Conclusions THIS CAUSE comes before the Agency for Health Care Administration (“the Agency”) regarding Certificate of Need ("CON") Application No. 10137, filed by Landmark Hospital of Southwest Florida, LLC (“Landmark”) seeking a CON to establish a 50-bed long-term acute care hospital in Collier County. In addition, Kindred Hospitals East, LLC (“Kindred”) filed CON Application No. 10138 seeking a CON to establish a 40-bed long-term acute care hospital. The Agency preliminarily denied both CON applications. 1. Kindred filed a petition for formal hearing contesting the denial of its application. 2. Landmark filed a petition for formal hearing contesting the denial of its application. 3. Both petitions were forwarded to the Division of Administrative Hearings (“DOAH”), which consolidated the two cases. 4. On February 1, 2013, Kindred filed a Notice of Voluntary Dismissal withdrawing CON Application 10138. 5. On February 5, 2013, the DOAH entered an order severing the cases and closing Filed February 25, 2013 1:06 PM Division of Administrative Hearings the file as to Kindred and DOAH Case No. 12-2514. 6. The Agency and Landmark have since entered into the attached Settlement Agreement. (Ex. 1) It is therefore ORDERED: 1, The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties are directed to comply with the terms of the Settlement Agreement. 2. The denial of CON application 10137 filed by Landmark is WITHDRAWN and CON application 10137 is APPROVED. 3. Each party shall be solely responsible for its respective costs and attorney’s fees. ORDERED in Tallahassee, Florida, on thise2/ day o , 2013. REQ Elizabeth Dudek, Secretary Agency for Health Care Administration
Conclusions THIS CAUSE comes before the Agency For Health Care Administration (“the Agency") concerning Certificate of Need ("CON") Application No. 10196, which was filed by Healthsouth Rehabilitation Hospital of Sumter/Lake County, LLC (“Healthsouth”) in the second batching cycle of 2013, and preliminarily denied by the Agency. 1. On December 30, 2013, HealthSouth filed a Petition for Formal Administrative Proceeding contesting the Agency’s preliminary denial to establish a 50-bed comprehensive medical rehabilitation hospital, which was forwarded to the Division of Administrative Hearings (“DOAH”). 2. On March 24, 2014, Leesburg Regional Medical Center, Inc. (“Leesburg”) filed a Petitioner to Intervene supporting the Agency’s denial of HealthSouth’s CON application. 3. On March 28, 2014, DOAH entered an Order Granting Petition to Intervene. 4. On June 19, 2014, HealthSouth filed a Notice of Voluntary Dismissal. It is therefore ORDERED: 1. The denial of CON Application 10196 is UPHELD. Filed July 14, 2014 10:32 AM Division of Administrative Hearings ORDERED in Tallahassee, Florida, on this LE day of ¢ Tete , 2014, Elizabeth Dilek, Secretary Agency for Health Care Administration
Other Judicial Opinions A party that is adversely affected by this Final Order is entitled to seek judicial review which shall be instituted by filing one copy of a notice of appeal with the agency clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true and correct copy of the foregoing Final has been furnished by ULS. Mail or interoffice mail to the persons named below on this /? y of ely 2014, Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 413-3630 Copies Furnished to: Elizabeth W. McArthur Administrative Law Judge Division of Administrative Hearings (Electronic Mail) R. Terry Rigsby, Esquire Brian A. Newman, Esquire Pennington, P.A. 215 South Monroe Street, 2"! Floor Post Office Drawer 10095 Tallahassee, Florida 32302 Attorneys for HealthSouth Rehabilitation Hospital of Sumter/Lake County, LLC (U.S. Mail) Robert A. Weiss, Esquire Karen Ann Putnal, Esquire Moyle Law Firm, P.A. 118 North Gadsden Street Tallahassee, Florida 32301 Attorney for Leesburg Regional Medical Center, Inc. (U.S. Mail) Susan L. St. John, Esquire St. John Law Firm, P.L. Post Office Box 13545 Tallahassee, Florida 32317 Attorney for Leesburg Regional Medical Center, Inc. (U.S. Mail) Richard Joseph Saliba Assistant General Counsel Agency for Health Care Administration (Electronic Mail) Facilities Intake Agency for Health Care Administration (Electronic Mail)
The Issue Whether Petitioner was discriminated against in employment by Tampa General Hospital by reason of Petitioner's age, national origin, or in retaliation because Petitioner had filed a complaint with EEOC against a former employer.
