Findings Of Fact The Respondent Alam Farzad is a currently licensed medical doctor practicing medicine in Dade County, Florida. The Respondent was first licensed in Florida in 1975. In February, 1972, the Respondent resided in Miami with her husband, Kiumaris Bakshandeh, having moved to the United States from Iran in 1971 where they had both studied medicine and received medical degrees. In February, 1972, the Respondent's sister, Iran Farzad Rafael, was residing in Chicago, Illinois. Prior to February, 1972, the Respondent's sister graduated as a medical doctor in Iran and after moving to the United States, attempted to qualify for eventual licensure by taking an examination for foreign medical graduates administered by the Educational Council for Foreign Medical Graduates (ECFMG). In 1972 a passing grade was required on the examination by a foreign medical graduate in order to become eligible to take medical training in an intern program in the United States. Upon completion of the training for foreign professionals, another examination was required to be passed in order to become licensed in a state. Thus, the examination was a type of qualifying exam, the successful passage of which entitled a foreign graduate to receive medical training in the United States and eventually sit for the state medical licensing exam which was administered to all persons who desired to become licensed physicians. The Respondent's sister took the ECFMG exam three times prior to February, 1972, and failed it each time. At the request of her husband, the Respondent flew to Chicago in February of 1972, to take the ECFMG exam for her sister. The Respondent went to the examination site with the examination entrance papers she had taken from her sister, forged her sister's name at the examination site and took the examination using her sister's name. She subsequently received word from her sister that she had received a passing grade on the examination. The night after taking the examination, the Respondent received a phone call from her husband at her sister's home. During the conversation between the Respondent's husband and sister, the husband requested that the sister perform an abortion on the Respondent in return for her help on the examination. The Respondent's sister refused the husband's request. But for the Respondent taking and passing the ECFMG exam on behalf of her sister, the sister could not have practiced medicine or entered into a residency program. In 1978, the Respondent testified that her sister had practiced medicine in 1976 specializing in physical medicine and rehabilitation. However no official records were submitted by the Petitioner that the Respondent's sister is presently licensed or has been licensed as a physician in Illinois. In 1976, the Respondent's husband used his knowledge concerning the ECFMG examination to coerce the Respondent into signing a property settlement and custody agreement in a pending divorce proceeding. In exchange for agreeing to the property and custody agreement, the Respondent's husband signed an affidavit that would allegedly ensure that no information concerning the 1972 examination would be made public. In early 1978, the Respondent instituted proceedings in the Eleventh Judicial Circuit, Dade County, to set aside the child custody and support provisions contained in the final decree of dissolution of marriage between the Respondent and her husband on the grounds of coercion and duress. Following a lengthy hearing in which numerous witnesses were heard and exhibits entered into evidence, the Circuit Court in March, 1978, granted Respondent's motion to set aside the agreement and awarded custody of the couple's minor child to the Respondent. Dr. Bakshandeh appealed the trial court's decision to the District Court of Appeal, Third District. The court affirmed the trial court noting that there was " . . . an abundance of evidence in the record. . ." to support the Respondent's contention that she had been subjected to coercion and duress by her husband into entering into the agreement and that such coercion and duress constituted "misconduct of an adverse party" which would authorize a trial court to set aside a final judgment. See Bakshandeh v. Bakshandeh, 370 So.2d 417 (Fla. 3rd DCA 1979). The court went on to make, however, the following observation: As a final note, we are disturbed by an undisputed fact which emerges from this record. The wife Dr. Alam Farzad Bakshandeh is a physician licensed to practice medicine in Florida; the husband Kiumaris Bakshandeh is a chief resident urological surgeon for the University of Miami. Both were originally from Iran where they received part of their medical training. The record reveals that in February, 1972, the wife took a medical examination for her sister Iran Farzad Rafael for admission to a medical training program as a foreign physican in the State of Illinois. The examination was given in Chicago wherein the wife used her sister's name, took the exami- nation and passed it. The sister after additional training and examination was ad- mitted to practice medicine in Illinois. There is evidence that the husband urged the wife to take the examination for her sister and thereafter used this indiscretion to blackmail the wife into signing the pro- perty settlement agreement herein. The re- cord does not reflect whether the appropriate medical authorities have been notified of the above facts. We trust that such notifi- cation will be accomplished in the near future. Thereafter, on April 24, 1979, the Clerk of the Third