methodologies is correct, "dye-coupling" is not. Therefore, answer "D" is not a correct response. The evidence failed to prove that answer "D" was the best answer for question 3. Question 9: Question 9 asks which enzyme listed in the answers is found to be elevated in the majority of alcoholics. Mr. Fender selected "B," ALT, as the correct response. The evidence failed to prove that answer "B" was the best answer. While ALT may be raised in an alcoholic, it also may not be. GGT is the most sensitive indicator of alcoholism. Even if ALT is normal, GGT will be raised in an alcoholic. The best answer to question 9 was, therefore, "C," GGT. The evidence failed to prove that answer "B" was the best answer to question 9. Question 16: Question 16 asks why one must wait approximately 8 hours to draw a blood sample after administering an oral dose of digoxin. Mr. Fender selected "D" as the correct response. This answer indicates that the reason one must wait is because "all" of the digoxin "will be in the cellular fraction." Mr. Fender's response was not the best response because of the use of the work "all" in the answer he selected. The most digoxin that could be in the cellular fraction is approximately twenty-five percent, because approximately seventy-five percent is excreted through the kidneys. The evidence failed to prove that answer "D" was the best answer to question 16. Question 21: Question 21 asks the best way to test for suspected genetic abnormalities in an unborn fetus. Mr. Fender selected answer "B," "performing L/S ratios" as the best answer. While the evidence proved that L/S ratios will measure immature fetal lungs, this condition results in respiratory distress syndrome. Respiratory distress syndrome is an "acquired" disorder and not a "genetic" abnormality. While an L/S ratio can be used to test for acquired disorders, a "chromosome analysis," answer "C," is used to test for genetic abnormalities. The evidence failed to prove that answer "B" was the best answer to question 21. The evidence failed to prove that Mr. Fender should have received a score higher than 349 on the Examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Health dismissing Frank W. Fender's challenge to the grade awarded to him on the March 1997 Clinical Chemistry Technologist examination. DONE AND ORDERED this * day of March, 1998, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 Filed with the Clerk of the Division of Administrative Hearings this * day of March, 1998. * Mailed 3/2/98 undated. -ac COPIES FURNISHED: Frank W. Fender 7603 North Laura Street Jacksonville, Florida 32208 Anne Marie Williamson, Esquire Department of Health Office of the General Counsel 1317 Winewood Boulevard Building 6, Room 106 Tallahassee, Florida 32399-0700 Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building 6, Room 306 Tallahassee, Florida 32399-0700 Pete Peterson Department of Health 1317 Winewood Boulevard Building 6, Room 102-E Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 Tallahassee, Florida 32399-0700
The Issue The issue for final determination is whether William Barber's employment with the Monroe County School Board should be terminated.
Findings Of Fact The federal Omnibus Transportation Employees Testing Act (Act), enacted in 1991, mandates, among other things, that employers with fifty (50) or more employees begin drug testing programs on January 1, 1995. The Act authorizes the Secretary of the Department of Transportation (DOT) to prescribe regulations requiring motor carriers to conduct drug and alcohol tests on drivers, including random urine drug tests. Testing procedures are mandated to be conducted in accordance with the procedures established by the federal DOT. The procedures are set forth at 49 C.F.R. Part 40, "Procedures for Transportation Workplace Drug Testing Programs" (DOT's Regulations). DOT's Regulations are explicit and very detailed, including providing for security measures for the test site, procedures for the taking of urine samples, chain of custody for urine samples, and guarantees of privacy for tested employees. Monroe County School Board (School Board) began the federally-mandated drug testing in January 1995. The School Board's drug testing program (Testing Program) is administered to all employees who are required to have a commercial drivers license and who are in safety-sensitive positions, which includes all bus drivers and mechanics. The parties agree that DOT's Regulations require the School Board's Testing Program to use the split sample method, found at 49 C.F.R. Section 40.25(f)(10)(i)(B). The School Board's practice is to notify employees in safety-sensitive positions about the Testing Program, including the Testing Program's policies and procedures, through an informational packet of materials. Included in the informational packet are the citation to the DOT's Regulations, a brief synopsis of specific areas of the DOT's Regulations required to be included, and the policies and procedures of the School Board's Testing Program. The employees sign the first page of the packet to acknowledge that they have received the informational packet. The signed acknowledgment is retained in each employee's personnel file. The School Board's bus drivers are not expected to have in their possession, during working hours, the informational packet. William Barber was employed by the School Board as a bus driver. On January 6, 1995, Mr. Barber signed an acknowledgment that he had received the informational packet. A little more than two years later, on the morning of May 22, 1997, Mr. Barber was ordered by his supervisor to report for a random drug test at Truman Medical Center. Mr. Barber complied with the directive. Since 1995, Truman Medical Center maintained written procedures for collecting urine for drug tests. Its procedures were consistent with DOT's Regulations. On May 22, 1997, Truman Medical Center's lab technician collected Mr. Barber's urine. It is undisputed that the lab technician collected only a single specimen, not a split sample as required by DOT's Regulations and the School Board's Testing Program. The lab technician had been employed at Truman Medical Center in that capacity for five years, and one of her responsibilities was collecting urine specimens for drug testing. During the five-year period, Truman Medical Center's nurse, who was also the lab manager, had provided the lab technician with some "hands-on" training in the collection procedures followed by Truman Medical Center. During her employment, the lab technician had performed from 1,200 to 1,800 collections for DOT-mandated tests. In May 1997, neither the lab manager nor the lab technician was aware that a split sample, rather than a single sample, collection method was required by DOT's Regulations and by the School Board. After Mr. Barber's urine sample was collected, he signed step 4 of the custody and control form, which states as follows: I certify that I provided my urine specimen to the collector; that I have not adulterated it in any manner; that each specimen bottle used was sealed with a tamper-evident seal in my presence and that the information provided on this form and on the label attached to each bottle is correct. The lab technician followed the proper procedures for the collection of the single urine sample.1 Mr. Barber's urine sample was sealed in a specimen container and forwarded to the laboratory, Quest Diagnostics in Teterboro, New Jersey, for testing. The specimen container was forwarded in a sealed, tamper-proof box, together with the custody and control form. The urine specimen received by Quest Diagnostics was not tampered with during transport. Also, at the laboratory, the specimen was not tampered with or mistaken for another specimen. There is no evidence to indicate, and an inference is made, that the laboratory did not make a notation that a split sample was not received. Further, an inference is made that the laboratory proceeded on the basis that the urine sample was a single, not a split, urine sample. Quest Diagnostics performed a screening test and a confirmation test (a second testing method) on the urine specimen. The testing of the urine specimen was performed in accordance with DOT's Regulations. There were no irregularities as to chain of custody, calibration of laboratory equipment, and quality control. A laboratory report was issued. The screening test on Mr. Barber's urine specimen was positive for the presence of marijuana. The confirmation test was also positive. A positive result indicates that anywhere from a couple of days to two and one-half weeks, Mr. Barber had taken marijuana into his body. The laboratory results were certified. In accordance with DOT's Regulations, the positive results were forwarded to the Medical Review Officer (MRO) assigned to Mr. Barber's case. The MRO was employed by National Medical Review Offices, Inc., in Los Angeles, California. On May 28, 1997, six days after Mr. Barber's urine sample was collected, the MRO called Mr. Barber to discuss the positive results of the tests. The telephone call was made pursuant to DOT's Regulations. During the telephone discussion, Mr. Barber denied that he had used or had ever used marijuana, but provided no information to the MRO which tended to provide a medically alternative explanation as to the cause of a positive test. The MRO informed Mr. Barber that he had 72 hours to request a re-test or a re-analysis. An inference is drawn that Mr. Barber expressed an interest in a re-analysis or a re-test as a result of Mr. Barber accessing a recorded message which provided information regarding the re-test or re-analysis. Mr. Barber accessed the recorded message. The message stated, among other things, that Mr. Barber, as the donor and a DOT regulated employee, had 72 hours after the discussion with the MRO to request a re-analysis; that the urine sample would be forwarded to another certified laboratory for testing; that the cost for the re-analysis was $125.00; and that payment must be made within five (5) working days. Mr. Barber did not request a re-analysis of the urine sample because he was unable to pay the cost of the re-analysis. Mr. Barber was aware that, pursuant to the collective bargaining agreement between the School Board and the bargaining unit of which he was a member, he was responsible for paying the cost for the re-analysis. However, Mr. Barber was unaware that he was not required to pay the cost for the re-analysis prior to the re- analysis being performed. The evidence is not persuasive that the recorded message notified Mr. Barber that his employer may require him to re-pay the cost for the re-analysis. However, the evidence is persuasive that, had Mr. Barber known that he was not required to pay the cost for the re-analysis up front, he would have requested the re-analysis. At no time was Mr. Barber or the MRO aware that a split sample had not been collected. According to DOT's Regulations, had Mr. Barber requested a re-analysis, the MRO would have been notified at that point that no split sample was available for a re-analysis, and the MRO would have cancelled the test and reported the testing as being negative, not positive. As a result of Mr. Barber not requesting a re-analysis, the MRO reported the test results as positive to First Lab, the School Board's third party administrator for the Testing Program. In turn, First Lab reported the positive results to the School Board's Personnel Director and drug manager, who reported the