The Issue The issue for determination is whether Respondent, a licensed physician, committed violations of Chapter 458, Florida Statutes, as alleged in the Administrative Complaint, sufficient to justify the imposition of disciplinary sanctions against his license.
Findings Of Fact Respondent is Ernesto C. Jaranilla, M.D., a licensed physician at all times pertinent to these proceedings, holding medical license number ME 0065787. Respondent's last known address is 633 Baker Street, Rochester Hills, Michigan 48307. Petitioner is the state agency charged with regulating the practice of medicine pursuant to Chapter 458, Florida Statutes. The State of Michigan Department of Commerce, Board of Medicine, is the licensing authority for the State of Michigan. On or about May 9, 1994, the State of Michigan Board of Medicine issued a final order requiring Respondent to pay a fine of $1,000.00 within 60 days, placed Respondent's license on probation and required him to complete 100 hours of approved continuing education credits. As a result of the action of the Michigan Board of Medicine, Respondent is guilty of having action taken against his license to practice medicine by the licensing authority of the State of Michigan. Respondent did not notify the Florida Board of Medicine within 30 days of the action taken by the State of Michigan against his license to practice medicine. Instead, Petitioner's personnel learned of Respondent's transgression by way of a report from the Federation of State Medical Boards dated April 19, 1996. The report indicated that the Michigan disciplinary action had been terminated by order dated January 26, 1996.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered imposing discipline upon Respondent's license in this cases as follows: An administrative fine of $750 for each Count of the Administrative Complaint for a total of $1500. Suspension of Respondent's license to practice medicine in the State of Florida with such suspension to be terminated upon Respondent's payment of the administrative fine, and successful compliance with such other terms and conditions as may be prescribed by the Florida Board of Medicine, inclusive of Respondent's personal appearance before the Florida Board of medicine for presentment of proof of his reinstatement to practice medicine in the State of Michigan and to certify his completion of any Board prescribed course for practitioners who have failed to comply with reporting or other obligations to the Board. DONE AND ENTERED this 8th day of January, 1997, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1997. COPIES FURNISHED: Kevin w. Crews, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, FL 32317-4229 E. Jaranillia, M.D. 301 State Street Harbor Beach, MI 48441 Marm Harris, Executive Director Agency for Health Care Administration 1940 North Monroe Street Tallahassee, FL 32399-0770 Jerome Hoffman, Esquire Agency for Health Care Administration 2727 Mahan Drive Tallahassee, FL 32309 Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, FL 32308
Findings Of Fact Respondent received his registration in 1955 as a civil engineer and as an architect in 1956. Since his registration, the Respondent has been instrumental in the drawings and designs of numerous outstanding structures in and around the Tampa Bay area. (See Respondent's Composite Exhibits 1 and 2.) Prior to the incident involved herein, the Respondent has not been the subject of any disciplinary proceedings involving the Petitioner. Respondent, by and through counsel, takes the position that inasmuch as his conviction of the charges set forth herein- above, to-wit: racketeering, mail fraud and conspiracy, is not a proper basis upon which a suspension or revocation of his registration can properly stand inasmuch as he is in the process of appealing the conviction. Respondent contends that unless and until the judgment of the lower court is affirmed by the appellate court, there is no basis upon which a suspension and/or revocation of his registration can rest. Section 471.26, Florida Statutes, provides in pertinent part that: "(1) The Board shall have the power to revoke or suspend the certificate of registration. . . of a person registered under this chapter. . .should such registrant. . .be found guilty of: . . . (c) any felony or crime involving moral turpitude." Petitioner's Exhibit No. 1 received into evidence reveals that the Respondent was convicted of four separate counts of criminal activity and sentenced to imprisonment for a period of ten years on two counts, to run concurrently, and five years on two counts, to run concurrently with each other and with the ten-year count. Based thereon, it is concluded that sufficient basis exists upon which a finding should be entered recommending that the Respondent's registration be suspended. I shall so recommend. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED: That the registration of Respondent (No. 5354) as a professional engineer be suspended for a period of two (2) years. In making such a recommendation, the undersigned considered all the mitigating factors introduced by and on behalf of the Respondent. ENTERED this 28th day of February, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The issues for consideration here are raised through the process of an Administrative Complaint filed by the Petitioner against the Respondent. In particular, by Amended Administrative complaint, Respondent is alleged to have been arrested for his involvement in illegal sale and/or delivery of a controlled substance, namely cocaine, to an undercover agent of the Jacksonville Sheriffs Office and that Respondent entered a plea of nolo contendere to the crime of possession of cocaine, and was placed on five (5) years probation and sentenced to serve three hundred sixty-four (364) days in the Duval County, Florida, jail. For these matters, Respondent is accused of violating Subsection 468.106(1)(i), Florida Statutes, by distributing a controlled substance other than in the course of professional practice of pharmacy and/or Section 893.13, Florida Statutes, by selling, manufacturing, delivering or possessing with intent to sell, manufacture, or deliver, a controlled substance. It is further asserted that Respondent has violated Subsection 465.016(1)(f), Florida Statutes, by having been convicted or found guilty, regardless of adjudication, in a court of this state of a crime directly related to his ability to practice pharmacy or to the practice of pharmacy, in that the plea of nolo contendere constitutes a conviction for purposes of this provision. EXHIBITS AND WITNESSES This case was presented upon the factual stipulation entered into between the parties and upon the agreement that the matter be considered as a formal Subsection 120.57 (1), Florida Statutes, hearing, notwithstanding a lack of disputed facts. Petitioner offered four (4) exhibits which were received into evidence.
Findings Of Fact Michael Anthony Norman, Respondent, is licensed by the State of Florida, Department of Professional Regulation, Board of Pharmacy, to practice pharmacy in Florida. On June 15, 1981, Respondent was arrested for sell or possession of a controlled substance, namely cocaine. Following this arrest by information in the Circuit Court, Criminal Division, in and for Duval County, Florida,, Case No. 81-5654-CF, Division Q, Respondent was charged with selling, manufacturing, delivering, bringing into the state or knowingly being in actual or constructive possession of twenty-eight (28) grams or more of cocaine or a mixture containing cocaine, to wit: twenty-eight (28) grams or more but less than two hundred (200) grams, contrary to the provisions of Subsection 893.135(1)(b)1, Florida Statutes. See Petitioner's Exhibit No. 3, admitted into evidence. On January 18, 1982, Respondent entered a plea of nolo contendere to knowingly or being in actual or constructive possession of cocaine or a mixture containing cocaine, contrary to the provisions of Subsection 593.13(1)(a), Florida Statutes, and Subsection 893.03(2)(a)2, Florida Statutes. The Court withheld adjudication of guilt and placed the Defendant on probation for a period of five (5) years upon condition that Defendant, among other requirements, serve three hundred sixty-four (364) days in the Duval County jail, with credit for two (2) days time served. See Petitioner's Exhibit No. 3, admitted into evidence. At present, Petitioner is serving the condition of probation related to jail time by his participation in a work release program known as Fairfield House, in which Petitioner works each day at a job other than as a pharmacist and is required to remain at that facility at night. The anticipated date of release from this obligation at Fairfield House is October 29, 1982, at the latest. During the period of Respondent's stay at Fairfield House, he has sought continuing education credits related to his profession through courses found in Pharmacy Times magazine. This action on the part of Respondent was through the mailing of certain course work. This hearing was occasioned by an Administrative Complaint and subsequent amendment to the Administrative Complaint, for which Respondent requested a formal Subsection 120.57(1), Florida Statutes, hearing. The amended Administrative Complaint, which is the complete statement of present claims against Respondent was signed April 28, 1982.