District Court of Appeal forwarded a copy of the court's opinion to the Board of Medical Examiners for appropriate action. This was presumably the first actual notice the Petitioner received concerning the Respondent's actions on behalf of her sister in February, 1972. In July, 1981, a Board of Medical Examiners Probable Cause Panel found probable cause to believe violations of Chapter 458, Florida Statutes existed in this case and an Administrative Complaint was issued and filed against Respondent. Respondent was licensed by the Board of Medical Examiners as a medical physician in approximately February, 1975. The Petitioner filed the Administrative Complaint approximately 9 years after the incident in question occurred. The Petitioner failed to introduce evidence at the final hearing that while exercising due diligence it was unable to discover this incident prior to April, 1979.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: On June 27, 1977, respondent was charged by Information with committing the felony of leaving the scene of an accident on February 24, 1977. The accident resulted in injuries to a seventy-nine (79) year old woman, Grace Heck, who died nine (9) days later as a consequence of those injuries. Respondent pled nolo contendere to that charge and, on November 15, 1977, Judge Thomas M Coker, Jr, entered an order withholding adjudication of guilt and placing respondent on probation for a period of three (3) years, with the specific condition, among nine others, that he pay restitution for the medical expenses of the accident victim. The term of probation was later modified to one year to conform to the law. On or about July 10, 1978, respondent's probation officer filed an Affidavit of Violation of Probation stating nine violations of the terms of respondent's probation. These violations included failure to submit required reports and pay costs for supervision, failure to make restitution for the accident victim's medical expenses, carrying a concealed firearm, operating a motor vehicle on two occasions while his license was suspended, careless driving, and failure to reduce the speed of his automobile resulting in the colliding with and subsequent death of a pedestrian, John Kelly Wilkens. Effective July 13, 1978, Judge Coker revoked respondent's probation imposed for the offense of leaving the scene of an accident and sentenced respondent to one year in the county jail. Pursuant to a motion for mitigation, Judge Coker on August 18, 1978, set aside the order of adjudication of guilt and the one year sentence, and ordered that respondent be placed on a new probation for a period of one year. The original terms of probation were imposed, along with the conditions that respondent not resume the practice of medicine until an examining board determined his fitness and that he submit to a psychiatric evaluation and treatment, if required. On or about July 14, 1978, another Information was filed against respondent for the third degree felony offense of carrying a concealed weapon. After a plea of nolo contendere, adjudication of guilt was withheld and respondent was placed on probation for a period of five years by Judge Coker on January 24, 1979. Independent evidence was adduced by the petitioner with respect to both the hit-and-run accident and the carrying a concealed firearm charge. A passenger in respondent's car on February 24, 1977, testified in her deposition that respondent was driving his car, ran a red light in Fort Lauderdale and collided with a turning car containing two elderly persons. Respondent immediately left the accident scene, drove to a closed service station and stayed there for a few minutes, then drove to a school parking lot and left the car there. The deponent and respondent then walked to respondent's home, picked up another car and drove to West Palm Beach where respondent played tennis. Two officers with the Fort Lauderdale Police Department testified that their investigation of the February 24, 1977, accident confirmed that respondent was the driver of the hit-and-run vehicle. The officer who arrested respondent for carrying a concealed weapon testified by way of deposition that in June of 1978, she found respondent in his car with a fully loaded and cocked automatic weapon on the floor and live ammunition matching the weapon in his pocket. Respondent has not reported to his probation officer since October of 1979. An Affidavit of Violation of Probation has been filed against the respondent and respondent is presently the subject of an arrest warrant. His present whereabouts are unknown to his probation officer and he is considered a fugitive from justice. At the request of Judge Coker, Dr. Arnold H. Eichert, a psychiatrist, examined respondent on September 11, 1979, It was Dr. Eichert's opinion that respondent suffered from paranoid schizophrenia, Dr. Eichert seriously doubted respondent's ability to practice medicine at that time. Inasmuch as respondent had violated his probation and failed to appear at this hearing, Dr. Eichert opined that such conduct and poor judgment was consistent with his earlier diagnosis that respondent would be unable to practice medicine with reasonable skill and safety to patients. Respondent was expelled from the Broward County Medical Association on July 7, 1977, for the reason that his medical practice was detrimental to the profession, his patients or the community. No appeal was taken from this action. On November 10, 1977, respondent's medical staff privileges at Plantation General Hospital were suspended for his lack of