The Issue This is a proceeding pursuant to the Florida Equal Access To Justice Act, Section 57.111, Florida Statutes, and Rule 22I-6.035, Florida Administrative Code. Petitioner seeks to recover his attorney's fees and costs incurred when defending an action brought against him by the Department of Professional Regulation, Board of Medicine. The issue for determination is whether Respondent, the state agency charged with regulation of the professional conduct of physicians in the State of Florida, was substantially justified with regard to the initiation of disciplinary proceedings against Petitioner, a licensed physician, in DOAH Case No. 90-4205, DPR Case No. 89-05921, and whether, in the absence of such substantial justification, Petitioner is entitled to the award of the amount of attorney's fees and costs sought, or if there exists special circumstances which would make an award unjust.
Findings Of Fact Respondent is a state agency which initiated a proceeding with the filing of an Administrative Complaint against Ronald F. David, M.D. As stipulated, Petitioner's Attorney's Fees and Costs are not unreasonable. Petitioner was the prevailing small business party in the underlying case, Department of Professional Regulation v. Ronald F. David, M.D., DOAH Case No. 90-04205, DPR Case No. 89-05921, when the case against Dr. David was dismissed on January 25, 1991. As stipulated, there are no known circumstances which would make an award of attorney's fees and costs unjust. The one remaining issue of fact to be determined is whether sufficient evidence was presented to the Probable Cause Panel of the Board of Medicine to support a finding of probable cause against the Petitioner, and whether the Panel properly considered that evidence. S. A. was a premature infant who had a patent ductus arteriosus (PDA). Petitioner, a pediatric surgeon with credentials to do general surgery, pediatric surgery, and chest surgery, was consulted by S. A.'s pediatrician. Petitioner, in turn, consulted Dr. Johnston, a thoracic cardiovascular surgeon, concerning surgery to close S. A.'s PDA. Dr. Johnston performed the surgery with Petitioner as assistant surgeon on May 31, 1986, at the Orlando Regional Medical Center. Petitioner had assisted in numerous such surgical procedures in the past but did not hold himself out as competent to perform them on his own. At surgery the left pulmonary artery was mistakenly ligated instead of the PDA. S. A.'s condition deteriorated and tests indicated the probable mistaken ligation. The baby was transferred to Shands Hospital where she died before a second operation could be performed. Autopsy revealed the mistaken ligation and the pathologist implicated the compromised cardiopulmonary system as a cause of death. No anatomical anomalies of the vessels were noted at autopsy. On the basis of a closed claim report to the Department of Professional Regulation, the circumstances surrounding the death of S. A. were reviewed by a physician employed by the Department's Division of Medical Quality Assurance. Petitioner was informed of this review on January 13, 1989. Review of the medical records resulted in cases being opened against three of the seven physicians who participated in the care of S. A. Petitioner was notified of the case by certified mail on August 1, 1989. Petitioner was interviewed on August 10, 1989. Dr. Johnston was interviewed by the same investigator on August 25, 1989. According to the investigator's notes, Petitioner stated that Dr. Johnston did not consult him during the surgery, that the anatomy did not appear to be the same as in prior cases, but that he did not question Dr. Johnston's decision as to which vessel to ligate. Dr. Johnston stated that he asked Petitioner to examine the anatomy when he (Johnston) had located what he thought was the ductus, and that Petitioner obliged by examining the operation field, but did not object to the procedure. The medical records of S. A. were obtained by subpoena from the Orlando Regional Medical Center. On February 5, 1990, both Petitioner's and Dr. Johnston's investigative files were sent to Dr. William Price, a thoracic and vascular surgeon, for his review. The letter requesting his opinion clearly separates the actions of Petitioner and Dr. Johnston to be considered. On February 21, 1990, Dr. Price's analysis stated, "The assistant, Dr. Ronald David, should have been accomplished enough to recognize the proper anatomy, but the ultimated [sic] responsibility was not his." (Respondent's exhibit 2, 3) The cases, Department of Professional Regulation v. Ronald F. David, M.D., DPR Case No. 89-05921, and Department of Professional Regulation v. Alan Johnston, M.D., DPR Case No. 89-05922, were prepared for the Probable Cause Panel meeting scheduled for May 11, 1990. Materials were sent to the three Panel members and their counsel at least one week in advance of the meeting. Materials sent to the panel included the complete investigative case file, including any