Findings Of Fact Petitioner was employed by Respondent on February 15, 1984, as a Pharmacy Technician assigned to the 8 a.m. to 4:30 p.m. shift (Exhibit 12). At this time Petitioner was also working at University Community Hospital and attending classes at the University of South Florida. In his application for this position, (Exhibit 8) Petitioner indicated he desired to work the night shift. However, Respondent does not hire employees for a particular shift and Petitioner accepted employment on the day shift. On May 21, 1984, Petitioner completed the Pharmacy Technician Training Program at Tampa General Hospital and was awarded a Certificate showing such completion (Exhibit 7). Petitioner was unable to work his assigned 40 hours per week with his other job and school and on October 5, 1984, he was transferred from permanent full-time (40 hours per week) to permanent part time (20 hours per week) at his request (Exhibit 13). Petitioner requested assignment to the night shift but there were few openings on the night shift as that popular shift was given to more senior (in length of service) employees. Petitioner was unable to be available 20 hours per week, and on November 6, 1984, he was transferred to a part-time position in the Pharmacy PRN pool. By letter dated November 21, 1984 (Exhibit 4), Petitioner resigned his position at Tampa General Hospital giving as a reason that he had not been assigned to the night shift and could not keep up with his schooling and other job working his assigned hours at Tampa General Hospital. During the latter stages of Petitioner's employment at Tampa General Hospital, his attendance at work became less frequent and he was considered somewhat unreliable by his supervisors and his coworkers. Although he was given a satisfactory performance rating in July, 1984 (Exhibit 5), shortly before his resignation, his supervisor was contemplating disciplinary action to improve Petitioner's performance or terminate his employment with Respondent. In late 1986, Petitioner suffered chest pains which he initially thought stemmed from heart problems. However, these were subsequently diagnosed as being of muscular skeletal origin (Exhibit 9). In February, 1987, Petitioner was dismissed from his position as Pharmacy Technician at University Community Hospital on allegations he was insubordinate. Petitioner called the office of the Director of Pharmacy at Tampa General Hospital, Monroe Mack, several times to inform him of his situation and tell him that he was trying to get some kind of worker's compensation. Petitioner requested Mack give him a letter of recommendation and provided a list of things he would like covered in the letter of recommendation (Exhibit 10). Mack accommodated Petitioner with a letter (Exhibit 3) dated July 13, 1987. Petitioner contacted Respondent's director of employee relations (Harris) to advise that he would like to return to work at Tampa General Hospital and to obtain Harris's assistance with Mack who had the authority to hire employees in the pharmacy department. On November 23, 1987, Petitioner submitted an application to Respondent requesting employment (Exhibit 6). In this application, he listed under "hours not willing to work" 7:30 a.m to 2:30 p.m. and indicated he was still pursuing his education. At Petitioner's request and with the help of Harris, a meeting was arranged with Mack in August, 1988. At this meeting Petitioner again iterated his desire to work the night shift and Mack told Petitioner that he would not rehire Petitioner as a pharmacy technician because his work had not been satisfactory when he earlier worked at Tampa General Hospital and his then co- workers and supervisors had recommended against his reemployment. Petitioner was born April 1, 1938, (Exhibit 6). Accordingly, when he was denied reemployment in 1988, he was 50 years old. The only evidence submitted, which in any way relates to age discrimination, is the list of pharmacy technician personnel showing their age, race and gender (Exhibit 1). This shows that in 1988 the oldest pharmacy technician at Respondent working as a technician was 41 years old with the average age of the 33 technicians listed around 30 years old. The list also shows that 28 of the 33 are females and 10 are black. No evidence was submitted indicating in any manner or implying that older applicants had applied for work at Tampa General Hospital as pharmacy technicians and had been turned down for employment for any reason. No pattern of such discrimination was shown, nor was any evidence submitted, even suggesting that such a pattern was extant at Tampa General Hospital. Nor was any evidence submitted that Petitioner was not rehired at Tampa General Hospital in retaliation for filing.a complaint with the Equal Employment Opportunities Commission against his former employer (presumably University Community Hospital).