attendance at general staff and departmental meetings. On September 30, 1977, the State Committee on Peer Medical Utilization Review (PMUR), which analyses physician treatment of Medicare patients for Blue Shield, found that respondent was guilty of "maximal overutilization of office visits, injections and laboratory procedures." This finding was made after a review of the medical records of approximately forty-five (45) of respondent's patients during the 1974 year. The charts were reviewed by Blue Shield, the Florida Medical Foundation, Inc. and a county peer review committee. Statistically, a review of respondent's patient charts illustrated that respondent was far beyond the utilization screening parameters as compared to other physicians in the Broward County area engaged in general practice. Specifically, the norm for visit days per patient for physicians doing general practice in the area was five days. The respondent's records indicated eight visit days per patient, or sixty percent over the screening parameter. The average number of injections per patient was 2.44. Respondent's injections per patient amounted to 17.7, or 620.08 percent over the parameter. Respondent's laboratory procedures per patient per year were 6.24, while the screening parameter was 4.96, representing 25.81 percent overutilization. By way of deposition, Dr. Frank Hodnette, Chairman of the State Committee on PMUR, testified that such statistics denote that respondent was "way out of bounds as far as his utilization of the medicare benefits as related to . . . the area of office visits, injections and laboratory work." After reviewing respondent's patient's medical charts, the various reviewing committees further concluded that respondent's practice deviated from the standard of acceptable daily practice and was not consistent with what is considered as standard good care of medical practice. A member of the Broward County Medical Association's PMUR Committee that reviewed respondent's records testified at the hearing as an expert in family and general practice. Dr. Nancy La Fuente reviewed several medical charts and found no medical justification for certain injections, multiple injections of the same substance, and an overall gross abuse of injections, particularly of vitamins. Dr. La Fuente concluded that respondent's practice significantly deviated from the standard of acceptable and prevailing medical practice in his area of expertise in Broward County.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that respondent be found guilty of violating Section 458.1201(1)(c), (m), (n) and (p) and that respondent's license to practice medicine in the State of Florida be revoked. Respectfully submitted and entered this 6th day of June, 1980, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: William B. Wiley McFarlain, Bobo, Sternstein, Wiley and Cassedy, P.A. 666 Lewis State Bank Building Tallahassee, Florida 32301 Alfred E. Johnson, Esquire 3443 Hancock Bridge Parkway North Ft. Myers, Florida 33903 Nancy Whittenberg, Secretary Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Mailed to Stephen M. Niesen, M. D. to the three addresses indicated below: 1940 South Ocean Drive Hemisphere's Apartments No. 8-P Hallandale, Florida 33309 % Probation Department Broward County Courthouse Fort Lauderdale, Florida 33301 Post Office Box 6372 Fort Lauderdale, Florida 33310
The Issue The central issue in this case is whether Richard Koenig, D.P.M., should be licensed as a podiatrist in the State of Florida. More specifically, this case must determine these issues: whether Richard Koenig, D.P.M., has practiced podiatry in the past at an acceptable standard of care as required by Section 461.013(1)(s), Florida Statutes; whether he fraudulently misrepresented material facts on his application for licensure as a podiatrist in violation of Section 461.013(1)(a), Florida Statutes; and whether his application to become licensed as a podiatrist is barred on grounds of administrative res judicata because of the Board of Podiatry's denial of his application in 1994-1995.
Findings Of Fact Dr. Koenig is an applicant for licensure as a podiatrist in the State of Florida. He is presently licensed to practice podiatry in the State of Missouri and was previously licensed in Illinois and Florida. Both of the latter licenses have expired. Dr. Koenig meets all criteria for licensure in Florida other than the grounds for denial cited by the Board in its Notice of Intent to Deny and described in the Statement of the Issues, above. The Board is responsible for certifying individuals who are qualified to become licensed as podiatrists and the Department of Health is responsible for issuing the licenses after the Board's certification. Dr. Koenig permitted his Florida license to lapse while he practiced in Missouri. He initially sought to be licensed again in this state in 1994. At that time, his application to sit for the examination, and thereafter to be licensed, was denied by the Board. Dr. Koenig requested a hearing on the denial before the Division of Administrative Hearings (DOAH) and a case was opened as DOAH Case No. 95-0570. Dr. Koenig later dismissed his petition and the DOAH file was closed. The earlier denial thus became final. Dr. Koenig reapplied for licensure in 1997. It is this application which is the subject of the instant proceeding. Dr. Koenig has already taken and passed the national podiatric licensure examination in Louisiana in 1997, thus meeting the examination requirement. Dr. Koenig was involved in approximately eleven podiatric