The Issue The issue in this case is whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, and Rule 22I-6.035, Florida Administrative Code.
Findings Of Fact Dr. Fenichel is a Florida licensed dentist having been issued license number DN-0008157. Dr. Fenichel maintains a professional dental practice in the State of Florida having a principal business address of 7544 Lake Worth Road in Lake Worth, Florida 33467. Dr. Fenichel maintains his primary residence within the State of Florida. Dr. Fenichel employs no more than twenty-five full-time employees and has never employed more than twenty-five full-time employees. Dr. Fenichel has a net worth of less than two million dollars, including both personal and business investments and has not had a net worth of more than two million dollars since the time the underlying action was initiated against his license to practice dentistry. Sometime in the late summer or early fall of 1989, F.P., 1/ a former patient of Dr. Fenichel, (hereinafter referred to as the "Patient") filed a written complaint regarding the care and treatment she had received from Dr. Fenichel. During the fall of 1988, Dr. Fenichel provided dental care to the Patient which included prophylaxis, an extraction, the recapping of crowns on teeth #'s 21, 22, 27 and 28 and a removable denture for teeth #'s 29, 30, 31 and 18, 19 and 20. DPR began an investigation of the Patient's complaint assigning it DPR Case Number 89-08779, notified Dr. Fenichel on or about September 27, 1989 of the complaint, conducted interviews with the Patient and Dr. Fenichel, obtained a written response, the Patient's records and x-rays from Dr. Fenichel, and obtained information and x-rays from a subsequent treating dentist in New Jersey, Dr. Lucca. The Probable Cause Panel of the Board of Dentistry met on at least three separate occasions pursuant to Section 455. 255, Florida Statues, to review DPR's investigative report and recommendations concerning the case. On March 15, 1990, the Probable Cause Panel met to consider the DPR investigative report and the recommendation from DPR of a finding of probable cause of a violation with a letter of guidance issued to Dr. Fenichel in connection with his treatment of F.P. The March 15, 1990 Probable Cause Panel made a determination that there was probable cause of a violation and, after discussion, directed DPR to file an Administrative Complaint against Dr. Fenichel's license to practice dentistry. The investigative report presented by the Department to the March 15, 1990 Probable Cause Panel included, among other things, summaries of interviews with Dr. Fenichel and with the complaining Patient, the Patient's written complaint, the written response of Dr. Fenichel, Dr. Fenichel's treatment/billing records and x-rays, a letter from Dr. Lucca, the subsequent treating dentist from New Jersey, outlining his clinical findings, x-rays and pictures apparently taken by Dr. Lucca and records of payments made by the Patient to Dr. Fenichel and to Dr. Lucca. Dr. Fenichel's billing records, his interview as reported by the Departmental investigator, his written response, and his treatment records all indicate that, from at least December 22, 1988 through February 23, 1989, the Patient was complaining about the work done by Dr. Fenichel, that Dr. Fenichel made several adjustments to the dentistry at no charge, and that the Patient's complaints were reflected in the observations and notes made by Dr. Lucca in March of 1989. In an entry dated January 17, 1989, Dr. Fenichel documented in his treatment records that the "patient maintains that partial is 'not right' she can't chew and is swallowing 'chunks'...". Dr. Fenichel also noted during this visit that he realigned the partial and adjusted the bite. During a February 23, 1989 visit, Dr. Fenichel noted that he again adjusted the partial. Dr. Lucca's records reflect that the Patient went to New Jersey on or about March 9, 1989 at which time he conducted an evaluation of her. Dr. Lucca had been the Patient's dentist when she was living in New Jersey. The Patient claims that this trip to New Jersey was necessitated by the pain she was experiencing from the work performed by Dr. Fenichel. Dr. Lucca advised the Patient of his clinical findings following the March 9, 1989 visit in a letter dated March 22, 1989 as follows: Porcelain to metal crowns on teeth #21, 22 and 27, 28 are ill-fitting, especially on facial margins. These are causing some gingival inflammation at present and may initiate caries at these margins in the future. The semi-precision removable partial denture framework fits well, but there is no occlusion of the posterior teeth on this partial denture. (posterior teeth do not meet.) Since you are uncomfortable and are complaining on the inability to chew, plus the above factors, I would suggest having the lower case redone. In addition to his clinical findings, Dr. Lucca advised the Patient that other dentists nearer to where she lived "...would certainly be able to help you so that you would not have to travel up here and have to stay several months." After seeing Dr. Lucca on March 9, 1992, the Patient was sent to another New Jersey dentist, Dr. Berger, who did a root canal on March 13 and 14, 1992. Dr. Fenichel's billing records reflect that the patient returned to his office on or about March 31, 1989, following her visit and evaluation with the New Jersey dentist and before the work was "redone." In her written complaint, the Patient alleged that during the March 31 visit she advised Dr. Fenichel of the New Jersey dentist's clinical findings. She claims that she requested Dr. Fenichel to pay for her treatment