The Issue The issue posed for decision herein is whether or not the Respondent, based on conduct set forth hereinafter, has engaged in conduct violative of Section 466.028(1)(o) and Section 455.241(1), Florida Statutes, as alleged in the Amended Administrative Complaint. 2/ Upon consideration of the Administrative Complaint filed herein, the Request for Admissions propounded to the Petitioner by the Respondent on August 24, 1982, the arguments of counsel, and the entire record compiled herein, I hereby make the following:
Findings Of Fact By its Administrative Complaint filed herein dated July 7, 1982, the Department of Professional Regulation, Board of Dentistry (Petitioner herein), seeks to suspend, revoke, or take other disciplinary action against Ronald Friedensohn, D.M.D., a licensed dentist in the State of Florida who has been issued license No. DN0007254. The Administrative Complaint contained two counts. Count I of the Administrative Complaint charged Respondent with violating Section 466.028(1)(o), Florida Statutes, for failing to make available to a patient, copies of the patient's records. Count II of the Administrative Complaint, as amended, charged Respondent with a violation of Section 455.241(1), Florida Statutes, due to an alleged refusal to release a patient's records to that patient until a disputed fee was paid, and thereby violated Section 466.028(1)(bb), Florida Statutes. On August 24, 1982, Respondent propounded a Request for Admissions to the Petitioner requesting that the Petitioner admit or deny the following within 30 days of service: Mrs. Barbara Ruderman has never made a formal request, herself, to Dr. Ronald Friedensohn for her x-rays and dental records pursuant to Florida Statute 455.241. An authorized legal representative has never requested, from Dr. Friedensohn, Mrs. Ruderman's records or x-rays. The only individual ever to request Mrs. Ruderman's x-rays and records was her husband, Morton Ruderman. Mr. Morton Ruderman, her husband, is not a duly appointed legal representative of Mrs. Ruderman. Petitioner failed to respond to the Request for Admissions within the 30-day period. However, the Petitioner did respond to the Request for Admissions on October 12, 1982, denying all admissions. In this regard, the Petitioner did not request an extension, nor was one provided to Petitioner, to respond to the Request for Admissions. Likewise, the Petitioner did not file any objections to the Request for Admissions within the appropriate time period. At the outset of the hearing, Respondent's counsel filed an ore tenus motion for a ruling, from the undersigned, to have deemed as admitted the admissions propounded to the Petitioner on August 24, 1982.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Administrative Complaint filed herein, as amended at the hearing, against Ronald Friedensohn, D.M.D., shall be DISMISSED in its entirety, with prejudice. RECOMMENDED this 3rd day of December, 1982, at Tallahassee, Florida. JAMES E. BRADWELL, 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 December, 1982.
The Issue Whether respondent's license as a registered nurse should be disciplined on charges that she improperly recorded the administration and disposal of controlled substances in violation of Section 464.018(1)(d) and (f), Florida Statutes (1981).
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be administratively fined $500.00 and reprimanded for violating Section 464.018(1)(f) on three separate occasions. DONE and RECOMMENDED this 6th day of May, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. 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 6th day of May, 1983. COPIES FURNISHED: W. Douglas Moody, Jr., Esquire 119 North Monroe Street Tallahassee, Florida 32301 Betty Bowman Fulk, pro se Apartment 1221 1500 N.W. 12th Avenue Miami, Florida 33136 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Helen P. Keefe, Executive Director Department of Professional Regulation Board of Nursing Room 504, 111 East Coastline Drive Jacksonville, Florida 32202
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, the penalty, if any, which should be imposed.