malpractice cases during his practice in Missouri in the 1980's and early 1990's. Eight of the cases were settled by his insurance carrier. Three additional cases were pending at the time of Dr. Koenig's initial application in 1994. Of these three, Dr. Koenig prevailed at trial in two cases. The third case has been voluntarily dismissed by the plaintiff and has not been refiled. Dr. Koenig has not been engaged in the practice of podiatry as his primary professional activity since 1993-1994. He occasionally provides podiatric services as part of his commitment to the U.S. Navy, but he has primarily been engaged in developing and marketing two devices for use in podiatric and related services and has been teaching. Dr. Koenig received and reviewed the 1994 Board Notice of Intent to Deny Application for Examination and Licensure prior to filing his 1997 licensure application. In addition, he was aware that he had dismissed his petition to review that decision and the Board's decision was thus final. Nevertheless when called upon to state in the 1997 application whether he had ever been denied licensure as a podiatrist, Dr. Koenig answered "No." (Petitioner's Exhibit No. 1) This answer was false. Question five of the application for podiatry licensure reads: "Has any podiatry license held by you ever been acted upon, suspended or revoked, or have you ever been denied licensure?" Dr. Koenig's explanation concerning his negative answer to this question was that he thought he was being denied the right to take the examination, which was a condition required before he could be licensed. His understanding is supported by a reading of the minutes of the Board meeting at which the decision was made: "Dr. Simmonds moved to deny Dr. Koenig from taking the examination based on not having the ability to practice Podiatric Medicine at a level of care and safety." (Petitioner's Exhibit No. 1) However, the Board sent, and Dr. Koenig received, a Notice of Intent to Deny Application for Examination and Licensure. While that document plainly states that he was both being denied the right to take the examination and the right to be licensed, he did not focus on the second point--the right to be licensed. Dr. Koenig offered his explanation to the Board at its meeting on July 25, 1997, and when asked about the application question, he stated, "Because it is a misunderstanding. I make a differentiation between being denied a license and being denied the opportunity to sit for a license, and I may be wrong, and I stand corrected if I am, but that's what my intention was." (Petitioner's Exhibit No. 1, Transcript pp. 21-22). He understood that the Board was denying him the right to take the examination, an essential element of his application process. Dr. Koenig's explanation has been consistent throughout this proceeding, both before the Board and in the formal hearing. Although Dr. Koenig did answer the question incorrectly, his explanation that he did so without any fraudulent intent is entirely credible. Had there been an intent to defraud the Board regarding his application, Dr. Koenig might have avoided disclosing the malpractice suits which resulted in the Board's earlier decision to deny him licensure. Those malpractice suits are no longer an appropriate basis to deny licensure. Dr. Koenig is a Board-certified podiatrist and is a Fellow of the American College of Foot and Ankle Surgeons. One becomes Board-certified by taking an examination, by meeting practice requirements, and by submitting a number of medical cases to the Board for evaluation. Only about 10 percent of all podiatrists are Board-certified. Dr. Koenig's specialty is foot surgery and he has operated more often than a podiatrist in standard practice. Dr. Koenig has written several articles in peer- reviewed journals, and has spoken widely in the United States and elsewhere at various continuing medical education seminars. A frequent topic of his speeches involves the use of an implant which he developed to replace the big toe joint. This implant is patented, approved as a safe device by the FDA, and is covered by Medicare and Medicaid. Dr. Koenig has developed and marketed a special shoe for patients who have had foot surgery. There have been no Medicare or Medicaid complaints brought against Dr. Koenig and he maintains Medicare and Medicaid provided numbers. The two lawsuits which went to a jury verdict were decided in his favor and there are no lawsuits pending now. The multiple claims of malpractice occurred when he was actively engaged in foot surgery practice in Missouri. His insurance carrier, without consulting him, settled those claims. After he changed carriers and contested the claims, he has prevailed. The Board in this proceeding presented no evidence that Dr. Koenig has practiced below the standard of care. Nor did it refute his credible testimony.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: that a Final Order be entered granting Dr. Koenig's license to practice podiatry in the State of Florida. DONE AND ENTERED this 24th day of April, 1998, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 1998. COPIES FURNISHED: John J. Rimes, III Office of Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Eric B. Tilton Gustafson, Tilton, Henning & Metzger, P.A. Suite 200 204 South Monroe Street Tallahassee, Florida 32301 Angela T. Hall, Agency Clerk Department of Health Building 6 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Eric G. Walker, Executive Director Board of Podiatry Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