by Dr. Lucca, but Dr. Fenichel only offered to refund her money for the work performed by him. Ultimately, the Patient had Dr. Lucca redo the work done by Dr. Fenichel. It appears that Dr. Lucca also did some additional work on the Patient. Dr. Fenichel noted in his written response to the Patient's complaint that he had offered to refund her money for the work performed even though, in his opinion, there was nothing wrong with his work. No evidence was presented as to whether Dr. Fenichel ever refunded any money to the Patient. It is clear that the findings of the subsequent treating New Jersey dentist and the persistent complaints by the Patient were key factors in the Probable Cause Panel's decision to direct DPR to file an Administrative Complaint against Dr. Fenichel. At the March 5, 1990 Probable Cause meeting, the Panel and the DPR prosecuting attorney recognized that the credibility of the witnesses would be very important in order to establish at formal hearing that Dr. Fenichel was in violation of the rules and regulations of the Board of Dentistry. There was also a recognition that the work had been redone by Dr. Lucca and that it might be difficult and perhaps impossible to get an evaluation of Dr. Fenichel's work from a qualified expert who did not have a financial interest in the case. Following the March 15, 1990 Probable Cause Panel Meeting, DPR retained an expert, Dr. Rupert Q. Bliss, to evaluate the Departmental investigative report. Dr. Bliss noted several potential pitfalls to successful prosecution of Dr. Fenichel. Dr. Bliss expressed concern that no independent evaluation of Dr. Fenichel's work was possible since the work had been redone by Dr. Lucca. He suggested that complete records from Dr. Lucca and Dr. Berger would be necessary in order to successfully prosecute the case. Even though Dr. Bliss' editorial comments pointed out some of the potential problems to successfully prosecuting the case, he also noted some of the evidence that indicated Dr. Fenichel's work may not have met minimum standards. Dr. Bliss noted that Dr. Fenichel's patient records contained in the investigative report were inadequate and below minimum standards when measured against generally prevailing peer performance because there was no patient health history, no patient dental history, no tooth charting, no periodontal charting, and no treatment plan. In addition, Dr. Fenichel's treatment records were "very brief". Dr. Bliss reviewed two periapical x-rays of the Patient taken on or about March 13, 1989 and prior to the work performed by Dr. Lucca. Dr. Bliss was uncertain as to the origin of these x-rays. Dr. Bliss noted that the periapical x-rays dated March 13, 1989 showed two substandard crowned teeth with one tooth appearing "...to have the labial-gingival margin standing away from the tooth..." and the other appearing "...to have the distal interproximal crown margin short of the prepared tooth margin thus exposing a significant amount of cut tooth structure to the oral environment..." Dr. Bliss noted that these x- rays could establish a violation of the minimum standards for the practice of dentistry as measured against generally prevailing peer performance. The same x-rays and photos reviewed by Dr. Bliss were provided by the Department to the Probable Cause Panel for its March 15, 1990 meeting at a second meeting on September 14, 1990. In addition to Dr. Bliss' report and the investigative report discussed above, the September 14, 1990 Probable Cause Panel had before it for consideration yearly progress reports from the Patient's periodontist, Dr. Feldman, the billing record and x-rays from Dr. Berger, the New Jersey endodontist who performed the root canal on the Patient prior to Dr. Lucca redoing Dr. Fenichel's work, and copies of photographs from the Patient representing the physical condition of the dentistry prior to the work having been redone. The September 14, 1990 Probable Cause Panel met to consider the Department's renewed recommendation for a finding of probable cause and the issuance of a letter of guidance to Dr. Fenichel in connection with his treatment of F.P. After discussion and consideration, the September 14, 1990 Probable Cause Panel made a determination that probable cause of a violation did exist and again directed DPR to file an Administrative Complaint against Dr. Fenichel's license. At the September 14, 1990 Probable Cause meeting, the Panel and the Department's prosecuting attorney noted the crucial nature of credibility issues regarding the subsequent treating dentist and the Patient before making a determination that probable cause did exist to believe that Dr. Fenichel had violated Section 466.028(1)(y), Florida Statutes. As a result of the September 14, 1990 Probable Cause Panel decision, an Administrative Complaint was filed on or about October 19, 1990 for DPR Case Number 89-08779 initiating action against Dr. Fenichel's license to practice dentistry. Dr. Fenichel's treatment and billing records contained within the investigative report reflect the dates of treatment and the services provided to the complaining Patient as alleged in paragraphs numbered three and four of the Administrative Complaint. Paragraph five subparagraph (c) of the Administrative Complaint alleged that Dr. Fenichel's records regarding the complaining Patient were inadequate and below minimum standards for the profession. This allegation was based on Dr. Bliss' review of Dr. Fenichel's records regarding the Patient that were in the DPR investigative report. Subsequent to the filing of the Administrative Complaint, Dr. Fenichel's attorney took the deposition of Dr. Bliss. At