exhibits, and a recommendation from the Department. Present at the meeting of the Panel on May 11, 1990 were: Dr. Robert Katims, Chairman of the Probable Cause Panel, Dr. Marilyn Wells and Mr. Gilbert Rodriguez, members of the Panel; Ms. Catherine Lannon, Assistant Attorney General and counsel to the Panel; Mr. Carlos Ramos and Ms. Stephanie Daniel, attorneys from the Department of Professional Regulation, and Mr. Brian Lynch, Administrative Assistant at the Department, whose duty it was to prepare and distribute materials for the Panel's consideration. Ms. Lannon instructed the Panel members to direct any questions concerning their legal duties and interpretation of laws or rules to her. She cautioned the Panel members that any factual questions concerning the investigation or why a certain recommendation was made were to be directed to the Departmental attorneys. She asked if the members had sufficient time to review all the materials sent to them; each member replied in the affirmative. And she cautioned the members that it must be clearly stated or implied from the record that the members are making independent judgments on the cases and that they are discussing the correct case. The Panel first considered Dr. Johnston's case. The Department recommended that an Administrative Complaint be filed alleging that Dr. Johnston practiced below the standard of care in that, "[He] inadvertently ligated the left pulmonary artery instead of the patient ductus arteriosus, by relying on the anesthesiologist's observation that the murmur had disappeared and the surgical assistant's failure to object or recognize the proper anatomy." (Respondent's exhibit 1, page 4-5) The Panel was informed that Petitioner's companion case was on the agenda. The Panel at this time discussed Petitioner at some length, including Petitioner's role as the referring physician, that Petitioner assisted at the surgery, that Petitioner was not a chest but a pediatric surgeon, and that Dr. Johnston and Petitioner disagreed as what was said and done by whom at the operation. Dr. Wells acknowledged that the surgeon in charge in the "captain of the ship"; the Chairman, Dr. Katims, in response to a question from Ms. Lannon, denied that the assistant surgeon is exonerated from all responsibility. Thereupon Probable Cause was found in Dr. Johnston's case and the Panel voted to file an Administrative Complaint. (Respondent's exhibit 1, page 7-8) The Panel later in the meeting considered Petitioner's case. The Department had recommended that Probable Cause be found and a letter of guidance be issued. Mr. Ramos presented the basic facts to the Panel. Both physicians on the Panel immediately disagreed with the Department's recommendation and requested an Administrative Complaint to be filed against Petitioner. The Panel affirmed its two main concerns: that Petitioner referred the patient to Dr. Johnston, and that at surgery Dr. Johnston said he specifically asked the Petitioner to review his ligation. (Petitioner's exhibit 4, page 6-7) Consideration of the transcripts of both Dr. Johnston's and Petitioner's cases reveals that there was considerable discussion and awareness by the panel of the specifics of S. A.'s case, that they were quite sensitive to the fact that Petitioner was the assistant surgeon and that he denied he was asked to verify the procedure. The vote was unanimous that Probable Cause be found and that an Administrative Complaint be filed against Petitioner. The Administrative Complaint was duly filed on May 22, 1990, alleging Petitioner fell below the standard of care by failing to object to any part of the procedure performed by Dr. Johnston and by failing to point out the proper anatomy for ligation. (Petitioner's Exhibit 1) In a subsequent meeting of the Probable Cause Panel, the Department presented it's recommendation that Petitioner's case be closed without prosecution based on a second expert's opinion that " . . . ligation of the wrong vessel was a known but although unfortunate complication of this procedure but not necessarily below the standard of care . . . " (Petitioner's Exhibit 12, 1). This recommendation was eventually accepted. The ultimate dismissal of the complaint does not negate the fact that at the time that probable cause was found, the panel had sufficient and competent information upon which it made its decision. It had conflicting statements by the two physicians; it had an expert's opinion; and it had extensive medical reports. It was not required to seek out sufficient evidence to assure success in a formal hearing on the complaint.