The Issue The central issue in this case is whether Petitioner is entitled to licensure by endorsement. Specific to the grounds for denial are the issues of whether Petitioner is of good moral character and whether he is able to practice with skill and safety.
Findings Of Fact Based upon the stipulation of the parties, the testimony of the witnesses, and the documentary evidence received at the hearing, I make the following findings of fact: The Petitioner, Norman M. Phillips, M.D., is a graduate of St. George's University School of Medicine, Grenada, West Indies, a foreign medical school. Petitioner holds a certificate from the Educational Commission on Foreign Medical Graduates (ECFMG) and has passed the ECFMG examination. Petitioner obtained a passing score on the licensing examination of the Federation of State Medical Boards of the United States, Inc. (FLEX). Petitioner is licensed to practice medicine in New Jersey. Petitioner is over 21 years of age. Petitioner has completed at least one year of an approved residency. The Petitioner has not committed any act or offense in any jurisdiction which would constitute the basis for disciplining a physician, pursuant to Section 458.331(1) or (2), Florida Statutes. Petitioner applied for licensure by endorsement as a physician in Florida. On March 26, 1988, Petitioner appeared before the Credentials Committee of the Board regarding his application for licensure. The Credentials Committee recommended to the Board that Petitioner's application be denied. The basis for this recommendation was Petitioner's alleged inability to practice medicine with reasonable skill and safety due to a mental condition and his prior performance during his medical training. The recommendation also claimed Petitioner was not of good moral character. The Board adopted the recommendation of the Credentials Committee and issued an Order stating its intent to deny the Petitioner's application. Thereafter, Petitioner timely filed for an administrative review of the denial. After graduation from medical school, Petitioner was accepted into a residency program at St. Peter's Medical Center, New Brunswick, New Jersey. This program was in internal medicine and was to cover three years of postgraduate work. After the first year, Petitioner was evaluated and offered a contract for the second year of the program. Dr. Andrew L. Hahn was the program director of the internal medicine residency program. Dr. Hahn is an expert in the matter of residency training of medical students. Dr. Hahn evaluated Petitioner's performance as satisfactory. During the second year of the residency, Petitioner received an unfavorable evaluation which placed him on notice of a need to improve in order to receive a contract for the third year of the program. Petitioner ably made necessary corrections, improved his work performance, and, consequently, received a contract for the third year. After Petitioner had received notice of his contract for the third year, he was required to perform a rotation in radiology. This rotation was selected as it was the only available course given in the time period. While Petitioner would have preferred another topic, he accepted the assignment and agreed to the rotation. The rotation consisted of approximately three weeks of classroom lectures given at a location away from Petitioner's hospital assignments. After attending a few early sessions, Petitioner determined that he had already studied the subject matter of the course in medical school and that further attendance would not benefit him. Petitioner erroneously concluded attendance was not required. Instead of attending the rotation course lectures, Petitioner remained home studying other materials, performed his hospital duties, and made applications relating to future work. Petitioner's patients did not suffer as a result of the missed classroom sessions. Petitioner attended the clinic he was assigned to during the rotation period. When Petitioner's superiors were informed of the failure to attend the classroom sessions, they approached Petitioner for a satisfactory explanation which he was unable to provide. Since they (including Dr. Hahn) considered the failure to attend a serious breach of his professional responsibility, Petitioner was given the choice of either resigning his third year placement or being terminated. Petitioner agreed to resign his third year and was given a certificate for the two years he completed. At the time of his resignation Petitioner offered to repeat the classroom work but that option was rejected by Dr. Hahn. After resigning, Petitioner told his superiors that he had worked in a pharmacy (he is a licensed pharmacist) during the time he was supposed to have been in the radiology classes. He indicated he had done this because he needed money. Petitioner had not worked in a pharmacy, however, and had fabricated the story in a lame effort to excuse his nonattendance. Subsequently, Petitioner was interviewed by Dr. Bernard Sandler for a