the deposition, Dr. Fenichel's attorney provided Dr. Bliss with additional records from Dr. Fenichel's patient file. These documents prompted Dr. Bliss to partially retreat from his previous opinion that Dr. Fenichel's records regarding the Patient were inadequate. Subparagraphs (a) and (b) of paragraph five of the Administrative Complaint charged Dr. Fenichel with incompetence and/or negligence in his treatment of the Patient. These charges were based on the March 22, 1989 letter to the Patient by Dr. Lucca outlining his clinical findings, Dr. Fenichel's treatment records reflecting the problems the Patient was experiencing and Dr. Fenichel's repeated attempts at adjusting the dentistry, the Patient's x-rays, the photographs provided by the subsequent treating New Jersey dentists and/or the Patient, the Patient's written complaint, and Dr. Bliss' report. Petitioner disputed the factual allegations contained within the Administrative Complaint and a request for formal administrative hearing was filed with DOAH on or about November 5, 1990. The case was assigned DOAH Case Number 90-07729. On November 8, 1991, the Probable Cause Panel met to reconsider the case against Dr. Fenichel. The membership of the Panel had changed since Dr. Fenichel's case had last been considered. The DPR attorney indicated to the Panel that the Department did not believe that it could prevail at final hearing against Dr. Fenichel because no independent evaluation of his work could be obtained. The Department recommended a finding of probable cause with a letter of guidance issued to Dr. Fenichel. It is unclear what, if any efforts were made to contact the subsequent treating New Jersey dentist. During his presentation to the Probable Cause Panel on November 8, 1991, the DPR prosecuting attorney indicated that he had tried to contact Dr. Lucca and found him to be uncooperative. After a brief discussion, the November 8, 1991 Probable Cause Panel accepted the Department's recommendation, determined that probable cause of a violation did exist and directed the Department to close the case with a letter of guidance issued to Dr. Fenichel. A Notice of Voluntary Dismissal for DPR Case Number 89-08779, DOAH Case Number 90-07729, was filed by DPR with DOAH on November 20, 1991. The undersigned Hearing Officer entered an Order closing the DOAH file in the underlying proceeding on November 21, 1992. On November 25, 1991 Dr. Fenichel, through his attorney, received a copy of DPR's Notice of Voluntary Dismissal dated November 20, 1991. A Closing Order in DPR Case Number 89-08779 was entered by the Probable Cause Panel on or about December 16, 1991, finding that there was probable cause of a violation, but closing the case with a letter of guidance issued to Dr. Fenichel. Sometime after December 16, 1991, Dr. Fenichel, through his attorney, received a copy of the closing order issued by the Probable Cause Panel of the Board of Dentistry on December 16, 1991. The Closing Order noted: "The Department's expert consultant was unable to make a determination as to the standard of care rendered by the subject to F.P." Dr. Fenichel's Petition for Attorney's Fees and Costs was filed on January 24, 1992. The parties have stipulated that the hourly rate charged by Dr. Fenichel's counsel in the underlying case was reasonable.
Findings Of Fact Respondent is a licensed dentist in the State of Florida, having been issued license number DN 0009725. Respondent's last known address is 1521 Powell Court, Huntington, West Virginia, 25701. The minimum standard of care for treatment of any patient with periodontal disease who anticipates orthodontic treatment requires either that the underlying periodontal disease be resolved prior to orthodontic treatment or that the periodontal disease be controlled through frequent and regular periodontal care administered concurrently with the orthodontic treatment. Orthodontic treatment can exacerbate existing periodontal disease in any patient. Adequate, frequent, and regular periodontal care is especially important for adults who typically have less bone turnover and cell repair than that found in younger patients. Responsibility for monitoring and supervising the periodontal health of a patient is shared by the orthodontist, on the one hand, and either the general dentist or the periodontist, on the other. Respondent provided dental services and treatment to Michael J. Doherty, an adult male, from November 7, 1983, until sometime in June, 1985. The dental services and treatment provided by Respondent consisted of the extraction of 4 bicuspids and the application of an orthodontic appliance. Respondent first saw Mr. Doherty on November 7, 1983, at the Omni Dental Clinic (the "Clinic"). Respondent was not the dentist of record for Mr. Doherty. The dentist of record was a general dentist who was also employed at the Omni Dental Clinic. Mr. Doherty was diagnosed by the dentist of record as having early periodontal disease. The dentist of record prescribed treatment for Mr. Doherty's periodontal disease before Respondent began orthodontic treatment. The treatment for Mr. Doherty's periodontal disease consisted of: a gross scaling of Mr. Doherty's entire mouth on November 30, 1983; a prophylaxis cleaning for approximately one hour on December 14, 1983; and a periodontal scaling of the entire mouth on January 9, 1984. The patient was also instructed to increase the frequency of his brushing and other home health care. The patient was released for orthodontic treatment, and Respondent began such treatment on January 23, 1984. During Respondent's orthodontic treatment, the patient received two more prohylaxis