The Issue Fact Issues Did Petitioner, Flo-Ronke, Inc. (Flo-Ronke), fail to timely pay a fine imposed by Final Order of the Respondent, Agency for Health Care Administration (Agency)? Did the Agency reject attempts by Flo-Ronke to timely pay the fine in full by a single payment without conditions? Did Flo-Ronke attempt to pay the fine untimely in full by a single payment without conditions? If so, did the Agency reject the proffered payment? Did Flo-Ronke employ an individual in a position that required background screening who had a disqualifying criminal conviction? Law Issues Which party bears the burden of proof? What is the standard of proof? Do the facts support denying re-licensure of Flo-Ronke? Are untimely efforts to pay the fine in full with a single payment mitigating factors? If so, how should the factors be weighed?
Findings Of Fact Flo-Ronke is an Assisted Living Facility (ALF). An ALF is a building, part of a building, or a residential facility that provides “housing, meals, and one or more personal services for a period exceeding 24 hours to one or more adults who are not relatives of the owner or administrator.” § 429.02(5), Fla. Stat. (2015).1/ The Agency licenses and regulates ALFs. §§ 429.04 and 429.07, Fla. Stat. Flo-Ronke is subject to the Agency’s licensure requirements and is licensed by it. By Notice of Intent to Deny Renewal Application dated December 2, 2014, the Agency denied Flo-Ronke’s application to renew its license on the grounds that Flo-Ronke “failed to comply with the criminal background screening requirements by employing a caretaker who was not eligible to work in the facility.” On January 8, 2015, the Agency amended the Notice of Intent to Deny. On January 21, 2015, the Agency issued a Second Amended Notice of Intent to Intent to Deny for Renewal. This notice is the subject of this proceeding. The second amended notice asserts two bases for denial. One is the originally asserted background screening violation. The other is Flo-Ronke’s failure to pay an outstanding fine in AHCA Cases 2014002513 and 2014002514. Payment of the Fine In AHCA Cases 2014002513 and 2014002514, the Agency’s Administrative Complaint charged Flo-Ronke with four deficiencies involving insects, cleanliness, medication administration, and inadequate staffing. Originally, Flo-Ronke requested an evidentiary hearing before DOAH (DOAH Case No. 14-1939). Later, Flo-Ronke, through its owner Ms. Akintola, agreed there were no disputed issues of facts and stipulated to returning the matter to the Agency for an informal hearing. The Agency provided Flo-Ronke an opportunity for a hearing. No representative of Flo-Ronke appeared at the hearing. The Agency issued a Final Order on November 5, 2014, upholding the Administrative Complaint and imposing a $13,500 fine. The Agency’s Final Order included instructions on how to make the payment, advised that the payment was due within 30 days of the Final Order, and cautioned that interest would be imposed on overdue amounts. The Final Order included a Notice of Right to Judicial Review. On behalf of Flo-Ronke, Ms. Akintola appealed the Final Order pro se. The Florida Rules of Appellate Procedure do not provide for an automatic stay of a decision if it is appealed. Flo-Ronke did not seek a stay of the Final Order. Consequently, the obligation to pay the fine was effective as of the date of the Final Order. The First District Court of Appeal rendered an Order requiring Flo-Ronke to obtain counsel for the appeal because a corporation cannot be represented by an employee or officer. Flo-Ronke did not obtain counsel or respond to the court’s Order. On January 16, 2015, the court dismissed Flo-Ronke’s appeal. On April 9, 2015, Flo-Ronke, represented by the same counsel as in this proceeding, moved to re-open the appellate case. On April 17, 2015, the court denied the motion. It also denied Flo-Ronke’s subsequent motion seeking reconsideration, clarification, a written opinion, and a stay. From the date that the Agency entered the Final Order imposing the fine in DOAH Case No. 14-1939 (AHCA Cases 2014002513 and 2014002514) to the date of the final hearing, Flo-Ronke did not pay the fine. Starting around February 2015, attorney Scott Flint tried, on Flo-Ronke’s behalf, to arrange a payment plan for the fine. He discussed the proposal with Agency Attorney Edwin Selby. Mr. Flint linked the discussions to resolving a separate investigation of Flo-Ronke that the Agency was conducting. Mr. Flint never offered unconditional payment of the fine on behalf of Flo-Ronke. Mr. Flint testified that at some point during conversations about the two cases, Mr. Selby said the Agency would not accept full payment if it was offered. Mr. Selby testified that he did not make this