The Issue At issue in this proceeding is whether petitioner's application for a medical license by endorsement should be approved.
Findings Of Fact The Findings of the Facts of tbe Recommended Order are adopted by the Board of Medicine as being based on competent substantial evidence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered certifying petitioner's application to the Department of Professional Regulation, for licensure by endorsement with, should the Board be persuaded that such is appropriate, placement of petitioner on probation for such term and subject to such conditions as the Board may reasonably specify. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of April 1991. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April 1991.
The Issue By a three Count Administrative Complaint filed August 22, 1987, Petitioner sought to discipline Respondent's medical license. Counts II and III were voluntarily dismissed ore tenus at the commencement of formal hearing and they are therefore dismissed as a matter of law. The remaining Count I alleges violations of Section 458.327(1)(c), Florida Statutes, attempting to obtain or obtaining a license to practice by a knowing misrepresentation and of Section 458.331(1)(a), Florida Statutes, by attempting to obtain, obtaining or renewing a license to practice medicine by bribery, fraudulent misrepresentations or through an error of the Board of Medicine. BACKGROUND AND PROCEDURE Petitioner presented the oral testimony of Respondent as an adverse witness and introduced deposition testimony of 5 other witnesses. Petitioner had 5 exhibits (including depositions) admitted in evidence. Respondent testified on his own behalf and presented the oral testimony of 4 other witnesses, John C. McCloskey, Dr. John K. Robinson, Dr. William M. Straight, and Hilda Bengochea and the deposition testimony of 1 other witness. Respondent had 5 exhibits (including one deposition) admitted in evidence. The Joint Prehearing Stipulation was admitted as Hearing Officer Exhibit A. The transcript in this cause was duly filed and the parties timely filed their respective proposed findings of fact and conclusions of law, the findings of fact of which have been ruled on in the Appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 458, Florida Statutes. Respondent is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued license number 0040981. Respondent's last known address is 555 Biltmore Way, Suite 201, Coral Gables, Florida 33134. On or about May 11, 1982, Respondent submitted an application to the Florida Board of Medical Examiners for licensure to practice medicine in the State of Florida. Based on the application, Respondent was granted licensure by endorsement and was issued Florida Medical License ME 0040981 from the Board of Medicine in September, 1982. On the above-mentioned application Respondent represented that he had attended Universidad Nacional Pedro Henriguez Urena (UNPHU) from January 1975 to January 1979 and that he had attended Universidad Centro de Estudios Technicos Medical School (CETEC) between January 1979 and December 1980. Respondent further failed to include his attendance at Instituto Technologico de Santo Domingo Medical School (INTEC) between approximately October 1979 and June 1980 (approximately 8 or 9 months). Respondent's actual attendance at UNPHU was from January 1975 to June 1979. From June 1979 to October 1979 Respondent was to all intents and purposes on summer vacation. He was in attendance at INTEC from October 1979 to June 1980 and at CETEC from June 1980 to December 1980. All of these medical schools are physically located in the Dominican Republic. In September, 1979 Respondent had applied for a transfer from UNPHU to INTEC. He was accepted in September, 1979 and began his course of study at INTEC in 0ctober, 1979. INTEC required that, in order for Respondent to graduate from that institution, he must repeat a number of courses that he had previously taken and passed at UNPHU. As a consequence, Respondent took approximately six courses (during two academic quarters) at INTEC, which courses he had previously taken and passed at UNPHU. Under the auspices of INTEC, after completing two quarters, Respondent was required for three months, until June, 1980, to do field medical work to assist those in the Dominican Republic countryside who needed medical assistance as a result of hurricanes Frederick and David. Respondent also did clinical rotations at one or two local hospitals in the city of Santo Domingo. He did well at INTEC and was not asked to leave that university. In June 1980, Respondent applied and was accepted at CETEC. CETEC's school of medicine first began its admission process in December 1979 but CETEC did not start its first classes until January, 1980. Respondent was admitted into the M.D. program in June 1980. Respondent never lived on any campus in the Dominican Republic but lived independently in town. He does not recall if he switched residences between institutions. CETEC gave Respondent credit ("convalidated") for the courses he had taken at both UNPHU and INTEC. Petitioner has pointed to no evidence that his convalidation was inappropriate under the circumstances. Respondent's motivation when he transferred to CETEC was that CETEC allowed him to participate in a rare opportunity--an externship program at the University of Miami School of Medicine at Jackson Memorial Hospital in Miami, Florida. Respondent changed his Santo Domingo residence to one in his hometown of Miami when he moved there. He completed his rotations in the United States under the auspices of CETEC. The evaluations from the University of Miami School of Medicine indicated that Respondent did extremely well during these rotations. Respondent graduated from CETEC and was granted a diploma in December, 1980. Subsequently, Respondent applied for, and was accepted and worked in a residency training program in Pensacola, Florida, for three years. The evaluations from his residency indicate that Respondent's performance was well above average and he was appointed as chief resident in his last year of this residency. The application for Florida licensure containing the inaccuracies stated in Finding of Fact 5, supra, was filed during Respondent's year of internship, when he was on call every other night. The application form requested him to list his medical education and to "be specific" and "account for each year". He did not have his records with him in his physical location in Pensacola at the time he discovered that the Florida Board only accepted applications once a year and he had little time in which to meet the time limit for his only possible application for 1982. The inaccuracies of Respondent amount to a wrong date for departure from UNPHU; a wrong date (18 months early) for beginning at CETEC, which date predates CETEC's first medical school class, and complete omission of his INTEC experience. In addition to the speed and stress of the application period and the absence of accurate backup records, Respondent explains the application's inaccuracies by pointing to his contemporaneous belief that he was being accurate and his incorrect perception at that time, based on prior experience, that the question was only seeking the name of the medical school from which he graduated and his date of graduation. He also never considered his INTEC attendance as part of his medical education since it was short term and largely repetitive of previous course work he had successfully completed. Apparently recognizing that the question was ambiguous or at least could be better worded, the Board has since revised its application form to specifically require listing of all schools, clerkships, etc. by date. Dr. John Robinson, M.D., Associate Dean for Student Affairs at the University of Miami Medical School for twenty-one years testified on Respondent's behalf. As part of his duties at the medical school, Dr. Robinson acts as the Registrar who keeps students records and certifies their education. It is common within Dr. Robinson's education, training, and experience that students and physicians alike frequently but unintentionally mistake the dates and places they attend medical school. Based on his personal good opinion of Respondent's past medical background and practice and Respondent's reputation for truth and veracity, it was Dr. Robinson's opinion that the application inaccuracies represented human error of Respondent and common error within Respondent' s experience. Respondent presented testimony of other prominent physicians and lay witnesses in the community who attested to his good character, reputation for truth and veracity, excellent patient care, and community service through his medical practice. Generally, Petitioner did not affirmatively demonstrate any improper motive or establish that Respondent had any intent to conceal or misrepresent his medical education on his application. Nor did Petitioner establish that Respondent had anything to gain by the inaccurate information on his application. The dates given by Respondent were correct to the extent that they indicate the date he began his medical education, the date he ended his medical education, and the medical school (CETEC) from which he graduated and which gave him credit for his work at the two previous schools (UNPHU and INTEC). Dorothy Faircloth, Medical Board Executive Director, confirmed that in 1982 the Board's process was to verify the education of an applicant only from the school which issued his medical degree. Specifically, it was not affirmatively demonstrated that Respondent would not have been licensed had he disclosed his attendance at INTEC and noted the correct dates of his interim medical education. At the time of Respondent's application, the Board had no rule or policy relating to the number of schools an applicant had attended and nothing in the transcripts and official documents of any of the three universities attended by Respondent reflect unfavorably on Respondent. The Board has licensed a number of medical physicians who graduated from CETEC but who previously attended one or more medical schools prior to attending CETEC. Respondent was a bona fide student in attendance at CETEC and graduated in good standing. Except for alleging misrepresentation and fraud in the application, Petitioner has not attacked the thoroughness, efficiency, or efficacy of Respondent's actual education, nor his ability to practice medicine safely. Respondent is presently in private practice with two other medical physicians in Coral Gables, Florida. He has staff privileges at six area hospitals, he has never been charged or accused of malpractice, and he has not, until this case, been investigated by the Board of Medicine or had any action taken against his license. He is also currently licensed in Georgia.
