Findings Of Fact Petitioner was licensed as a medical doctor in the State of Florida in January, 1966, pursuant to license number ME 0012031. Petitioner practiced medicine and maintained his license in good standing from 1966 until 1982. In 1982, however, Petitioner encountered problems. Petitioner was found guilty in 1982 of gross malpractice for failing to use general anesthesia during cosmetic surgery, beginning surgery in his office without adequate assistance, and beginning surgery in his office without any prospect of the use of a hospital surgical suite in the event of complications. Petitioner was also found guilty of making deceptive, untrue, or fraudulent representations in the practice of medicine or employing a trick or scheme that failed to conform to the generally prevailing standards of treatment in the medical community (the "original offense") 2/ As a result of the original offense, Petitioner's license was revoked pursuant to a Final Order entered in DOAH Case No. 80-2142 on January 6, 1982. The same order stayed the revocation, suspended Petitioner's license for two years, required continuing medical education courses, and imposed a $4,000.00 fine. Petitioner paid the $4,000.00 fine, but failed to stop practicing medicine. Later in 1982, Petitioner was found guilty of continuously practicing medicine since the date his license was suspended (the "second offense"). Petitioner's license was revoked on August 13, 1982, pursuant to a Final Order entered in Board Case No. 24627. On November 29, 1984, Petitioner was placed on five years probation by a federal court after pleading guilty to federal crimes. Petitioner agreed to pay restitution of $7,394.73. Petitioner has complied with the terms and conditions set forth in the Final Order entered on August 13, 1982. Petitioner has not practiced medicine in Florida. Petitioner has supported himself where he could find employment. He has sold cosmetics, worked in marketing gold and silver certificates, worked towards writing a book on the treatment of obesity, opened a clinic for the individual treatment of obesity, worked for an Opti-fast Clinic, and has worked in the field of sports nutrition. During this time, Petitioner has taken approximately 143 hours of CME courses. Petitioner is capable of safely engaging in the practice of medicine. Dr. Victor Krestow is a Board Certified physician in family medicine who has practiced medicine in Florida for approximately 20 years. Dr. Krestow's practice consists of family medicine and industrial medicine. 3/ In Dr. Krestow's opinion, Petitioner is qualified to return to the practice of medicine under Dr. Krestow's direct supervision, and will be an asset to the community. Dr. Krestow is confident of Petitioner's character, morality, willingness to obey the law, and Petitioner's diagnostic and medical abilities. 4/ The violation which led to revocation of Petitioner's license does not show such a lack of judgment on Petitioner's part that it is likely he will again violate Chapters 455 and 458, Florida Statutes. The Board stayed the revocation imposed for the original offense. The second offense occurred when Petitioner continued to practice medicine after the six days Petitioner was given to close his medical practice. Petitioner continued to treat some of his patients in need of emergency medical care and referred others to other medical providers. 5/ Petitioner's partially impaired judgment which led to both the first and second offense was medically attributed to circumstances present in 1982 that involved family, financial, and emotional pressures. 6/ The uncontroverted evidence establishes that Petitioner's judgment has improved since the revocation of his license in 1982. Petitioner has accepted responsibility for his acts. Petitioner paid the fine imposed by the Board in 1982. Petitioner paid back the $3,800.00 paid to him by Medicare while he was practicing medicine during his suspension. Petitioner accepted responsibility in 1984 for the claims submitted by the other medical providers during his suspension in 1982 and plead guilty to federal crimes. Petitioner paid the $7,394.73 in restitution required in federal court at the rate of $148.00 a month during difficult financial times. In Petitioner's judgment, it was best to accept responsibility in 1984 for events that occurred in 1982 and to pay the restitution required by the federal court. Petitioner successfully completed his term of probation, reporting as directed and adhering to all of the conditions of probation. Petitioner's probation was reduced from five to three years upon the recommendation of Michael Phelan, Petitioner's former probation officer. Mr. Phelan concluded that Petitioner's conduct was exemplary and it was unlikely that Petitioner would ever commit another criminal offense. Petitioner's judgment was determined medically to have improved since 1982 based on mental examinations and evaluations performed by appropriate professionals. By deposition testimony, Dr. Elaine F. Needell, a Board Certified psychiatrist, concluded that as of the time of his last evaluation in 1984 Petitioner was perfectly able and competent to obey the law, was conscientious, and was capable of practicing good internal medicine. Dr. Needel concluded that Petitioner's professional and social judgment seemed to be almost back to normal. 7/ Dr. Needel attributed Petitioner's partially impaired judgment in 1982 to circumstances involving family, financial, and emotional pressures. Dr. Krestow has no doubt as to Petitioner's ethical and moral character and has no reservation in assuming the responsibility of supervising Petitioner in the practice of medicine. Dr. Krestow has concluded that Petitioner's morality is of the highest order. 8/ Petitioner's record since 1984 is consistent with the conclusions reached by Drs. Krestow and Needell, and the conclusion of Mr. Phelan. Prior to this proceeding, Petitioner petitioned for reinstatement or requested to petition for reinstatement approximately nine times. The Board has denied each request pursuant to Final Orders filed on: March 2, 1983; April 26, 1983; September 13, 1983; January 3, 1984; July 25, 1984; January 10, 1985; November 13, 1985; February 24, 1987; and November 18, 1988. Petitioner has been confident for some time now that his judgment has improved and that he is capable of returning to the practice of medicine.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent: Reinstate Petitioner's license to practice medicine in Florida; Restrict Petitioner's license to practice medicine so that Petitioner must practice under the supervision of Dr. Victor Krestow, or a similarly qualified physician, for a period of not less than one year nor more than two years from the date of this Order; and Prescribe reasonable requirements for Petitioner's supervision which may include requirements for CME courses and clinical training. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 17th day of July 1990. DANIEL MANRY 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 17th day of July 1990.
