The Issue The issues in this case are whether Respondent Francisco Vazquez, M.D., committed a violation of Chapter 458, Florida Statutes (2003)(2004), as alleged in the Administrative Complaint filed by Petitioner, the Department of Health, on May 3, 2006, in DOH Case Number 2005-03579; and, if so, what disciplinary action should be taken against his license to practice medicine in the State of Florida.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. § 20.43 and Chs. 456 and 458, Fla. Stat. (2006). Respondent, Francisco Vazquez, M.D., is, and was at all times material to this matter, a physician licensed to practice medicine in Florida pursuant to Chapter 458, Florida Statutes, having been issued license number ME 68742 on July 6, 1995. Dr. Vazquez's address of record is 4595 Palm Beach Boulevard, Fort Myers, Florida 33905. The Court's Order. On September 5, 2003, Dr. Vazquez executed an Affidavit offering his expert medical opinion that 40 physicians and a hospital were negligent in the care of Patient C.L. The same day, the Affidavit was attached to Notices of Intent to Initiate Medical Negligence Litigation, as required before initiating medical malpractice litigation by Section 766.106(2)(a), Florida Statutes. Subsequently, litigation was initiated in the Circuit Court of the Sixth Judicial Circuit in and For Pinellas County, Florida, Case No. 04-875CI-7 (hereinafter referred to as the "Circuit Court Case"). On February 22, 2005, the presiding judge in the Circuit Court Case, the Honorable Bruce Boyer, entered an Order of Dismissal with Prejudice as to Drs. Hallgren and Schulman Based on Their Motion to Determine the Sufficiency of the Plaintiff's Presuit Investigation. The Order was entered after a February 2, 2005, hearing for which Dr. Vazquez received no notice and in which he did not participate. Among other things, Judge Boyer found in the February 22, 2005, Order the following: This cause came to be heard on February 2, 2005, on the motion of two of the defendants, Scott Hallgren, D.O. and Michael Schulman, [D.O.] to determine whether the plaintiff's claim rests on a reasonable basis and request for dismissal. Neither the pro se plaintiff nor her former attorneys appeared at the hearing. The Court reviewed the defendants' motion and supporting materials which show the following: . . . that the plaintiff's presuit expert is not a gastroenterologist and does not otherwise appear to be qualified to comment on the defendants' care; that the plaintiff's presuit expert does not appear to have made any reasonable effort to investigate and determine what role the defendants played in the decedent's care; that the plaintiffs' presuit expert submitted a scattergun presuit affidavit which charged forty doctors and one hospital with negligence apparently without investigating what role each health care provider played in the decedent's care; that former plaintiff's counsel served the notices of intent on Drs. Hallgren and Schulman based on an inadequate supporting affidavit and without an adequate presuit investigation; . . . . Judge Boyer then ordered that the complaint against Drs. Hallgren and Schulman be dismissed and indicated that "[t]he Court has forwarded a copy of this order to the Division of Quality Assurance of the Department of Health concerning the conduct of the presuit expert, Francisco M. Vazquez, M.D., in accordance with Fla. Stat. § 766.206(5)(a)(2003)." Based upon the foregoing findings, Judge Boyer "found" that Dr. Vazquez provided a corroborating written medical expert opinion for inclusion with a statutorily required notice of claim or intent without reasonable investigation. Dr. Vazquez became aware of Judge Boyer's February 22, 2005, Order when he was notified of the investigation of this matter. Jurisdiction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Medicine finding that Francisco Vazquez, M.D., has violated Section 458.331(1)(jj), Florida Statutes, as described in this Recommended Order; suspending his license to practice medicine in the State of Florida for two years; and imposing a fine in the amount of $1,000.00. DONE AND ENTERED this 18th day of June, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 18th day of June, 2007. COPIES FURNISHED: Michael P. Gennett, Esquire Shutts & Bowen, LLP 201 South Biscayne Boulevard, Suite 1500 Miami, Florida 33131 Patricia Nelson, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3250 Larry McPherson, Executive Director Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 Dr. Ana M. Viamonte Ros, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue This is a license discipline case in which the Petitioner, by means of a one-count Administrative Complaint, seeks to take disciplinary action against the Respondent on the basis of his alleged violation of Section 458.331(1)(c), Florida Statutes (2002).