positive results to the School Board's Executive Director of Support Services. School Board Policy GBEC, "Drug-Free Workplace," provides in pertinent part: No School Board employee shall unlawfully . . . possess, or use on or in the workplace . . . marijuana. . . . Workplaces in the District shall be considered as work performance sites; School Board property; school-owned vehicles or school-approved vehicles for transporting students to and from school or school activities; and off-school property during any school-sponsored or school-approved activity, event, or function in which students are under District jurisdiction. As an employment condition, individuals shall: abide by the provisions of this School Board Rule. * * * The School Board based on the Superintendent's recommendation shall take one (1) or both of the following actions within thirty (30) days of receiving notification as described in Subsections (1)(b) and (2) herein: Initiate appropriate disciplinary action against the employee which may be nonrenewal, suspension, or dismissal of employment as provided in Sections 230.23(5) and 231.36, Florida Statutes. Allow the employee to participate in a drug abuse assistance or rehabilitation program approved by the School Board. Failure of an employee to satisfactorily complete such program may result in nonrenewal, suspension, or termination of employment. The School Board shall offer assistance and information on drug abuse to maintain a drug-free workplace by providing School Board employees with * * * (c) An Employee Assistance Program or access to such a program to provide counseling, treatment, or rehabilitation. School Board Policy GDQD, "Discipline, Suspension, and Dismissal of Support Staff," provides in pertinent part: Noninstructional staff members may be suspended from duty by the Superintendent or the School Board. . . . Prior to making a recommendation for dismissal, an administrative investigation shall be completed and an informal hearing shall be conducted at which time the employee shall have an opportunity to refute the charges or provide additional information or evidence. When a recommendation for dismissal is made by the Superintendent, good and sufficient reasons shall be stated. A noninstructional staff member may only be dismissed by the School Board's action. The School Board shall take final action on the Superintendent's recommendation. Any suspension or dismissal shall be pursuant to Florida Statutes. * * * Cause for dismissal shall include, but not be limited to: * * * (c) Reporting to work under the influence of intoxicants or possessing alcohol or illegal drugs while on the job [refer to the School Board Rule entitled "Drug-Free Workplace" (File: GBEC);. . . . Even though the above School Board policies do not provide for mandatory termination from employment for employees who test positive in the School Board's Testing Program, the established practice of the School Board is to terminate such employees. The rationale for the School Board's established practice is that, because the results of a positive DOT drug test does not indicate precisely when the employee used drugs, the School Board has decided to "err . . . on the side of children" and terminate the employee. Prior to Mr. Barber, four employees had tested positive. Of the four, two employees resigned, one employee never returned to work, and one employee was terminated. Regarding discipline, the collective bargaining agreement, Section 12: "Drug and Alcohol Testing," provides in pertinent part: The purpose of drug and alcohol testing is to deter the use of drugs and alcohol in the workplace by establishing standard procedures for drug and alcohol testing for all employees required to hold a commercial driver's license. . . . The School Board shall be responsible for the cost of drug and alcohol testing of employees with the exception of administrative and legal challenges to test results, which shall be paid by the employee. * * * Return to Duty Testing All employees who previously tested positive on a drug or alcohol test must submit to a Return to Duty Test and test negative prior to returning to duty. Follow-up Testing Unannounced follow-up alcohol and/or controlled substance testing as directed by a substance abuse professional in accordance with the FHWA Regulations shall occur when it is determined that a covered employee is in need of assistance in resolving problems associated with alcohol misuse and/or use of drugs. The number and frequency of follow-up testing shall be determined by the substance abuse professional. If an employee elects to request additional testing of the split urine sample, the employee shall be required to pay for the test. Positive Tests 1. Employees who have a confirmed positive drug or positive alcohol test may be disciplined, up to and including discharge. The Board may, if the circumstances so warrant, offer rehabilitation. If the rehabilitation is offered and accepted by the employee, the employee will be responsible for all costs associated with participation in the rehabilitation program. The informational packet of materials provided to employees, regarding the School Board's Testing Program, provides in pertinent part: Under what circumstances will a driver be subject to testing? * * * Return -to-duty testing: . . . Each employer shall also ensure that before a driver returns to duty in the performance of a safety-sensitive function, after engaging in prohibited conduct regarding controlled substance use, the driver shall undergo a return-to-duty controlled substances test with a verified negative result for controlled substance use. In the event a return-to-duty test is required, the driver must also be evaluated by a substance abuse professional (SAP) and participate in any assistance program prescribed. Follow-up testing: Following a determination that a driver is in need of assistance in resolving problems associated with alcohol misuse and/or use of controlled substances, each employer shall ensure that the driver is subject to unannounced follow-up alcohol and/or controlled substances testing as directed by the substance abuse professional. The driver shall be subject to a minimum of six follow-up controlled substances and/or alcohol tests in the first 12 months. * * * What procedures will be used to test for the presence of controlled substances or alcohol? Controlled Substances All testing for controlled substances shall be performed on urine specimens and be accomplished by means of an initial screen (Enzyme Immunoassay or EIA), followed by a confirmation of any positive findings by Gas Chromatography/Mass Spectrometry or GC/MS. All controlled substances testing will be carried out at a laboratory certified by the Department of Health and Human Services (DHHS). * * * What are the consequences for drivers found to have violated the prohibitions of this rule? Drivers who are known to have engaged in prohibited behavior, with regard to alcohol misuse or use of controlled substances, are subject to the following consequences: -- Drivers shall not be permitted to perform safety-sensitive functions. -- Drivers shall be advised by the employer of the resources available to them in evaluating and resolving problems associated with the misuse of alcohol or use of controlled substances. -- Drivers shall be evaluated by substance abuse professional (SAP) who shall determine what assistance, if any, the employee needs in resolving problems associated with alcohol misuse and controlled substance use. -- Before a driver returns to duty requiring performance of a safety-sensitive function, he/she shall undergo a return-to-duty test with a result indicating a breath alcohol level of less than 0.02 if the conduct involved alcohol, or a controlled substances return-to-duty test with a verified negative result if the conduct involved controlled substance use. -- In addition, each driver identified as needing assistance in resolving problems associated with alcohol or controlled substances shall be evaluated by a SAP to determine that the driver has followed the rehabilitation program prescribed. -- The driver shall also be subject to unannounced follow-up alcohol and controlled substances testing. The number and frequency of such follow-up testing shall be as directed by the SAP, and consist of at least six tests in the first 12 months. The School Board's Director of Transportation admits that rehabilitation is a potential alternative to dismissal. However, the Director of Transportation is of the opinion that parents of children would have no confidence in a school bus driver who has gone through drug rehabilitation; and she, therefore, agrees that school bus drivers who test positive for drugs should be terminated. The Director of Transportation did not present any basis for her opinion. By letter dated May 30, 1997, the Superintendent of Monroe County Schools notified Mr. Barber, among other things, that he was suspended, with pay, until the next School Board meeting, and that a conference for the record would be held prior to the School Board meeting. On June 6, 1997, a conference for the record was held. Among those in attendance were Mr. Barber and the School Board's Executive Director of Support Services. The conference for the record was, among other things, a fact-finding meeting regarding Mr. Barber testing positive for marijuana. Mr. Barber denied that he had used or had ever used marijuana. Additionally, at the conference for the record, Mr. Barber expressed his concerns regarding the collection procedure used by Truman Medical Center for the collection of his urine sample. The Executive Director of Support Services investigated Mr. Barber's concerns regarding the collection procedure, including talking with the employees at Truman Medical Center and the testing laboratory. The Executive Director concluded that the procedures followed by Truman Medical Center were proper and that the positive result was valid. As a consequence, the Executive Director recommended to the Superintendent that Mr. Barber be terminated. By letter dated August 4, 1997, the Superintendent notified Mr. Barber that, among other things, he was terminated from employment with the School Board. Mr. Barber requested a formal hearing regarding the termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Monroe County School Board enter a final order declaring the drug test results of William Barber to be invalid and reinstating William Barber to his position. DONE AND ENTERED this 30th day of July, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1998.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Health dismissing Frank W. Fender's challenge to the grade awarded to him on the March 1997 Clinical Chemistry Technologist examination. DONE AND ORDERED this 2nd day of March, 1998, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1998. COPIES FURNISHED: Frank W. Fender 7603 North Laura Street Jacksonville, Florida 32208 Anne Marie Williamson, Esquire Department of Health Office of the General Counsel 1317 Winewood Boulevard Building 6, Room 106 Tallahassee, Florida 32399-0700 Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building 6, Room 306 Tallahassee, Florida 32399-0700 Pete Peterson Department of Health 1317 Winewood Boulevard Building 6, Room 102-E Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 Tallahassee, Florida 32399-0700
The Issue The issue for determination is whether just cause exists for termination of Respondent’s employment.