The Issue The central issue in this case is whether the Respondent violated Chapter 458 Florida Statutes as alleged in the Administrative Complaint dated July 11, 1986; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witness and the documentary evidence received at the hearing, I make the following findings of fact: The Respondent, Maria I, Andrakovich, M.D., is a licensed physician in the State of Florida, having been issued license number MEOO2I436. On or about May 1, 1983, Respondent entered into a Service agreement with "The Doctor's Office, Inc." wherein Dr. Andrakovich agreed to provide medical services for the patients at 330 South Dixie Highway, Lake Worth, Florida. Respondent's employment with "The Doctor's Office, Inc." ended in March, 1984. On or about July 12, 1983, Respondent filed with the Board of Medical Examiners an Application for Certification for Physician's Assistant for Jean Eugene Raymond. On August 15, 1983, Mr. Raymond was certified to work under the supervision of Respondent pursuant to Chapter 458 Florida Statutes. On November 22, 1983, Mr. Raymond filed his Biennial Physician's Assistant Certification and reported a change of office address to 1177 Hypo1uxo Road, Lantana, Florida. Respondent executed the affidavit for this certification before a notary public. Respondent never worked at the Hypo1uxo, Road facility. Dr. Andrakovich remained at the prior office location which was approximately five miles from the Hypoluxo site. Prior to his move to the Hypoluxo facility, Mr. Raymond would confer, in person, with Dr. Andrakovich regarding each patient. After moving to the Hypoluxo facility, Mr. Raymond would confer with Dr. Andrakovich by telephone. Respondent relied on Mr. Raymond's judgment that this telephonic system of conferring about patients complied with any legal requirements of their relationship. Respondent did not know the regulations which govern physician's assistants. Many of the patients seen at the facilities on Hypoluxo and Dixie were elderly and suffered heart problems. Respondent's schedule required her to see one patient every fifteen minutes. This patient scheduling rate later increased to one patient every ten minutes. It was difficult for Respondent to confer with Mr. Raymond by telephone and meet the schedule. Respondent assumed Mr. Raymond would confer with the physicians at the Hypoluxo facility. No specific arrangement was made to require physicians at Hypoluxo to supervise Mr. Raymond nor did any physician there assume responsibility for Mr. Raymond's activities. During her employment with "The Doctor's Office, Inc." Respondent treated Norman Shapiro. Mr. Shapiro had a history of heart trouble, diabetes, and hypertension. During the fall of 1983, Mr. Shapiro had complained of increased pain which had resulted in Respondent doubling the strength of Mr. Shapiro's heart medication. Mr. Shapiro's medical record for this period suggested a deterioration in his heart condition. On November 21, 1983, Norman Shapiro went to the Hypoluxo facility and was seen by Mr. Raymond. Mr. Shapiro complained that he was constantly having to take his heart medication by handful amounts. Mr. Raymond recommended no coffee, tea, chocolates or smoking and that the patient should elevate his head 4-6 inches for sleeping. The only additional medication suggested was Maalox. The treatment recommended by Mr. Raymond was consistent with the diagnosis of a hiatal hernia but was inappropriate given the patient's history of heart disease. The minimally acceptable care within the medical community where "The Doctors' Office" was located would have required the patient Shapiro to be hospitalized. Mr. Raymond did not confer with Dr. Andrakovich regarding Mr. Shapiro's visit on November 21, 1983, until after the treatment had been recommended. Had Dr. Andrakovich seen Mr. Shapiro on that day, she would have put him in the hospital. Dr. Andrakovich believed Dr. Conti had treated Mr. Shapiro on November 21, 1983. On November 21, 1983, the electrocardiogram (EKG) for Mr. Shapiro was within normal limits. Despite the EKG, Mr. Shapiro's symptoms were cardiac- related and had a significant potential for morbidity and mortality. In fact, Mr. Shapiro died on November 22, 1983. Frank Colavecchio was president of the "The Doctor's Office Inc." and made all administrative decisions regarding the facilities on Dixie and Hypoluxo. Mr. Colavecchio administratively moved Mr. Raymond to the Hypoluxo office. On March 15, 1984, Dr. Andrahovich terminated employment with the "The Doctor's Office, Inc". Respondent did not notify the Board of Medical Examiners of this change and at no time advised the Board that she would no longer be supervising Mr. Raymond. It is inappropriate and contrary to standards of good medical practice for a physician's assistant to treat heart patients. Dr. Andrakovich knew or should have known that Mr. Raymond was treating heart patients.