Recommendation Upon consideration of the foregoing, it is, RECOMMENDED that the Board of Medicine enter a Final Order dismissing Count I against Respondent. DONE and RECOMMENDED this 28th day of January, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Divisionf Administrative Hearings this 28th day of January, 1988. APPENDIX TO RECOMMENDED ORDER DOAH Case No. 87-0401 The parties' proposed findings of fact (PFOF) are ruled on pursuant to Section 120.59(2), Florida Statutes, as follows: Petitioner's PFOF A. 1. Covered in FOF 1. 2. Covered in FOF 2. 3. Covered in FOF 3. 4. Covered in FOF 4. 5-6. Covered in FOF 5. 7-8. Covered in FOF 11. B. 1-2. Covered in FOF 5. 3-4. Covered in FOF 19. 5. Covered in FOF 9. 6-8. Covered in FOF 10. 9. Rejected as not supported by the record, taken in context. SeeTR 35-36. 10-11. Accepted but unnecessary. Accepted but out of context and not dispositive of any issue at bar. Accepted but unnecessary and not dispositive of any issue at bar. Unnecessary. Unnecessary and not dispositive of any issue at bar. Rejected as stated because it is misleading as to the competent substantial record evidence as a whole and it is not an ultimate FOF. See FOF 19 and 22. Covered in FOF 4. Respondent's PFOF 1. Covered in Substance in FOF 2. 2-3. Covered in FOF 23. 4. Covered in FOF 3-4. 5-6. Covered in FOF 6. Covered in FOF 6-7. Covered in FOF 6-8. Covered in FOF 9. Subordinate, and also not clear from the record. The Respondent could just as easily mean that several different professors and not a single professor taught him at INTEC. 11-12. Covered in FOF 10. Covered in FOF 11. Covered in FOF 13. Covered in FOF 14. Covered in FOF 15. Covered in FOF 16. 18. Covered in FOF 17. 19. Covered in FOF 18. 22-23. Covered in FOF 19. 24. Covered in substance in FOF 19. 25-27. Cumulative. 28-29. Covered in FOF 19. 30. Covered in Substance in FOF 19. 31. Except as cumulative or subordinate, covered in FOF 19. 32. Covered as a conclusion of law. 33. Covered in FOF 19. 34. Unnecessary and not dispositive of the single count of the Administrative Complaint remaining at issue. 35. Rejected as argument of counsel. 36-39. Covered in FOF 20. 40. Covered in substance in FOF 20. 41-46. Except as subordinate, covered in FOF 21. 47-49. Unnecessary, but see FOF 21. 50-51. Except as subordinate, covered in FOF 21. 52. Unnecessary. 53-56. Covered in FOF 22. 57-58. Unnecessary and subordinate. 59 . Covered in FOF 22. 60. Covered in substance in FOF 19. 61-69. Unnecessary. COPIES FURNISHED: Dorothy Faircloth, Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Peter S. Fleitman, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Robert S. Turk, Esquire Suite 3400, One Biscayne Tower 2 South Biscayne Boulevard Miami, Florida 33131 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made to supplement the parties' factual stipulations: Petitioner's Pre-Immigration Activities In Nicaragua Petitioner is a native of Nicaragua. He obtained his medical education at the National University of Nicaragua (hereinafter referred to as the "University"). He graduated from the University in 1961 with a Doctor of Medicine and Surgery degree. Petitioner later received a Bachelor of Arts degree in psychology from Nicaragua's Central American University. Thereafter, he completed law school in Nicaragua; however, because he was an outspoken critic of the Sandinista government, he did not receive his law degree. Petitioner practiced medicine in Nicaragua for more than 26 years before immigrating to the United States for political reasons 3/ on March 10, 1988. His reputation as a physician in Nicaragua was excellent. Moreover, he provided at his "White Cross" (also referred to herein as "Cruz Blanca") clinic in the city of Managua, which he established in 1972, free medical services to those who were unable to pay for such services. He also volunteered his time and services to various organizations such as the Nicaraguan Professional Boxing Association, of which he was at one time the President, and the Nicaraguan national baseball team. Petitioner's Application For Licensure As A Physician Approximately 19 months after immigrating to the United States, Petitioner submitted to the Board an application for licensure as a physician pursuant to Section 458.311(10), Florida Statutes. On the application form, under the heading "Medical Education," Petitioner indicated that he had studied at the University's Leon, Nicaragua campus from April 1, 1952, to January 30, 1953, and at the University's Managua, Nicaragua campus from April 1, 1958, to January 30, 1959. He provided no other information under this heading. Under the heading "Practice/Employment," Petitioner indicated that from January 1, 1962, to October 30, 1972, he had seen "[p]rivate [p]atien[t]s" at his "[o]wn [c]linic" in Managua and that from November 1, 1972, to February 20, 1988, he had been the "Director of Internal and Famil[y] Medicine" of the "White Cross of Nicaragua" in Managua. He provided no other information under this heading. On December 1, 1989, the Board sent Petitioner written notification that his application was incomplete for the following reasons, among others: The World Directory of Medical Schools indicates duration of studies six years with one year being a rotating internship and one year social service before you are awarded the Doctor of Medicine and Surgery and registration with the Ministry of Public Health you may engage in private practice. In the form of a sworn affidavit please explain or answer the following questions regarding your application: It appears your studies only lasted 18 mos. (4-52 to 1-30-53) and (4-1-58 to 1-10-59). It is not apparent you completed the required 1 yr social service. Application indicates you were in medical school from 4-1-58 to 1-1-59 and in residency at General Hospital from 1-1-59 to 12-1-59. Please explain the apparent discrepancy. . . . 7. Account for the following time: 2-2-88 to the present. . . . Petitioner responded by writing the Board a letter. The Board received the letter, as well as the attachments Petitioner sent along with it, on January 6, 1990. Petitioner's letter provided in part as follows: Following your letter of December 1, 1989, here are my answers to the questions made to me in order to complete my Application No. 88, within the framework of the law No. 458.311, "Licensure by examination." SEE ENCLOSED ATTACH[MENT] ONE (1).- Studies: 4-1-52 to 12-31-58. I enclose evidence on intense medical practice; when I graduated there was not Social Service for graduated medicine students, however, in addition to the rotatory practice I have 2 internship years. See enclosed Attach[ments] two (2) and three (3) Residency General Hospital from 1-1-59 to 12-31-59. See Enclosed attach[ments] (1) and (3). . . . 7. Since 2-2-88 I live in Miami without practicing my profession; presently I am doing some research and writing two recently finished books. From Miami I am also managing the medical institution "CRUZ BLANCA," of which I am the Director - see enclosed Certificate-; the latter, together with other data-evidence confirms my medical professional practice since I graduated. -See Enclosed attach[ments] (4) and (3). . . . I hope I have completed all the information requested; I will be waiting to hear from you for any other point th[at] may arise regarding my request. Thanks. Attachment (1) referred to in Petitioner's letter was a written statement by Petitioner in which he stated the following: The Medical Education in Nicaragua was of seven years and one year of practice in the General Hospital. The Medical School had two locations respectively in Leon and Managua. My Medical Education was from April 1, 1952, to Dec. 31, 1958 = seven years. MEDICAL EDUCATION Name of Medical School: Medical School of the National University of Nicaragua: LEON- Nicaragua From: April 1, 1952 To: January 30, 1953 April 1, 1953 To: January 30, 1954 April 1, 1954 To: January 30, 1955 April 1, 1955 To: January 30, 1956 April 1, 1956 To: January 30, 1957 April 1, 1957 To: January 30, 1958 Managua- Nicaragua From: April 1, 1958 To: December 31, 1958 There are two months of vacations : February and March, every year. Leon and Managua Nicaragua are the same University in different localities. My INTERNSHIP: General Hospital of Managua from 1-1-59 to 12-31-59. On January 10, 1990, the Board sent Petitioner written notification that his application was still incomplete. In this written notification, the Board requested, among other things, that Petitioner have his letter, "retyped in the form of a sworn affidavit." Petitioner complied with this request and resubmitted the letter, in affidavit form, to the Board, along with other materials. Among the other materials he sent to the Board was a certificate from the Secretary of the Board of Directors of Cruz Blanca, which provided as follows: The undersigned Secretary of the Board of Directors of the Cruz Blanca Institution of Medical Social Service, established according to the laws of the Republic of Nicaragua, issues these presents to certify that Dr. Leon Cesar Delgadillo was our founder in the year nineteen hundred seventy-two and that he has acted as our Medical Director and Executive President of the Board of Directors since then, being also in charge of the responsibility of Internal Medicine. Dr. Leon Cesar Delgadillo is a well-known and experienced doctor in the Republic of Nicaragua. He attended seven years of academic studies at the National University of Nicaragua and one year as intern at the General Hospital of Managua which was destroyed by a devastating earthquake in nineteen hundred and seventy-two. He then became an intern at the Social Security Hospital for one more year followed by another year of residency at the Psychiatric Hospital of Managua, Nicaragua. At that time the Medical Social Service did not exist, but Dr. Delgadillo who has a great human sensibility has practiced Social Medicine at Cruz Blanca. His License to practice both private and institutionally as well as his diploma are legally registered at the Ministry of Health. Dr. Delgadillo is also author of "La Dieta Feliz" (The Happy Diet) a best seller in Nicaragua and Central America and presently he has finished writing two books which will soon be published "VIDA Y SALUD CON FISIODINAMIA" (LIFE AND HEALTH WITH PHYSIODYNAMICA) and an educational novel of intense drama about AIDS titled "INFIERNO EN LA TIERRA" (HELL ON EARTH). Due to political reasons, he has lived in the United States since February 2, 1988, but from there he directs our Institution and has been busy there, in the USA, with the abovementioned books of which he is the author. His degree of Medicine was signed by the President of the Republic because that was the law and practice at that time. On February 19, 1990, the Board, having determined that Petitioner had "substantially complied with the