The Issue Whether Petitioner's termination from employment by Respondent on November 12, 2004, for Petitioner's refusal to take a DNA test to affirmatively establish the paternity of a child he wanted to add to his company-provided insurance coverage was discriminatory in violation of the Florida Civil Rights Act, Chapter 760, Florida Statutes (2004).
Findings Of Fact Petitioner was employed by Respondent from May 1998 until his termination on November 12, 2004. Petitioner had performed his duties adequately during his employment period and had no major disciplinary reports in his record. Petitioner was at the time of his termination from employment a single, divorced, white male, and he was living with his girlfriend, Shannon Mitchell. On September 28, 2004, Petitioner received a message while he was at work that his girlfriend had called and was in distress, purportedly suffering from back pains. Petitioner requested and was given permission to go home to attend to her. Upon arrival at home, Petitioner discovered that his girlfriend had in fact given birth to a child. Petitioner may or may not have known about the birth before he left work; his testimony on that issue was contradictory. Petitioner had only learned of his girlfriend's pregnancy about one week before the birth despite the fact they had lived together for almost a year. Petitioner notified Respondent about the birth the next day (September 29) in accordance with company policies. He also requested and was granted leave from work. The child was immediately added to Petitioner's health insurance coverage in accordance with Respondent's normal practice. Even though Respondent added the child to Petitioner's family insurance coverage, there were several concerns about the unusual circumstances surrounding Petitioner's reporting of the birth, to wit: That he didn't tell his employer about the birth when he left to go home that day even though he likely knew it had occurred; that he represented a lack of knowledge about the pregnancy even though he was living with the child's mother; that the hospital records did not list Petitioner as the father. Respondent's insurance plan is self-funded and is administered directly by management of the company. Each employee's cost of insurance is determined by the prior year's costs and expenses. The company pays about 99.5 percent of the employee's cost; the employee pays the remainder plus the cost of coverage for family members. Proper administration of the health plan is therefore important to both management and employees alike. Respondent employs over 250 people. The employee handbook is silent on the degree or kind of proof necessary to establish paternity of a child for insurance purposes. Neither Respondent nor its insurance program has an established policy requiring employees to obtain a paternity test in order to prove relationship to their child. There is no prohibition against an unmarried person adding his or her child and, in fact, the company has provided benefits for such children. It is not common for Respondent to ask an employee to submit to a DNA examination in order to establish paternity for insurance coverage purposes. The only other time such a test had been required was for an unmarried male employee who was not able to provide a birth certificate for his child showing he was the father. That situation, like the present matter, had certain unusual facts associated with it. While working for the company during the years of 1998 to 2003, Petitioner was married. During that time he and his wife had two children, both of whom were added to his family insurance coverage. He was not required to provide proof of paternity for those children other than a birth certificate. Based upon the unusual circumstances regarding Petitioner's reporting of his most recent child's birth, Respondent demanded further proof of paternity. On October 12, 2004, Respondent's human resources director, Sandra Ho, asked Petitioner to have a DNA test performed and to provide Respondent with the results on or before November 12, 2004. Respondent did not offer to pay for the required test. Petitioner acknowledged receipt of this demand from his employer which included an ultimatum regarding his continued employment should he fail to comply. In response to the request for proof of paternity, Petitioner provided Respondent a Social Security document for the child and a hospital discharge notice for Shannon Mitchell. Neither of these documents listed Petitioner as the child's father. On or about November 10, 2004 (two days prior to the DNA test deadline), Petitioner provided Respondent with a copy of the child's birth certificate listing him as the father. He had filled out "paperwork" at the hospital to obtain the birth certificate. There was no evidence in the record as to what the paperwork entailed. Respondent had accepted birth certificates as proof of paternity for other employees. Petitioner did not obtain or provide to Respondent a DNA test result. In fact, he did not make any effort to obtain such a test. He did discuss with Respondent his concerns about the costs of such a test. Based upon Petitioner's refusal to comply with his employer's directives, he was terminated from employment on November 15, 2004, effective November 12, 2004. The basis for termination was Petitioner's insubordination and refusal to follow the orders of his employer. Petitioner supervised approximately six people on a regular basis. Respondent was concerned about Petitioner's continued ability to properly supervise others while he was refusing to cooperate with management.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 11th day of July, 2006, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 2006.