cleanings in August, 1984, and on December 27, 1984. The diagnostic studies and periodontal treatment for Mr. Doherty prior to and during Respondent's orthodontic treatment of the patient were inadequate. Adults with existing periodontal disease should receive adequate periodontal care and monitoring every six weeks. The care required to properly treat the periodontal disease may range from basic scaling all the way to surgical procedures. Mr. Doherty received two prohylaxis cleanings during Respondent's orthodontic treatment. Responsibility for the periodontal health of a patient during orthodontic treatment is shared by the orthodontist. The condition of Mr. Doherty's periodontal disease deteriorated significantly during Respondent's orthodontic treatment. The patient consulted another orthodontis, Dr. David Kornbluth, on December 5, 1985. Dr. Kornbluth was concerned over the fact that the patient's teeth were very loose and that there was considerable pocketing in and around the teeth. Dr. Kornbluth questioned whether continued orthodontic treatment was appropriate and referred Mr. Doherty to a general dentist, Dr. Alan Burch. Dr. Burch examined Mr. Doherty on December 6, 1985, and concluded that the patient needed immediate periodontal and endodontic evaluation. Dr. Burch referred the patient to a periodontist, Dr. Leonard Garfinkel. 3/ Dr. Garfinkel examined Mr. Doherty on December 23, 1985, and diagnosed the patient as having severe periodontal disease with gross soft tissue inflammation and significant osseous loss. 4/ The condition of the patient's lower anterior teeth was poor. He had generalized pockets and excessive mobility in his teeth. The patient was instructed to discontinue orthodontic treatment and was placed on periodontic treatment consisting of three visits of deep scaling and curettage in conjunction with plaque control. The patient was also placed on a Hawley retainer to adjust his bite. 5/ The orthodontic appliance was subsequently removed and periodontic treatment in the form of deep scaling was repeated on March 27 and May 16, 1986. The patient's prognosis improved from poor to guarded. Respondent failed to meet the minimum standards of care in the practice of dentistry by applying orthodontic appliances without an accurate diagnosis of Mr. Doherty's periodontal condition. Respondent failed to meet the minimum standards of care in the practice of dentistry by providing orthodontic treatment without adequate care of the patient's underlying periodontal disease. Respondent was found guilty of negligence in the services provided to Michael J. Doherty. The adjudication of negligence was entered on January 1, 1988, in the Circuit Court of the Eleventh Judicial Circuit in Dade County, Florida. Respondent did not fail to keep adequate medical records. The Omni Dental Clinic was not operated or controlled by Respondent. Respondent was an independent contractor of the clinic. Records for Mr. Doherty were kept by both Respondent and the patient's general dentist and were maintained by the Clinic. The Clinic went out of business and disposed of the records in a manner that made them unavailable to Respondent. Records that otherwise would have been available to the parties in this proceeding were in the possession of counsel for the plaintiffs in the civil negligence action. The records produced in this proceeding did not comprise all of the records of Respondent.
Recommendation Based upon the foregoing facts and conclusions of law, it is recommended that Petitioner enter a final order finding Respondent guilty of violating Section 466.028(1)(y), Florida Statutes, impose a $5,000 administrative fine, and suspend Respondent's license for 3 months. The final order should provide that, upon reinstatement, the Respondent's license shall be placed on probation for a period of 2 years. During the period of probation, Respondent should be required to complete 30 hours of continuing education in diagnosis and treatment planing, 30 hours of continuing education in periodontics, and 18 hours of continuing education in risk management. All continuing education should be in compliance with Florida Administrative Code Rule 21G-12. RECOMMENDED in Tallahassee, Leon County, Florida, this 22nd day of July, 1991. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1991.
Recommendation Based upon the findings of fact and conclusions of lawrecited above, it is recommended that the procedural deficiencies as to the timeliness of the review process be construed as an approval of petitioner's capital expenditure proposal to construct a 91-bed nursing home in Alachua County. DONE and ENTERED this 8th day of June, 1977, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: James M. Bradshaw, Jr. Post Office Box 6697 Birmingham, Alabama 35210 Douglas E. Whitney, Esquire Department of HRS District VII Office 1350 Orange Avenue Winter Park, Florida 32789 Art Forehand, Administrator Office of Community Medical Facilities 1323 Winewood Boulevard Tallahassee, Florida 32301 Hugh V. Smith, Jr., Esquire 540 South Perry Street Montgomery, Alabama 36104