Findings Of Fact At all times pertinent to this proceeding Respondent, CHARLES E. FINKEL, was licensed by Petitioner to practice dentistry in the State of Florida. Petitioner is the State agency governing the practice of dentistry in the State of Florida. At all times pertinent to this proceeding, Respondent was engaged in the general practice of dentistry in Plantation, Florida. During the course of his practice, Respondent performs a surgical procedure for the treatment of periodontitis known as osseous surgery and a surgical procedure for the treatment of gingivitis known as a gingivectomy. Osseous surgery involves recontouring or reshaping bone in the mouth. Gingivectomy involves the surgical removal of diseased gum tissue. Osseous surgeries and gingivectomies are typically performed in the dentist's office. Both procedures can be performed during the same treatment session. At all times pertinent to this proceeding, Priscilla DeLeon, Joanne Manda, and Nanette Bevilacqua were employees of Albertson's, Inc. and covered by its group dental insurance plan. Ms. Bevilacqua first went to Respondent August 30, 1983, to have a filling restored in one of her front teeth. Respondent was chosen by Ms. Bevilacqua because he accepted Albertson's dental insurance plan. During the first visit, Respondent examined her dental condition, took a full mouth series of x-rays and restored the filling for her front tooth. Respondent discussed with Ms. Bevilacqua her general dental condition and advised her that she had pyorrhea and periodontitis. Respondent's examination revealed that Ms. Bevilacqua had periopockets ranging from 5 to 7 millimeters in depth. A periopocket of 6 millimeters or greater is an indication of a need for surgical intervention. Respondent advised Ms. Bevilacqua during her office visit of August 30, 1983, that she should seek treatment for her condition and discussed with her different treatment modalities including treatment through the use of osseous surgery. Respondent explained to Ms. Bevilacqua the risks and benefits of the surgical procedure during her first office visit, and she agreed during the first visit to undergo the surgical procedure at a later date. Ms. Bevilacqua returned to Respondent on September 29, 1983, because she continued to experience pain in the front tooth that he had filled on August 30, 1983. Respondent advised her that she needed a root canal on the subject tooth, which she agreed to undergo. Ms. Bevilacqua did not understand from Respondent's discussions with her on September 29, 1983, that he intended to perform during that office visit, in addition to the root canal, the surgical treatment that they had discussed on August 30, 1983. She would have consented to having the surgical procedure performed on September 29, 1983, had she been asked to do so. On September 29, 1983, Respondent performed the root canal and osseous surgery on Ms. Bevilacqua. Respondent also performed a gingivectomy as a part of this surgical treatment by trimming her gum level. Respondent was justified in performing the osseous surgery and gingivectomy based on the findings made during his examination of Ms. Bevilacqua on August 30, 1983. Entry for the osseous surgery was made through use of an envelope flap, which is a means of lifting the gum tissue from the bone structure. The bone structure was then recontoured with a rotary instrument. Respondent reduced the width of the bone and made a slight reduction in the height of the bone Respondent closed the wound produced by the surgery with a periopack. A periopack is a medicated bandage which may be used to close certain surgical wounds without the use of sutures. Respondent did not consider it necessary to use sutures to close the incision. The procedures Respondent followed in performing the surgery are acceptable dental procedures. Respondent thereafter submitted a claim to Ms. Bevilacqua's insurance carrier for osseous surgery. On July 5, 1985, Ms. DeLeon visited Respondent for the purpose of having a restoration (filling) of two of her teeth. Respondent advised Ms. DeLeon that she needed to have a root canal performed. Respondent did not discuss with the patient the nature of the procedure or the risks and benefits of the root canal procedure. Nevertheless, Ms. DeLeon consented to undergo the root canal therapy, which was begun on her first visit. Respondent's examination of this patient revealed periopockets with depths from 6 to 8 millimeters. Ms. DeLeon returned to see Respondent on July 16, 1985, to have the root canal completed. During this second visit Respondent also performed a frenectomy on Ms. DeLeon's upper front teeth (a procedure to which she had consented) and osseous surgery on her lower right and her lower left quadrants. Respondent failed to discuss with Ms. DeLeon, that he planned to perform osseous surgery on her, he did not explain the risks and benefits of the procedure to her, and she did not consent to the procedure. The osseous surgery came as a complete surprise to Ms. DeLeon. The osseous surgery was performed through the use of an envelope flap, recontouring of the bone structure, and closing of the incision with a periopack. The procedures followed by Respondent while performing the osseous surgery are acceptable dental procedures. The surgical procedure was justified based on Respondent's findings made during his examination of her. Respondent did not recommend to Ms. DeLeon that she have periodontal surgery on her upper quadrant. Respondent thereafter submitted a claim to Ms. DeLeon's insurance carrier for osseous surgery. Joanne Manda first visited Respondent on August 13, 