statement. Mr. Selby’s testimony is more credible in this instance, as it is in other instances when Mr. Selby’s testimony differed from Mr. Flint’s. One reason Mr. Selby’s testimony is more credible is that on February 11, 2015, after the time Mr. Flint says Mr. Selby made the statement, Mr. Flint wrote Mr. Selby a letter proposing an installment plan for paying the fine. The letter did not mention the alleged statement that the Agency would not accept payment. The proposal and the failure to mention the alleged refusal are inconsistent with the assertion that Mr. Selby said payment would not be accepted. Also, Mr. Flint hedged his testimony about the alleged refusals, noting that lawyers say many things during negotiations. Mr. Selby’s testimony about conversations after the February 11 letter is also more credible. Mr. Selby never said that the Agency would not accept full payment if it were tendered. The clear and convincing evidence proves that from the date the Agency entered the Final Order to the date of the final hearing, Flo-Ronke never tendered full and complete payment of the fine to the Agency. Flo-Ronke, despite its assertions during pre-hearing motion practice, did not offer any evidence that could be reasonably be interpreted as proving that Flo-Ronke tendered full payment of the fine or that the Agency refused the payment. Even Mr. Flint’s testimony, if fully credited, is not evidence that Flo-Ronke tendered full payment or that the Agency refused full payment. Background Screening At all relevant times, Florida law required level two background screening of any person seeking employment with a provider whose responsibilities may require him to provide personal care or other services directly to clients or who will have access to the client living area. § 408.809(1)(e), Fla. Stat. (2014). Individuals who have disqualifying offenses may not hold positions where they provide services to clients or will have access to client living areas. Florida law also requires re-screening every five years after employment. § 408.809(2), Fla. Stat. (2014). Agency surveyor, Laura Manville, surveyed Flo-Ronke and its records on September 2, 2014. At that time, F.M. was employed there. Flo-Ronke employed F.M. since at least 2009. F.M.’s duties included caring for residents. In addition, even when performing non-caretaking duties, such as grounds-keeping and maintenance, F.M. had unsupervised access to the residents and their living area. F.M. was adjudicated guilty of a disqualifying sex offense on October 28, 1999. Flo-Ronke’s records did not document the required level 2 background screening of F.M. when reviewed on September 2, 2014. At that time, Ms. Manville told Ms. Akintola of the deficiency and that F.M. was not eligible to work at the ALF. This was not the first time the Agency advised Ms. Akintola of the deficiency. By letter dated October 2, 2009, the Agency advised that background screening of F.M. had revealed he had a disqualifying criminal offense. It advised Flo-Ronke that it must either terminate the employment of F.M. or obtain an exemption from disqualification. Flo-Ronke did neither. Ms. Manville conducted a follow-up survey on September 10, 2014. Despite the notice given on September 2, 2014, F.M. was still present at the facility performing grounds work and had access to client living areas. Ms. Akintola presented testimony and a single document attempting to prove that F.M. passed background screening in 2010. The document appears to show a determination of no background screening violation in 2010. Why it differs from other documents from 2009 and after 2010 is not explained. The circumstances surrounding the document are somewhat mysterious. It does not appear in the Agency files. On September 2, 2014, Ms. Akintola did not mention it. On that day, she said she thought F.M. did not need to satisfy screening requirements because he had worked for so long at Flo-Ronke. More importantly, the issue is whether F.M. was employed in 2014 in violation of the background screening requirements. The clear and convincing evidence, including evidence of the conviction in the background screening database, the continued employment of F.M. after September 2, 2014, and the letter of October 2, 2009, proves that in 2014 F.M. had a disqualifying offense and did not have an exemption from the disqualification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order denying the application of Flo-Ronke, Inc., for renewal of its ALF license. Jurisdiction over the Motion for Fees and Costs is retained for further appropriate proceedings once the prevailing party has been determined. DONE AND ENTERED this 30th day of October, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 30th day of October, 2015.