The Issue Whether Respondent’s Rule 59R-11.001, Florida Administrative Code, is an invalid exercise of delegated legislative authority.
Findings Of Fact Chelation therapy is the introduction of a man-made amino acid into a patient’s vein. It has been approved by the U.S. Food and Drug Administration and is used for the treatment of heavy medal toxicity and the removal of lead. American Board of Chelation Therapy (ABCT) is an autonomous organization that provides education and certification to any physician who wishes to become knowledgeable in Chelation therapy. ABCT was established in 1982 for the purpose of establishing the criteria necessary for certification in the area of Chelation therapy. The Board of Medicine is a statutory entity, established by Chapter 458, Florida Statutes, as the primary regulatory authority for the practice of allopathic medicine in the State of Florida. Pursuant to section 458.301, Florida Statutes, the legislature recognizes that the practice of medicine is potentially dangerous to the public if conducted by unsafe and incompetent practitioners. The section further provides that the primary legislative purpose in enacting the medical practices act is to “ensure that every physician practicing in this state meets minimum requirements for safe practice.” In keeping with the legislative mandate to ensure that purpose of the medical practices act, the legislature created the Board of Medicine and authorized the Board to create administrative rules for the purpose of implementing chapter 458. Rule 59R-11.001, Florida Administrative Code, is the advertising rule of the Board of Medicine.3 The rule codifies provisions of section 458.331(1)(d), Florida Statutes, and provides criteria for identifying false, deceptive, or misleading advertising. In particular, the rule governs advertising on physician letterhead and limits the use of the term “specialist” unless the specialty is recognized by (1) a specialty board of the American Board of Medical Specialties (ABMS) or (2) a board that meets the requirements of Rule 59R-11.001, Florida Administrative Code. For those specialties recognized by organizations that do not meet the requirements of the rule, the physicians may still advertise their specialty so long as they provide a disclaimer. By rule the disclaimer must state the following “The Specialty recognition identified herein has been received from a private organization not affiliated with or recognized by the Florida Board of Medicine.” ABMS is generally recognized in the United States as the agency that approves allopathic medical specialty boards and the Board of Medicine has historically relied upon ABMS and its standards and, as reflected in the current rule, continues to rely on ABMS and its standards for approving recognizing agencies. On July 17, 1995, the Petitioner, ABCT submitted an application to Florida Board of Medicine for the purpose of being certified as a “recognizing agency” pursuant to rule 59R-11.001. ABCT is not a specialty board of the ABMS. Because ABCT is not a member board of the ABMS, the Board of Medicine looked to the requirements of rule 59R- 11.001(2)(f) to determine whether ABCT met the criteria enunciated in the rule and whether it is therefore a “recognizing agency” capable of bestowing specialty status on a physician. Rule 59R-11.001(2)(f), Florida Administrative Code, provides that non-ABMS Boards may seek recognition as “recognizing agencies” if they meet the following criteria: The recognizing agency must be an independent body that certifies members as having advanced qualifications in a particular allopathic medical specialty through peer review demonstrations of competence in the specialty being recognized. Specialty recognition must require completion of an allopathic medical residency program approved by either the Accreditation Council of Graduate Medical Education (ACGME) or the Royal College of Physicians and Surgeons of Canada that includes substantial and identifiable training in the allopathic specialty being recognized. Specialty recognition must require successful completion of a comprehensive examination administered by the recognizing agency pursuant to written procedures that ensure adequate security and appropriate grading standards. The recognizing agency, if it is not an ABMS board, must require as part of its certification requirement that each member receiving certification be currently certified by a specialty board of the ABMS. The recognizing agency must have been determined by the Internal Revenue Service of the United States to be a legitimate not for profit entity pursuant to Section 501 (c) of the Internal Revenue Code. The recognizing agency must have full time administrative staff, housed in dedicated office space which is appropriate for the agency’s program and sufficient for responding to consumer or regulatory inquiries. The recognizing agency must have written by-laws, and a code of ethics to guide the practice of its members and an internal review and control process including budgetary practices, to ensure effective utilization of resources. However, a physician may indicate the service offered and may state that practice is limited to one or more types of services when this is in fact the case; On April 15, 1996, the Board of Medicine issued an order denying the ABCT’s application for specialty status. As basis for the denial, the order stated that the application of the ABCT failed to establish compliance with the requirements for approval as set forth in Rule 59R-11.001(2)(f), Florida Administrative Code. Specifically, the order stated: The requirements for diplomat status in ABCT do