1985, because she had an upper left bridge that needed repair. Respondent observed that she had pyorrhea and periodontal disease throughout her mouth and recommended periodontal surgery on her two upper quadrants. There was no recommendation that she have periodontal surgery on her lower quadrants. Ms. Manda returned to Respondent on August 29, 1985, at which time her teeth were cleaned and her course of treatment was discussed. Ms. Manda was told to return on September 10, 1985, at which time the recommended surgical procedure would be performed. Respondent had, prior to September 10, 1985, discussed with Ms. Manda the risks and benefits of the surgical procedure and the alternatives thereto. Ms. Manda did not understand the treatment plan as explained to her by Respondent, which led to her misunderstanding that the purpose of the September 10 appointment was to have her gums cleaned. Respondent had, however, provided Ms. Manda with sufficient information to enable her to make an informed consent to undergo the recommended surgical treatment. Because Ms. Manda agreed to make the appointment for September 10 and because she kept the appointment, Respondent was justified in his belief that Ms. Manda had made an informed consent to undergo the surgical procedure. Respondent performed osseous surgery on Ms. Manda on September 10, 1985. This procedure was justified by the depth of the periopockets, which measured up to 6 millimeters on examination. The procedure consisted of exposing the bone structure by use of an envelope flap, recontouring the bone structure, and closing the incision with a periopack. The procedures followed by Respondent in performing the surgery are acceptable dental procedures. Respondent thereafter submitted a claim to Ms. Manda's insurance carrier for osseous surgery. Respondent timely requested a formal hearing after the Administrative Complaint, which was subsequently amended, was served upon him.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that the Department of Professional Regulation, Board of Dentistry enter a final order which finds Charles R. Finkel guilty of having violated the provisions of Section 466.028(1)(p), Florida Statutes, which reprimands him for said violation, which places his licensure on probation for a period of 6 months, and which imposes an administrative fine in the amount of $1,000.00. DONE and ENTERED this 12th day of December, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 12th day of December, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO 89-0776 The following rulings are made on the findings of fact submitted on behalf of Petitioner: 1. The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 1 of the Recommended Order. 2. The proposed findings of fact in paragraph 2 are adopted in material part by paragraph 1 of the Recommended Order. 3. The proposed findings of fact in paragraph 3 are adopted in material part by paragraph 8 of the Recommended Order, 4. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 8 of the Recommended Order. The proposed finding that Ms. DeLeon's consent to undergo the root canal was not informed consent is rejected. Although Respondent did not explain the root canal procedure to her, there was no showing that this patient did not otherwise have sufficient information to make an informed consent to the procedure. The proposed findings of fact in paragraph 5 are adopted in material part by paragraphs 9 and 10 of the Recommended Order. The proposed findings of fact in paragraph 6 are adopted in material part by paragraphs 9 and 10 of the Recommended Order. The proposed findings of fact in paragraph 7 are adopted in part by paragraph 11 of the Recommended Order and are rejected in part as being contrary to the findings made. The proposed findings of fact in paragraph 8 are rejected as being contrary to the findings made. The proposed findings of fact in paragraph 9(a) are adopted as a conclusion of law, but are rejected as a finding of fact. The remaining findings of fact of paragraph 9 are rejected as being contrary to the findings made or to the conclusions reached. The proposed findings of fact in paragraph 10 are adopted in material part by paragraph 12 of the Recommended Order. The proposed findings of fact in paragraph 11 are rejected as being contrary to the findings made. The proposed findings of fact in paragraph 12 are adopted in part by paragraph 13 of the Recommended Order and are rejected in part as being contrary to the findings made. The proposed findings of fact in the second sentence of paragraph 13 are rejected as being contrary to the findings made. The proposed findings of fact in the other two sentences of paragraph 13 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 14 are rejected as being contrary to the findings made. The proposed findings of fact in paragraph 15 are rejected as being contrary to the findings made. The proposed findings of fact in paragraph 16 are adopted in material part by paragraph 4 of the Recommended Order. The date specified in this proposed finding of fact is rejected as being contrary to the evidence. The proposed findings of fact in paragraph 17 are adopted in material part by paragraph 6 of the Recommended Order. The proposed findings of fact in paragraph 18 are adopted in material part by paragraph 6 of the Recommended Order. The proposed findings of fact in paragraph 19 are rejected as being contrary to the findings made. The proposed findings of fact in paragraph 7 are adopted in part by paragraph 7 of the Recommended Order and are rejected in part as being contrary to the findings made. The proposed findings of fact in