Findings Of Fact By agreement with the prosecution Dr. Brown had sought to delay consideration of his procedural motion to dismiss DPR Case No. 91-06883/DOAH Case No. 92-1076, pertaining to the patients J.C., D.R., T.E. and K.J. The parties to that action anticipated considering the motion at the final hearing as part of the case on the merits. The hearing officer was persuaded that the procedural motion to dismiss had to be examined separate and apart from the consideration of the case on the merits as to those four patients. Consequently the motion to dismiss was entertained concerning its evidential and legal basis prior to a hearing on the merits. This led to the decision on June 9, 1992, to dismiss the action pertaining to treatment of the patients J.C., D.R., and T.E., with leave to refile at some future date. The decision to dismiss was based upon the pertinent facts and law when examined in accordance with Section 455.255(1), Florida Statutes. The motion to dismiss the action concerning treatment of the patient K.J. was denied. The reason for the dismissal was announced in the record on June 9, 1992, and memorialized in the transcript of the proceedings. It was concluded that there was not an adequate basis to institute an investigation concerning the patients J.C., D.R., and T.E.; that the Department of Professional Regulation, now the Department of Business and Professional Regulation, did not furnish Dr. Brown or his attorney with a copy of the complaint or the document that resulted in the initiation of the investigation pertaining to the three patients; and, that Dr. Brown did not have the statutorily mandated opportunity to respond to the accusations made against him related to the care that he provided those three patients. Therefore, the procedural requirements under Section 455.225(1), Florida Statutes, had not been met and the case as it pertained to the three patients was dismissed with leave to refile. The procedural requirements related to the patient K.J. had been met and it was appropriate to present the K.J. case to the Probable Cause Panel for its deliberation, unlike the circumstance with the other three patients. It was determined that the quality of consideration by the Probable Cause Panel when voting to prosecute Dr. Brown for his treatment of K.J. was adequate. Based upon the ruling directed to the treatment of patients J.C., D.R., and T.E. the Department of Professional Regulation was not allowed to proceed against Dr. Brown for the care rendered those patients. A subsequent recommended order addressed in substance the prosecutions associated with DPR Case No. 91-06883/DOAH Case No. 92-1076 pertaining to the patient K.J.; DPR Case Nos. 011343 and 011344/DOAH Case No. 91-5325 and DPR Case Nos. 8901804, 0111385 and 0111353/DOAH Case No. 91-6358, traced the history of those cases in the preliminary statement to the recommended order and identified the prior ruling dismissing the actions pertaining to the patients J.C., D.R., and T.E. That recommended order was not an invitation to the Board of Medicine to respond to a recommendation of dismissal. The recommended order in the cases pertaining to patients other than J.C., D.R., and T.E. was entered on December 30, 1992, based upon the formal hearing conducted pursuant to Section 120.57(1), Florida Statutes, on various dates in June and July, 1992, and concluded on July 10, 1992, before the present hearing officer. On February 26, 1993, the Board entered its final order in the above- referenced cases and commented to the effect that it had approved the recommended dismissal by the hearing officer concerning the patients J.C., D.R., and T.E. with leave to refile. Neither party appealed the hearing officer's decision dismissing those counts within DPR Case No. 91-06883/DOAH Case No. 92-1076 directed to the patients J.C., D.R., and T.E. On March 8, 1993, Dr. Brown took an appeal from the final order of the Board of Medicine entered on February 26, 1993, which included the comment approving the actions by the hearing officer in dismissing the counts pertaining to the patients J.C., D.R., and T.E., but without prejudice to bring those actions again following compliance with Section 455.225, Florida Statutes. Robert C. Brown, Jr., M.D., is a licensed physician practicing in the state of Florida. He has held a license entitling him to practice in that state at all times relevant to the inquiry. At relevant times Dr. Brown has practiced medicine at 4519 Brentwood Avenue, Jacksonville, Florida, 32206. He is the sole medical practitioner of an incorporated professional practice. He has had less than 25 employees and his net worth has been not more than 2 million dollars. Dr. Brown is the only share holder in his incorporated professional association. No one else has ownership interest in the incorporated professional association. At times Dr. Brown has drawn a salary from the professional association as an