Findings Of Fact Respondent is Henry Harrison, an employee of Petitioner for approximately 16-17 years, the last 10 years as a plumber. Respondent’s job performance and competence are not at issue in this proceeding. On June 17, 1998, while operating a vehicle owned by Petitioner, Respondent was the victim of an accident when another driver ran a stop light and “broad-sided” him. Respondent was not at fault. Respondent’s supervisors, including his immediate supervisor, came to the scene of the accident. Respondent did not appear to these people to be under the influence of alcohol or drugs. Respondent worked the remainder of his shift. The next morning, June 18, 1999, Respondent was directed by Petitioner’s personnel to go to the First Physicians Clinic as a result of discomfort experienced by Respondent the night before. Respondent was aware that he would be asked by Clinic personnel to give a urine sample. Respondent waited for approximately two hours at the Clinic, surrounded by other people, where he handled newspapers, magazines and furniture in the common waiting room. Numerous other persons in the facility that morning were there for the purpose of drug testing. At approximately 10:00 a.m. on June 18, 1999, Laura Byrd, an employee of First Physicians, came to the waiting room and summoned Respondent. Respondent followed Byrd to a counter located in a hallway of the facility adjacent to the restroom used for obtaining urine specimens for drug testing. Bryd asked Respondent to sign a drug-testing chain-of-custody form and to initial labels attached to the form which were to be used to seal the specimen container. Respondent complied with Byrd’s request for signature and initialing. The form stated: I certify that I provided my urine specimen to the collector, that I have not adulterated it in any manner, that each specimen bottle used was sealed with a tamper-evident seal in my presence and that the information provided on this form and on the label affixed to each specimen bottle is correct. At the time of his signing and initialing, Respondent had not yet provided a specimen nor observed any subsequent transfer of the specimen or sealing of specimen containers. Following Respondent’s initialing and signing of the forms, Byrd picked up a “clean catch” container utilized at First Physicians for collection of urine specimens during physical exams and directed Respondent to a restroom to provide a sample of his urine. The “clean catch” container was obtained from the counter in the hallway and was not sealed or packaged in any way. Respondent was not directed by Byrd to wash his hands before providing the sample, instead she directed that he was not to turn on any water in the restroom prior to providing his sample. Respondent provided a urine specimen in the “clean catch” container, vacated the restroom and gave the container to Byrd. She attached a small thermometer strip to the container containing Respondent’s urine sample. Byrd noted the temperature of the specimen, placed the container on the counter in the hallway, and directed Respondent to follow her to the examining room. When Respondent told Byrd that he wanted to wash his hands, she told him that he could do this in the examining room. Byrd left Respondent in the examining room where he remained until the physician arrived to assess Respondent’s condition. Respondent never saw his urine specimen again and did not observe it being transferred from the “clean catch” container to any other containers. He did not observe the previously initialed paper seals being affixed to any container. On July 14, 1998, Petitioner received a report from its Medical Review Officer (MRO) stating that Respondent’s urine specimen had tested positive for marijuana. The MRO did not contact Respondent for an explanation, i.e., whether he was taking medication or had any explanation for the positive test result. The MRO, contrary to requirements of Rule 59A- 24.008(7)(a), Florida Administrative Code, did not contact Petitioner with directions that Respondent contact the MRO. Notably, no efforts to contact Respondent was made during the period June 18, 1998, through August 6, 1998, although Respondent was residing in a trailer at a school site providing security services for Petitioner. Additionally, Respondent was in regular contact with Petitioner's personnel in regard to medical treatments he was receiving as a result of his injury. It is undisputed that Petitioner's employees would have known how to get in touch with Respondent to direct him to contact the MRO, had such contact been requested. Instead, Petitioner’s personnel finally notified Respondent of the positive test result on August 6, 1998, when it provided him a notice of proposed disciplinary action. That notice included a copy of the July 14, 1998 drug test report. On August 11, 1998, armed only with the positive test result, Petitioner terminated Respondent’s employment for violation of the Drug-free Workplace policy and use of illegal drugs while on duty. The only evidence of illegal drug use in Petitioner’s possession was the positive test result. No evidence was adduced at the final hearing of any witness observation of Respondent that he had ever been observed exhibiting behaviors suggesting that he was under the influence of, or using, illegal drugs. Respondent’s testimony in total at the final hearing was candid, direct, and creditable. He did not use illegal drugs, specifically marijuana; he and no one in his home or among his social acquaintances to his knowledge used marijuana or any illegal drugs. The drug test results disclosed an extremely low level of cannaboids present (60ng/ML, where the cutoff is 50ng/ML; 28ng/ML, where the cutoff is 15ng/ML on the confirmation test). Byrd, the employee of First Physicians who collected Respondent’s specimen, had no specific recollection at the final hearing of collection of Respondent’s specimen. Instead, Byrd recited the procedure that she normally followed in obtaining drug test specimens. According to Byrd, her regular collection procedure did not include affixing her own initials to the seal placed on the specimen bottles for transport to the laboratory for analysis, nor was she aware of a requirement to do so. Byrd testified that her regular procedure included having the specimen donor sign the chain-of-custody document and initial the specimen seals before the time when the seals are placed on specimen bottles. Following termination and upon legal advice, Respondent sought a voluntary drug test at another collection facility. The results of that drug test from a specimen collected on August 17, 1998, were negative with regard to disclosing the presence of marijuana or any other illegal substance in Respondent’s body. Respondent’s testimony regarding procedures followed at First Physicians was further bolstered by the testimony of another Petitioner employee, Joe McCormick. McCormick had also previously been sent to First Physicians for drug testing by Petitioner in conjunction with an injury he had received on the job. McCormick confirmed that he was treated similarly to Respondent; he was provided a “clean catch” container that he did not observe to come from a sealed package, he was not present when his specimen was transferred from the “clean catch” container to any other vessel for shipment to the laboratory, and he did not observe the paper seals he had earlier initialed being placed on any specimen container. McCormick also was directed and did sign the chain-of-custody form and initial the paper sealing strips prior to providing a urine specimen.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Notice Of Disciplinary Action be dismissed and that Respondent be reinstated to his former position without diminution or loss in pay or benefits. DONE AND ENTERED this 15th day of February, 1999, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 15th day of February, 1999. COPIES FURNISHED: Ronald G. Meyer, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Tallahassee, Florida 32302 Joseph L. Hammons, Esquire Hammons and Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501 Jim May, Superintendent Escambia County School Board Post Office Box 1470 Pensacola, Florida 32597-1470 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Tom Gallagher, Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue The issue for consideration herein is whether Respondent's license as a physician in Florida should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations contained herein, the Respondent, Rolando C. Jamilla, was licensed as a physician in Florida. The Board of Medicine is the state agency charged with the regulation of the practice of medicine in this state. Respondent's office for the practice of general medicine in located in Ft. Myers, Florida and Respondent is also the medical director at the Lee Convalescent Center, a nursing home for the elderly with between 140 and 160 beds. Patient A. J. entered the emergency room at Lee Memorial Hospital in Ft. Myers on the afternoon of August 13, 1983, complaining of shortness of breath. A 55 year old male, he previously had been diagnosed as having chronic lung disease, and was a heavy smoker. The physician on duty in the emergency room, Dr. Gavin, treated A.J. with intravenous aminophylline, a bronchodilator, and ordered a theophylline level drawn. Theophylline is a medication the level of which can be measured in the patient's serum. It is a drug which falls within the purview of the proscription in Section 458.331(1). The theophylline test ordered by Dr. Gavin indicated that A.J. had a theophylline level of 11.0 mcg/ml. A normal therapeutic range for theophylline is 10 to 20 mcg/ml. Excessive levels of the substance can result in theophylline toxicity manifested by rapid cardiac rhythm disturbances and possible cardiac arrest. It can also cause neurotoxicity and neurologic seizures. Respondent first saw A.J. at about midnight after his admission and confirmed the orders previously given by Dr. Gavin, continuing the aminophylline. When he saw A.J. the following day, Respondent continued the aminophylline regimen for another day at which time A.J.'s breathing was much more regular and easy and the aminophylline treatment was discontinued. Respondent did not order an aminophylline level test at that time because, in his opinion, since the therapy was being discontinued, the test would not have been of value. A.J.'s condition continued to improve after Respondent discontinued the aminophylline therapy on August 15, 1983 and on the morning of August 18, 1983, Respondent indicated his intent to discharge the patient the following day. However, during that evening, prior to discharge, A.J.'s condition worsened and the proposed discharge for the following day was cancelled by Dr. Bercau, the on-call physician. At this time, A.J. was again suffering severe shortness of breath, and aminophylline, along with other broncodilators, was again ordered by Dr. Bercau. Since, on August 19, 1983, A.J. was still experiencing breathing difficulties, Respondent continued the aminophylline