Findings Of Fact On July 17, 1986, a Probable Cause Panel of the Board of Medicine met to review the investigative report which resulted from a complaint filed against Petitioner by the mother of a deceased patient. Prior to the meeting of the Probable Cause Panel, Robert N. Baskin, M.D., had reviewed Petitioner's office records, the medical examiner's report, the emergency room records and a letter from the patient's mother concerning Petitioner's care and treatment of that patient. Dr. Baskin had concluded that, if subsequently proven, the facts would constitute negligent or incompetent practice of medicine. The panel discussed the information which had been previously provided to it and determined that additional information was necessary before making a final determination of probable cause or no probable cause. The matter was returned to the Department of Professional Regulation for additional investigation. On September 25, 1986, a Probable Cause Panel of the Board of Medicine met to review the investigative report, including the supplemental report containing the additional information requested by the prior Probable Cause Panel. Based on the Investigative report which included Petitioner's office records, a summary of an interview with Petitioner, summaries of interviews with the patient's mother, a summary of an interview with and records of the medical examiner, and a summary of an interview with and the report of consultant Robert Baskin, M.D., the panel found that probable cause existed that Petitioner's activities had violated: Section 458.331(1)(t), Florida Statutes, by gross or repeated malpractice or by failing to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances; Section 458.331(1)(i), Florida Statutes, now Section 458.331(1)(h), by making or filing a report which the licensee knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing or inducing another person to do so; and Section 458.331(1)(1), Florida Statutes, now Section 458.331(1)(k), by making deceptive, untrue, or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine. The Probable Cause Panel expressed concern regarding several aspects of Petitioner's treatment of the deceased patient. The panel noted its basis for a finding of probable cause in Count One, the malpractice count: Diabetic ketone acidosis was consistent with the patient's history, and there was "sort of a lack of attention paid about some of [the patient's] complaints"; and One of the two panel members opined that Petitioner "did misdiagnose the symptoms that this patient had", and described Petitioner's practice in this case as "a little sloppy". Further, the consultant's report questioned whether Petitioner recognized the seriousness of the patient's condition at the time of his examination of the patient. This question focused on whether Petitioner had recommended that the patient be hospitalized, but the patient's mother had refused to hospitalize her son. Counts Two and Three of the Administrative Complaint were based solely on whether Petitioner had recommended hospitalization as his records reflected or if, in fact, the mother's contrary version of what had happened was correct. One of the two panel members opined that "Somebody's lying." This was a credibility question to be determined. The Probable Cause Panel found that there was probable cause to believe that Petitioner may have falsified his records, if the Hearing Officer found that Petitioner was the one not telling the truth in this matter. Petitioner's records showed that an addendum was written, stating that Petitioner recommended that the patient be hospitalized. A memorandum to the medical records file by Registered Nurse Betty J. Launius, written after the patient died, explained why Petitioner did not immediately respond to telephone calls regarding the patient's condition. These documents lent some credibility to the possibility that they were done after the fact to protect Petitioner from subsequent litigation alleging malpractice in this case. The Probable Cause Panel recognized that the questions raised by the investigation should be answered or resolved one way or another at an evidentiary hearing. Petitioner disputed the allegations contained in the Administrative Complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. The case was referred to the Division of Administrative Hearings to conduct an evidentiary hearing and to issue a Recommended Order based upon the evidence presented. Division of Administrative Hearings Case No. 87-0276 was assigned. On July 16, 1987, DOAH Case No. 87-0276 was heard in Venice, Florida. A Recommended Order was issued on October 22, 1987, recommending that a Final Order be entered finding Respondent not guilty of the allegations contained within the Administrative Complaint and dismissing the Administrative Complaint filed against Petitioner. The Board of Medicine adopted the Recommended Order and dismissed the Administrative Complaint against Respondent on February 18, 1988. The parties have agreed that the costs and attorney's fees set forth in the Amended Petition for Attorney's Fees filed June 20, 1988 are the amounts in question in this proceeding. Petitioner is a "small business party" as that term is defined in Section 57.111(3)(d), Florida Statutes. The underlying administrative proceeding was initiated by the Respondent, a state agency. Petitioner was the prevailing party in the administrative proceeding material to this matter. There is no evidence that the transcript of the Probable Cause Panel meeting of July 17, 1986, was provided to or considered by the Probable Cause Panel which met on September 25, 1986. Petitioner incurred attorney's fees in the amount of $6,780.00 to defend himself in the underlying administrative proceeding and also incurred costs in the amount of $3,089.55. The amount of attorney's fees and costs are reasonable.
The Issue Whether Respondent, Florida Physician Medical Group (Respondent or FPMG), violated Florida law by engaging in discriminatory, disparate treatment of Petitioner, Dr. Phillip St. Louis (Petitioner). Petitioner maintains that Respondent refusal to employ him constitutes discrimination based upon his race or national origin.