paragraphs 21-24 are rejected as being contrary to the evidence. The following rulings are made on the findings of fact submitted on behalf of Respondent: The proposed findings of fact in the first sentence of paragraph 1 are adopted in material part by paragraph 8 of the Recommended Order. The proposed findings contained in the remainder of paragraph 1 are rejected as being unnecessary to the findings made or as being subordinate to the findings made. The proposed findings of fact in paragraph 2 are rejected as being recitation of testimony or as being subordinate to the findings made in paragraphs 12 and 13. The proposed findings of fact in paragraphs 3 and 4 are rejected as being subordinate to the findings made in paragraphs 4-7, as being unnecessary to the findings made, or as being recitation of testimony. The proposed findings of fact under the section styled General Office Procedures is rejected as being subordinate to the findings made. The proposed findings of fact under the section styled Gingivectomy or Osseous Surgery are rejected as being subordinate to the findings made or as being the recitation of testimony. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 730 South Sterling, Suite 201 Tampa, Florida 33609 Salvatore A. Carpino, Esquire One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609 William Buckhalt Executive Director Board of Dentistry Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue The following issues of fact were considered: Did the Respondent aid, assist, procure, or advise an unlicensed person to practice medicine? Did the Respondent delegate professional responsibilities to persons when he knew or had reason to know that said persons were not qualified by licensure to perform them? Did the Respondent presign prescription forms? Both parties submitted posthearing findings of fact, which were read and considered. Those findings not incorporated herein are found to be either subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.
Findings Of Fact The Respondent, Albert P. Oteiza, is licensed to practice medicine and surgery in the State of Florida and has been so licensed at all times relating to the charges in the Administrative Complaint. The Respondent was president and director of the Union Latina Association, Inc. (the Association), located at 1313 Southwest First Street, Miami, Florida. The Respondent was paid by the Association, which provided medical services to patients who were members of the Association. The Respondent practiced at Clinical Union Latina (the Clinic), located at 1313 Southwest First Street, Miami, Florida, and was the medical director of the Clinic. The Respondent was not an officer or director of the Clinic. The president of the Clinic was Rigoberto Garcia, and the business manager was Christian Carmona. Florencio Sanchez-Lopez was employed as a physician's assistant at the Clinic by Christian Carmona, who assigned Sanchez-Lopez's duties. Sanchez-Lopez was not a licensed physician and was not a certified physician's assistant. Sanchez-Lopez admitted seeing and treating patients at the Clinic. Sanchez- Lopez saw those patients who were in serious condition in the presence of the Respondent. Those patients who were not in serious condition, Sanchez-Lopez saw without the Respondent being present, and Sanchez-Lopez prescribed treatment and medications for these patients. Sanchez-Lopez examined and prescribed medications and treatment for Ralph Nunez, an investigator for the Board of Medical Examiners, in the manner Sanchez-Lopez had admitted to examining and prescribing for other patients. Valerio Matta was employed as a physician's assistant at the Clinic by Carmona, who assigned Matta's general duties. Matta was not a licensed physician or a certified physician's assistant. Matta saw patients at the Clinic, examining them and prescribing medications and treatment for them without the presence of a licensed physician, as he did with Georgina Jorge, an investigator with the Department of Professional Regulation. Matta also admitted that he had performed minor surgery on patients, but only when the Respondent was present in the Clinic. Carlos Manuel Rodriguez-Murgia was employed as a physician's assistant at the Clinic by Carmona, who assigned Rodriguez-Murgia his general duties. Rodriguez-Murgia was not a licensed physician or certified physician's assistant. Rodriguez- Murgia saw patients at the Clinic, examining and prescribing medications and treatment for them without the presence of a licensed physician, as he did with Georgina Jorge, an investigator with the Department of Professional Regulation. The acts performed by Sanchez-Lopez, Matta, and Rodriguez-Murgia all constituted the practice of medicine. However, these acts did not exceed the acts which could have been performed by a physician's assistant. The Respondent was aware or should have been aware that Sanchez-Lopez, Matta, and Rodriguez-Murgia were engaged in seeing patients at the Clinic and performing acts which constituted the practice of medicine. Carmona was deceased at the time of the hearing. Garcia, president of the Clinic, outlined Carmona's duties. Carmona was responsible for having Sanchez-Lopez, Matta, and Rodriguez-Murgia certified as physician's assistants. All three men confirmed that Carmona represented to them they would be licensed and they were "legal" to perform their duties. Sanchez-Lopez, Matta, and Rodriguez-Murgia could not swear that it was the Respondent's signature on the prescriptions they used or that they had seen the Respondent sign the prescriptions. There were other licensed physicians who worked at the Clinic.