therapy and ordered a series of tests be run on the patient which included an electrocardiogram, a chest x-ray, and a CPK (measure of blood enzyme). Respondent also requested that A.J. be seen in consultation by Dr. Charles, a cardiac specialist. On August 20, 1983, Dr. Bercau, believing that the patient was experiencing cardiac problems, had him transferred to the telemetry unit for continued and detailed monitoring of his cardiac situation and ordered a theophylline level test run on him. This showed that the patient's theophylline level was 36.8 mgc/ml, considered to be in the toxic range. Both Respondent and his expert agreed that at this point, A.J. was experiencing theophylline toxicity. As a result of the chemical tests, Dr. Bercau ordered the aminophylline therapy be discontinued as of the evening of August 20, 1983 and directed another theophylline level test be run. The result of this test, done on the morning of August 21, 1983, indicated A.J.'s theophylline level had reduced to 27.6 mcg/ml, still considered to be in the toxic range, and the doctor's notes for this day indicate that though the theophylline level was high, it was much better than it had been. Notwithstanding this entry in the doctor's notes, on August 22, 1983, Respondent again ordered the resumption of aminophylline therapy. The records do not reflect any indication that Respondent attempted to determine his patient's theophylline level before resuming this therapy. On August 24, 1983, A.J. began to have premature ventricular contractions, a cardiac rhythm disturbance. When Dr. Charles saw the patient that same day, he indicated that these arrhythmias were "most likely" due to the effect of the aminophylline administered. Dr. Charles ordered this drug be discontinued at that time. On August 30, 1983, A.J. was examined by Dr. Dosani, a pulmonary specialist, who ordered the administration of steroids in an effort to counteract the patient's bronchospasms. This apparently was successful since the patient's condition improved and he was discharged from the hospital on September 3, 1983. Aminophylline is a drug which can produce cardiac arrythmia and both cardiac and neurological toxicity can be an outgrowth of theophylline toxicity. Respondent admitted at the hearing he was aware that aminophylline can produce cardiac arrythmia. Respondent's expert, Dr. Chadha, a specialist in lung diseases, utilizes aminophylline on a daily basis since it is widely used in his specialty. Dr. Chadha could find no reason for Respondent to order a theophylline level test when there were no indications of problems manifested to Respondent and he had discontinued the administration of the drug. The patient presented no evidence of toxicity and the two other physicians who were treating the patient at the time both prescribed administration of aminophylline as well as other medication at the time Respondent did. Petitioner's expert, Dr. Cohen, opined that the prescribing of aminophylline simultaneously with oral choledyl is inappropriate and excessive and life-threatening to the patient. According to Dr. Chadha, a review of theophylline level test results at Lee Memorial Hospital for June, 1989, revealed that 31% showed a level in excess of the maximum therapeutic level of 20 mgc/ml. In Dr. Chadha's opinion,, levels of this drug within the body are extremely hard to control. Whereas Dr. Cohen was of the opinion that the Respondent's treatment of his patient, A.J., in these particulars, constituted a failure to practice medicine with the appropriate level of care, skill and treatment recognized as reasonably prudent by similar physicians under similar circumstances, Dr. Ratnesar, an internist testifying as an expert for the Respondent, was of the opinion after reading the medical charts involved, that the care and treatment given in this case by Respondent was well within medical standards. This opinion was confirmed by Dr. Charles, the cardiologist mentioned previously. Respondent admitted another patient, J.H., to the hospital on August 27, 1983. The admitting documents indicated the patient was being admitted for the treatment of pulmonary distress when in reality as admitted by Respondent at hearing, the hospital admission was primarily a "social admission" necessary as a prerequisite to the placement of the patient in a nursing home. The patient, J.H., was not in any actual pulmonary distress either at the time of admission nor at any time during his stay, and Respondent admits this. Nonetheless, Respondent prescribed Theo-Dur, a theophylline bronchodilator, and Halcion, a tranquilizer, for the patient. It is well accepted in medical circles that Halcion should be used with caution when a patient is known to have a respiratory condition because the medication effects the central nervous system which, when depressed, can have an adverse effect on the respiratory function. Dr. Cohen is of the opinion that the prescription of Theo-Dur and Halcion, conjunctively, to the patient was inappropriate and the medical records on this patient fail to indicate a medical basis for it. The records make no reference to diagnostic tests ordered by Respondent for the patient and in Cohen's opinion, they are inadequate and do not justify the treatment provided. Respondent rebuts this contention urging that the use of the two drugs together is neither contraindicated nor harmful. This position is supported by information from the manufacturer of Halcion that there is no known contraindication for its use with Theo-Dur. In fact, none of the witnesses, including Dr. Cohen, could provide any firm evidence of contraindication in the use of the two drugs. Further, the four physicians who testified on behalf of Respondent were of the opinion that his records regarding this patient were adequate. Patient C.T. was a 79 year old woman admitted to the hospital on April 13, 1983, suffering from vaginal bleeding. She was admitted from a nursing home where Respondent had been her treating physician. She was a patient in the nursing home as a result of a stroke she sustained in 1976. Several days prior to her admission to the hospital, Respondent had attempted a pelvic and a bimanual examination of the patient at the nursing home to attempt to confirm the area from which the patient was bleeding. The bimanual examination was unsatisfactory due to her obesity and, because she had a protruding hernia in the abdominal wall. Upon admission, Respondent did not perform any additional specified area examination of the patient either with a speculum or bimanually because of her advanced age and the fact that her family preferred no further discomfort be imposed on her. As a result, Respondent made a presumptive diagnosis that the patient was suffering from cancer of the uterus/cervix, but this was not confirmed by actual examination. The patient was treated medically to stop the bleeding and she was returned to the nursing home with no further complications. Though the examination at the nursing home by the Respondent was characterized as satisfactory and though no positive diagnosis could be confirmed of the cause of the bleeding, Respondent failed to request a gynecological consultation for the purpose of further diagnosis. Due to the family's wishes, however and the advanced age of the patient, this may not necessarily constitute a failure to take proper care. When Dr. Cohen gave his opinion that the failure to do a bimanual and pelvic examination was improper, he was apparently unaware that Respondent had done these examinations at the nursing home three days prior to the patient's admission.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Rolando C Jamilla, M.D., be placed on probation by the Board of Medicine for a period of two (2) years under such terms and conditions as are specified by the Board, and that as a part thereof, he complete no less than 40 hours of continuing medical education in subjects specified by the Board. RECOMMENDED this 18th day of September, 1989, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 18th day of September, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-5414 The following constitutes my specific rulings pursuant to Section 120.57(2), Florida statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: 1. Accepted and incorporated herein. 2.-4. Accepted and incorporated herein. 5. Accepted and, as it pertains to failure to monitor theophylline levels, incorporated herein. 6.-11. Accepted and incorporated herein. 12. Accepted and incorporated herein. 13.&14. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted except for the finding that the patient's life was endangered. Rejected. 21.&22. Accepted and incorporated herein., Accepted and incorporated herein but not necessarily dispositive. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Rejected. &29. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Rejected. Accepted and incorporated herein. For the Respondent: 1.&2. Accepted and incorporated herein. 3.&4. Accepted and incorporated herein. 5. Accepted and incorporated herein. 6.&7. Accepted and incorporated herein. 8.-11. Not a Finding of Fact but a recitation of testimony. 12.-16. Restatements of the evidence. 17.&18. Accepted and incorporated herein. 19A-D. Not a Finding of Fact but a recitation of testimony. COPIES FURNISHED: Robert D. Newell, Jr., Esquire Newell & Stahl, P.A. 817 North Gadsden Street Tallahassee, Florida 32303-6313 James A. Neel, Esquire 3440 Marinatown Lane, N.W. North Fort Myers, Florida 33903 Kenneth A. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dorothy Faircloth Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 =================================================================
The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint dated January 9, 1992; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witness and the documentary evidence received at the hearing, the following findings of fact are made: The Respondent performed an inspection for wood-destroying organisms for property located at 907 Magnolia Avenue, Sanford, Florida (907 Magnolia). That inspection was completed on or about May 23, 1991. The inspection form utilized by Respondent was valid in 1983 but has not been in use since 1989. The inspection form reported there were no visible evidences of wood- destroying organisms; that there were no live wood-destroying organisms; that there was no visible damage; and that there was no visible evidence of previous treatment. The report completed by Respondent for 907 Magnolia was false, incomplete and erroneous. When 907 Magnolia was inspected by Mr. Lemont on October 3, 1991, numerous evidences of wood-destroying organisms (both live and remnant) were observed. Such organisms or the evidences of their presence would have been present when Respondent inspected the property. Some of the damage observed by Mr. Lemont would have taken months or years to have developed. Respondent failed to detect and disclose the following information on the inspection he performed: drywood termite damage; wood-decay fungus; subterranean termite and powder post beetle damage.