residency program in physical medicine and rehabilitation at the Robert Wood Johnson, Jr. Rehabilitation Institute of the John F. Kennedy Medical Center in Edison, New Jersey. Petitioner was accepted into the program and fell under the supervision of Dr. Thomas Edmund Strax. Petitioner successfully completed this program in December, 1987. Petitioner did not disclose the underlying facts of his resignation from the internal medicine program to either Dr. Sandler or Dr. Strax, however, neither physician questioned him at length about it either. Petitioner did not misrepresent any pertinent history; he simply did not volunteer embarrassing information. During his residency in rehabilitation, Petitioner was observed by Drs. Sandler, Harold Arlen, and Fazal Panezai. All of these physicians found Petitioner to be able to practice medicine with skill and safety. Petitioner did not exhibit any problem related to malfeasance or incompetence. Petitioner got along with staff and worked well with others. As a resident in the rehabilitation program, Petitioner was evaluated by Dr. Strax who determined that Petitioner would require improvement in order to meet the high standards Dr. Strax maintained for his course of study. Petitioner was able to make the necessary improvements and satisfactorily met Dr. Strax's objectives. Dr. Strax is an expert in the matter of residency training of medical students. Dr. Strax had an opportunity to review Petitioner's work on numerous occasions. Dr. Strax recommended Petitioner for licensure and - found him to be qualified and competent. Petitioner is presently employed as a physician at the Veterans Administration Medical Center in Miami, Florida. Petitioner is not required to be licensed in his present employment since such position is exempt from licensure. Petitioner's present supervisor is Dr. Dorothea Glass, Chief of Rehabilitation Services. Dr. Glass interviewed Petitioner and reviewed references Petitioner had given to her. Dr. Glass knows Dr. Strax who recommended Petitioner for the position which he currently holds. While Dr. Strax advised Dr. Glass to "keep an eye on him," Dr. Glass has done as she would with all young doctors. Dr. Glass has worked with Petitioner on a daily basis since February, 1988, and believes he is competent, hardworking and honest. Petitioner is able to practice medicine with skill and safety. Petitioner is of good moral character. Petitioner did not misrepresent material information when he appeared before the credentials committee.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Board of Medicine enter a final order approving the application for licensure by endorsement for the Petitioner, Norman M. Phillips, M.D. DONE and RECOMMENDED this 30th day of May, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 1989. APPENDIX RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: Paragraphs 1 through 9 are accepted. To the extent addressed in findings of fact paragraphs 11-16, paragraphs 10 through 32 are accepted. Paragraphs 33 through 36, are accepted but are irrelevant to the issues of this case. Paragraph 37 is accepted. Paragraph 38 is rejected as speculation or argument. Paragraph 39 is accepted. Paragraphs 40 through 51 are accepted. Paragraph is rejected as irrelevant. Paragraphs 53 through 63 are accepted. To the extent addressed in findings of fact paragraph 21, paragraphs 64 through 68 are accepted. Paragraphs 69 through 71 are accepted. Paragraphs 72 through 73 are rejected as immaterial, recitation, or argument. Paragraphs 74 through 76 are rejected as recitation of testimony or argument. See findings of fact paragraph 20. Paragraph 77 is rejected as argument. RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT: Paragraphs 1 through 10 are accepted. Paragraph 11 is rejected as irrelevant to the extent that it refers to Petitioner's performance as "marginal." Petitioner was rated satisfactory and was permitted to continue. There were areas in which he required improvement, which he was able to correct. Paragraph 12 is accepted with the clarification that the radiology rotation was selected because it was the only one available to Petitioner at the given time. That portion of paragraph 12 which relates a fourth week work in the emergency room is rejected as contrary to the weight of credible evidence. With regard to paragraph 13, that portion which states Petitioner did not attend the classroom radiology rotation is accepted, the remainder is rejected as either unsupported by the record, contrary to the weight of the evidence, or irrelevant. To the extent addressed in findings of fact paragraphs 11-16, paragraphs 14 through 16 are accepted otherwise rejected as irrelevant or contrary to the weight of the credible evidence. It should be noted that any reference to emergency work deficiencies have not been credited nor are they supported by this record. Paragraph 17 is rejected as argument. Paragraph 18 is rejected as contrary to the weight of the credible evidence or