not require advanced qualifications in a particular allopathic medicine specialty; specialty recognition given by ABCT does not require completion of an allopathic medical residency program approved by the ACGME or the Royal College of Physicians and Surgeons of Canada that include substantial and identifiable training in the allopathic specialty being recognized; specialty recognition provided by the ABCT does not require successful completion of a comprehensive examination pursuant to written procedures that ensure adequate security and appropriate grading standards in that ABCT requires only a score of 60% to pass the examination, the examination consists of true false questions and answers, and the examination is not a medically comprehensive examination; ABCT is not an ABMS board and does not require that each member it certifies be currently certified by an ABMS board; and ABCT has not provided evidence that it is a legitimate not-for-profit entity pursuant to Section 501(c) of the Internal Revenue Code as determined by the Internal Revenue Service. Each of the requirements of rule 59R-11.001(2)(f) were addressed at the administrative hearing. With regard to criteria (1) of rule 59R-11.001(2)(f), advanced qualifications in a particular allopathic medical specialty through peer review, the ABCT does not require an advanced qualification in a particular allopathic medical specialty. Furthermore, ABCT admitted that it does not meet the requirement of rule 59R-11.001(2)(f)(1). Criteria (2) of rule 59R-11.001(2)(f) provides that the specialty recognition must require completion of an allopathic medical residency program approved by either the Accreditation Council of Graduate Medical Education (ACGME) or the Royal College of Physicians and Surgeons of Canada. The ACGME is generally recognized as the organization that sets criteria for graduate medical education in the United States. The Board of Medicine has incorporated that recognition in the rule by requiring that the advanced education component of the rule be ACGME approved. The Royal College of Physicians and Surgeons of Canada is ACGME’s counterpart in Canada. With regard to criteria (2) of rule 59R-11.001(2)(f), ABCT does not require completion of an allopathic residency program approved by either the ACGME or the Royal College of Physicians and Surgeons of Canada. In fact, ABCT has no requirement for a residency program. ABCT reasoned that a there is no need for a residency program for Chelation therapists because Chelation therapy does not require overnight hospital stay. The only requirement remotely relating to residency is an ABCT requirement that applicants for diplomat status administer a minimum of 1000 Chelation treatments. There is no requirement that these treatments be supervised and no requirement for verification that the minimum number of treatments were administered. With regard to criteria (3) of rule 59R-11.001(2)(f), requiring successful completion of a comprehensive examination, ABCT does not require all applicants for diplomat status to complete a written examination in order to obtain certification. Specifically, some candidates are grandfathered in without being required to complete the written examination. For those applicants that are required to submit to an examination, Dr. Arthur L. Koch testified that the examination is composed of approximately sixty percent true/false questions. In addition, Dr. Koch testified that another ten percent of the test is not medically oriented but rather addresses the history and politics of Chelation therapy in the United States. At the hearing, ABCT submitted its Spring 1994 examination as an exhibit. That examination contained a majority true/false questions and a few multiple choice questions. To pass the ABCT diplomat examination, the candidate is required to achieve a score of 62.5 percent. In contrast, the Board of Medicine generally requires a passing score of at least 75%. The Board of Medicine expressed concern about the low passing score accepted by ABCT on its certification examination. The Board of Medicine also expressed concern over the large number of true/false questions used in the example examination submitted by ABCT. Uncontroverted testimony was presented at the hearing to support a finding that an examination consisting of a majority of true/false questions is not a viable method of testing knowledge. With regard to criteria (4) of rule 59R-11.001(2)(f), requiring members of non-ABMS boards to also be certified by a specialty board of the ABMS, the ABCT does not require that each physician seeking diplomat status be currently certified by an ABMS specialty board. Furthermore, ABCT admitted that it does not meet the requirement of rule 59R-11.001(2)(f)(4). With regard to criteria (5) of rule 59R-11.001(2)(f), that the recognizing agency must be a legitimate not for profit entity under the Internal Revenue Code, evidence was presented to verify that ABCT is a non-profit, tax-exempt organization. With regard to criteria (6) of rule 59R-11.001(2)(f), requiring the recognizing agency to have full-time administrative staff sufficient to respond to consumer or regulatory inquiries, no evidence was presented at the hearing relating to this criteria. With regard to criteria (7) of rule 59R-11.001(2)(f), requiring the recognizing agency to have written by-laws and a code of ethics to guide the practice of its members, ABCT submitted its Constitution and Bylaws as adopted in March of 1982 and subsequently amended. The Constitution and bylaws, however, did not include a written code of ethics and therefore did not fully comply with the requirements of the rule.