Recommendation Based on the foregoing, it is recommended that the Department of Health and Rehabilitative Services enter a final order finding the Respondent guilty of violating Sections 482.161 and 482.226, Florida Statutes, and imposing an administrative fine in the amount of $1500.00. RECOMMENDED this 6th day of July, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 1992. COPIES FURNISHED: Sonia Nieves Burton District 7 Legal Office Department of Health and Rehabilitative Services South Tower, Suite S827 400 West Robinson Street Orlando, Florida 32801 Gregory W. Lea 252 S. Country Club Drive Lake Mary, Florida 32746 John Slye General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in these cases is whether disciplinary action should be taken against Respondent's license to practice medicine, No. ME 0046170, based upon the alleged violations of Section 458.331(1), Florida Statutes, set forth in the Administrative Complaint dated April 6, 1989, (the "First Administrative Complaint") which has been assigned DOAH Case No. 89-3723 and/or the Administrative Complaint dated August 16, 1990, (the "Second Administrative Complaint") which has been assigned DOAH Case No. 91-3864.
Findings Of Fact Based on the evidence adduced at the hearings on October 3, 1990, and March 10, 1992, and the entire record in this proceeding, the following findings of fact are made: Respondent is, and has been at all times material hereto, a licensed physician, having been issued license number ME 0046170 by the State of Florida. Respondent was initially licensed to practice medicine in the State of Florida in approximately April of 1985. No evidence was presented of any prior disciplinary action against Respondent. Respondent's last known address is 10611 N.E. 11th Avenue, Miami Shores, Florida 33138. Sometime around 1986, Respondent became affiliated with EMSA which is an emergency room provider. EMSA contracts with hospitals to staff emergency rooms. Thus, Respondent has been working as an emergency room physician since 1986. The evidence did not establish the extent of Respondent's obligations with EMSA since 1986. As discussed in more detail below, since 1986, Respondent has also been affiliated with at least two other entities, the Institute of Specialized Medicine and the Immunology Allergy Institute, Inc. Facts Regarding the First Administrative Complaint Respondent was employed as a salaried employee of the Institute of Specialized Medicine (the "Institute") for at least several months during the year 1987. Although the evidence regarding Respondent's affiliation with EMSA was not entirely clear, it appears that he retained his affiliation with that company during the time that he worked at the Institute. In June of 1987, Respondent was associated with the Institute. In June of 1987, J.P. was a 36 year old female who saw an advertisement in a newspaper for the Institute of Specialized Medicine. That advertisement suggested that weight loss could be accomplished through adjusting a person's metabolism. J.P. called the Institute and scheduled an appointment for June 30, 1987. J.P. had been seriously overweight all of her adult life and had previously tried almost every possible method of weight loss. Shortly before her visit to the Institute, J.P. had been able to lose 80 pounds by diet and exercise alone. On June 30, 1987, J.P. visited the Institute and was told that she needed to provide certain information to determine her eligibility for the Institute's program. J.P. was advised that the Institute charged a $925 fee for testing and consultation. That fee included her first two visits, after which she was to be charged $40 per visit. The Institute's staff told J.P. that she had to pay $285 and that the rest would be billed to her insurance company. J.P. paid $285 on this first visit. On her first visit, J.P. filled out various questionnaires regarding her health, background and other general information. She was given a "blood test," a spirometric test, an EKG, and she provided a urine sample. J.P. did not see a physician or dietician during this visit. On July 6, 1987, J.P. returned to the Institute and was seen for about ten minutes by Respondent, who listened to her heart and lungs. Her height, weight, blood pressure, and pulse rate were noted, but no other physical examination was performed and Respondent did not inquire regarding any of the matters disclosed in the questionnaire filled out by J.P. during her first visit. During the July 6, 1987 visit, Respondent informed J.P. of his interpretation of her test results. He told J.P. that her tests showed she had an irregular thyroid, that her metabolism was below normal range, and that her body retained fluid. In his records of J.P.'s July 6, 1987 visit, Respondent diagnosed J.P. as having "Euthyroid Sick Syndrome." Euthyroid Sick Syndrome is a condition which may arise in a patient seriously ill from another cause. In such a situation, there are abnormal findings in blood tests for thyroid function, but these findings do not indicate the true thyroid status which is normal. The evidence established that this was an incorrect diagnosis for J.P. based upon the test results and history provided. Respondent did not provide a cogent explanation for his written diagnosis of Euthyroid Sick Syndrome nor did he explain the verbal diagnosis given to J.P. Respondent's records do not include the results of the spirometric test or the EKG. In addition, the urinalysis was incomplete and, while the doctor's notes and billing records reflect a chest x-ray was taken, there is no evidence of such an x-ray in the records. The results of J.P.'s blood tests reflect all normal values with the exception of a slightly low "total iron." At the conclusion of the July 6, 1987 visit, Respondent prescribed Cytomel, 25 micrograms BID, and Maxzide for J.P. No directions were given regarding the administration of Maxzide. Cytomel is a prescription drug containing the active ingredient of the secretions of the thyroid gland. Cytomel is used to replace the hormone in cases of thyroid underactivity (hypothyroidism). There is no indication from the medical records that J.P. was suffering from Euthyroid Sick Syndrome, that her thyroid was malfunctioning, that her metabolism was below normal, or that she required any hormonal replacement therapy. Respondent now admits that the test results indicate J.P. was not hypothyroid. Respondent claims that if he had actually believed that the patient had been hypothyroid, the dosage prescribed would have been approximately three times greater. He contends that he prescribed Cytomel to increase oxygen consumption. To justify his prescription of Cytomel, Respondent cited to two medical texts which he claims were in wide circulation in 1987. He says those texts support his prescription of Thyroid hormone to encourage weight reduction. Only one of the two cited references even marginally supports Respondent's contention. In any event, the more persuasive evidence established that, before the advent of thyroid testing (approximately twenty years ago), Cytomel was occasionally used in an attempt to encourage weight loss in patients. However, the prescription of Cytomel for weight loss in 1987 was below the standard of care expected of a reasonably prudent physician under similar conditions and circumstances. Respondent also attempted to justify his prescription of Cytomel by claiming that J.P. had advised him that she had previously been taking a thyroid supplement. Respondent contends that some patients who stop taking thyroid supplements have a "rebound effect where their metabolic rate decreases." During her testimony, J.P. denied having ever been on thyroid medication. The questionnaires filled out by J.P. during her first visit to the Institute do not reflect that she had ever taken thyroid medication in the past. Furthermore, there is no notation in the medical records indicating that J.P. had been on thyroid medication in the past. Respondent's testimony that J.P. advised him that she had previously been on thyroid supplements but was no longer taking them is not credited. Maxzide is a prescription drug, a diuretic appropriate for patients with high blood pressure. Maxzide should not be used as initial therapy for fluid retention. Maxzide can have deleterious effects on a patient and should not be used in a weight reduction program unless other reasons indicating its use are present. Respondent's medical records do not justify the prescription of Maxzide to J.P. There is no indication that the patient had high blood pressure. Furthermore, J.P. denied having any previous problems with fluid retention and no such problems are noted on the medical history that she filled out. While Respondent noted "++edema" as part of his examination on July 6, 1987, the notation is not consistent with Respondent's other notes of his exam or J.P.'s testimony regarding her condition. Moreover, J.P.'s weight loss of only three pounds between July 6 and July 30, 1987, indicates that she had no edema on July 6, 1987. During the July 6, 1987 visit, J.P. saw the Dietitian at the Institute of Specialized Medicine for about 20 minutes. The only thing the Dietitian did was to give J.P. a 1,000 calorie per day diet which she was told to follow. On July 30, 1987, J.P. returned to the Institute to see Respondent because she thought she was suffering nausea from the effects of the medications Cytomel and Maxzide. Respondent did not document in his notes any treatment for her nausea. J.P.'s health insurance claim form, submitted under Respondent's signature, reflects a diagnosis of "Euthyroidism" and a corresponding insurance code number of 244.9. Euthyroidism means normal thyroid function. An insurance company will not pay for a diagnosis of a normal condition. Insurance code number 244.9 indicates a condition of hypothyroidism or thyroid insufficiency which Patient J.P. did not have. The health insurance claim form submitted under Respondent's signature reflects overlapping billings for a hemogram and WBC, includes charges for an x- ray and spirometry of which there is no record, and contains a coded diagnosis of Hypothyroidism which conflicts with the results of the tests performed on J.P. and also conflicts with the Respondent's recorded diagnosis of Euthyroid Sick Syndrome. The insurance claim form also includes charges for a complete history and physical. After J.P. filed a complaint with Petitioner, Respondent