argument. Paragraph 19 is rejected as argument, irrelevant, or immaterial to the issues of this case. Paragraph 20 is rejected as argument. Paragraph 21 is rejected as unsupported by the weight of credible evidence or argument. Paragraph 22 is accepted to the extent addressed In findings of fact paragraph 17; otherwise rejected as irrelevant or contrary to the weight of credible evidence. To the extent addressed in findings of fact paragraph 19, paragraph 23 is accepted. Paragraph 24 is accepted. Paragraph 25 is rejected as recitation of testimony, argument, or irrelevant. Paragraph 26 is accepted. Paragraph 27 is rejected as unsupported by the weight of the credible evidence, irrelevant, or argument. COPIES FURNISHED: Robert S. Turk VALDES-FAULI, COBB, PETREY & BISCHOFF, P.A. Suite 3400-One Biscayne Tower Two S. Biscayne Boulevard Miami, Florida 33131 Allen R. Grossman Assistant Attorney General Department of Legal Affairs Suite 1603, The Capitol Tallahassee, Florida 32399-1050
Findings Of Fact The facts, as stipulated to by the parties and as set forth above, are hereby adopted.
The Issue The issue presented is whether Respondent HealthSouth Corporation engaged in an unlawful employment practice as to Petitioner Mary A. King, and, if so, what relief should be granted to Petitioner, if any.
Findings Of Fact Petitioner Mary A. King is a black female born on April 5, 1952. Respondent HealthSouth Corporation operates HealthSouth Rehabilitation Hospital of Tallahassee, located in Tallahassee, Florida. Petitioner was initially employed by HealthSouth in 1995 as a nurse tech or certified nursing assistant (CNA) in the nursing department. In 1998 she suffered a back injury while performing her regular CNA duties. She received treatment for the injury and returned to work with lifting limitations placed on her by her doctor. The limitations were inconsistent with her duties as a CNA and are still in effect. In 1999 Petitioner requested a transfer to the position of patient transporter aide due to her lifting limitations and concerns over her back injury. Her transfer request was granted, and she began to work as a patient transporter in the physical therapy department. She was pleased with the transfer. As a patient transporter, Petitioner was responsible for transporting patients to and from the locations in the hospital where they received treatment. She was not directly involved in the administration of treatment to patients. Subsequently, Petitioner was transferred from the physical therapy department to the occupational therapy department. Her position and job duties remained the same; the only change was in the types of patients Petitioner transported. On September 1, 2004, new federal regulations went into effect. These regulations directly impacted all in-patient rehabilitation hospitals, limiting the types of patients that HealthSouth could accept. The new regulations had a severe impact on HealthSouth, causing a dramatic drop in the patient census. The 76-bed facility had an average daily census of 65, and occasionally up to 76, prior to the effective date, but only a patient census in the 30s and 40s after the effective date of the new regulations. With the dramatic drop in patient census, HealthSouth had to dramatically reduce costs. Lynn Streetman, Administrator of HealthSouth Rehabilitation Hospital of Tallahassee, looked at a variety of ways in which costs could be reduced, including re- structuring contracts with outside vendors, reducing orders of medical supplies, reducing or substituting pharmaceutical orders, discontinuing the use of P.R.N. or as-needed staff, and, ultimately, reducing the workforce at the hospital. Streetman began reducing the workforce through attrition. As positions at the hospital became vacant, they were not filled if they were not critical to the functioning of the hospital and if there would not be a negative impact on patient care. Although reducing the workforce through attrition helped, more workforce reductions were necessary to respond to the hospital's declining patient census. In order to determine what positions to eliminate, Streetman preliminarily reviewed all positions throughout the facility and developed a list of positions she thought could be eliminated with minimal impact on the hospital's operations. The criteria she used included whether the position was a clinical or non-clinical position, whether the position was essential to the operation of the hospital or merely a luxury position, whether the duties of the position could be effectively absorbed by other positions in the hospital, and what impact the elimination of the position would have on patient care. Streetman next met individually with members of the hospital's senior management team to discuss the positions in their respective departments that she had preliminarily identified as appropriate for elimination. She obtained input from the team members as to whether it would be appropriate to eliminate those positions and what impact their