Recommendation It is RECOMMENDED that the Petition for Relief from an unlawful employment practice filed by Yacob Morowati against Tampa General Hospital be DISMISSED. DONE and ENTERED this 23rd day of August, 1989, at Tallahassee, Florida. K. N. AYERS 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 23rd day of August, 1989. COPIES FURNISHED: Yacob Morowati P. O. Box 270489 Tampa, FL 33688 E. John Dinkel, III , Esquire P. O. Box 1531 Tampa, FL 33601 Joe Harris Post Office Box 1289 Tampa, FL 33601 Margaret A. Jones Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 =================================================================
Findings Of Fact The Respondent, George Edwin Knickerbocker, is a Registered Nurse authorized to practice in the State of Florida by license number 1113462. By Order of the Board of Nursing dated January 6, 1983, the Respondent's license to practice nursing was placed on probation. The basis for this probation was that at the time the Respondent applied for Florida licensure his nursing license in the State of South Carolina had been disciplined because he offered to have sexual relations with a male patient while on duty as a nurse. Included as a term of the Respondent's probation in Florida was the requirement that he notify the Board of Nursing by certified, registered mail, of any changes in his address or in his employment. The Respondent admitted that he did not notify the Board when he became employed in Medox, Inc., in October of 1983. In apparent mitigation of this admission, he testified that he did not notify the Board because he had been previously employed by Medox in 1980. When the Respondent's employment at Medox was terminated in June of 1984, he testified that he notified the Board by telephone, but he acknowledged that he did not notify the Board by certified, registered mail as required by the conditions of his probation. The Petitioner offered without objection an Affidavit of the Administrative Assistant of the Board of Nursing, stating that records maintained by the Board do not indicate that the Respondent ever informed the Board of Nursing of his employment by Medox, Inc., or that the Respondent ever caused a report to be furnished by his employer to the Board as required by the terms of his probation order dated January 6, 1983. This Affidavit was received in evidence. The Respondent's admission that he failed to notify the Board of his employment with Medox, Inc., by certified, registered mail, as required by the terms of his probation, is thus corroborated by independent evidence, and supports a finding of fact that the Respondent failed to notify the Board of Nursing of an employment change as required. Moreover, his failure to notify the Board of his employment with Medox is aggravated by his admission that there were other changes in his employment and in his address which he did not report to the Board by certified, registered mail, as required by the Board's lawful order. On July 26, 1983, between two and three o'clock a.m., a respiratory therapist at Jackson Memorial Hospital entered the darkened room of a patient to administer respiratory therapy and found the patient to be in a drowsy, sedated state. This patient was in the hospital for a gall bladder operation. He saw the Respondent leaning over the patient as the patient lay in bed, and observed the Respondent rubbing the patient's chest and penis area. The Respondent was sweating, breathing rapidly and had an erect penis. The respiratory therapist reported these observations to his supervisor at the hospital the same night. The Director of Nursing, Surgical Services, at Jackson Memorial Hospital, placed the Respondent on administrative leave from his employment as staff nurse at the hospital after two separate complaints of sexual misconduct were made against him. The first was the incident described above by the respiratory therapist. The second was made by another patient who complained that the Respondent has rubbed his genital area and moaned while doing so. This latter complaint was reduced to writing by the nurse who received it and signed by the patient. Two exhibits containing the nurse's statement and the patient's affidavit were received in evidence without objection. The Director of Nursing has been employed by Jackson Memorial Hospital in that position for three years. Previously she was head nurse on her floor at this hospital for six years. She is responsible for a 250-bed area and the supervision of from 120 to 130 professional nurses. She is ultimately accountable for the professional practices of these nurses and employees relating to patient care, and is responsible for upholding the standards of the State and the Joint Commission of Hospitals. As such, she is acquainted with the minimum standards of acceptable and prevailing nursing practices in the Respondent's community. The fondling of a patient's genitals without any medical purpose constitutes unprofessional conduct which departs from, and fails to conform to, the minimal standards of acceptable and prevailing nursing practice, not only in Florida but in every other state where she has practiced.