employee of the professional association. His request for attorney's fees and costs are directed to the actions of the Department of Professional Regulation for its procedural noncompliance with Section 455.225, Florida Statutes, and the subsequent decision of the Board of Medicine to find probable cause and to have the Department of Professional Regulation proceed against Dr. Brown for care rendered the patients J.C., D.R., and T.E. The action to recover attorney's fees and costs not to exceed $15,000 was filed on April 27, 1993. The petition for attorney's fees and costs of April 27, 1993, was amended on July 15, 1993. Dr. Brown retained the law firm of Stowell, Anton and Kraemer to represent him in the aforementioned cases pertaining to the administrative prosecutions. His present attorney, Julie Gallagher, was principal counsel in those cases. No issue has been taken with the notion that $165.00 is a reasonable hourly rate for her services in defending Dr. Brown in the administrative prosecutions. Dr. Brown has paid all fees and costs charged by his lawyer in preparation for and participating in the proceedings related to the administrative prosecutions. To challenge the alleged procedural infirmities associated with the right to investigate, notice to the accused, opportunity for the accused to respond to the accusations and deliberations by the Probable Cause Panel contemplated by Section 455.225, Florida Statutes, it was not necessary for Dr. Brown to fully develop his defense on the merits of the accusations pertaining to patients J.C., D.R., and T.E. Dr. Brown's counsel in the exhibit associated with claims for attorney's fees and costs has highlighted the exhibit through color-codes in an attempt to assist the hearing officer in understanding the meaning of that exhibit. This color-code system attempts to identify those instances in which Dr. Brown claims that the work done on his behalf is associated only with patients with J.C., D.R. and T.E. and other occasions where a percentage is set forth in relation to work done in the entire DPR Case No. 91-06883/DOAH Case No. 92-1076, to include K.J. and in the other cases referenced before. The code is described in the August 16, 1993 cover letter from counsel for Dr. Brown. No attempt is made through the coding system to differentiate between those actions taken in moving to dismiss DPR Case No. 91-06883/DOAH Case No. 92-1076 pertaining to the patients J.C., D.R. and T.E. from other activities related to defending the accusations about those patients on the merits. The right to recover, if at all, is limited to those attorney's fees and costs associated with the motion to dismiss counts pertaining to the patients J.C., D.R., and T.E., together with the attorney's fees and costs associated with the present case. No other efforts by Dr. Brown's attorneys may be the proper subject for recovery. Not only was it not necessary to know information concerning the merits of the administrative complaint pertaining to patients J.C., D.R., and T.E. to pursue the motion to dismiss on procedural grounds, the decision that was made did not resolve the merits set forth in the administrative complaints directed to Dr. Brown's treatment of J.C., D.R., and T.E. The possibility exists that Dr. Brown could be called upon to defend against similar accusations to those set forth in the DPR Case No. 91-06883/DOAH Case No. 92-1076 at which time he could prepare himself to defend the merits and if successful that would be the appropriate moment to seek attorney's fees and costs for that aspect of the case. The arrangement by stipulation between the parties in the prior prosecution to delay consideration of the motion to dismiss until the place at which prosecution of the cases involving J.C., D.R., and T.E. were being examined on their merits was not appropriate. Consequently, Dr. Brown may not assert that he was required to prepare his motion to dismiss on procedural grounds simultaneously with his defense on the merits of the administrative complaint directed to the patients J.C., D.R., and T.E. Within this context, taking into account a lack of opposition to the $165.00 hourly rate charged by Dr. Brown's counsel, the following amounts are found to be associated with the pursuit of the motion to dismiss those counts related to patients J.C., D.R., and T.E. and claims under Section 57.111, Florida Statutes, to recover attorney's fees and costs: 3/11/92-$165.00; 3/14/92-$165.00; 3/16/92-$125.00; 3/31/92-$100.00; 4/2/92-$247.50; 4/6/92- $62.50; 4/6/92-$198.00; 4/10/92-$50.00; 4/16/92-$10.00; 4/17/92-$50.00; related to the motion to dismiss and 4/27/93-$165.00; 5/3/93-$33.00; 5/12/93-$15.00; 5/17/93-$82.50; 6/14/93-$165.00; related to the prosecution of the petition for attorney's fees and costs. No proof was offered concerning any special circumstances that point to any injustice in awarding attorney's fees and costs in the amount identified.