requirements set forth in Section 458.311(10)(a), Florida Statutes," and that it was "likely that [Petitioner would] be able to fully comply with all the requirements," issued an order granting "conditional certification of the application of [Petitioner] pursuant to Section 458.311(10)(a), Florida Statutes," thereby authorizing Petitioner to enroll in the University of Miami's Comprehensive Medical Review Program, which was designed to prepare foreign medical school graduates to take the FLEX licensure examination. Petitioner subsequently enrolled in and successfully completed the program. In response to a letter from the Board indicating what he needed to do to "fully comply with all of the requirements of Section 458.311(10)(a), Florida Statutes," Petitioner sent the Board a letter, dated March 26, 1990, in which he stated, among other things, the "corre[c]t date [he] left [his] country [was] 3- 10-88." On July 10, 1990, Petitioner sent another letter to the Board. In his letter, he stated, among other things, the following: My date and port of entry into E.U. is Miami, Mar. 10-86 and the same day arrived [in] San Francisco. I am newspaper reporter. (see page 3 Immigration Statement). Petitioner enclosed page 3 of the "Immigration Statement" to which he referred in his letter. On this page of the "Immigration Statement," Petitioner had indicated that he was a "travelling correspondent of the news radio 'El Momemto de Radio Mundial de Nicaragua.'" On July 26, 1990, the Board sent Petitioner a letter advising him that he had to submit the following material in order to complete his application file: In the form of a sworn affidavit please account for your activities from the date [you] entered the United States until the present[. Y]ou[r] application and other supporting documents contain discrepancies regarding the exact date, port of entry and your activities in the United [S]tates. INS verification indicates date of entry of 3/10/86. Your letter of July 10, 1990 is not acceptable. In response to this letter, Petitioner submitted to the Board a sworn affidavit, dated August 2, 1990, in which he stated the following: Since I entered [t]he United States [o]n 03-10-88, I have been working as a foreign journalist for a Nicaraguan news agency. On this date I entered into the United States by the International Airport in Miami, Florida. This information is in the Declaration signed by me on March 28th of 1988 and filed in your office. Petitioner applied to take the December 1990 FLEX examination. He submitted the completed application and a $500.00 examination fee to the Board. In a letter, dated October 19, 1990, accompanying the fee, Petitioner reiterated that he was working as a foreign journalist for a news agency. On November 7, 1990, the Board sent Petitioner a letter which contained the following advisement: Pursuant to the Final Order dated February 19, 1990 the following material is required to complete your application file. This material must be received in this office no later than November 14, 1990. The Office of Naturalization and Immigration verifies your date of entry as March 10, 1986; but you give your date of entry as March 10, 1988. Please have INS submit to this office a verification of your exact date of entry into the United States. Information requested above must be received in this office on or before 11/14/90 or you will not be allowed to take the December 1990 FLEX EXAM. Petitioner timely furnished the Board with documentation from the Immigration and Naturalization Service verifying that he entered the United States on March 10, 1988. On November 21, 1990, the Board, through its Executive Director, sent Petitioner the following letter: This is to advise you that your application to take the Course developed by the University of Miami as directed in Chapter 89-374, Laws of Florida, is now complete. Based on your demonstration of full compliance with the requirements of Section 458.311(10)(a), F.S., as amended by 89-541, Laws of Florida, your application will be presented to the Board of Medicine for full certification for the Course at a meeting of the Board November 30,- December 2, 1990. You will not be required to be in attendance at this meeting. Should you have any questions whatsoever, please do not hesitate to contact this office. Petitioner took and failed the December 1990 FLEX examination. He contested his failing grade in a letter received by the Board on March 20, 1991. In his letter, he stated that he was a "Medical Doctor, Ps[y]chologist and Lawyer of Nicaragua" and he accused the Board of discriminating against him and infringing upon his civil rights. Petitioner's examination challenge was referred by the Board to the Division of Administrative Hearings, but was subsequently returned to the Board with the recommendation that the Board dismiss Petitioner's challenge. Petitioner's Application For Certification As A Physician Assistant On or about June 21, 1991, Petitioner filled out an Examination Application for Certification as a Physician Assistant (hereinafter referred to as the "Application"). He thereafter submitted the Application, along with a $400.00 application fee, to the Board. The Board received the Application and fee on June 24, 1991. On the first page of the Application, Petitioner indicated, among other things, that he had received his Doctor of Medicine and Surgery degree from the University on August 11, 1961. On the second page of the Application, Petitioner indicated that on July 1, 1990, his place of residence was Miami, Florida. He further indicated that he wished to be issued a temporary certificate. In response to the question on page 2 of the Application, "Did you attend a college or university," Petitioner answered "no." In response to the question on page 2 of the Application, "Did you receive a degree other than an M.D., to include undergraduate degree," Petitioner also answered "no." On pages 2 and 10 of the Application, Petitioner listed "all places of residence (where lived) during all periods of medical school" as follows: Leon, Leon Nicaragua from April 1, 1952 to January 30, 1958 Managua, Managua, Nicaragua from April 1, 1958 to Dec. 31, 1958 Miam[i], Florida from Feb. 24, 1990 to Nov. 20, 1990. February 24, 1990, to November 1990, was the period that Petitioner attended the University of Miami's Comprehensive Medical Review Program. Petitioner further indicated on pages 2 and 10 of the Application that had attended "medical school" at the Leon campus of the University from April 1, 1952, to January 30, 1958, at the Managua campus of the University from April 1, 1958, to December 31, 1958, and at the University of Miami School of Medicine from February 24, 1990, to November 20, 1990. On pages 2 and 3 of the application form, applicants were asked to provide information regarding their "Postgraduate Training" and "Practice Employment." They were instructed as follows: Account for all time from date of graduation from medical school to present. Do not leave out any time. Under "Postgraduate Training" applicants were requested to "[l]ist in chronological order from date of graduation to present date, all postgraduate training (Internship, Residency, Fellowship)." Petitioner indicated that he was in an internship program at the General Hospital of Managua from January 1, 1959, to December 31, 1959, a residency program at the Social Security Hospital of Managua from January 1, 1960, to December 31, 1960, and another residency program at the Mental Health Hospital in Managua from January 1, 1961, to December 31, 1961. Under "Practice Employment" applicants were requested to "[l]ist in chronological order from date of graduation to present date, all practice experience and/or employment." Petitioner indicated that from November 1, 1972, to February 20, 1988, he was the "Director of Familiar Medicine" at the "White Cross of Nicaragua" in Managua. He listed no other "practice experience and/or employment." On page 8 of the application form, applicants were asked to list their "clerkship(s)" and "all places of residence (where lived) during clerkship(s)." Petitioner indicated that he lived in Managua from January 1, 1959, to December 31, 1959, while in a University-supervised internship program at the General Hospital of Managua, that he lived in Managua from January 1, 1960, to December 31, 1960, while in a University-supervised residency program at the Social Security Hospital of Managua, that he lived in Managua from January 1, 1961 to December 31, 1961, while in a University-supervised residency program at the Mental Health Hospital, and that he lived in Managua from November 1, 1972, to December 20, 1988, while he was the "Director of Medicine Familiar" at the "White Cro[s]s of Nicaragua." On August 2, 1991, the Board's Physician Assistant Section (hereinafter referred to as the "Section") sent Petitioner a letter advising him that his Application was incomplete because he failed to submit the following: An accounting of your activities for the following period(s) of time: clerkships from 12/61 to 11/72, 2/88 to 12/88, 12/88 to 2/90, page 3 application practice employment 2/88 to present. page 2 application did you attend a college or university you marked NO explain. page 4 application question 8 you marked NO correct and resubmit. Petitioner responded to this letter by submitting to the Section an affidavit dated August 7, 1991, in which he stated the following: Page 2 application; I attend at the Universidad Nacional Autonoma de Nicaragua, UNAN. [University].