The Issue Whether Respondent's medical license should be revoked, suspended, or otherwise disciplined on charges that he was convicted or found guilty of a crime directly relating to the practice of medicine or his ability to practice medicine, in violation of Section 48.331(1)(c), Florida Statutes.
Findings Of Fact At all times material to the charge, Respondent was a licensed medical doctor in the State of Florida, having been issued license No. ME 0020485. I. Prior Disciplinary Action Against Respondent The Respondent has been the subject of prior disciplinary proceedings instituted by the Department. On February 7 and 8, 1984, an administrative hearing was conducted by Diane Tremor, hearing officer with the Division of Administrative Hearings in Fort Myers, Florida. The issue for determination was whether his license as a medical doctor should be revoked, suspended, or otherwise disciplined for the medical treatment he provided to five named patients, one of whom was Holli Schmidt. On July 24, 1984, the hearing officer submitted her recommended order to the Board of Medical Examiners. With regard to patient Schmidt, the hearing officer found that Respondent inserted an intrauterine contraceptive device without taking adequate precautions to insure that the patient was not pregnant at the time of insertion, and concluded that his treatment of patient Schmidt fell below an acceptable standard of care, skill and treatment, in violation of Section 458.331(1)(t), Florida Statutes. On January 9, 1985, the Board of Medical Examiners adopted the hearing officer's Findings of Fact and Conclusions of Law, but modified her recommended penalty of a one year suspension by providing that he could petition for reinstatement after serving six months of the suspension. II. Criminal Proceedings Against Respondent In the meantime, Respondent was the subject of a criminal proceeding arising out of his treatment of patient Holli Schmidt. On October 28, 1981, the Assistant State Attorney of the Twentieth Judicial Circuit filed an information charging Respondent with Culpable Negligence, a misdemeanor violation of Section 784.05, Florida Statutes. The information alleged that between February 1, 1981 and March 30, 1981, Respondent "exposed Holli Schmidt to personal injury through culpable negligence." (Joint Exhibit 6). On March 23, 1984, in the County Court of Lee County, Florida (Case No. 81MM6984), a jury found Respondent guilty as charged. (Joint Exhibit 4). On June 18, 1984, County Judge Radford R. Sturgis, the presiding judge, entered an order (1) reciting that Respondent had been found guilty (by the verdict of a jury) of culpable negligence; (2) withholding adjudication of guilt; and (3) placing him on probation for a period of six months. The order also reflects that the Court was satisfied that Respondent was "not likely again to engage in a criminal course of conduct, and that the ends of justice and the welfare of society do not require that [he] should presently be adjudged guilty and suffer the penalty authorized by law." (Joint Exhibit 5). Respondent was ordered to serve 50 hours of Community Service, pay a $500 fine, and serve 59 days of jail time (49 days were suspended and 10 were to be served on weekends). The crime, of which Respondent was found guilty, related to the practice of medicine. In their prehearing stipulation, the parties agree that "[t]here is an identity of underlying facts supporting both [the] criminal conviction . . . and the current suspension of [Respondent's] license by the Board of Medical Examiners based upon the [prior hearing officer's] Recommended Order. . . . Respondent timely appealed the jury's verdict (finding him guilty of Culpable Negligence) to the Circuit Court of the Twentieth Judicial Circuit of Florida, which appeal is still pending.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondent's medical license be suspended for a period of six months, such suspension to run concurrently with the suspension previously imposed by the Board of Medical Examiners for his treatment of patient Holli Schmidt. DONE and ORDERED this 15th day of April, 1985, 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 15th day of April, 1985.
The Issue Whether the Motions for Rule Challenge Proceedings (referred to as Petition(s)) filed in each of the above-cited cases meet the requirements both in form and substance, pursuant to Subsection 120.56(4)(a), Florida Statutes (2004).
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.