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, George Edwin Knickerbocker, be found guilty of the violations charged in Count I and Count III of the Amended Complaint, and that license number 113462 authorizing the Respondent to practice nursing in the State of Florida be suspended until such time as the Respondent demonstrates by evidence satisfactory to the Board of Nursing that he can engage in the practice of nursing without risk of sexual abuse to his patients. DONE AND ENTERED this 3rd day of October 1985 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings 3rd day of October 1985. COPIES FURNISHED: Robert D. Newell, Jr., Esquire 200 South Monroe Street, Suite B Tallahassee, Florida 32301 Robert E. Weisberg, Esquire 5901 S.W. 74th Street, Suite 304 Miami, Florida 33143 Judie Ritter, Executive Director Department of Professional Regulation 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Based upon an agreement between the petitioner and the respondent, and a later addendum, petitioner received Certificate of Need Number 1460 in February of 1981 granting the petitioner the authority to construct 126 additional general medical/surgical beds but to only license and operate 72 of such beds. The instant proceeding involves petitioner's application for a Certificate of Need to license and operate the remaining 54 beds which have been previously constructed under Certificate of Need Number 1460. St. Joseph's Hospital is a 649-bed full service major referral hospital in Hillsborough County owned and operated by the Franciscan Sisters of Allegheny. Its services include a comprehensive community mental health center, a comprehensive pediatric unit with 88 beds, a radiation therapy center, a 60- bed community cancer center, cardiac catheterization, cardiac surgery and a large and active emergency room. It serves a considerable number of indigent patients and participates in the Medicaid and Medicare programs. Petitioner is now requesting permission to license the regaining 54 beds which were authorized to be constructed pursuant to Certificate of Need Number 1460. The project involves no additional construction or renovation inasmuch as all 126 beds previously authorized have been completed. No capital expenditure will be required in order to place the 54 beds into operation. If the Certificate of Need is granted, petitioner intends to create two specialty medical/surgical units: a 32-bed cardiac surgical unit to accommodate patients from the open heart surgical program and a 22-bed medical unit for psychiatric patients requiring medical treatment. There currently are no other beds available in the hospital to convert for use for the psychiatric patient or for the cardiac surgical unit. Petitioner has been operating, on occasion, at occupancy levels in excess of 90 percent. At times, it has been necessary to place non-emergency patients in the emergency room and have them remain there until beds become available. There are sometimes up to 40 patients on the waiting list for elective surgery. Due to the shortage of empty beds, petitioner cannot now admit new members to its medical staff. Steady operation of the hospital at occupancy levels exceeding 90 percent can have an adverse effect upon the efficiency of the nursing staff and the quality of care offered to patients. Because the bulk of projected growth in Hillsborough County is expected to occur in the center and northwestern area of the county, it is anticipated that the pattern of utilization of petitioner's facility will continue. While the licensing of the 54 additional beds involves no capital expenditure on petitioner's part, it is estimated that, if petitioner is not permitted to license these beds, a total yearly loss of over $3.8 million will be experienced. This figure is the sum of lost net revenues from the beds in the amount of $87,339 and lost net ancillary revenues in the amount of $2.36 million, as well as the absorption of $232,750 in yearly depreciation costs and $1.14 million in committed indirect costs. Petitioner anticipates a loss per patient day, calculated at 100 percent occupancy, of $16.82 if the licensing of the beds is not approved. This would result in an increase of current patient charges by 9.1 percent in order to maintain petitioner's budgeted profit margin. Petitioner is located in HRS District VI which, at the time of the hearing, was composed of Hillsborough and Manatee Counties. Some 81 percent of all beds in the District are located in Hillsborough County. As of the time of the hearing, the District had 3,899 licensed acute care beds, with 606 additional beds having been approved but not yet operational. The generally accepted optimum utilization rate for acute care beds is 80 to 85 percent. For District VI, the overall utilization rate is below the optimum level. In Manatee County, utilization of acute care beds is at 78.3 percent. In Hillsborough County, the utilization level is at 77.4 percent, with the major referral hospitals experiencing a higher level of utilization than the smaller community hospitals. Rule 10-5.11(23), Florida Administrative Code, contains the governing methodology for determining acute care bed needs of the various Districts. Applications for new or additional acute care hospital beds in a District will not normally be approved if approval would cause the number of beds in that District to exceed the number of beds calculated to be needed. Application of the Rule's formula to District VI results in a total acute care bed need of 3,622 projected for the year 1988. Given the 4,505 existing and approved beds in the District, there are 883 excess beds in District VI under the Rule's formula methodology for projecting need. The 1982 Health Systems Plan adopted by the Florida Gulf Health Systems Agency makes no bed need projections for other specialty medical/surgical beds," but shows no need for medical/surgical beds. Rule 10-5.11(23), Florida Administrative Code, provides that other criteria may result in a demonstration of bed need even when the formula approach illustrates no need for beds. When additional beds are approved pursuant to other criteria, those beds are counted in the inventory of existing and approved beds in the area when applying the bed need formula to review future projects. The formula methodology does account for the inflow and outflow of patients in a specific area. While Rule 10-5.11(23) permits the Local Health Councils to adopt subdistrict bed allocations by type of service, the Council for District VI had not adopted its local health plan as of the date of the hearing in this matter. The Rule itself simply addresses the need for general acute care bed needs in the future.