The Issue The issue for determination is whether Respondent was substantially justified, within the meaning of Section 57.111, Florida Statutes (2002), in initiating disciplinary proceedings against Petitioner, a licensed dentist, in Division of Administrative Hearings (DOAH) Case Number 01-3509PL (the underlying case). (All statutory references are to Florida Statutes (2002) unless otherwise stated.)
Findings Of Fact 1. Petitioner is a licensed dentist in the State of Florida pursuant to license number DN9676. Respondent is the state agency charged with regulating the practice of dentistry pursuant to Section 20.43, Chapter 456, and Chapter 466. 2. Several facts are not disputed by the parties. Petitioner filed this proceeding pursuant to Section 57.111. Respondent initiated the underlying case. Respondent is not a nominal party. Petitioner is a "prevailing small business party." The attorney's fees sought by Petitioner are reasonable in an amount up to $15,000.00. The statutory cap of $15,000.00 applies in this case. 3. At the Probable Cause meeting of June 12, 2001, the members of the Probable Cause Panel had probable cause to believe that Petitioner violated applicable law by failing to refer his patient to a specialist for lingual nerve damage suffered by the patient when Petitioner extracted the patient's wisdom teeth. At the Probable Cause meeting, the Panel received the entire investigative file, including all medical records, a statement and expert opinion submitted on the behalf of Petitioner by his attorney, and the expert opinion of Nidal Elias, D.D.S. M.S., submitted by Respondent. 4. Dr. Elias reviewed the medical records and rendered an expert opinion that the medical records submitted by Petitioner did not contain an indication that Petitioner referred his patient to a specialist. The medical records failed to reveal that the Petitioner referred the patient to a specialist. 5S. The medical records did not contain an express notation that Petitioner referred the patient to a specialist and did not contain a referral form. The Probable Cause Panel correctly determined probable cause existed for initiating disciplinary action against Petitioner. 6. The Administrative Complaint filed in the underlying case alleged that Petitioner failed to refer his patient to a specialist. However, counsel for Respondent attempted to prove that Petitioner failed to refer his patient in a timely manner. The ALJ excluded any evidence of the untimely nature of a referral to a specialist because the Administrative Complaint did not allege that Petitioner failed to refer his patient ina timely manner. The ALJ found the evidence to be less than clear and convincing that Petitioner failed to refer his patient to a specialist.