attempted to justify this billing by telling Petitioner's investigator that he gave J.P. a complete physical examination and a "full workup". However, the evidence established that Respondent did not perform a complete physical examination of J.P. Respondent did not examine J.P.'s breasts, recommend a mammogram, perform or refer J.P. for a gynecological examination, examine her throat, eyes, ears, or abdomen; address her familial history of diabetes, kidney disease, hypertension or obesity; question her about her listed allergies, past anemia, abnormal stomach x-rays, or changing moles; consider her serious depressions and emotional problems; interpret her EKG; or address the basic causes of her obesity. Respondent contends that he did not handle the billing for the Institute and did not himself submit any diagnosis to the insurance carrier. In addition, he claims that he has subsequently learned that the Institute forged his name on some insurance documents. These contentions do not provide a defense to the charges in this case. It is clear that the billings to the insurance company were submitted under Respondent's signature. There is no evidence that the health claim form in this case was forged. The insurance company directed an inquiry to Respondent regarding his diagnosis of J.P. and Respondent did little or nothing to clarify the situation. Furthermore, when J.P. complained to Respondent about the treatment and costs, there is no indication that Respondent took any steps to investigate the situation or correct the problems. In the original billings submitted to J.P.'s insurance company, the Institute sought payment of $925 for the treatment and tests rendered to J.P., even though the patient had already paid $285 of that agreed upon fee. Respondent's records reflect that ultimately the insurance company paid $670 for the services rendered to J.P. Respondent's treatment of J.P. failed to meet that level of care, skill and treatment expected of a reasonably prudent similar physician under similar conditions and circumstances because Respondent inappropriately prescribed Cytomel and Maxzide to J.P. when the need for those drugs was not indicated by the results of the tests performed and because his final diagnosis of "Euthyroid Sick Syndrome" was incorrect and unsupported by any tests or physical findings. Respondent failed to keep written medical records justifying his course of treatment of J.P. because the records (1) do not justify his diagnosis of Euthyroid Sick Syndrome, (2) do not justify his prescription of Cytomel for the patient who had no evidence or history of hypothyroidism, (3) do not justify his prescription of Maxzide for the patient who had no fluid retention and who presented with normal findings other than her obesity, (4) do not justify the extensive and inappropriate tests performed, (5) do not appropriately reflect J.P.'s EKG, do not report on results of her x-ray (if it was made) or spirometry, and (6) do not indicate that Respondent either advised or treated J.P. on July 30, 1987, when she complained that the medications were making her nauseous. By prescribing medications for J.P. which were medically unnecessary, by filing conflicting diagnoses, by charging for a complete physical examination when one was not performed, and by signing off on duplicative billing on J.P.'s health insurance claim form, Respondent has made deceptive, untrue and/or fraudulent representations in the practice of medicine. Facts Regarding the Second Administrative Complaint Respondent quit working at the Institute in approximately November of 1987. As noted in the Preliminary Statement above, Respondent was indicted in October of 1988 in connection with his affiliation with the Institute of Specialized Medicine. While the circumstances and facts surrounding that indictment were not fully explained at the hearing in this cause, it appears that Respondent was indicted with several other individuals for allegedly participating in a scheme to defraud insurance companies by billing for tests and treatments that were unnecessary or unrelated to patients' true conditions. The indictment was pending through out the time of the incidents alleged in the Second Administrative Complaint. Respondent ultimately entered into a pretrial diversion program as a result of those charges. Sometime in 1988, Respondent became associated with the Immunology Allergy Institute, Inc., (the "Allergy Clinic"). Respondent claims that he was seeking to establish a private family practice and associated with the Allergy Clinic as part of an office sharing arrangement. The Allergy Clinic was owned by Frank Seedarnee and his ex-wife. Respondent contends that in return for office space, he was to serve as the "medical director" for the office and would be responsible for examining and diagnosing all medical problems and prescribing necessary controlled substances. Respondent contends that he never discussed cases with Seedarnee and did not rely on any recommendations from him because Seedarnee was not a doctor. Respondent further contends that Seedarnee's only function was to recommend diet changes, vitamins, or other products to help patients keep their homes free from allergies. However, the evidence presented in this case established that the Allergy Clinic did not always function in this manner, at least with respect to the patient S.L. and her son A.L. In March of 1989, S.L. was experiencing sinus problems and had a cough. In addition her son, age 10 months at the time, had been coughing for a few months. S.L. had previously been diagnosed as having allergies. S.L. was told of the Allergy Clinic by a friend who recommended "Dr. Seedarnee" as a allergist. She assumed from this conversation that Dr. Seedarnee was a medical doctor. She made an appointment at the Allergy Clinic for herself and her son for March 30, 1989. On March 30, 1989, S.L. arrived at the Allergy Clinic with her son as scheduled. She did not see a sign at the Allergy Clinic or any indication as to who the doctors were. During her initial visit, S.L. filled out an extensive health questionnaire form on herself and her son, A.L. S.L. and her son were escorted by a woman who appeared to be a nurse into an office. The nurse stated "Dr. Seedarnee will see you now." This nurse also mentioned that Respondent was not in because he was out on an emergency. The office contained a large microscope and a TV-like screen. A man in a white coat introduced himself as Dr. Seedarnee. Seedarnee reviewed S.L.'s health history forms and discussed with her the reasons why she wished to see an allergist. He told S.L. that he had developed an immune booster to help immune systems, that he would be taking blood from S.L. and A.L. so he could diagnose their problems, and that he had invented a microscope capable of evaluating the blood that same day. Seedarnee did not physically examine S.L. or A.L. or inquire if anyone else in the office had examined them. Seedarnee ordered a nurse to draw blood from S.L. and A.L. The blood was drawn as requested without question or surprise by the nurse. S.L. also provided a urine sample at the nurse's request. After the samples were obtained, S.L. and A.L. returned to Seedarnee's office where an enlarged picture of two slides of blood were shown to S.L. on the TV-like screen. Seedarnee took photographs of the blood slides and gave them to S.L. Those photographs were introduced as Petitioner's Exhibits 2 and 3. Seedarnee told S.L. that the white cell in the middle of her blood slide was an "allergy cell" and the other figures in the picture were iron- deficient cells. He also told her that she had a "low immune system." Seedarnee told S.L. that A.L.'s blood slide had clumped-together cells because he had a sluggish immune system. Seedarnee indicated that his conclusions were based on the blood pictures. He recommended that S.L. receive one of his "immune boosters" once a month for the next few months and one yearly thereafter. He also indicated that A.L. needed an immune booster and should get one yearly thereafter. Seedarnee specifically used the words "diagnosis" and "treatment" and stated that he was going to run further tests in order to make his final diagnosis. Seedarnee's statements to S.L. on March 30 constituted a diagnosis and the practice of medicine. The evidence presented at the hearing established that the diagnosis made by Seedarnee on March 30 could not validly be made on the basis of the blood slides. Moreover, the pictures of S.L.'s and A.L.'s blood appear normal. The "allergy cell" was simply a white blood cell and the clumping of A.L.'s blood was due to an artifact. S.L. did not see Respondent or any other person she thought was a physician on the March 30 visit. At this point, she still believed Seedarnee to be a physician. S.L. was told that she was required to pay 20% of the "total cost" for the treatment and her insurance company was to pay the remaining 80%. At the conclusion of the March 30, 1989 visit, S.L. wrote a check to the Allergy Clinic for $371.20. On April 4, 1989, S.L. returned without her son to the Allergy Clinic. She did not bring her son because her husband was skeptical that a proper diagnosis could be made from the blood slide picture. On April 4, S.L. was taken directly to Seedarnee's office where Seedarnee reviewed with her the results from her blood test and urinalysis, told her that she was allergic to dust and had a sensitivity to milk and yeast, and suggested to her that she needed his immune booster and B-12 injections. Seedarnee also reviewed with S.L. her son's test results. He told S.L. that A.L. had no allergy problems, but, because A.L. had a low immune system, he recommended an immune booster. During the April 4 visit, S.L. asked Seedarnee where he went to school. He told her India and England and said he had a Ph.D. and worked under a physician. Until this time, S.L. believed him to be a medical doctor. The office staff at the Allergy Clinic all referred to Seedarnee as "doctor." The medical records from the Allergy Clinic for S.L. and A.L. are captioned as follows: Patient: L, S. Physician: Seedarnee/Kunen and Patient: L, A. Physician: Seedarnee/Kunen After S.L. met with Seedarnee in his office on April 4, she was given two injections by a nurse. The medical records indicate the injections were (1) B-12 and Folic Acid and (2) "URT." There was no doctor's order for these injections. At the hearing, neither Seedarnee nor