- Leon and Managua, Nicaragua April 1, 52 to December 31, 58. Also I attend 5 years Universidad Centro- Americana, UCA [Central American University] degree Psichologist. Clerkships: from 12/61 to 11/72 own private medicine. From 2/88, 12/88 to 2/90, 2/88 to present: In E.U.; don't work in medicine. Question 8, page 4 application question: since I live in E.U. from 2/88 to present don't work in Medicine for do not have license of M.D. On August 26, 1991, the Section sent Petitioner a letter advising him that his Application was still incomplete. The letter further provided as follows: In your affidavit of August 7, 1991 (copy attached) you indicated that you attended Universidad Centro-Americana, UCA for 5 years and obtained a degree in Psichologist. Please submit diploma and transcripts and translations of transcripts, notarized as stated above, dates of attendance and where the university is located. Please resubmit pages 8 and 9 (attached) listing only core clerkships while attending medical school at Universidad Nacional Autonoma de Nicaragua UNAN. Be specific with dates, location of hospital, institution or individual where clerkship was performed or supervised. List affiliate University/College. We need one additional acceptable source of documentation of Florida residency on July 1, 1990, notarized as stated above. It must verify residency covering the period of July 1, 1990. Please account for your activities for the following periods of time, listing in chronological order from date of graduation to present date, including all practice experience and/or employment or unemployment: From February 20, 1988 to present. Petitioner responded by letter dated August 29, 1991. In his letter, Petitioner argued that it was not necessary for him to provide any additional information regarding his psychology degree because such information was "impertinent or irrelevant." He further contended that he had "sufficiently explained" the "other points [in the Section's August 26, 1991] letter (2,3,4)." In addition, he invited the Section, if it wanted more detailed information about his past, to examine the materials in his physician licensure application file (hereinafter referred to as "File No. 88"). The Section followed Petitioner's suggestion and reviewed his File No. 88. Not having received any response to his August 29, 1991, letter, Petitioner, on September 23, 1991, sent the Section another letter complaining about the "harassment and intimidation" to which, according to him, he was being subjected by the Section. The Section, on October 15, 1991, wrote to Petitioner and advised him that he needed to do the following to complete his Application: In your affidavit of August 7, 1991 and in your "declaration" notarized on March 26, 1990, you stated that you had completed a Bachelors degree in Psychology; and stated that you attended Jesuit University in Nicaragua where you "finished the school of law." Please substantiate these statements with the appropriate documentation and dates of attendance. You have submitted a certificate issued December 15, 1989 from the Nicaraguan Board of Pharmacy indicating your registration in their books. Please send a notarized copy of the license and/or certificate required to prescribe drugs in Nicaragua. In your declaration of March 26, 1990, you state that you are enclosing several documents, none of which were enclosed. Among those documents was a "medical file of U.C. Davis (University of California, Davis) Medical Center of Sacremento of March 19, 1988." Please provide all reports of treatment and/or evaluation from the Medical Center of Sacremento to include diagnosis and prognosis. We need one additional source of information of Florida residency on July 1, 1990, notarized as stated above. It must verify residency covering the period of July 1, 1990. Please resubmit pages 8 and 9 (enclosed) listing only core clerkships and rotations while attending medical school at Universidad Autonoma de Nicaragua. Be specific with dates, location of hospital, institution or individual where the clerkships was performed or supervised. List affiliate University or College. You have failed to respond adequately to questions concerning your activities from the time of your graduation from medical school until the present time. On page 3 of the application form (enclosed) please complete the information under "practice experience" as instructed. List all practice experience and/or employment, including month, day and year of practice and/or employment. Do not leave out any period of time. Your application will not be considered complete until you have adequately explained your activities from graduation until the present. You have reported your date of entry into the United States as a Nicaraguan exile as: March 10, 1986; February 6, 1988; February 23, 1987; February 2, 1988 and March 10, 1988, in letters and affidavits prepared by you. Please explain these discrepancies. Also we have received two conflicting statements from the Immigration and Naturalization Service regarding your date of entry as an exile. It will be necessary for you to request an explanation from the Immigration and Naturalization Service to clarify their conflicting documents. Petitioner responded by letter dated October 23, 1991. In his letter, he stated the following: I see you have my file 88 of the Board of Medicine. I am attempting to reconcile your accustomed hostility and for this reason I send you letter Nov. 21/90 of "full compliance from Dorothy Faircloth, Executive Director, Florida Board of Medicine. Please, you think, think, think . . . and you don't contradict and the Board of Medicine and its Executive Director. For politeness I send you "personal documents" and I feel you are intimidateing to me or also You are inciteing to me at to lie. Documents: Letter Florida Board of Medicine 11/21/90 Original FPL's Bill Jul. Aug. -Ju Jul. -May. Jun., 90 Medical File of U.C. Davis . . . Sacramento . . . "PRIVATE" Two Verifications of Information from Migration . . . Below Signed for Richard B. Smith (on Yellow) District Director. - You don't have jurisdiction in this. (Abuse of authority). -Bachelors in Psychology and "finihes the school of law" degree is impertinent and irrelevant to Physician Assistant Section and all this in Nicaragua. -I have only certificate from the Nic. Board of Pharmacy. -Clerkship only General Hospital of Managua, Social Security Hospital, and Mental Health Hospital. After private medicine all time. You are harassing to me, intimidateing and abuseing of my civil rights and I will have to go at the Judge; You are having to me damage. 4/ On November 14, 1991, the Section sent Petitioner a letter advising him that his application was still incomplete and repeating the requests made in numbered paragraphs 1, 5, 6 and 7 of its October 15, 1991, letter to Petitioner. The letter, like the previous letters the Section had sent him, was unsigned. Petitioner responded by letter dated November 18, 1991, in which he stated the following: I have full my file by Physician Assistant and please, I don't want "nobody else" your anonymous letter, without signature and full of bureaucratic harassment. My rights I will debate it in the instance of Law that it concern. At the bottom of the letter, under Petitioner's signature, was a "Postscript," dated November 20, 1991, which read as follows: I send you fotocopy of Immigration and Naturalization service; "fast" you will have original from Immigration by mail. You don't have jurisdiction on matter of Immigration and your hostility is it "abuse of authority" and also is illegal. You infringe my civil rights. "We have to avoid the risorgimento of the Nazism and the Ku Klux Klan (KKK) in all the sectors," this involve: Racialism, Prepotency, irrationality, intolerance, perversion, terrorism, intimidation . . . etc. and it is crime of hate (Law by crime of hate F.S. 1989) The Section next communicated with Petitioner by letter dated December 17, 1991. The letter advised Petitioner that he needed to do the following to complete his application: Translation of medical school diploma, prepared as instructed: The translation of the diploma is a copy and is not notarized as stated above; the translation does not indicate that it was done by a certified translator. Translations must be done by a certified translator and bear his seal or statement of certification. Please provide the translator with a copy of criteria for translation (enclosed). Translations or transcripts, prepared as instructed: The notary did not affix the seal to the translation of the transcripts. The translation is a copy and as such must be notarized as is stated above. On page 2 of the application under Medical Education your dates of attendance at the University of Nicaragua do not agree with your previous application, (exile file #88). PA Application: Med School: 4/1/52-1/30/58 Exile File #88: " " 4/1/52-1/30/53 and 4/1/58-1/30/59 Please clarify these discrepancies in affidavit form. Please resubmit pages 8 and 9 of the application to indicate your core clinical clerkships only. List specific date(s), type of rotation, and name and location of hospital, institution or individual where clerkship was performed or supervised. List affiliate University/College. An accounting of your activities for the following period(s) of time: 12/31/61 to 11/1/72. List all practice experience and/or employment, do not leave out any period of time. The Aids certificate submitted does not indicate AMA approved category I. Please submit proof of AMA Category I approved training, or request in affidavit form a 6 month extension in order to obtain AMA approved Category I course. Petitioner responded by affidavit dated December 31, 1991, to which he appended various documents, including a revised version of pages 8 and 9 of his Application as requested in numbered paragraph 4 of the Section's December 17, 1991, letter. In the affidavit, Petitioner stated the following: Translation of medical school diploma, prepared as instructed: notarized, the translation was done by a certified translator and it has or bear his seal and statement of certification. There are in Exile file No. 88 and my file for Certification as a Physician Assistant in each one, respective translation of the diploma "full criteria of law for translation." Translations was prepared by a Certified translator of Professional Traslating Services, Inc.- Suite 540, Courthouse Tower Building.- 44 West Flaguer Street.- Miami, Florida 33130 Phone: (305) 371-7887 I ask for please, send to me fotocopy of each one, file No. 88 and PA application, in order to delimitate responsibility. Translations of transcripts, prepared as instructed: The notary affixed the seal to the translation of the transcripts and it was notarized. Please, send to me fotocopy of each one, file No. 88 and PA application to delimitate responsibility. The discrepancies of dates under Medical Education of attendance at the University of Nicaragua was clarified on letter notarized January 19, 1990 in reply letter of December 1, 1989 by William R. Flynn, Senior Clerk, Department of Professional Regulation Board of Medicine, paragraph No. 1 file No. 88 (attached fotocopy) and affidavit of the 7th day of August, 1991 in reply your letter of the august 2, 1991 paragraph No. 1, that have your OK on the left margin (to see attached fotocopy). Confirmation Date: Med. School, April 1, 1952 to December 31, 1958.