elimination would have on the functioning of their respective departments. After she met with the team members to discuss the reduction in force and consider their input, Streetman made the decision to eliminate 13 positions at the hospital in December 2004 and January 2005. Three positions were eliminated in December, and ten were eliminated in January. Streetman was the person responsible for making the final decision about which positions to eliminate. Of those employees affected by the reduction in force, 6 were black and 7 were white. Of those employees affected by the reduction in force, 6 were over 40 years of age, and 7 were under 40 years of age. Each employee whose position was eliminated as a part of the reduction in force was informed that he or she would be eligible to purchase insurance benefits through COBRA for up to 18 months after his or her employment with the hospital ended, each was paid for any accrued paid time off, and each eligible employee received severance benefits in accordance with an identical formula: one week of pay for every year of service up to a maximum of ten years. With the exception of a part-time employee who was not eligible, all employees affected by the reduction in force received benefits, paid time off payments, or severance payments in accordance with these policies. One of the positions selected for elimination was that of patient transporter. When Streetman was employed by HealthSouth, there had been three patient transporters. Two of the three positions had already been eliminated through attrition, and Petitioner was the only remaining patient transporter. Since Petitioner's position was eliminated, HealthSouth has not hired anyone as a patient transporter. Petitioner's position was selected for elimination because it was not essential to the operation of the hospital, was not responsible for any direct patient care, and was a luxury position for the facility. As verification that the elimination of Petitioner's position would not have a negative impact on the level of patient care at the hospital, Streetman considered that therapists at the hospital had already been assisting in the transportation of patients to and from treatment and that the previous reduction of two patient transporters through attrition did not negatively impact patient care at the hospital. Petitioner's job duties were absorbed into the daily work routine of therapists in the outpatient therapy department. Therapists simply transported their own patients rather than have Petitioner (and the other transporters who had previously been phased out through attrition) perform this function for them. Petitioner was informed of the decision to eliminate her position on November 30, 2004, by Donna Crawford, Director of Clinical Services, and Cindy Cox, Occupational Therapy Team Leader. Crawford informed Petitioner that Petitioner's position was being eliminated, that Petitioner would receive severance pay in accordance with her years of service, that Petitioner would be paid for all of her accrued paid time off, and that Petitioner was welcome to apply for any other open position at the hospital for which she was qualified. Crawford also told her that Petitioner was welcome to discuss any open positions with Jackie Chaires, Human Resources Director at the hospital. Petitioner was paid 360 hours of severance pay (nine weeks pay for nine years of service), was compensated for all accrued paid time off, and was sent a letter informing her of her right to purchase insurance under COBRA for up to 18 months after her employment with Respondent had ended. Petitioner also applied for and received unemployment benefits as a result of her job being eliminated. After Crawford advised her that her position had been eliminated, Petitioner went to talk with Jackie Chaires, a black female. Petitioner told Chaires that she did not understand why she had been laid off and asked about any available positions. During that conversation, in an attempt to console Petitioner according to Chaires' affidavit but as an act of discrimination according to Petitioner's testimony, Chaires suggested that Petitioner could also retire and let Petitioner's husband take care of her. At no time did Chaires suggest that Petitioner's husband's situation, his income, or Petitioner's age were factors in HealthSouth's decision to eliminate her position as part of its reduction in force. Moreover, Chaires was not involved in any way in the selection of Petitioner's position for elimination. At some point after being informed that their positions were eliminated, Petitioner, along with Kim Spencer, another employee affected by the reduction in workforce, inquired as to whether there were positions available in the nursing department. However, there were no positions available in that department, and both Petitioner and Spencer were informed that their requests could not be accommodated. Spencer is a white female. HealthSouth has a written policy prohibiting employees from giving