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the application of St. Joseph's Hospital, Inc. for a Certificate of Need to license 54 acute care medical/surgical beds be DENIED. Respectfully submitted and entered this 10th day of November, 1983, in Tallahassee, Florida. DIANE D. TREMOR, 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 10th day of November, 1983. COPIES FURNISHED: Ivan Wood, Esquire David Pingree Wood, Lucksinger & Epstein Secretary One Houston Center Department of Health and Suite 1600 Rehabilitative Services Houston, Texas 77010 1323 Winewood Boulevard Tallahassee, Florida 32301 Steven W. Huss, Esquire 1323 Winewood Boulevard, Suite 406 Tallahassee, Florida 32301
Findings Of Fact Petitioner Jose A. Torres was a licensed medical doctor, having been issued License No. ME0029982. By Administrative Complaint filed March 23, 1982, he was charged with 31~counts of violations of Chapter 458, Florida Statutes. Dr. Torres entered an admission as to seven counts of that Administrative Complaint and the other counts were dismissed prior to hearing. The matter came before the Board of Medical Examiners as an informal hearing and the Board voted to revoke Dr. Torres' license to practice medicine (P-3). The undersigned ruled at formal hearing, contrary to Petitioner's urging, that it is inappropriate to go behind the formal final order of revocation to vary the circumstances leading up to that revocation.9 At that time, by requesting an informal proceeding pursuant to Section 120.57(2), Torres admitted not simply to conclusions of law as to what statutory violation was found, but also to there being no disputed issues of material fact as alleged in the Administrative Complaint. Accordingly, the specific facts admitted by Torres related to the treatment of seven different patients and the prescription of controlled substances to each of those patients in the following amounts over the following time period: John Dodge 852 Dilaudid Less than 3 months Joann Diaz 425 Dilaudid Less than 2 months Robert Pendegar 427 Dilaudid Two and one half months Richard Pendegar 168 Dilaudid Less than 1 month Charles Penno 330 Dilaudid Less than 3 months Robin Simpson 174 Dilaudid Less than 6 months Graham Boylan 130 Dilaudid Less than 1 month In addition to admitting the facts relating to the number of pills prescribed over a specified period of time as to each individual patient, Torres admitted (See P-3-4) that each patient: Was a drug abuser, a fact that was or should have been known to Respondent [Dr. Torres]. Respondent did not prescribe above- prescribed controlled substance for a medically-justified purpose. Said prescriptions were inappropriate or excessive and inappropriate quantities.10 It was based upon those admissions of fact that the Board of Medical Examiners determined that Torres had violated Section 458.331(1)(q), Florida Statutes, for prescribing a controlled substance other than in the course of his professional practice in each of the seven counts and revoked his medical license. He has been without his license for approximately 29 months at this writing. It was stipulated, and is accordingly found, that Petitioner has never previously nor subsequently been charged with or been found in violation of any provision of the Medical Practices Act (Chapter 458, Florida Statutes) nor any rule of the Board of Medical Examiners, other than those which were committed in 1981 and which led to the revocation of Petitioner's license on June 15, 1983. It was stipulated, and is accordingly found, that Petitioner falls in the category of persons applying for and eligible for reinstatement pursuant to Board policy in effect prior to June 5, 1983. There are no statutes or written rules or policies of Respondent defining what is a "grave" violation nor what "grave" violation(s) would show "such a lack of judgment and lack of ability or willingness to conform to the law" so as to guide Petitioner in applying such criteria in the reinstatement process. Both Drs. Katims and Bass testified that each Board member's decision on what was or was not a "grave" offense was based upon their own subjective interpretation and criteria, and that for persons in the Petitioner's pre-June 5, 1983 category, the Board did not consider any particular formula nor any one factor but looked at the totality of the circumstances in arriving at conclusions concerning who should be reinstated and who should not be reinstated. Respondent had not, prior to the time Petitioner filed his Petition for Reinstatement, adopted any written reinstatement rules which covered persons in Petitioner's category of those applying for reinstatement. Rule 21M-20.03 Florida Administrative Code became effective on January 3, 1985. Any effect or lack of effect thereof is considered infra under "Conclusions of Law". Petitioner's Exhibit 6 seeks to establish incipient policy by a summary of prior actions taken by the Board of Medical Examiners. Of the seventeen cases listed in the summary, all but one involved charges of inappropriate and excessive prescriptions. Only three involved revoked licenses. One of those three with revoked license was Petitioner herein; one was