- Application Physician Assistant Section. These discrepancies are result of mistake in the transcription and dates and numbers at the remote time and distance and it was in opportune moment clarified. But it is more important to appoint that the application for certification as a Physician Assistant of the 21 day of June, 1991 page 2 and 10 they are with its correct dates and that your letter 12/17/91 paragraph 3 are free Objections I am incorporating as pages 3 and 4 in this affidavit the corresponding pages 8 and 9 of the application to indicate my core clinical clerkships; really this question was formulate with confused and ambiguous terms. My application is concrete and certain, page "8" application for certification as Physician Assistant. From 12/31/61 to 11/1/72 own private medicine; See affidavit of the 7th day of August, 1991, attached fotocopy. The AIDS certificate of Miami Dade Community Dade, Medical Center Campus for Allied Health Professions. Attached program; You will receive direct information of the Miami-Dade Community College Med. Center Campus. Petitioner, after receiving the Section's December 17, 1991, letter, also sent a letter to Vytas Urba, an assistant general counsel with the Department of Professional Regulation. In his letter, he accused the Section of acting with "madness and hatred" and claimed that he was the victim of a "conspiracy" to violate his civil rights that had resulted in damages of $99,999.99. By affidavit dated January 14, 1992, Petitioner requested that the Section give him a "6 month extension in order to obtain an AMA, AIDS certificate approved Category I course." Among the documents appended to the affidavit was a translation of his "Medical School Diploma." On January 28, 1992, the Section sent Petitioner a letter, which indicated that "the following [was] necessary to complete [his] application:" While you have stated on several occasions that you have not practiced medicine since arriving in the United States, you have not responded to questions regarding your activity or employment. It is not enough to merely state that you are not practicing medicine, you must account for your activities from 3/10/88 until the present. You have previously stated that you are a correspondent for Nicaraguan newspaper and radio station but have not substantiated this employment with any information. This will be the THIRD REQUEST for you to account for your activities from 3/10/88 until the present. Please complete the enclosed page 3 of the application as instructed. You must identify, by address and location the names of all employers, or state in affidavit form that you have not been employed in any way since 3/10/88. You have previously stated that in the period from 12/61 to 11/72 that you had a private practice in Managua. You have not identified what type of practice this was. What specialty, or field of medicine did you practice during this time. Your affidavit of 7 August 1991 states that you attended for 5 years the Universidad Centro-Americana, and that you received a degree of "Psichologist" from this school. Please provide the location of this school and the dates of your attendance. Your previous response that this information is "irrelevant" is not acceptable. You have voluntarily submitted this affidavit, which conflicts with other statements that you have made regarding your activities and you must verify the location of the school and dates of attendance. The translation of your diploma recently submitted is returned; this document is obviously a copy. Any copy must be notarized as is stated above. Your previous application does not contain a copy of this translation that is notarized as required. Please resubmit a translation of your diploma that is either an original document or properly notarized. The translation of your transcripts was also a copy that was not notarized however there was an acceptable copy in your previous application. With regard to HIV/AIDS training your request for a six month extension is accepted. The instructions provided with the application clearly state that this training must be AMA Category I approved training. This information should be requested of the provider prior to taking any HIV/AIDS course. You may enquire of Miami Dade Community College as to whether they are authorized to provide AMA Category I training. If they can provide you with verification of this course being AMA Category I approved, the training will be accepted upon receipt of this verification. Petitioner responded by affidavit dated February 10, 1992, in which he stated the following: There are in file No. 88 letter January 19, 90 . . . . notarized DOCUMENTS with my activities from 3/10/88 until the present, question 1 and the period from 12/61 to 11/72 my private practice in Managua, question 2 (attached); also affidavit 22th day of August, 1990 and notarized letter January 19, 1990 (attached fotocopy) over-marked on green. Next page I ratify and complement question number 1 and I state that in the period from 12/61 to 11/72 I practiced Familiar Medicine, question number 2. I attended for 5 years at the Universidad Centro-Americana, - from 1969 to 1972, this University in Managua, Nicaragua, C.A. (Re: question number 3). - Psichology School. I resubmit (THIRD TIME) my diploma notarized as required; please send me two previous documents submitted. I requested at the Florida Board of Medicine, Physician Assistant Section through Cecilia Abrahansem (Director) . . . to eliminate the unlawful monopoly with HIV/AIDS AMA Category I course. I am foreign journalist for "El Momento" Nicaraguan news agency, Radioperiodico El Momento, RADIO MUNDIAL, Managua, Nicaragua. This activity until the present. (From 1/30/88 to present) Among the documents appended to the affidavit was a revised version of page 3 of Petitioner's Application, which reflected, in addition to his previously disclosed employment with the "White Cross" as its "Director of Familiar Medicine" from November 11, 1972, to February 20, 1998, his employment as a "Foreign Journalist" with "El Momemto Nicaraguan news agency" from "1/30/88 To: the present." By letter dated June 4, 1992, Petitioner was directed to appear before the Physician Assistant Committee of the Board (hereinafter referred to as the "Committee") at its June 12, 1992, meeting. Petitioner appeared before the Committee at its June 12, 1992, meeting as directed. Inasmuch as he has substantial difficulty understanding, and communicating effectively in, English, the Committee provided Petitioner with the services of an interpreter. Members of the Committee asked Petitioner various questions. The questions were asked in English and translated to Spanish, Petitioner's native language, by the interpreter. Petitioner responded in Spanish. The interpreter translated his responses to English for the benefit of the Committee. Asked when he had arrived in the United States, Petitioner responded, "March 10, 1988." He was then asked when he had last practiced medicine. His initial response was, "in Managua, Nicaragua." After the question was repeated, however, he answered, "before this time." In response to the question of whether he had had any exposure to the practice of medicine since his arrival in the United States, Petitioner stated, "never here in the States." Petitioner told the Committee, in response to their inquiry regarding the matter, that since his arrival in the United States he had been "a writer and a reporter." Petitioner responded in the affirmative when asked if his only exposure to medicine since he had been in the United States was the intensive review course he had taken at the University of Miami from February to November, 1990. Petitioner was asked whether he had gone to law school. After responding in the affirmative, he was asked when he had gone to law school. Petitioner answered that he was unable to give an "exact date," but it had been "about five years before he [had] left the country." He added that he had gone to law school at night. Asked whether he had received a law degree, Petitioner responded that he "couldn't" because it "wasn't possible . . . politically." At no time in responding to the Committee's questions or during any other phase of the application process did Petitioner knowingly provide false information or withhold pertinent information with the intent to mislead or deceive those evaluating his Application about his qualifications to be certified as a physician assistant. Any inaccuracies or omissions in the information he provided was the product of, not an intentional effort to defraud, but rather either inadvertence, carelessness, faulty or limited recall, misunderstanding, limited English language comprehension and communication skills, 5/ or a good faith belief that the information in question was not germane. After questioning Petitioner, the Committee voted to deny Petitioner's Application. On August 15, 1992, the Board issued a written order denying the Application on the following grounds: Your failure to submit a properly completed application. You have demonstrated a lack of good moral character based upon your testimony and inconsistent and evasive answers. The Board has also determined that based upon review of your application and documentation, and due to the extended length of time since you last worked in the field of medicine, and because of the length of time since any significant medical education or training has taken place, you have not established that you are currently able to practice as a physician assistant with reasonable skill and safety to the public. Petitioner's Other Activities Since His Arrival in the U.S. As he attempted to make clear during the application process, Petitioner has not engaged in the practice of medicine in the United States since his arrival in this country. He has studied medicine on his own, as well as performed medical- related research in connection with several books he has written, however. He has also done volunteer work for the Red Cross. Petitioner has continued to direct and administer from the United States the operations of the "White Cross" clinic. Recently, he has started to again visit the clinic on a fairly regular basis and treat patients. The first of these post-March 10, 1988, visits occurred sometime in 1992. Since 1988, Petitioner has not received any compensation for the work he has performed for the clinic. In addition to the foregoing activities, Petitioner has worked as a journalist since coming to the United States as he indicated on the revised version of page 3 of his Application. Petitioner has not lost the ability he demonstrated throughout his many years of practice in Nicaragua before immigrating to the United States to treat patients in a safe and effective manner. He is currently able to practice as a physician assistant with reasonable skill and safety to the public, notwithstanding that he may have had some difficulty in following the instructions he was given (in English) by the Section during the application process and providing the Section with the information he desired. 6/ Furthermore, Petitioner is of good moral character.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board enter a final order certifying that Petitioner is eligible to take the examination for certification as a physician assistant pursuant to Section 458.347(7)(b), Florida Statutes, and granting him temporary certification pursuant to Section 458.347(7)(b)2., Florida Statutes, pending the results of the examination. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of June, 1993. STUART M. LERNER 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 3rd day of June, 1993.