Respondent could, or would, identify "URT." Seedarnee's interpretation of tests, diagnosis of allergies and development of a treatment plan for S.L. on April 4 by ordering two injections for her which were given before S.L. ever saw a physician constitute the practice of medicine. After the injections, the nurse took S.L. to an examining room. Shortly thereafter, Respondent entered and introduced himself as Dr. Kunen. He asked S.L. what Dr. Seedarnee had recommended. Thus, it is clear that Respondent was aware that the patient had already seen Seedarnee and that he knew Seedarnee had at least developed some recommendations for her treatment. It is not clear whether Respondent knew that S.L. had already been given two injections. S.L. told Respondent that Seedarnee had diagnosed her allergies and told her that she needed B-complex, an immune booster and yearly immune boosters thereafter. Respondent's only response was something to the effect of "good, fine." He said nothing more about her treatment. S.L. was with Respondent for only about five minutes. Respondent briefly examined her. He listened to her heart and lungs and checked the glands in her neck. She was fully clothed during the exam. Respondent did not review with S.L. any of the items on her health form questionnaire. He did not inquire as to any of the items noted on the form such as the antibiotics she was taking, her sensitivity to perfume, her symptoms of fatigue and/or lethargy, her complaints of pressure in her head, muscle weakness and heart palpitations, or her notations of mucus in her stool or problems with urinary frequency. Her blood pressure was never taken. She was not asked about her history of rheumatic fever. Respondent did not discuss with S.L. her allergy symptoms, what she was allergic to, her test results or why she needed an immune booster and B-complex. Respondent did not ask about A.L. and S.L. did not tell Respondent that she wanted A.L. to be tested. Respondent's medical records regarding S.L. contain one undated page of notes indicating that Respondent requested allergy testing for S.L. and that S.L. wanted her son to be tested. S.L. denies telling Respondent that she wanted her son tested. Indeed, the evidence established that S.L. and her son had already been tested the week before by Seedarnee and that S.L. told Respondent of Seedarnee's diagnosis and treatment plan. Respondent's medical records for A.L. contain the boy's birth date rather than a current date. The notation in Respondent's handwriting states "patient here for testing, will return next week." Respondent claims that he saw the son otherwise he would not have filled out this medical note on the child. S.L. claims that her son was not with her on the April 4, 1989 visit and, therefore, Respondent never saw him. S.L.'s testimony is credited. In sum, it is concluded that Respondent's notes in the medical records for S.L. and A.L. do not accurately reflect the events that occurred and were an apparent attempt to justify after the fact Seedarnee's actions and treatment. It is also concluded that Respondent never saw A.L. as a patient and that Respondent "recommended" a treatment plan for S.L. which had already been carried out. At the conclusion of her April 4 visit, S.L. wrote a check to the Allergy Clinic for $162 to cover the cost of her visit and the purchase of a product which Seedarnee had recommended and supposedly developed called Allergex. This product was supposed to be put in the laundry and used to wipe down tables, etc. to eliminate household dust. After her visit on April 4, S.L.'s suspicions were aroused. She inquired of authorities about the licensure of the Allergy Clinic (it had none) and of Respondent and Seedarnee (he had no license). Following the April 4 visit to the Allergy Clinic, S.L. went to see a Board certified allergist who questioned the treatment she received at the Institute. The allergist advised S.L. that she was allergic to items other than those Seedarnee had claimed. On May 23, 1989, S.L. wrote to Respondent elaborating on what Seedarnee had done, complaining that she was mislead to believe that Seedarnee was a physician and that Respondent had done nothing but rubber stamp Seedarnee's findings and treatment. Respondent was on notice at least from this time that Seedarnee was practicing medicine without a license. S.L. filed a complaint with the Department of Professional Regulation on June 9, 1989. During the ensuing investigation, Respondent told the Department's investigator on January 23, 1990 that Seedarnee only worked under his supervision and that Seedarnee never made recommendations to patients. These statements were made even though S.L. had told Respondent during her April 4th visit and in her letter of May 23, 1989 about Seedarnee's actions. At the hearing, Respondent disclaimed any knowledge of the "diagnosis" made by Seedarnee and/or the administration of injections to S.L. pursuant to Seedarnee's instructions. He suggests that if any such actions took place, they were contrary to the specific understandings that he had as to the procedures of the Allergy Clinic. Even if Respondent thought that he was supposed to make all diagnoses and develop all treatment plans at the Clinic, it is clear that these procedures were not followed with respect to S.L. and A.L. Moreover, it is clear that Respondent was aware of Seedarnee's activities by at least April 4, 1989. It is the physician's responsibility to formulate a treatment plan and treat a patient. Professional responsibility should be delegated only to individuals who have training and degrees to perform those tasks and non-medical personnel should not be allowed to assume functions that are to be performed by physicians. It is the physician's obligation, if he knows an unlicensed, untrained individual with whom he is working is following practices which constitute the practice of medicine, to stop that activity if possible and report it to the Department of Professional Regulation. Respondent was aware that Seedarnee was not a licensed medical doctor and was not qualified to make a diagnosis or to treat patients. Respondent never reported Seedarnee's unlicensed activity to any authority. Respondent's actions on April 4 with respect to S.L. constitute an acquiescence to Seedarnee's recommendations and treatment. Respondent contends that even if S.L. was administered the two injections discussed above, there is no evidence that those injections were controlled substances. Thus, Respondent argues there is no evidence that Seedarnee engaged in the unauthorized practice of medicine. This contention is rejected. As noted above, neither Seedarnee nor Respondent could explain what the immune booster or "URT" was. They both suggest that anything not prescribed should be considered part of a therapy program not medicine. However, the administration of an injection, particularly if not indicated by medical testing, always runs the risk of causing a reaction in a patient. The Respondent's interpretation of the practice of medicine is unduly narrow and is rejected. As discussed above, it is clear that the Clinic operations led at least one person, S.L., to believe that Seedarnee was a physician and it is clear that, with respect to at least this patient, Seedarnee interpreted test results, developed a diagnosis and directed a treatment plan. Moreover, it is clear that Respondent was made aware of these activities by at least April 4, 1989 and that he took no steps to halt or correct the situation and, indeed, that he acquiesced to it. The Allergy Clinic has been owned by Seedarnee for approximately 12 years. Seedarnee refers to the entity as a "research institute" rather than a laboratory or medical clinic. Seedarnee formulated the internal rules and procedures for the Allergy Clinic. Seedarnee's testimony on these procedures and other issues at the hearing was evasive, ambiguous and inconsistent. Seedarnee recognized that he needed a licensed physician to "approve prescribed substances and supervise techniques." However, it is clear that, at least during the time in question, the Allergy Clinic was operated in a manner that permitted him to diagnose and order vitamins and booster injections. Respondent was Medical Director of the Allergy Clinic from 1988 until at least mid-1990. Other than the matters raised in the Second Administrative Complaint and discussed above, no evidence was presented as to any other situations where Respondent acquiesced in the practice of medicine by Seedarnee. Respondent's testimony regarding his relationship with the Allergy Clinic was vague, conveniently selective and sometimes inconsistent. Respondent admits that he was hired to be Medical Director and was given office space. However, he claims that he had no obligation to Seedarnee, was not salaried (although he admits he was "loaned" money by Seedarnee, only some of which he paid back) and that he had no duties as Medical Director except "to be a good physician and see patients and to build a practice." He says he never had the need to discuss a case from a medical standpoint with Seedarnee or with other physicians there. He also says there were no staff meetings. Seedarnee's version of the relationship was quite different. Seedarnee testified that Respondent was paid a salary for his duties at the Allergy Clinic. At one point, Seedarnee claimed that the Medical Director made decisions for testing of patients on the basis of the patient's medical questionnaire. Because the allegations of the Second Administrative Complaint are limited to the treatment rendered to S.L. and her son, it is not necessary to fully explore and/or resolve the nature of Respondent's affiliation with the Allergy Clinic. That evidence established that, at least with respect to S.L. and her son, Respondent's role differed greatly from his description of the Clinic's operations. Respondent failed to report what was clearly the unauthorized practice of medicine by Seedarnee. Furthermore, by acquiescing in Seedarnee's diagnosis and treatment, Respondent unlawfully delegated professional responsibility to a person he knew to be unlicensed. Finally, Respondent's participation in the treatment of S.L. and her son constitutes the employment of a trick or scheme in the practice of medicine.