Recommendation Having found the Respondent guilty of three counts of violating Section 458.331(1)(w), Florida Statutes, as alleged in the Administrative Complaint, it is recommended that the Board of Medical Examiners suspend the license of the Respondent, Albert P. Oteiza, for a period of 12 months and assess a civil penalty against him of 3,000. DONE and RECOMMENDED this 17th day of October, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 17th day of October, 1983. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Blas E. Padrino, Esquire 2355 Salzedo, Suite 309 Coral Gables, Florida 33134 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE BOARD OF MEDICAL EXAMINERS DEPARTMENT OF PROFESSIONAL REGULATION Petitioner, vs. Case No. 83-122 ALBERT P. OTEIZA, M.D., License No. 20879 Respondent. /
The Issue Whether Respondent committed the offenses described in the administrative complaint? If so, what penalty should be imposed?
Findings Of Fact Based on the record evidence, the Hearing Officer makes the following Findings of Fact: Respondent has been licensed to practice medicine in the State of Florida since September 4, 1970. Respondent was formerly licensed to practice medicine in the State of New York. By order issued July 3, 1987, by the New York Commissioner of Education, Respondent's New York license was revoked on the ground that he had been convicted of committing an act constituting a crime under the law of another jurisdiction, which, if committed in New York State, would have constituted a crime under New York State Law, in that: On or about January 18, 1984, in the Superior Court of California, County of Los Angeles, in the People of the State of California v. Jose Minaya (No. A344 720), aff'd No. B005332 (Ct. of Appeals, 2nd App. Dist., Oct. 1985), the Respondent, following a jury trial, was convicted of one count of grand theft and six counts of filing false Medi-Cal claims. Upon his conviction, Respondent was sentenced to four years imprisonment, was fined $10,000 for each of the six counts of filing false Medi-Cal claims, and restitution to the State of California was imposed in the sum of $14,866.80. The convictions which resulted in the revocation of Respondent's New York license were more specifically described as follows in the California appellate court opinion referenced in the Education Commissioner's July 3, 1987, order: [Respondent], specializing in ophthalmology, was charged and convicted primarily of filing falsified Medi-Cal treatment authorization requests (hereinafter referred to as TARs) in order to obtain permission to perform elective cataract surgeries on Medi-Cal beneficiaries. The People of California proved that the cataract surgeries were not medically justified and that the TARs were falsified by the appellant himself or at his direction, so that he could obtain payment from the state by false pretenses. * * * Count VIII, grand theft, was proven by the People as larceny by false pretense for the accumulation of all monies received from the surgeries performed on the Medi-Cal recipients named in the false claims counts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Medicine enter a final order revoking Respondent's license to practice medicine in the State of Florida based upon the revocation of his New York license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of November, 1989. 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 29th of November, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-2120 The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by Petitioner in the instant case: Rejected because it is more in the nature of a conclusion of law than a finding of fact. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Rejected because it is more in the nature of a conclusion of law than a finding of fact. COPIES FURNISHED: David G. Pius, Esquire Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jose Minaya, M.D. 536 North 19th Street Montebello, California 90640 Jose Minaya, N.D. c/o Carlos Lorente 1018 Cyrus Lane Arcadia, California 91006 Jose Minaya, N.D. c/o P.A. Boyens Parole Agent II 9500 Norwalk Boulevard Santa Fe Springs, California 90670 Dorothy Faircloth, Executive Director Department of Professional Regulation, Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth D. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