Findings Of Fact Jack I. Newcomer, a foreign medical school graduate, applied for licensure by endorsement and the Board of Medical Examiners considered his application on April 12, 1985. Newcomer's application was denied by Order of the Board dated May 9, 1985, on the following ground: The applicant's supervised clinical training was not obtained in either a hospital affiliated with a medical school approved by the Council on Medical Education of the American Medical Association or in a residency program approved by the Accreditation Council for Graduate Medical Education as required by Florida Administrative Code Rule 21M21.18[sic]. Pierre Andre, M.D., a foreign medical-school graduate certified by the Educational Commission for Foreign Medical Graduates (ECFMG) applied for licensure by endorsement. Andre had passed the ECFMG examination and also the Foreign Licensure Examination (FLEX). The Board considered his application, and denied said application on the ground that his supervised training was not obtained in either a hospital affiliated with a medical school accredited by the Liaison Committee on Medical Education or in a residency program accredited by the Accreditation Council for Graduate Medical Education in the specialty area in which his clinical training was obtained as required by Rule 21M-22.18, Florida Administrative Code. The Board adopted Rule 21M-22.18, which took effect on November 28, 1984, and it provided: Foreign Medical Graduates: Qualification Requirements. Before any foreign medical school graduate, except a graduate of an approved school in Canada is admitted to take the written licensure examination or be licensed by endorsements[sic], he or she must demonstrate (in addition to other requirements set forth in Chapter 458, F.S.) that the supervised clinical training received in the United States as part of the curriculum of the foreign medical school was obtained either in a hospital affiliated with a medical school approved by the Council on Medical Education of the American Medical Association or in a residency program approved by the Accreditation Council for Graduate Medical Education. The Board subsequently amended Rule 21M-22.18, and the amendment took effect March 13, 1985, to provide: Foreign Medical Graduates: Qualification Requirements. Before any graduate of a medical school not accredited by the Liaison Committee on Medical Education, except a graduate of an accredited school in Canada, is admitted to take the written licensure examination or be licensed by endorsement; he or she must demonstrate (in addition to other requirements set forth in Chapter 458, F.S.) that the supervised clinical training received in the United States as part of the curriculum of the medical school was obtained either in a hospital affiliated with a medical school accredited by the Liaison Committee on Medical Education or in a residency program accredited by the Accreditation Council for Graduate Medical Education in the specialty area in which the clinical training is being obtained. This rule, as well as its amendment, were adopted to implement Sections 458.311 and 458.313(4), Florida Statutes. The parties stipulated at the hearing that only Rule 21M-22.18 as originally enacted was applied to Petitioners and not the amendment which took effect March 13, 1985. According to Charles P. Gibbs, M.D., Assistant Dean for Curriculum at Shands Teaching Hospital and former chairman of the clerkship committee at Shands, clerkships are an essential part of a medical education because they are the first time the student is introduced to the real practice of medicine and contact with patients. Clerkships occur in the third and fourth years of a medical education, after the student has had courses in the basic sciences, pathology, pharmacology and an introduction to clinical medicine. During a clerkship, the student participates as part of a team and does patient histories, physicals, participates in discussions about patient care, observes operations and attends lectures. Dr. Gibbs testified that written exams, such as FLEX or the National Board, are important in measuring a student's cognitive knowledge and determining minimum qualifications, but cannot measure clinical qualities of a doctor such as how he relates to patients and reacts in stress situations, how he works with colleagues, and how he communicates. Clerkships are important in determining a student's performance level in these clinical qualities. The Liaison Committee on Medical Education has adopted standards for the accreditation of medical education programs which were ratified by the Council on Medical Education of the American Medical Association on March 1, 1985, and the Executive Council of the Association of American Medical Colleges on April 4, 1985, and which state in part: The traditional required clinical subjects, which should be offered in the form of required experiences in patient care (customarily called clerkships), are internal medicine, obstetrics and gynecology, pediatrics, psychiatry and surgery. Additionally, many schools require a clerkship in family medicine . . . . The curriculum must provide grounding in the body of knowledge represented in the disciplines that support the fundamental clinical subjects, for example, diagnostic imaging and clinical pathology. Students must have opportunities to gain knowledge in those content areas that incorporate several disciplines in providing medical care, for example, emergency medicine and the care of the elderly and disabled. In addition, students should have the opportunity to participate in research and other scholarly activities of the faculty. Robert B. Katims, M.D., testified as a member of the Board and Chairman of the Foreign Medical Graduates Committee of the Board. As Committee Chairman he had noted problems with the clinical experience being received by graduates of certain foreign medical schools that are not accredited and that are relatively new schools whose primary purpose is to train United States students rather than their own nationals. Dr. Katims observed that problems with the clinical experience offered at these schools arise because there are not enough teaching hospitals in some foreign countries, and therefore students cannot receive clinical training in those countries through a clerkship. Instead, they must arrange their own clinical experience, usually a preceptorship, in the United States. A preceptorship differs substantially from a clerkship in that it is usually either a one on one affiliation with a practicing physician with very little structured training, or occurs at an outpatient prepaid health plan facility. Dr. Katims testified that preceptorships do not meet the clinical training standards of the Liaison Committee on Medical Education, and do not represent supervised clinical training.