letters of recommendation. At some point after being informed that her position was eliminated, Petitioner asked Cynthia Cox, her direct supervisor, for a letter of recommendation. Cox agreed to give her one even though she was uncertain as to the correct procedure, but after ascertaining from the human resources department that a recommendation would be against corporate policy, Cox told Petitioner she could not give her the letter and told Petitioner that it was against corporate policy. That policy is clearly stated in the hospital's employee handbook, which Petitioner had been given. At no time prior to her filing her charge of discrimination with the Florida Commission on Human Relations did Petitioner inform any of her supervisors that she felt she was being discriminated against in any way based on either her race or her age. Patsy Kitchens is a white female who is the same age as Petitioner. HealthSouth terminated her employment at the same time as it terminated Petitioner's employment as part of the same reduction in force.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner failed in her burden of proof and dismissing the petition filed in this cause. DONE AND ENTERED this 24th day of March, 2006, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 24th day of March, 2006. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Mary King 1039 Idlewild Drive Tallahassee, Florida 32311 L. Traywick Duffie, Esquire Wesley E. Stockard, Esquire Hunton & Williams, LLP Suite 4100 600 Peachtree Street, Northeast Atlanta, Georgia 30308-2216
The Issue The issue in this case is whether the Florida Commission on Human Relations (FCHR) should grant the Petition for Relief, charging the Respondent with discrimination based on race (black), age (42), and handicap (back and neck injury), in violation of Section 760.10, Fla. Stat. (1989).
Findings Of Fact The Petitioner, Delores C. Bostic, is a black female, born January 16, 1946, who is a radiology technician by education, training, and experience. The Respondent, the Hillsborough County Hospital Authority, does business as Tampa General Hospital. In the past, the Respondent also operated County Hospital. Tampa General's patient population generally is older and sicker than the County Hospital's patient population. Much of the Tampa General patient population is not ambulatory, while most of the County Hospital's patient population was ambulatory. The Petitioner went to work for the Respondent as a radiology technician (rad tech) in 1982. At the time, the Petitioner already had a history of neck and back problems. She was injured on her previous job with the Veteran's Hospital in Albany, New York. Rad tech work can be difficult for someone with chronic back and neck problems, especially at an acute care hospital like Tampa General. Almost all of the work involves positioning a patient for the radiograph. In some cases, especially when the patient is not ambulatory, this can mean having to physically lift the patient from a wheelchair or gurney to an x-ray table. If the patient is not cooperative, it also can involve physically struggling with the patient to get and keep the patient into position for the x-ray. In addition, as much as 50% or more of the work is accomplished with portable equipment that must be rolled to the patient's location. Pushing and pulling the portable equipment can aggravate a back condition and cause re-injury. Finally, the use of much of the equipment requires the rad tech to reach up to position overhead cameras. Depending on the type of equipment, this motion can be difficult for someone with neck and back problems. For example, the x-ray machine known as the "C-arm" has relatively heavy overhead equipment that has to be positioned by the rad tech. The Petitioner injured her neck on the job at Tampa General for the first time in 1983. A patient who was delivered to the Petitioner in a wheelchair for radiography began to fall when she tried to stand up, and the Petitioner injured her neck trying to keep the patient from falling. The Petitioner got worker compensation and time off work from February 24 through March 1, 1983. In September, 1986, the Petitioner again injured herself. This time, her injury was not job related. She hurt her upper back and shoulder doing aerobic exercises. She missed approximately two days of work. In February, 1987, the Petitioner again injured herself. After assisting in lifting quadriplegic patients, and performing several myelograms that required her to push and pull the C-arm apparatus, the Petitioner experienced pain in her neck and back. She was off work from February 13 through 15, 1987, and received worker compensation. When she returned to work, she re-injured her back (muscle spasms) on or about March 2, 1987. She was returned to work but was restricted to lifting not more than 20 pounds for two weeks. She was not returned to full duty, without limitations, until April 2, 1987. On or about July 6, 1987, the Petitioner developed numbness and