Dr. Richard S. Flatt, one was Dr. Newell Griffith.ll All of the other cases documented in P-6 were ones in which the initial discipline imposed fell short of revocation,l2 and one of those was the acceptance of a voluntary relinquishment of licensure with leave to request reinstatement. In addition, documentation on which the summary was based was introduced as Composite P-17. A review of those materials reveals that procedurally, only five of the cases cited, in addition to the case of Petitioner Torres, were before the Board for informal proceedings. Five were stipulations accepted by the Board, none of which contained admissions as to the truth of the allegations of fact in the Administrative Complaint. Four were before the Board after formal hearings at which the case was fully tried and evidence of violations or defenses thereto was fully available. The remaining cases involved one voluntary relinquishment (Major) and one case (Flats) in which the documents relate to reinstatement and do not reveal the procedural posture of the underlying discipline. Of all of the informal hearings reflected in the documentation, only two of the Respondents failed to make an appearance, either in person or through counsel, to offer an explanation of their conduct or offer evidence in mitigation at the time the Board was imposing discipline: this Petitioner Torres and Dr. Newell Griffith. Petitioner Torres states that he did not appear at his April 9, 1983, hearing due to faulty advice concerning the date thereof given him by his former attorney. Dr. Newell Griffith's situation is discussed in greater detail, infra. In only one of the other cases (Seller) involving an informal hearing did the Administrative Complaint contain the specific allegations of fact that the patient was a known drug abuser and that the Respondent did not prescribe the controlled substance for a medically-justified purpose (Seller). In one other case (Waldheim) the allegations did include an allegation that the prescriptions were not for a medically-justified purpose, but there was no allegation therein with respect to the fact that the patient was a known drug abuser. Although both parties have argued a variety of similarities of the various aspects, issues, Respondents, etc. of the seventeen cases by which Petitioner has attempted to demonstrate incipient policy, the only ones specifically found relevant and material are those involving revocation: Torres, Flatt and Griffith.l3 The charges against Dr. Richard S. Flatt were couched in terms of bargaining with not-medically justified prescriptions for the sexual favors of a single female patient. Although Dr. Flatt's license was revoked, the initial revocation was stayed and the license was suspended for three years. A specific time limit was placed on the revocation (which probably is more correctly termed a suspension) with no further conditions for the stay imposed, but nonetheless it is found, for purposes of comparison re incipient policy, to be a revocation case. Dr. Flatt was without his license for 35 months. Thus, we come to the sole case which appears to be closely comparable, in any real sense, to the circumstances of Petitioner Torres: the case of Newell Jerome Griffith. Dr. Griffith was initially charged in 1981 with excessive and inappropriate prescribing of controlled substances to three patients, and was, at that time, given a disciplinary penalty of a revocation of the privilege to prescribe Schedule II controlled substances, with stay of such revocation, and a suspension of those privileges until after certain continuing medical education courses were completed, at which time the privileges would be reinstated on probation. Subsequently, Dr. Griffith was charged with prescribing Schedule II controlled substances to five patients while his privilege to do so was revoked. The final order in that cause indicates that Dr. Griffith did not attend the hearing on the charges, either in person or through counsel, that Dr. Griffith was found guilty after filing an Election of Rights admitting the facts, and that Dr. Griffith's license to practice medicine was revoked. When Dr. Griffith was asked by the Respondent in a second disciplinary action whether he knew at the time of the subsequent prescriptions that his license to do so was suspended and why under those circumstances he did so, Dr. Griffith replied: "I guessed I hoped it would not be picked up . . ." (P- 7, page 19). The final revocation was because Dr. Griffith prescribed 488 tablets of Schedule II drugs to five patients while his privileges to prescribe Schedule II drugs had been suspended. Respondent's proposals concede "that particular offense does appear to show an inability or unwillingness to conform to law," and it is so found. It is also found that the quantity and gravity of the drugs involved in Dr. Griffith's ultimate revocation case is less than those which led to Petitioner Torres' license revocation. When both the suspension and revocation cases are considered there is great similarity in quality and quantity of Griffith's prescriptions with those of Torres. In the revocation situation of Griffith however, there was no showing of prescription to drug abusers or prescription for a non-medically justifiable purpose and it involved fewer patients and pills than prescribed by Petitioner. Despite the fact that Dr. Griffith has violated the Medical Practices Act on two separate occasions (Petitioner having done so only once), and prescribed similar total quantities of controlled substances, including Dilaudid, and despite the fact that Dr. Griffith the second time around expressly engaged in conduct clearly showing "lack of