Conclusions For Petitioner: William M. Powell, Esquire Powell & Steinberg, P.A. 3515 Del Prado Boulevard Waterside Plaza, Suite 101 Cape Coral, Florida 33904 For Respondent: Trisha D. Bowles, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of appeal with the Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
Findings Of Fact On July 17, 1986, a Probable Cause Panel of the Board of Medicine met to review the investigative report which resulted from a complaint filed against Petitioner by the mother of a deceased patient. Prior to the meeting of the Probable Cause Panel, Robert N. Baskin, M.D., had reviewed Petitioner's office records, the medical examiner's report, the emergency room records and a letter from the patient's mother concerning Petitioner's care and treatment of that patient. Dr. Baskin had concluded that, if subsequently proven, the facts would constitute negligent or incompetent practice of medicine. The panel discussed the information which had been previously provided to it and determined that additional information was necessary before making a final determination of probable cause or no probable cause. The matter was returned to the Department of Professional Regulation for additional investigation. On September 25, 1986, a Probable Cause Panel of the Board of Medicine met to review the investigative report, including the supplemental report containing the additional information requested by the prior Probable Cause Panel. Based on the Investigative report which included Petitioner's office records, a summary of an interview with Petitioner, summaries of interviews with the patient's mother, a summary of an interview with and records of the medical examiner, and a summary of an interview with and the report of consultant Robert Baskin, M.D., the panel found that probable cause existed that Petitioner's activities had violated: Section 458.331(1)(t), Florida Statutes, by gross or repeated malpractice or by failing to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances; Section 458.331(1)(i), Florida Statutes, now Section 458.331(1)(h), by making or filing a report which the licensee knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing or inducing another person to do so; and Section 458.331(1)(1), Florida Statutes, now Section 458.331(1)(k), by making deceptive, untrue, or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine. The Probable Cause Panel expressed concern regarding several aspects of Petitioner's treatment of the deceased patient. The panel noted its basis for a finding of probable cause in Count One, the malpractice count: Diabetic ketone acidosis was consistent with the patient's history, and there was "sort of a lack of attention paid about some of [the patient's] complaints"; and One of the two panel members opined that Petitioner "did misdiagnose the symptoms that this patient had", and described Petitioner's practice in this case as "a little sloppy". Further, the consultant's report questioned whether Petitioner recognized the seriousness of the patient's condition at the time of his examination of the patient. This question focused on whether Petitioner had recommended that the patient be hospitalized, but the patient's mother had refused to hospitalize her son. Counts Two and Three of the Administrative Complaint were based solely on whether Petitioner had recommended hospitalization as his records reflected or if, in fact, the mother's contrary version of what had happened was correct. One of the two panel members opined that "Somebody's lying." This was a credibility question to be determined. The Probable Cause Panel found that there was probable cause to believe that Petitioner may have falsified his records, if the Hearing Officer found that Petitioner was the one not telling the truth in this matter. Petitioner's records showed that an addendum was written, stating that Petitioner recommended that the patient be hospitalized. A memorandum to the medical records file by Registered Nurse Betty J. Launius, written after the patient died, explained why Petitioner did not immediately respond to telephone calls regarding the patient's condition. These documents lent some credibility to the possibility that they were done after the fact to protect Petitioner from subsequent litigation alleging malpractice in this case. The Probable Cause Panel recognized that the questions raised by the investigation should be answered or resolved one way or another at an evidentiary hearing. Petitioner disputed the allegations contained in the Administrative Complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. The case was referred to the Division of Administrative Hearings to conduct an evidentiary hearing and to issue a Recommended Order based upon the evidence presented. Division of Administrative Hearings Case No. 87-0276 was assigned. On July 16, 1987, DOAH Case No. 87-0276 was heard in Venice, Florida. A Recommended Order was issued on October 22, 1987, recommending that a Final Order be entered finding Respondent not guilty of the allegations contained within the Administrative Complaint and dismissing the Administrative Complaint filed against Petitioner. The Board of Medicine adopted the Recommended Order and dismissed the Administrative Complaint against Respondent on February 18, 1988. The parties have agreed that the costs and attorney's fees set forth in the Amended Petition for Attorney's Fees filed June 20, 1988 are the amounts in question in this proceeding. Petitioner is a "small business party" as that term is defined in Section 57.111(3)(d), Florida Statutes. The underlying administrative proceeding was initiated by the Respondent, a state agency. Petitioner was the prevailing party in the administrative proceeding material to this matter. There is no evidence that the transcript of the Probable Cause Panel meeting of July 17, 1986, was provided to or considered by the Probable Cause Panel which met on September 25, 1986. Petitioner incurred attorney's fees in the amount of $6,780.00 to defend himself in the underlying administrative proceeding and also incurred costs in the amount of $3,089.55. The amount of attorney's fees and costs are reasonable.