Findings Of Fact Petitioner is a black male born in Trinidad. He is fully educated and qualified to practice medicine in the State of Florida, and has done so for a number of years. Petitioner specialty is neurosurgery. He has practiced at a number of hospitals in the greater Orlando area for over ten years. The instant case arose when Petitioner was denied employment with Respondent. Petitioner maintains he is fully competent and qualified to become employed by Respondent and that the company has denied him employment based upon his race (black) and national origin. Prior to March 2009, Respondent considered hiring Petitioner for employment. With that end as the objective, Petitioner submitted an application for malpractice coverage through an entity that insures Respondent's physicians. That entity, described in the record as (the Trust), reviews applications for coverage and considers whether it can provide malpractice coverage for a physician based upon a number of factors, including but not limited to, past work history, education and training, and past malpractice claims made against and paid by the subject physician. Approval for medical malpractice coverage by Adventist Health System (AHS) through the Risk Management Department (Risk Management) was a prerequisite to employment with Respondent. The requirement to obtain professional liability coverage was pursuant to the company-wide policy CW RM 220. At all times material to his application, Petitioner knew or should have known that Respondent required medical malpractice coverage. As of the time of the hearing and for at least nine years prior thereto, Petitioner has performed neurosurgery without malpractice coverage. This practice, known in the record as working "bare," is disfavored by Respondent. All physicians who seek to be employed by Respondent must submit an application for review and approval for professional liability coverage under the self-insured Trust. Personnel employed with AHS's Risk Management review applications and recommend disposition of the requests for coverage. Stacy Prince joined AHS as a director of Risk Management in 2005. Stacy Prince and Sandra Johnson were responsible for deciding whether Petitioner would qualify for medical malpractice coverage. The decision to deny coverage for Petitioner was reached without regard for Petitioner's race or national background. At the time that Petitioner was being considered for medical malpractice coverage with the Trust, Stacy Prince and his supervisor (Sandra Johnson) did not know the Petitioner’s race or national origin. The Risk Management decision was based on Petitioner's malpractice claims history, as is more fully explained below. Neurosurgery is a high-risk medical practice. It is possible that this specialty group of physicians are exposed to more claims and more serious claims than other specialty physicians. Nevertheless, in determining whether a physician can be covered, Risk Management must look at the totality of the circumstances to evaluate whether a candidate can be covered by the Trust. Most physicians covered by the Trust do not have any malpractice claims. Of those who do have malpractice claims, the vast majority have had only one or two incidents of alleged malpractice. Because each candidate's application for coverage was reviewed on a case-by-case basis, the factual circumstances surrounding a malpractice claim may be pertinent to the decision of whether a physician may be covered. An example of a malpractice claim that would not be given much gravity would be one that occurred while a physician was in training under the supervision of a licensed physician. In such instances, the training physician is named incidentally to the primary supervising physician. Such "shotgun" claims typically name everyone who provided care for the patient, regardless of the personal interaction or level of care actually rendered. None of Petitioner’s claims fell within this category. A second type of malpractice claim that might be discredited would be one that did not result in any monetary award or damages to the patient. None of Petitioner’s claims fell within this category. Based upon Stacy Prince's review of Petitioner's history of claims, Petitioner was deemed too great a risk to provide medical malpractice coverage. The malpractice history reviewed included four claims disclosed by Petitioner and a fifth claim that was not reported by Petitioner, but was discovered by Risk Management. The fact that the fifth claim was not disclosed to Risk Management in the application process was also a concern to Mr. Prince and influenced his decision. No physician, regardless of specialty, with claims similar to Petitioner’s has been insured by the Trust. Additionally, although unknown to Petitioner at the time of application, a sixth medical malpractice claim was made against Petitioner. The potential for additional claims (that could be also unknown to Petitioner) was a concern in determining whether to provide coverage for Petitioner. With regard to Petitioner's claims, at least two of the claims were unresolved, as of the time of review of Petitioner's application. Additionally, a parallel investigation and administrative action by the Florida Department of Health regarding one claim was also a concern for Risk Management. Whether or not Petitioner practices within the standard of care expected of physicians in Florida is of significant importance to Respondent. No other candidate for employment presented to Respondent with similarly-serious claims. Petitioner's lack of candor regarding the number of claims against him and the severity of claims was also a concern to the undersigned. No physician was given preferential treatment by Respondent who was similarly situated, as no other physician reviewed in this record had similar claims. The factors resulting in the denial of coverage were: the number of claims, the open claims, the history of damages awarded, the unknown amount of future damages based upon unresolved claims, the lack of malpractice coverage, and Petitioner's failure to fully and accurately disclose information needed to review his application. None of the physicians who Petitioner identified as comparably situated, and who allegedly received more favorable treatment, had the number or severity of claims, the level of damages associated with the claims, or were practicing "bare" for the period of time Petitioner has chosen to practice. All of the doctors were eligible for medical malpractice coverage at all times material to this case or during employment with Respondent. In contrast, Petitioner practiced "bare" for almost nine years since his insurer canceled his