pain in her left shoulder that radiated to her left arm. She was referred to a physician, and worker compensation provided physical therapy for three weeks. The physician also recommended that the Petitioner again be placed on work restrictions to limit lifting to less than 20 pounds and to avoid the use of portable equipment. Later, on or about July 24, 1987, the work restrictions were extended indefinitely. On or about October 30, 1987, the Petitioner's physician cleared her to perform light portable work on occasion. When the Petitioner was on weight restrictions, she was accommodated by being assigned duties where she would not have to lift heavy equipment and was allowed to take rehabilitation classes during her eight hour shift. At one point in time, the Petitioner was assigned for a time to the neonatal intensive care unit where she would only have to lift babies and not adults. On or about January 29, 1988, the Petitioner again hurt her neck and back after doing more portable work than usual. She again received worker compensation and time off. Her supervisor was asked to consider the possibility of reassignment to a job whose duties would be less likely to aggravate the Petitioner's neck and back injury. The Petitioner returned to work on January 31, 1988, but the pain continued, and on February 2, 1988, she was placed on sick leave for two weeks and again was given worker compensation. She also was given massage physical therapy with traction during this time. On or about February 17, 1988, the Respondent secured a reassignment for the Petitioner to work in County Hospital. It was felt that the work would be less strenuous because of the nature of the patient population. In contrast with Tampa General, there was no portable equipment, and the patients at County Hospital were younger and mostly ambulatory. The Petitioner's work therefore would not involve much, if any, lifting of patients (although it still would be necessary to position patients and equipment). She was allowed to take time off, and was allowed to take therapy during regular working hours, when she needed it. The Petitioner was not as appreciative of the Respondent's attempt to accommodate her injury as one might think. She seemed to view her reassignment as a demotion of sorts. She accepted the reassignment with the understanding that she would be transferred back to Tampa General as soon as she was physically able to handle the work. At first, the Petitioner seemed to be able to handle the work at County Hospital. Then, on or about May 24, 1988, the Petitioner re-injured her back while assembling a tomogram unit. She was given a "work hardening program," a week long physical therapy program offered by the Tampa General Rehabilitation Center and designed to improve the Petitioner's ability to meet the physical demands of the rad tech position. Despite the work hardening program, on July 29, 1988, the Petitioner's physician made the recommendation that the Petitioner have a weight restriction of 25 pounds. The physician, in a letter to the employee health nurse at Tampa General who was working with the Petitioner, also commented: "I think that this may definitely interfere with her profession as an X-ray technician." Later during the Petitioner's tenure at County Hospital, one of her fellow rad techs retired. Although the Petitioner's supervisor assumed much of the resulting extra tech work load, the Petitioner's work load increased to some extent as well. On the late afternoon of March 31, 1989, after her supervisor had left for the day, the Petitioner re-injured her back while trying to finish the work for her shift. This time, the Petitioner requested and received a leave of absence. She received worker compensation and continued to see physicians for her neck and back pain. In October or November, 1989, one of the physicians the Petitioner was seeing cleared her to work full time without restrictions. This information was imparted to the Respondent, and the Petitioner was notified of a position as a rad tech at Tampa General that was open. The Petitioner decided to bid on the job, and she got it. She was to report to work on Monday, November 27, 1989. When the Petitioner reported for work, she notified her supervisor that she was on work restriction due to her neck and back injuries. In fact, one of the Petitioner's physicians still had her on work restrictions. This was news to the supervisor, who had been told about the physician who had cleared the Petitioner to work full time without restrictions, but not about the other physician who still had the Petitioner on work restrictions. The supervisor decided to take the Petitioner off normal duties, and the two of them took a class in cardio-pulmonary resuscitation (CPR) that they both needed to maintain proficiency certification. During the class, the Petitioner told the CPR instructor that she would not be able to do any exercises that required her to kneel on the floor and bend over. After the class, the Petitioner