Findings Of Fact Petitioner was born in Cuba and came to the United States in the Mariel boatlift in 1980. Petitioner applied for licensure by endorsement as a registered nurse in Florida in November, 1983, based upon his nursing education received in Cuba at a military hospital. His application alleged a graduation date of August 21, 1968. Petitioner was initially approved for licensure by endorsement pending completion of a refresher course. Subsequent to that approval, the Board of Nursing determined additional documentation would be required from applicants whose only substantiation of a Cuban nursing education had been provided by the Cuban nurses in Exile, as had Petitioner's. Petitioner submitted to the Board the affidavit of an employer in Cuba and the affidavits of Fermin Bello and Alejandro Gonzalez. Petitioner appeared at a meeting of the Board of Nursing on October 16-17, 1984, for consideration of the additional information and of his application. On October 17, 1984, the Board of Nursing voted to deny Petitioner's application for licensure by endorsement due to his failure to provide competent substantial evidence of Cuban licensure. In its review of Petitioner's application, the Board questioned Petitioner's date of graduation due to inconsistent statements contained in the documents provided by Petitioner, namely, a sworn statement given to the United States Department of Justice Immigration and Naturalization Service on May 16, 1980, and Petitioner's application for employment at Hialeah Convalescent Home completed by Petitioner on March 29, 1982. The INS statement does not reflect graduation from any nursing school, while it appears from his employment application that Petitioner graduated from nursing school in 1979. The date of graduation of a Cuban nurse is relevant to the Board due to its ability to rely on the education of Cuban nurses graduated during certain time periods. The conflict in Petitioner's alleged date of graduation, if any, became even more pronounced at the final hearing in this cause as a result of the exhibits stipulated into evidence and the testimony presented by Petitioner. For example, the sworn statement given to the INS, while failing to reflect graduation from any nursing school, states only that Petitioner attended nursing school somewhere during the time period between 1973 and 1977, states that Petitioner worked as a "soldier-nurse" while in the military service between 1967 and 1971, and states for the five years preceding that statement Petitioner's employment was as a maintenance foreman. While Petitioner's application for employment at Hialeah Convalescent Home states that he graduated from nursing school in 1979, he testified at the final hearing that he graduated from nursing school in 1968. As vague as Petitioner's graduation date from nursing school is his licensure as a nurse in Cuba. Although he testified that he was licensed when he graduated in 1968 by virtue of being given a "certificate diploma" and also that he was licensed in 1970 by virtue of having been given an ID card, in his application for licensure filed with the Board of Nursing Petitioner answered "No" to the question "Do you now hold or have you ever held a license to practice nursing (registered or practical) in Florida, in any other state, or in any other jurisdiction or country?". Similarly, on his application for licensure with the Board of Nursing Petitioner denied ever having been arrested regardless of adjudication for any offense other than a minor traffic violation. At the final hearing and at the time he gave his sworn statement to the Immigration and Naturalization Service, however, Petitioner freely spoke of being arrested and spending time in jail as a result of attempting to blow up a bridge in order to kill a commandant. Petitioner further told the INS that he was not sentenced for that crime because the authorities believed him to be crazy. Petitioner also told the INS that he spent 10 months in jail in 1970 while he testified at the final hearing that he spent 18 months in jail. Petitioner testified at the final hearing in this cause in Spanish through the services of an interpreter. The one attempt to obtain Petitioner's testimony in English was unsuccessful and more difficult than is reflected by the transcript of proceedings filed herein. Although Petitioner's application for employment wit Hialeah Convalescent Home states that he reads, writes and speaks English fluently, that representation is clearly not true, and Petitioner's command of the English language is highly questionable.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law , it is, RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure by endorsement as a registered nurse in Florida. DONE and RECOMMENDED this 17th day of April, 1986, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1986. COPIES FURNISHED: Deborah D. Hart Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Thomas F. Pepe, Esquire Penthouse 1230 Barnett Bank Building 2600 Douglas Road Coral Gables, Florida 33134 Judie Ritter, Executive Director Board of Nursing Room 504, 111 East Coastline Drive Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 APPENDIX Petitioner's Proposed Finding of Fact numbered 1 has been adopted as modified to conform with the evidence. Petitioner's Proposed Findings of Fact numbered 2 and 3 have been rejected as not being supported by the evidence. The following Proposed Findings of Fact of Respondent have either been adopted verbatim or have been adopted as modified to conform with the evidence, style. or accuracy: 1, 2, 3, and 5. The following Proposed Findings of Fact of Respondent have been rejected as not constituting Findings of Fact but as constituting argument of counsel, conclusions of law, or recitations of the testimony: 4, and 6-9. ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF NURSING ALBERTO VIERA, Petitioner, vs. Case No. 85-1483 DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF NURSING, Respondent. /
The Issue Whether the proposed changes to proposed Rule 64B-5.001 published in the Florida Law Weekly (FAW) on December 17, 2004, (the proposed changes), constitute an invalid exercise of delegated legislative authority pursuant to the provisions of Section 120.56(1) and (2), Florida Statutes (2004).1 Whether the proposed changes are inconsistent with the Final Order entered in DOAH Case 04-3172RP on November 23, 2004.
The Issue The issue in this case is whether the Petitioner, Rene Delgado Leon, M.D., is eligible for examination for licensure to practice medicine in the state of Florida. The Petitioner, of course, contends that he is eligible. The Respondent, Board of Medical Examiners, contends that the Petitioner has failed to demonstrate eligibility, having previously advised him, inter alia: Your application and supporting documentation contained substantial omissions of material information relative to your medical education. Additionally, your application and supporting documentation does not provide sufficient information to demonstrate that you can practice medicine with reasonable skill and safety. See Section 458.301, Florida Statutes.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. The Petitioner, Dr. Rene Pedizo Delgado Leon, was born on November 26, 1936, in Cuba. All of his formal education prior to medical school was obtained in Cuba. He attended medical schools, off and on, at various times and places between 1955 and June of 1980. His medical education commenced in 1955 at the Medical School of the University of Havana and ended when he-was awarded his medical degree from the University of Dominica in June of 1980. The Petitioner's first language was Spanish and he is not completely fluent in the English language. When communicating in English he appears to have a tendency to interpret statements and questions in a very literal manner. The Petitioner does not appear to have intended to deceive the Board of Medical Examiners or to misrepresent information about his education and experience. Nevertheless, he has not been very clear about a number of details. Since receiving his degree from the University of Dominica in 1980, the Petitioner has completed a residency in pathology, has passed the FLEX exam in conjunction with his application for licensure in the state of Georgia, and has been licensed to practice medicine in the state of Georgia. There were several discrepancies between information given by the Petitioner to the Board of Medical Examiners and to the Hearing Officer concerning various aspects of his background, particularly concerning his medical education. With regard to his medical education, Petitioner listed on his first application that he attended medical school in Havana, Cuba, from April 1954 until December 1962. On his second application he stated that he attended medical school in Havana, Cuba, from September 1955 until September 1960. He testified before the Foreign Medical Graduate Committee that he attended medical school at the University of Havana from 1955 until 1962. At the final hearing he testified that he attended the University of Havana from 1955 until 1962. On his first application, in response to the direction that he list all universities or colleges where he attended classes and received training as a medical student, he stated only that he attended the University of Dominica from June of 1977 until June of 1980. He subsequently filed a form, received by the Board on October 26, 1983, stating that he had attended the University of Zaragoza, Zaragoza, Spain, and received training as a medical student from November of 1974 until April of 1975. On his second application, he stated that he had attended the University of Zaragoza as a medical student from November of 1974 until April of 1975. At the final hearing he testified that in 1973 while he was in Zaragoza he applied to revalidate old courses taken in Havana and that thereafter he took all examinations up to the third year. He stated that he took other courses in Zaragoza, but that he did not take the examinations for any of the medical courses taken in Zaragoza. He also testified that he was given credit for courses at Zaragoza even though he did not take the examinations. The next segment of his medical education was consistently testified to as having been had at the Universidad Central del Este in the Dominican Republic. He attended the Universidad Central del Este for only one semester, during which he took six or seven subjects. He testified that Universidad Central del Este did give him some credit for the third year of medical school; in spite of the fact that he did not take examinations in any of the third-year courses he took in Zaragoza. In January of 1979 he transferred to Universidad Nordestana and spent approximately one year there. Univeraidad Nordestana gave him two and one half to three years of credit. Although his initial application showed that he had attended the University of Dominica in the West Indies from June of 1977 until June of 1980, his subsequent written and oral testimony was that he was enrolled at the University of Dominica only from January of 1980 until June of 1980. He testified before the Foreign Medical Graduate Committee that at the time he transferred from Nordestana, he was basically finished with his medical education and he said he transferred to Dominica because they did not talk in English in Santo Domingo. He also testified that he transferred to Dominica so that he could get some exposure to how medicine was practiced in the United States. Petitioner testified that although he transferred to the University of Dominica and he received his degree from the University of Dominica six months after he transferred there, he did not pay any monies to the University of Dominica. His explanation of why he did not pay money to the University of Dominica is that he wrote things for them, like a pathology booklet. The application form which Petitioner completed requested that he specify all places of residence since beginning medical training. On his first application he showed that he resided in Dominica, West Indies, from January of 1980 until June of 1980. On his second application he listed as residences since initiation of medical training only the University of Miami, Jackson Memorial, VA Hospital, and the University of South Florida, Tampa. In August of 1983 he followed up the second application with a letter to Mrs. Faircloth which stated that his place of residence while attending medical school was the "students quarters and dormitories" at Portsmouth, University of Dominica, West Indies. However, at the hearing before the Foreign Medical Graduate Committee and at the final hearing, Petitioner admitted that he was, in fact, on the campus of the University of Dominica only one day, and that was on graduation day. In fact, when he testified before the Foreign Medical Graduate Committee, he was specifically asked, "When you left Nordestana, where did you go?" To that question he replied, "Oh, to Dominica." However, he later admitted that when he left Nordestana, he went to Miami and he did not go to Dominica until he went six months later in order to graduate. On both of his written applications, Petitioner was asked to list the degrees earned other than M.D. On neither application did he list a bachelor's degree. Yet, in testimony before the Committee and at the final hearing, he testified that he had earned the equivalent of a B.S. in chemistry at the University of Havana. He testified that the reason that he omitted it was that he thought the question referred to medical education. However; in response to the same question, he listed that he had obtained a Licensee in Science and a Doctor in Science from the University of Zaragoza. With regard to the matter of what clerkships, if any, Petitioner performed as part of his medical education, the record shows that he was enrolled at the University of Dominica, the school from which he received a medical degree, from January or February of 1980 until June of 1980. The record also shows that during that five- or six-month period he performed what purported to be clerkships at the VA Hospital and at Coral Gables Hospital, in Miami, and at the same time was an employee of the VA Hospital. He testified that his clerkship at the VA Hospital was in pathology and that he was employed full time in the same area as he was receiving clerkship credit. He arranged the clerkships himself and informed the university of the clerkships. He testified that he did the same activities as the other clerks did, but he worked approximately forty hours and they worked thirty to forty hours. He effected his transfer to the University of Dominica by writing to the New York office and by taking some "required" examinations in basic sciences and clinical studies. He took the examinations in Miami and passed everything but gynecology. He eventually passed gynecology, but not until May of 1980 after he had almost completed clerkships. He testified that when he did his "rotation" at the VA Hospital, he was told that he could "moonlight." He testified that he did all of the autopsies while the other medical students watched. He testified that he went in to work at about 7:00 a.m. and left around 4:00 p.m. and that the other residents did not arrive until about 8:00 a.m. However, he did testify that the clerks arrived at 6:00 a.m. Petitioner testified that he was doing a clerkship at the time, not a residency, and that it was the extra time that he put in that justified his being both paid and given credit for an educational experience. Dr. Robert M. Clark was Petitioner's supervisor during the period of approximately January of 1980 until June of 1980. Petitioner worked in the morgue as a Physician's Assistant and also did "resident physician work." Petitioner was paid at the same time as he was doing a rotation because there was a shortage of residents. Petitioner had the same exposure to pathology as the other residents, all of whom were from the University of Miami. None of the other students were paid employees. A Physician's Assistant requires two years of medical school. Dr. Clark was introduced to Petitioner by Dr. Kuhnhardt. Dr. Kuhnhardt was not connected in any way with the medical school at the University of Dominica. The only other purported clerkship about which there was testimony at the hearing related to a clerkship at Coral Gables Hospital. That clerkship was under Dr. Hurst. That clerkship was done from January of 1980 until June of 1980, the same period during which the clerkship at the VA Hospital was done. Petitioner testified that he went to Coral Gables Hospital after he left the VA Hospital, usually after 4:00 p.m., and stayed however long was necessary, possibly as late as 8:00 or midnight. Dr. Hurst only let the students observe medical procedures. That clerkship was conducted in a community hospital. As for the supervision by the school, the testimony was that the school played no role in arranging the clerkships. Petitioner testified that people from the school came for general meetings every once in a while during the clerkships. As for evaluation, Petitioner testified that the school sent evaluation forms to him and he distributed the forms to whoever was supervising him.