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order finding Respondent guilty of violating Sections 458.331(1)(k), (m) and (t), Florida Statutes as alleged in the First Administrative Complaint and finding Respondent guilty of violating Sections 458.331(e), (k) and (w), Florida Statutes as alleged in the Second Administrative Complaint. As punishment therefore, Respondent should be (1) reprimanded, (2) fined $15,000, (3) suspended from the practice of medicine for five years, two years of which should be suspended if Respondent successfully completes Board approved continuing medical education courses, and (4) thereafter, Respondent should be placed on probation for a period of three years, the terms and conditions of which should be set by the Board of Medicine. It is recommended that one condition of probation should be a limitation on Respondent's establishment or participation in a private office practice. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of September, 1992. J. STEPHEN MENTON 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 16th day of September, 1992. APPENDIX Case Numbers 89-3723 and 91-3864 Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. The Petitioner's Submittal with Respect to the October 3, 1990 Hearing Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. 1. Adopted in substance in Findings of Fact 1. 2. Adopted in substance in Findings of Fact 6. 3. Adopted in substance in Findings of Fact 4. 4. Adopted and 8. in substance in Findings of Fact 7 5. Adopted in substance in Findings of Fact 9. 6. Adopted 10. in substance in Findings of Fact 7. Adopted 14. in substance in Findings of Fact The first sentence is adopted in substance in Findings of Fact 15. The second sentence is subordinate to Findings of Fact 12. Subordinate to Findings of Fact 20. Adopted in substance in Findings of Fact 11. Adopted in substance in Findings of Fact 11. Adopted in substance in Findings of Fact 13. Adopted in substance in Findings of Fact 16. Adopted in substance in Findings of Fact 21. Adopted in substance in Findings of Fact 22. Adopted in substance in Findings of Fact 23. Rejected as unnecessary. Subordinate to Findings of Fact 26. Adopted in substance in Findings of Fact 26. Adopted in substance in Findings of Fact 29. Adopted in substance in Findings of Fact 30. Adopted in substance in Findings of Fact 24. Adopted in substance in Findings of Fact 24. Adopted in substance in Findings of Fact 24. Adopted in substance in Findings of Fact 25. Adopted in substance in Findings of Fact 31. The Petitioner's Supplemental Proposals regarding the First Administrative Complaint Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Subordinate to Findings of Fact 27. Adopted in substance in Findings of Fact 19. Adopted in substance in Findings of Fact 19. Adopted in substance in Findings of Fact 21. Subordinate to Findings of Fact 20 and 21. Adopted in substance in Findings of Fact 12. Rejected as unnecessary. Rejected as unnecessary. This subject matter is addressed in Findings of Fact 11. The Petitioner's Proposed Findings regarding the Second Administrative Complaint Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Rejected as unnecessary. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 36 and 38. Adopted in substance in Findings of Fact 37. Adopted in substance in Findings of Fact 38. Adopted in substance in Findings of Fact 39. Adopted in substance in Findings of Fact 40. Adopted in substance in Findings of Fact 41. Adopted in substance in Findings of Fact 42. Adopted in substance in Findings of Fact 43. Adopted in substance in Findings of Fact 44. Adopted in substance in Findings of Fact 45. Adopted in substance in Findings of Fact 46. Adopted in substance in Findings of Fact 47. Adopted in substance in Findings of Fact 48. Adopted in substance in Findings of Fact 49. Adopted in substance in Findings of Fact 50. Adopted in substance in Findings of Fact 52. Adopted in substance in Findings of Fact 53. Adopted in substance in Findings of Fact 53. Adopted in substance in Findings of Fact 53. Adopted in substance in Findings of Fact 56. Adopted in substance in Findings of Fact 54. Adopted in substance in Findings of Fact 55. Adopted in substance in Findings of Fact 57. Adopted in substance in Findings of Fact 58. Adopted in substance in Findings of Fact 58. Adopted in substance in Findings of Fact 58. Adopted in substance in Findings of Fact 59. Adopted in substance in Findings of Fact 59. Adopted in substance in Findings of Fact 59 and 61. Adopted in substance in Findings of Fact 62. Adopted in substance in Findings of Fact 63. Subordinate to Findings of Fact 64. Subordinate to Findings of Fact 66 and 67. Adopted in substance in Findings of Fact 68. Adopted in substance in Findings of Fact 69. Adopted in substance in Findings of Fact 69. Rejected as unnecessary. Adopted in substance in Findings of Fact 49. Adopted in substance in Findings of Fact 49. Adopted in substance in Findings of Fact 47. Adopted in substance in Findings of Fact 57. Adopted in substance in Findings of Fact 76. Subordinate to Findings of Fact 74. Adopted in substance in Findings of Fact 71. Adopted in substance in Findings of Fact 73. Adopted in substance in Findings of Fact 72. Adopted in substance in Findings of Fact 73. Adopted in substance in Findings of Fact 76. Subordinate to Findings of Fact 77. Subordinate to Findings of Fact 76 and 77. Subordinate to Findings of Fact 79 and 80. The Respondent's Proposed Findings of Fact regarding the Second Administrative Complaint Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Rejected as unnecessary. The first and the third sentences are adopted in substance in Findings of Fact 1. The second sentence is subordinate to Findings of Fact 3. Subordinate to Findings of Fact 33-35, 70, 75 and 79-80. Adopted in pertinent part in Findings of Fact 34. Rejected as unnecessary. This subject matter is addressed in Findings of Fact 38. 6.-10. Subordinate to Findings of Fact 35, 70, 75, 77, 79 and 80. Rejected as unnecessary and subordinate to Findings of Fact 40, 58 and 59. Rejected as unnecessary and subordinate to Findings of Fact 58 and 59. Subordinate to Findings of Fact 59. Adopted in substance in Findings of Fact 36. Adopted in substance in Findings of Fact 37. Adopted in pertinent part in Findings of Fact 37. Adopted in substance in Findings of Fact 39. Adopted in substance in Findings of Fact 40. The first sentence is adopted in substance in Findings of Fact 40. The second sentence is rejected as constituting argument. Adopted in substance in Findings of Fact 41 Adopted in substance in Findings of Fact 44. Adopted in substance in Findings of Fact 44. Adopted in substance in Findings of Fact 45. Adopted in substance in Findings of Fact 42. Adopted in substance in Findings of Fact 48. Adopted in substance in Findings of Fact 49. Adopted in substance in Findings of Fact 46 and 47. 28.-29. Rejected as unnecessary and subordinate to Findings of Fact 70. Adopted in substance in Findings of Fact 50. Rejected as unnecessary. Adopted in substance in Findings of Fact 52 and 53. Adopted in substance in Findings of Fact 54. The first two sentences are adopted in substance in Findings of Fact 55 and 57. The remainder is subordinate to Findings of Fact 70, 79 and 80. Adopted in substance in Findings of Fact 35, 70, 75, 79 and 80. 36.-37. Subordinate to Findings of Fact 70, 75, 77, 79 and 80. Subordinate to Findings of Fact 70. Rejected as unnecessary. Subordinate to Findings of Fact 76, 77 and 78. Subordinate to Findings of Fact 75. Subordinate to Findings of Fact 75, 79 and 80. Rejected as vague, ambiguous and unnecessary. This subject matter is addressed in Findings of Fact 56. Rejected as unnecessary and subordinate to Findings of Fact 64. Subordinate to Findings of Fact 70. Subordinate to Findings of Fact 70. Rejected as unnecessary. This subject matter is addressed in Findings of Fact 34 and 77. Subordinate to Findings of Fact 57 and 70. Rejected as unnecessary. The evidence established that Respondent continued working at the Allergy Clinic for a year or more after S.L. alerted him to Seedarnee's actions. Subordinate to Findings of Fact 76. Subordinate to Findings of Fact 76. The Respondent's Proposed Findings of Fact regarding the First Administrative Complaint Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Rejected as unnecessary. Adopted in substance in Findings of Fact 1. Addressed in the Preliminary Statement. Addressed in the Preliminary Statement. Addressed in the Preliminary Statement. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 4. Subordinate to Findings of Fact 6. Adopted in substance in Findings of Fact 7 and 8. Subordinate to Findings of Fact 9 and 10. Rejected as contrary to the weight of the evidence and subordinate to Findings of Fact 18 and 19. Adopted in substance in Findings of Fact 14. Rejected as contrary to the weight of the evidence and subordinate to Findings of Fact 18 and 19. Subordinate to Findings of Fact 12. Subordinate to Findings of Fact 12. Subordinate to Findings of Fact 12. Rejected as unnecessary and as constituting argument rather than a finding of fact. Subordinate to Findings of Fact 12. Subordinate to Findings of Fact 12. Adopted in substance in Findings of Fact 23. Adopted in substance in Findings of Fact 23. Subordinate to Findings of Fact 27 and 28. Rejected as unnecessary and subordinate to Findings of Fact 27. Subordinate to Findings of Fact 27. Subordinate to Findings of Fact 27. Rejected as constituting argument rather than a finding of fact. Addressed in the Preliminary Statement. Rejected as constituting argument. The issues raised by Respondent go to the weight of the evidence and not to its admissibility. Subordinate to Findings of Fact 12. Rejected as unnecessary. The issues raised by Respondent regarding Dr. Lindbergh's qualifications go to the weight to be given to his testimony rather than its admissibility. Rejected as constituting argument. See #31 above. Rejected as speculative, constituting argument rather than a finding of fact and unnecessary. Subordinate to Findings of Fact 12. Rejected as unnecessary. Rejected as unnecessary. Addressed in Findings of Fact 12. Rejected as unnecessary. Rejected as unnecessary. COPIES FURNISHED: Mary B. Radkins, Senior Attorney Department of Professional Regulation 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792 Neil F. Garfield, Esquire Suite 333 3500 North State Road 7 Lauderdale Lakes, Florida 33319 Dorothy Faircloth, Executive Director Department of Professional Regulation/Board of Medicine 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792