Findings Of Fact The Respondent, Eduardo S. Mendez, M.D., was born in Cuba, was reared in Cuba, and was educated in Cuba. His education in Cuba included a degree in Medicine. He came to the United States of America in 1995. Shortly after moving to this country, the Respondent became the owner of a retail pharmacy and medical equipment business in Florida. The Respondent did not have a license to practice pharmacy in Florida. On the basis of conduct which took place between July of 1998 and June of 2000, an Information was issued in Case No. 02-20859 in the United States District Court for the Southern District of Florida charging the Respondent with engaging in a conspiracy to pay and receive health care kickbacks in violation of Title 18, United States Code, Section 371. The basic facts forming the basis for the criminal charge are described as follows in the Information: Medicare was a "Federal health care program" as defined in Title 42, United States Code, Section 1320a-7b(f)(1). Confortec D.M.E., Inc. ("Confortec") was a pharmacy located in Miami, Florida. Confortec was authorized by Medicare to submit claims to Medicare Part B for reimbursement of the cost of certain medications that Confortec dispensed by prescription to Medicare beneficiaries. Defendant EDUARDO S. MENDEZ was a resident of Miami and the sole owner of Confortec. Defendant EDUARDO S. MENDEZ offered to pay kickbacks to various patient recruiters so that they would provide the names and Medicare identification numbers of Medicare beneficiaries, along with prescriptions relating to these beneficiaries. Confortec filled these prescriptions and then filed claims with Medicare for reimbursement of the cost of the prescribed medications. After receiving payment on these claims from Medicare, defendant EDUARDO S. MENDEZ used a portion of the payments to pay kickbacks to the patient recruiters or their associates. * * * 12. Using a portion of the money received from Medicare payments, defendant EDUARDO S. MENDEZ paid or caused to be paid approximately $200,000 in kickbacks to the patient recruiters or their associates so that the recruiters would continue to refer Medicare beneficiaries and related Medicare prescription business to Confortec. Following his arrest, the Respondent cooperated extensively with the Federal Bureau of Investigation (FBI) and assisted the FBI in their investigation of his own activities, as well as in their investigation of similar criminal activities by others. Because of the Respondent's assistance to the FBI, the federal prosecutor recommended a substantial reduction in the sentence that might otherwise have been imposed on the Respondent. On November 14, 2000, the Respondent entered into a plea agreement in which he agreed "to plead guilty to an Information or an Indictment that charges him with the crime of conspiracy to commit an offense against the United States, namely, a violation of Title 42, United States Code, Section 1320a-7b(b)(2)(knowingly and intentionally offering and paying kickbacks and bribes to any person to induce the referral of individuals for the furnishing of services or items for which payment may be made under a Federal health care program), in violation of Title 18, United States Code, Section 371." On or about February 12, 2003, a United States District Judge signed a judgment in which the Respondent was adjudicated guilty of the criminal offense described above. The Respondent's sentence was three years of probation, three months of home confinement (with electronic monitoring), 150 hours of community service, and a fine of $100.00. The Respondent has fulfilled all of the terms of his sentence. Although the recruitment methods described above are prohibited by federal law and are a crime, that criminal activity does not involve any element of fraudulent billing seeking reimbursements from the Medicare program for services or items that were not provided. To the contrary, all of the prescriptions for which Confortec sought Medicare reimbursement were prescriptions that were actually filled for medications that were actually provided to the Medicare beneficiaries. During the period from July of 1998 through June of 2000, the Respondent did not have a license to practice medicine in Florida. Accordingly, the criminal conduct described above was not related to the Respondent's practice of medicine, because the Respondent was not practicing medicine at that time. As discussed in greater detail in the conclusions of law, the criminal conduct described above was directly related to the practice of medicine by the physicians who wrote the prescriptions that were filled in the course of the subject criminal activity. As also discussed in greater detail in the conclusions of law, the criminal conduct described above was directly related to the ability to practice medicine. The Respondent is presently a physician licensed to practice medicine in the State of Florida. He has been so licensed since November of 2001. His license number is 83615. The criminal charges described above are the only criminal charges that have ever been filed against the Respondent. There has never been any prior disciplinary action taken against the Respondent's license to practice medicine.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a final order be entered finding the Respondent guilty of violating Section 458.331(1)(c), Florida Statutes (2002), and imposing the following penalties: Suspending the Respondent's license to practice medicine for a period of nine months; Imposing an administrative fine in the amount of five thousand dollars; and When the Respondent is reinstated following the nine- month period of suspension, placing the Respondent on probation for a period of two years subject to such terms of probation as may appear to the Board of Medicine to be necessary and appropriate. DONE AND ENTERED this 16th day of September, 2005, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 16th day of September, 2005.