Recommendation Based upon all of the foregoing it is my recommendation, because of the contradictions and uncertainties on the record in this case regarding the nature of the Petitioner's medical education, that the Board of Medical Examiner issue a final order denying the Petitioner's application for licensure by examination without prejudice to the filing of any future application for licensure by examination or endorsement, unless; for reasons analogous to those set forth in the Lopez decision, supra, the Board is persuaded that the shortcomings in the application and its supporting evidence may be overlooked in light of the Petitioner's achievements since 1980. DONE AND ORDERED this 3rd day of January, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1986. COPIES FURNISHED: M. Catherine Lannon, Esquire Assistant Attorney General Department of Legal Affairs Room LL-04, The Capitol Tallahassee, Florida 32301 Jorge A. Sibila, Esquire 2751 Coral Way Miami, Florida 33145 Dorothy Faircloth; Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche; Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 APPENDIX The following are my specific rulings on each of the proposed findings of fact submitted by each of the parties. Rulings on Petitioner's proposed findings: The Petitioner's proposed findings of fact consist of a two- line introductory clause and six unnumbered indented paragraphs. The six unnumbered indented paragraphs are addressed below in the order in which they appear in the Petitioner's proposed findings of fact. First Paragraph: Rejected. This paragraph is merely a commentary on the state of the record and does not contain any proposed finding of fact. Second Paragraph: Rejected for the same reason as the first paragraph. Third Paragraph: Rejected in part and accepted in part. Rejected portions are rejected for the most part for the same reason as the rejection of the first two paragraphs. The "fully explained" portion of this paragraph is rejected as not supported by the greater weight of the evidence. Findings have been made consistent with the portions of this paragraph relating to when Petitioner's medical education began and ended, his completion of a residency in pathology, and his passing of the FLEX examination. Fourth Paragraph: The first sentence of this paragraph is rejected in part because it is merely a commentary on the state of the record and in part because it is inconsistent with the evidence of record. Dr. Clark did not explain the Petitioner's work in detail: to the contrary, his testimony was rather vague about a number of the details and he failed to recall a number of specific details. The last sentence of this paragraph is rejected because it is not supported by competent substantial evidence. Fifth Paragraph: Rejected for the same reason as the first paragraph. Sixth paragraph: The first sentence of this paragraph is rejected because the Petitioner's explanations were incomplete. With regard to the second sentence of this paragraph, it is accepted that the Petitioner is "not fluent/native in the English language or in legal terminology," and that the Petitioner did not intend to deceive the Board or misrepresent information to the Board. m e remainder of the second sentence is rejected on the grounds that it is in part irrelevant and immaterial as well as on the grounds that the ultimate factual conclusion urged in the second sentence is not warranted by the evidence in the record. Rulings on Respondent's proposed findings: The Respondent's proposed findings of fact consist of seventeen separately numbered paragraphs. The paragraph numbers which follow correspond to the numbers of the paragraphs of the Respondent's proposed findings. Accepted in substance with certain gratuitous editorial material deleted. Accepted in substance. Accepted in substance with the exception of the sentence reading: "In contradiction, he testified at the final hearing, on both direct and cross-examination, that he furthered his medical education in Spain in 1970." The quoted sentence is rejected because it does not accurately reflect the totality of the Petitioner's testimony on this subject. Some other redundant material in this paragraph is also rejected. Rejected on the grounds that it consists of irrelevant and cumulative details which are not necessary to the disposition of this case. Accepted in substance with certain gratuitous editorial material deleted. The first sentence of this paragraph is accepted. The second sentence is accepted with the exception of the words ". . . at which time he needed three years." The quoted language is rejected as not being supported by persuasive competent substantial evidence. Accepted. The first two sentences of this paragraph are accepted in substance. The last sentence is rejected as irrelevant in part, cumulative in part, and not supported by competent substantial evidence in part. Accepted in substance with certain gratuitous editorial material deleted. Accepted. Accepted in part and rejected in part. Reasons for rejection include the feet that although most of this paragraph is an accurate summary of portions of the Petitioner's testimony; some of the testimony on this subject was not persuasive and has not been used as the basis for findings of fact. The parenthetical mention of the pathology booklet is rejected because there is no competent substantial evidence as to when Petitioner wrote any pathology books Accepted in substance. Accepted in part and rejected in part. Reasons for rejection include the fact that although much of this paragraph is an accurate summary of portions of Dr. Clark's testimony, much of the testimony on this subject was not persuasive and has not been used as the basis for findings of fact. Portions of this paragraph have also been rejected on the grounds that they constitute commentary on the quality of the testimony or argument and are not proposed findings of fact. Accepted in part and rejected in part. Reasons for rejection include the fact that although most of this paragraph is an accurate summery of portions of the Petitioner's testimony, much of the testimony on this subject was not persuasive and has not been used as the basis for findings of fact. Accepted. Rejected as findings of fact because it constitutes argument rather than proposed findings of fact. [Much of the argument is well taken, but it is argument nevertheless and not appropriately part of the findings of fact.] Rejected for the same reason as Paragraph 16.
Findings Of Fact In February, 1984 Petitioner applied to Respondent for licensure by examination under Section 458.311(2), F.S., but after review of said application at a meeting held on June 10, 1984, Respondent issued an Order dated July 21, 1984 denying said application. Petitioner received a degree which is designated Doctor of Medicine on May 2, 1983 from the Universidad Techologica de Santiago, (UTESA), Santo Domingo, Dominican Republic. He has been in residency at Orlando Regional Medical Center since June 28, 1983. Various required clerkships were performed by Petitioner between August 2, 1982 and February 28, 1983 in hematology, obstetrics and gynecology, pediatrics, dermatology and ENT/0phth., and were performed completely, or partially at osteopathic hospitals, or under the supervision of osteopathic physicians. An additional one month elective clerkship was also performed in April 1983 at Southeastern College of Osteopathy. Petitioner passed the exam given by the Educational Commission for Foreign Medical Graduates (ECFMG) on March 15, 1983, but has not been certified due to the need for additional institutional verification. Respondent informed Petitioner of the decision of ECFMG to withhold verification of certification and also informed Petitioner of its duty to approve or deny an application for licensure within ninety (90) days, unless waived by the applicant. Petitioner declined to consent to a waiver and requested Respondent to act on his application without verification of an ECFMG certificate.