insurance coverage due to the “Nature of Claim” in July of 2000. Petitioner was cancelled by his insurer after the insurer had to pay its policy limits of $500,000. An example of a malpractice claim associated with Petitioner was his operation on the wrong side of a patient’s head. That surgery resulted in a $1.75 million dollar settlement. Petitioner presented no evidence to establish that any of Respondent's actions or inactions were based upon his race or national origin. Respondent articulated bona fide business reasons for why the Trust denied medical malpractice coverage for Petitioner. More important, had Risk Management agreed to provide coverage for Petitioner, then Bryan Stiltz, Respondent's CEO, would have hired Petitioner. The decision not to hire Petitioner due to his failure to qualify for medical malpractice coverage was not based on Petitioner’s race or national origin and was consistent with Respondent’s employment policy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding no cause for an unlawful employment practice as alleged by Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 3rd day of August, 2011, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 2011. COPIES FURNISHED: Jerry Girley, Esquire The Girley Law Firm 125 East Marks Street Orlando, Florida 32803 Alan M. Gerlach, Esquire Adventist Health System-Legal Services 111 North Orlando Avenue Winter Park, Florida 32789-3675 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Mark H. Jamieson, Esquire Moran, Kidd, Lyons, Johnson & Berkson, P.A. 111 North Orange Avenue, Suite 1200 Orlando, Florida 32801-2361 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Based upon the stipulation of the parties, the testimony of the witnesses, and the evidence received at the hearing, the following findings of fact are made: The Department is the state agency authorized to regulate the practice of medicine within the State of Florida. At all times material to the allegations of the administrative complaint, Respondent is and has been a licensed physician in the State of Florida having been issued license number ME 0017104. On April 21, 1986, the Board of Medical Examiners, now known as the Board of Medicine (Board), issued a final order which provided for the following conditions in connection with a stipulated disposition of an administrative dispute involving the Respondent. In pertinent part, that order required: the Respondent to pay an administrative fine in the amount of $8,000 in payments of $2,000; that the Respondent's license to practice medicine in Florida be placed on probation for a five year period; and that a monitoring physician make regular visits to Respondent's office and submit appropriate reports to the Board regarding Respondent's performance. On August 10, 1987, the Board of Medicine entered a final order which accepted the recommended order entered by a Hearing Officer on July 6, 1987. That recommended order found that the Respondent had violated the terms of the prior final order previously entered in a disciplinary proceeding (the final order described in paragraph 3). The Board imposed a three month suspension in connection with the violations and further clarified the terms of Respondent's probation. On March 1, 1988, the Board of Medicine filed a final order which extended Respondent's suspension for an additional 90 days in connection with additional violations of chapter 458 related to his failure to comply with the terms of the probation previously imposed upon him. On June 21, 1988, the Board of Medicine filed a final order which suspended Respondent's license to practice medicine until completion of continuing medical education courses and further specified that upon completion of the license suspension, Respondent's license to practice medicine would be on probation for a period of five years. That final order amended the due dates for the payment of the installments of the administrative fine to require a $2000 payment no later than December, 1988, and a $2000 payment no later than June, 1989. Subsequently, the Respondent requested that the terms of probation be modified and on March 22, 1989, an Order was entered by the Board of Medicine which granted several modifications to the terms of Respondent1s probation. That order provided that Dr. John S. Curran would serve as Respondent's supervising physician for Respondent's practice of pediatric medicine. On September 19, 1989, Dr. Curran wrote to the Board of Medicine to request that he be released from any further supervision responsibility for the Respondent. That letter provided, in part: Please be advised that I have received information that Dr. Archie Jones has closed his practice in Lutz, Florida. I last submitted a report late July 1989 when I visited his office and I reviewed all patient files. He informs me that he has seen between five and ten patients since the time of my review and the closure of his office approximately 12 August 1989. It is my understanding that he intends to move to the state of Georgia. I would respectfully request release from any further supervision responsibility for Dr. Jones effective the date of closure of his office. On November 14, 1989, Dorothy Faircloth as Executive Director for the Board of Medicine notified the Respondent that Dr. Curran had written requesting release from any further supervision responsibility. Further, that letter advised Respondent that: You are advised that according to the Final Order of the Florida Board of Medicine you may only practice under the supervision of a board certified pediatrician approved by the Board. To practice without the proper supervision is in direct violation of the Final Order and is grounds for further disciplinary action. The letter described above was received by the Respondent on November 27, 1989. On November 28, 1989, Respondent executed a Petition for Modification of Payment Schedule which requested an extension of time for payment of the balance of the fine amount due November 30, 1989. Respondent sought a payment date of May 30, 1990 for the final $2000 payment owed. That petition provided, in part: 4. That because of adverse publicity which negated patients, Respondents was forced to close his office in July of 1989 and has not been able to secure employment since that date. A letter written by Respondent to his landlords on stationery styled "Lutz Pediatric Center" stated: "It is with a heavy heart that I write to say that I have had to close the Lutz Pediatric Center as of 9/8/89." That letter was dated September 14, 1989. A second letter written by Respondent "To whom it may concern" provided that: "As of 8/11/89 my office at the above address