judgment" and "his unwillingness to conform to the law", the Respondent has permitted Dr. Griffith to be reinstated and he is now practicing medicine. His license revocation was for a total of 24 months (P-6). Dr. Griffith's license was reinstated by the Board of Medical Examiners after repeated Petitions for Reinstatement had been denied and the appellate court had ordered the Board to articulate a basis for the denial and standards for Dr. Griffith to use in determining when the Petition for Reinstatement would be "mature" for presentation to the Board.14 After Petitioner Torres was charged with the specific violations of the Medical Practices Act involving improper prescription of controlled substances, he took and successfully completed a six and one- half hour Continuing Medical Education (CME) course involving the specific activities (prescription of controlled substances) for which his license was revoked. After successfully completing this Drug Law Seminar, Petitioner continued to take and complete continuing medical education courses including attendance at conferences and seminars and the reading of numerous medical periodicals and journals. These included three books or pamphlets concerning drug abuse, heroin, and other aspects of drug dependence. After the revocation of his license, the Petitioner and his wife jointly agreed that he would do everything he could to stay in touch with the medical profession so as to enhance the possibility of eventual reinstatement of his license. Both the Petitioner and his wife have continuously struggled at menial jobs to support their family of four children. Petitioner took a job providing audio visual materials at Hollywood Memorial Hospital for other doctors. Dr. Seidel, Director of Medical Education and In-House Chief of Staff for Hollywood Memorial Hospital, found the Petitioner to be an honest and hardworking person who completed all audio visual, chart review auditing, and quality assurance tasks assigned to him in an exemplary fashion. Petitioner viewed many of the continuing medical education programs and courses as part of this audio visual job. Petitioner urges that over 100 hours of CME have been completed, but Respondent argues these hours should be discounted because many hours were admittedly part of Petitioner's audio visual tasks. Based on the testimony and exhibits, it is impossible to separate which "hat" Petitioner was wearing for which topics or for how many hours, but it appears most logical that he was present in the room while at least 54 hours of Florida Medical Association-approved CME material was being presented by audio visual techniques. Without contrary evidence, one must assume Petitioner was at least as attentive as the Hollywood Memorial Hospital physicians required to attend these presentations by the hospital's quality assurance program. Certainly, hope of reinstatement of his license must have been an effective motivator for Petitioner. Even if there were some question concerning Petitioner's attention to these audio visual programs, which there is not, there remain 46 hours of CME accomplished by the Petitioner through other means. Most of the letters and petitions signed by physicians (P-1C) in support of Petitioner being permitted to practice medicine, though admitted into evidence by stipulation, are simply not probative of the basic issue of current safety to practice. Their probative value on this point is diminished on the same weight and credibility grounds as are most of the physicians' live and deposition testimony, or they fail because they are undated, stale, or at least confused about the fact that revocation has already occurred. By expert testimony, of Drs. Coopersmith, Shabanah, Di Giorgi, Piskur, Rand, and Bautista,l5 all testified that in their opinions, the Petitioner could now safely engage in the practice of medicine. Drs. Coopersmith, and Shabanah base their opinions upon Petitioner's CME hours and qualify the Petitioner's safety to practice in terms of being properly supervised or monitored. With the exception of Dr. Seidel and Dr. Bautista, most of the physicians who testified or gave affidavits in support of Petitioner Torres testified that he had practiced with reasonable skill and safety all along: this clearly was not so. These physicians' assertions show a lack of awareness of the full nature of Torres' practice before revocation, and, therefore, a lessened ability to judge whether Torres has changed in a manner sufficient to assure the Board and the public that he will practice with reasonable skill and safety within the confines of the requirements of the applicable Florida Statutes. Testimony by Drs. Coopersmith, Shabanah, Di Giorgi, Piskur and Rand specifically fall in this category of lessened weight and credibility. For the same reasons, the testimony of Mr. Tom Mulroney, a retirement village operator, and Mr. Lawrence Esteban, a paramedic/fireman, is equally lacking in weight and credibility. All written as well as oral evidence originating with Dr. Seidel has been weighed. Although Dr. Seidel apparently knew the entire prescribing history of Petitioner's medical career and of this case, he expressed the opinion that Petitioner's license should be reinstated and it is found that inherent in that opinion of Dr. Seidel is his belief that Petitioner can now safely practice medicine even though Dr. Seidel did not employ those "magic words." Dr. Seidel has known Petitioner for many years and his opinion in favor of reinstatement is particularly impressive in light of his almost daily observation of Petitioner since his license revocation and in light of Dr. Seidel's past knowledgeable observation