The Issue Whether Petitioner's application for license to practice medicine by endorsement pursuant to Chapter 458, Florida Statutes, should be approved. Petitioner appeared at the hearing unaccompanied by legal counsel and was advised of her rights and applicable procedures in administrative proceedings under Chapter 120, Florida Statutes. She elected to represent herself in this matter. This case arises from the provisional denial of Petitioner's application for licensure by endorsement to practice medicine, pursuant to Chapter 458, Florida Statutes. By Respondent's Order, dated January 29, 1982, the application was denied pursuant to subsection 458.313(1)(d), Florida Statutes, on the ground that Petitioner had not been certified by licensure examination of the Federation of State Medical Boards of the United States, Inc., and is not certified by the National Board of Medical Examiners as having completed its examination within the ten years immediately preceding the filing of the application for licensure by endorsement. In its Order, Respondent advised Petitioner-of her right to petition for a hearing. Petitioner so requested a hearing under Section 120.57, Florida Statutes, by letter to Respondent, dated May 2, 1982.
Findings Of Fact On October 1, 1981, Petitioner Elda Giannantonio filed an endorsement application with Respondent on a standard form provided by the agency, together with supporting documents and the standard application fee. (Exhibit 1) By "Final Order" of the Board of Medical Examiners, dated January 29, 1982,which recited action taken by the Board on December 4, 1981, it was found that Petitioner had not been certified by licensure examination of the Federation of State Medical Boards of the United States, Inc., and is not certified by the National Board of Medical Examiners as having completed its examination within the ten years immediately preceding the filing of the application for licensure by endorsement. It was therefore concluded by the Board that Petitioner had not met the statutory requirements for licensure by endorsement pursuant to Section 458.313(d), Florida Statutes. In all other respects, Petitioner has met the necessary requirements for licensure by endorsement. (Testimony of Faircloth, Exhibit 1, Stipulation) Petitioner was born and educated in Italy where she received her Medical degree in 1953. To be licensed by endorsement in Florida, a foreign graduate must have received a standard certificate after passing an examination given by the Educational Commission for Foreign Medical Graduates. Petitioner received such a certificate on March 28, 1962. (Testimony of Faircloth, Petitioner, Exhibit 1) A statutory requirement of all applicants for licensure by endorsement is that the applicant must have been certified by licensure examination of the Federation of State Medical Boards of the United States, Inc. (FLEX) or certified by the National Board of Medical Examiners as having completed its examination; provided that said examination required shall have been so certified within the ten years immediately preceding the filing of the application for licensure. The National Board of Medical Examiners examination is administered only to students at Medical schools in the United States. Petitioner has not been certified by either licensure examination. All states, including Florida, recognize the FLEX examination as the standard test for licensure. (Testimony of Petitioner, Faircloth, Exhibit 1) Petitioner was of the mistaken opinion that the fact she had Practiced medicine in New York and had been certified by the Educational Commission for Foreign Medical Graduates was sufficient to qualify her for licensure by endorsement, without the need for either National Board or FLEX certification. However, the instructions provided applicants by Respondent clearly showed that both requirements must be met by foreign graduates. (Testimony of Petitioner, Faircloth, Exhibit 2)
Recommendation That the application of Petitioner Elda Giannantonio for licensure by endorsement pursuant to Section 458.313, Florida Statutes, be denied. DONE and ENTERED this 24th day of August, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM 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 24th day of August, 1982. COPIES FURNISHED: Elda Giannantonio, M.D. 27 Kohr Road Kings Park, NY 11754 Chris D. Rolle, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Dorothy J. Faircloth Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Samuel Shorstein Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