will be permanently closed for the practice of pediatrics." This letter was purportedly written on July 30, 1989, to advise the Department of the closure of the Respondent's office and his new mailing address of P.O. Box 757, Safety Harbor, Florida. On November 28, 1989, the Respondent telephoned in a prescription for a patient, D.T., to Freddy's pharmacy in Tampa, Florida. This prescription, for a legend drug known as Keflex, was requested for an adult friend of the Respondent's for whom Respondent had not made a medical examination nor received a fee for his services in connection with the prescription. On February 17, 1990, the Respondent received a notice that his request for an extension on the payment of the administrative fine had been denied. That notice requested that Respondent submit the remaining $2000 to the Board office within five days of the receipt of the letter. On February 21, 1990, the Respondent filed a bankruptcy petition in the Middle District of Florida. The discharge of debtor was entered by that court on May 25, 1990. Initially, Respondent was uncertain as to whether the administrative fine which had been due November 30, 1989, would be discharged by the bankruptcy proceedings. He paid the $2000 into his attorney's escrow account pending resolution of the legal issue. The exact date of that payment is uncertain. However, on June 20, 1990, Respondent, through his attorney, remitted the final $2000 payment to the Board of Medicine.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Board of Medicine enter a final order finding that the Respondent, Archbold M. Jones, M.D., violated Section 458.331(1)(x), Florida Statutes, and suspending his license for a period of two years. DONE and ENTERED this 29 day of November, 1990, in Tallahassee, Leon County, Florida. Joyous D. Parrish Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed this 29 day of November, 1990 with the Clerk of the Division of Administrative Hearings. APPENDIX TO CASE NO. 90-3591 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1 through 3 are accepted. With regard to paragraph 4, it is accepted that the Respondent was to pay an administrative fine in the amount of $8,000 with installments of $2000. Otherwise, rejected as irrelevant or immaterial to the allegations of this case. It is undisputed that the final $2000 payment was not remitted by Respondent until June, 1990. Paragraphs 5 and 6 are accepted in substance. To the extent that a clarification of the terms of Respondent's probation were required incidental to a subsequent disciplinary action, paragraph 7 is accepted. Paragraphs 8 through 10 are accepted. Paragraph 11 is accepted in that it accurately depicts the action taken by the probationary committee, however, that information was not contemporaneously shared with Respondent. The Respondent was, by then, not practicing at the Lutz Pediatric Center and therefore not in need of supervision (theoretically) since he was not supposed to be practicing. That he did so by issuing the prescription on November 28, 1989, is the crux of this case. As explained in paragraph 6 above, paragraph 12 is accepted. It should be noted that Respondent was not to be practicing medicine at the time in issue (November 28, 1989) at all. With regard to paragraph 13, it is accepted that the Respondent did not have an office at the Lutz address in October, 1989; otherwise, rejected as inaccurate statement of fact. Paragraph 14 is rejected as contrary to the weight of the evidence. Paragraph 15 is accepted but is irrelevant. Paragraph 16 is accepted but the Respondent has presented a reasonable explanation for the failure to timely remit the payment. Paragraph 17 is accepted. Paragraph 18 is accepted. Paragraph 19 is rejected as hearsay not supported by direct evidence. With regard to paragraph 20, it is accepted that at the time the prescription was telephoned in, Respondent's Lutz office was closed; otherwise rejected as speculation or irrelevant since at that time Respondent was not supposed to be practicing medicine at all. With regard to paragraph 21, it is accepted that Respondent by prescribing the substance practiced medicine other than as required under the terms of his probation. Otherwise, rejected as contrary to the evidence or irrelevant. See comments above. Paragraphs 22 and 23 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraphs 1 and 2 are accepted. Paragraph 3 is accepted but is irrelevant since at the time the prescription was made Respondent knew that Dr. Curran had requested to be released because Respondent was closing his office and would not be in the practice of medicine. But for Respondent's insistence that the office would be closed, Dr. Curran would not have requested release. Paragraph 4 is rejected as contrary to the weight of the credible evidence. Respondent's account of whether he would or would not have issued the prescription was totally incredible. Respondent took the position that telephoning the prescription was not practicing medicine, a totally fallacious assertion. But for his license, Respondent would not be privileged to request prescriptions on behalf of others. Paragraph 5 is rejected as irrelevant. With regard to paragraph 6, the exact time Respondent notified the Board or the Department became aware of Respondent's accurate address is not established by this record. It is accepted that the Board did have access to Respondent's whereabouts at all material times. Otherwise the paragraph is rejected as not supported by the weight of the credible evidence. Paragraphs 7, 8 and 9 are rejected as irrelevant or argument; see comment to paragraph 6 above. Paragraphs 10 and 11 are accepted. With regard to paragraph 12, it is accepted that Respondent requested an extension within which to pay the final $2000 installment. Otherwise, rejected as irrelevant or unsupported by the evidence. Paragraph 13 is accepted. Paragraphs 14 and 15 are rejected as irrelevant, argument, or unnecessary to the resolution of the issues of this case. Paragraph 16 is accepted in substance; the exact date the monies were placed in escrow is not known. With regard to paragraph 17, it is accepted that ultimately the Respondent remitted the final $2000 payment and that such payment was made approximately one month after the discharge was entered by the bankruptcy court. COPIES FURNISHED: Bruce D. Lamb Chief Trial Attorney Department of Professional Regulation 730 South Sterling Street Suite 201 Tampa, Florida 33609 Jerry Gottlieb GOTTLIEB & GOTTLIEB, P.A. 2753 State Road 580, Suite 204 Clearwater, Florida 34621 Dorothy Faircloth Executive Director Board of Medicine Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