The Issue 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 Division Of Administrative Hearings Case No. 87-5413; and whether, in the absence of such substantial justification, Petitioner is entitled to an award ofattorneys' fees and costs pursuant to Section 57.111, Florida Statutes, in connection with that previous administrative proceeding.
Findings Of Fact Petitioner is Mircea Albin Morariu, M.D. Respondent is the Department of Professional Regulation, the agency charged with regulation of physicians in the State of Florida. The parties stipulated that Petitioner is a resident of the State of Florida; that Petitioner is a "small business party"; and that there is no dispute as to the correctness or amount of fees and costs requested by Petitioner, the $15,000 maximum allowed under provisions of Section 57.111, Florida Statutes. Petitioner is a "prevailing small business party" with regard to Division Of Administrative Hearings Case No. 87-5413, because he was found to have committed only one of the four alleged violations set forth in the administrative complaint in that case, failure to maintain written records justifying the course of the patient's treatment. No appeal from the final order entered in Division Of Administrative Hearings Case No. 87-5413 has been taken and the time for filing such an appeal has expired. Respondent initiated administrative proceedingsagainst Petitioner in Division Of Administrative Hearings Case No. 87-5413 as the result of a complaint lodged with Respondent in September of 1986 by a former patient of Petitioner. The complainant, afflicted with long standing paralysis of one side of her body, had paid Petitioner $5,000 for functional electrical stimulation treatment of her paralyzed limbs and had not achieved the level of recovery which she felt had been promised to her by Petitioner; namely, that her paralyzed arm movement would improve by 25 percent and her paralyzed leg movement would improve by 50 percent. The complainant alleged that her condition had worsened as a result of the treatment. Following receipt of the patient's complaint, Respondent undertook an investigation. In that process, an investigator employed by Respondent interviewed the complainant, her husband and Petitioner. The investigator obtained the complainant's medical records and correspondence from Petitioner, as well as prior and subsequent medical records from complainant's doctors in the state of Indiana. This entire report was submitted to a board certified neurologist, Dr. Victor B. Robert, for an expert opinion as to the standard of medical care rendered by Petitioner. In expressing his expert opinion, Dr. Robert stated that he "was not familiar with this therapeutic modality and the records available do not provide a description or a rationality" for the treatment accorded the complainant by Petitioner. Robert also opined that the complainant's motor impairment was permanentand that such "neurological deficit cannot be improved by any therapeutic modality known to medical science." Robert further stated that it was misleading as well as unethical to make any promises regarding significant improvement in a patient with such a long standing neurological deficit; that Petitioner's standard of care would be subject to question if the complainant's allegations were true; that the complainant underwent several unnecessary diagnostic procedures; and that there could exist a pattern of abuse by Petitioner calling for further investigation. Dr. Robert's testimony was not credited at the final hearing in lieu of other more persuasive expert testimony. Respondent's entire investigative file, consisting of the affidavits of the patient and her husband, Petitioner's statements, the complainant's medical records and Dr. Robert's expert medical opinion, was provided to the members of a probable cause panel of the Board of Medicine several weeks in advance of the panel's meeting on August 21, 1987. At that meeting, the panel, after review and discussion of the materials provided them, determined that probable cause existed sufficient to support the filing of an administrative complaint against Petitioner. The administrative complaint was filed against Petitioner on August 26, 1987, as a result of the panel's probable cause finding. The administrative complaint contained four counts of alleged misconduct by Petitioner. Count I charged Petitioner with violation of Section 458.331(1)(t), Florida Statutes, through gross or repeated malpractice or failure to practice medicine withlevel of care, skill and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Count II charged Petitioner with making deceptive, untrue, or fraudulent representations in the practice of medicine, a violation of Section 458.331(1)(k), Florida Statutes. Count III charged Petitioner with exercising influence on a patient for financial gain, a violation of Section of 458.331(1)(o), Florida Statutes. Count IV of the complaint contained the charge which Petitioner was later found to have committed; namely his failure to maintain written medical records justifying the course of medical treatment accorded the complainant, a violation of Section 458.331(n), Florida Statutes.