and supervision of him as a house physician at Hollywood Memorial Hospital when Torres was first practicing there in 1977. The weight of Dr. Seidel's opinion is further amplified by Dr. Seidel's continuing service on peer review committees for this hospital. Dr. Bautista's knowledge of Petitioner's entire past prescribing went beyond just talking to Petitioner. Although she had agreed to oversee him if a probationary period were ordered with reinstatement, she also gave her unqualified professional opinion that Torres may now safely practice medicine. Since revocation, Petitioner has taken and passed both a physical and mental examination. Each examining physician concluded he could now safely engage in the practice of medicine. The description in psychiatrist James S. Weiner's report of the status of Petitioner's legal case before the Board and/or theDivision of Administrative Hearings and the apparent discrepancies between the facts as established by the initial final order of revocation by the Board and Petitioner's explanation to Dr. Weiner of what had occurred from Petitioner's point of view are as attributable to a non-lawyer's misunderstanding of the legal terms "suspension" and "revocation" and of the finality and legal consequences of the Board's 6/15/83 order as they are attributable to any alleged misrepresentation or lack of candor by Petitioner. Contrary to Respondent's urging in its proposals, Petitioner's credibility is not thereby diminished. While there were many patients who testified through affidavit or whose testimony was proffered without admission, as to how much they liked Petitioner and how much they wanted him back in practice, patients are not in a position either to judge Petitioner's ability to practice with reasonable skill and safety before revocation where, as here, they had no clear knowledge of his prescribing practices before revocation, and where, as here, they were not knowledgeable concerning his rehabilitation efforts, if any, since revocation. However, it is clear that despite newspaper publicity, Petitioner continues to enjoy a good reputation among many in the community. Petitioner's Plan of Re-Instatement was part of his Petition for Reinstatement affixed to his Petition for Administrative Hearing. It contains two (2) distinct Plans of Supervision during any probationary period Respondent might elect to set as a condition for Petitioner's re-instatement, including one plan where the practicing physician would supervise the Petitioner on a day-to-day basis and the other plan would include direct supervision within the confines of a publicly-owned and regulated medical facility with the parameters of that supervision to be set by the Respondent. As part of the first Plan of Supervision, an affidavit of a presently practicing physician in good standing with the Respondent, Videonia Bautista, M.D. was provided. She agreed, within her affidavit (and in live testimony recounted, supra) to supervise Petitioner on a day-to-day basis in her own office for as long as the Respondent felt such supervision was reasonably necessary. Petitioner also testified personally regarding his rehabilitation. Petitioner readily and candidly admitted that what he did in 1981 was wrong. The totality of his testimony and his general demeanor reveal that the acute embarrassment and subsequent financial and familial hardships and sacrifices that he and his family have endured since his downfall have instilled in him a valuable lesson which will constantly serve as a reminder to him of the standards of conduct required of one licensed in the medical profession. The Petitioner expressed remorse and regret for the actions he took in 1981. He apologized to his family, his peers and his patients. He expressed his frustration and disappointment in not being able to continue to serve his patients because of what he views as his past errors in judgment. Petitioner admitted to having a flaw in his character, that flaw being too trusting and too naive as to the subjective complaints of his former patients. Such a flaw of character is not inconsistent with the earlier disjunctive admission/finding that Torres "knew or should have known" (emphasis supplied) that he was prescribing to drug abusers. Torres explained that the experience he has endured has brought that flaw vividly to his attention and he has done everything within his power to reasonably ensure that the same problem never happens again. When the Petitioner was asked if he had learned anything from his experience, he testified: I have each and every time of the day pondered upon the mistake that I committed and the result that it has done to me and my family and my patients. That because of that, I will never do it again. Petitioner, a church-goer, and his wife and four children have suffered newspaper publicity, public humiliation, and a drastic reduction in their standard of living throughout this lengthy revocation period. Petitioner acknowledged and agreed to adhere to the Plan for Re-Instatement contained in the Exhibits to his Petition. He also agreed to abide by any reasonable requirements set by the Respondent to ensure that he would continue to safely engage in the practice of medicine and would not repeat the errors in judgment which led to the revocation of his license. The potential for Petitioner, if reinstated, to commit the same offense(s) is very dim.
Recommendation It is recommended that the Florida Board of Medical Examiners enter a final order reinstating Petitioner's license to practice. DONE and ORDERED this 24th day of October, 1985, in Tallahassee Florida. ELLA JANE P.DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675