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent, Raymond F. Cay was licensed as a barber in the state of Florida and licensed to operate a barbershop in the state of Florida, holding license numbers BB00014055 and B50007436, respectively. At all times material to this proceeding, Respondent was owner of the barbershop, Cay's Hairstylist (Cay's), located at 1349 Cassat Avenue, Jacksonville, Florida 32205. On April 14, 1987, Petitioner conducted a routine annual inspection of Cay's as required by rule and noted certain deficiencies which if proven could have resulted in Respondent's licenses being revoked, suspended or otherwise disciplined. However, there was insufficient evidence to show that these allegations of deficiencies were ever proven in a formal proceeding or admitted to by Respondent in an informal proceeding under Chapter 120, Florida Statutes. In fact, there was insufficient evidence to show that any disposition had been made by the Petitioner on these alleged deficiencies. On March 11, 1988, Petitioner again conducted a routine annual inspection of Cay's and again noted certain deficiencies which were the basis of the Second Amended Complaint. There was insufficient evidence to show that there was excessive hair on floor or that the back of the bars, chairs or furniture were not maintained in a safe and sanitary manner or that the shop and equipment were dirty on March 11, 1988 when the inspector visited Cay's. Although all of the barbering tools were not totally immersed in a disinfectant solution on March 11, 1988 when the inspector visited Cay's, there was insufficient evidence to show that that portion of the barbering tool (including brushes) which comes in contact with the patrons, was not sufficiently immersed in a proper disinfectant solution to allow proper sanitation. Although there were no sanitary towels in the bathroom on March 11, 1988 when the inspector visited Cay's, there was insufficient evidence to show that the bathroom was dirty. Sanitation rules were improperly displayed in Cay's on March 11, 1988 when the inspector visited. The only license not displayed on March 11, 1988 when the inspector visited Cay's was Ms. Delp's, and she was currently on leave and not working even though she was in the shop shampooing her hair on that day. On November 22, 1988, Petitioner conducted a re-inspection of Cay's and the inspector noted certain deficiencies which if proven could result in Respondent's licenses being revoked, suspended or otherwise disciplined. However, these alleged deficiencies were neither made a part of the Second Amended Administrative Complaint nor was there any evidence that these alleged deficiencies were ever proven or that they formed the basis for any disciplinary action taken by the Petitioner.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Board enter a Final Order DISMISSING the Second Amended Administrative Complaint filed herein. RESPECTFULLY submitted and entered this 24th day of March, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4180 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statute, on all of the Proposed Findings of Fact submitted by Petitioner in this case. Respondent did not submit any Proposed Findings of Fact and Conclusions of Law. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Treated as a conclusion of law rather than a finding of fact. 2.-3. Adopted in Finding of Fact 1. 4. Adopted in Finding of Fact 2. 5.-6. Subordinate to facts actually found in this Recommended Order. 7. Treated as a conclusion of law rather than a finding of fact. 8.-0. Subordinate to facts actually found in this Recommended Order. Adopted in Finding of Fact 4. Subordinate to facts actually found in this Recommended Order. COPIES FURNISHED: Myrtle Aase, Executive Director Barber's Board 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 E. Renee Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 P. W. Cay, Qualified Representative 1349 Cassat Avenue Jacksonville, Florida 32205 Raymond F. Cay 1349 Cassat Avenue Jacksonville, Florida 32205
Findings Of Fact By letter dated May 1, 1989, HRS gave petitioner formal notice of a moratorium on new admissions to petitioner's intermediate care facility for the developmentally disabled, effective two days earlier. Thereafter, HRS terminated the moratorium. As far as the record shows, the moratorium had no effect on the facility's census. HRS never filed an administrative complaint or took other steps to institute proceedings to restrict, suspend or revoke petitioner's license, in accordance with section 120.60(7), Florida Statutes (1989), and has no intention of doing so.
Recommendation It is, accordingly, RECOMMENDED: That HRS enter an order rescinding the moratorium it imposed on new admissions to petitioner's facility, effective April 28, 1989. DONE and ENTERED this 12th day of February, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1990. COPIES FURNISHED: Thomas D. Watry, Esquire The Perkins House 118 North Gadsden Street Suite 101 Tallahassee, FL 32301 Michael O. Mathis, Esquire Senior Staff Attorney Office of Licensure and Certification 2727 Mahan Drive Tallahassee, FL 32308 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES FT. WALTON BEACH DEVELOPMENTAL CENTER, Petitioner, CASE NO.: 89-3741 vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Respondent. /
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