worked while her supervisor tried to ascertain whether the Petitioner had been returned to full duty or to light duty. When the supervisor was unable to get an authoritative answer, she released the Petitioner to go home. In response to the Petitioner's question, the supervisor told the Petitioner to report for duty the next day. The next day, November 28, 1989, the Petitioner telephoned her supervisor and advised that she could not do the work and would not be returning to work. The Petitioner's supervisor told the assistant director of the radiology department. The next day, November 29, 1989, the assistant director of the radiology department telephoned the Petitioner. The purpose of call was to ascertain whether the Petitioner was resigning. The Petitioner confirmed for the assistant director that the Petitioner would not be reporting for work because her back and neck injury prevented her from doing the work. The Petitioner asked if there were any other jobs available that she would be able to perform. The assistant director informed her that there was nothing in the radiology department since all rad tech jobs required some lifting and positioning of patients, some overhead reaching, and some portable work. The assistant director got the impression that the Petitioner intended to resign. The assistant director informed the Petitioner that, if she was resigning, the Petitioner should put the resignation in writing. The assistant director also advised the Petitioner that, if she did not intend to abandon her position, the Petitioner needed to notify the Respondent in writing that she wanted to pursue other employment opportunities at Tampa General; otherwise, under the Respondent's personnel procedures, if the Respondent did not hear from the Petitioner for three days, the Petitioner would be considered to have abandoned her position. The Petitioner did not report for work on November 29, 1989, or on any later date. She wrote a letter dated November 29, 1989, asking the Respondent to accommodate her neck and back condition by offering her a position conforming to her physical restrictions. Through the time of the final hearing, the Petitioner claimed to have mailed the letter to the assistant director of the radiology department at Tampa General on November 29 or 30, 1989, but in fact the letter was not mailed until December 4, 1989. The letter was sent by certified mail, return receipt requested, but the Petitioner did not produce the return receipt. At some point on or after December 6, 1989, the Petitioner conferred with representatives of the Respondent in Tampa General's personnel office concerning her desire for employment in another position. But, by this time, not having received the November 29 letter, or any other contact from the Petitioner, the Respondent had initiated procedures to free the Petitioner's position so that it could be filled by someone who would report for work and do the job. A letter already had been drafted and approved to terminate the Petitioner for abandonment of her position. The termination letter was mailed on or about December 12, 1989. It offered the Petitioner a pre-termination hearing, which she requested. The pre- termination hearing was held on December 20, 1989. Tampa General's vice- president for professional and material services upheld the termination, ruling that, under Tampa General's personnel policies, the Petitioner had abandoned her position by failing to report to work for three or more consecutive work days without contacting her supervisor to explain her absence. The evidence is that the personnel policy under which the Petitioner was terminated for abandoning her position is applied regularly to employees regardless of race. There is no evidence that its application has resulted in discrimination against the Petitioner or any other employee of the Respondent on the basis of race, age or handicap. As reflected in the preceding findings of fact, the Respondent made significant efforts to accommodate the Petitioner's neck and back injury. All rad tech jobs require some lifting and positioning of patients and some portable work. Although some jobs within the job description--e.g., in mammography--are less strenuous, no one employee works full-time and exclusively in mammography. All rad techs who work in mammography also spend some time in other areas. Likewise, the Petitioner suggested that she should have been accommodated by being allowed to work only on computerized equipment not requiring overhead pushing and pulling, but there was no evidence that any employee is assigned to one particular type of equipment. Besides, the Petitioner did not prove that a position in mammography or another, less strenuous area was available. The Petitioner suggested that she could have been accommodated by being given work doing ultrasounds. But, while not considered part of "radiology," the job description for ultrasound work also includes the requirement for some lifting and positioning of patients. Also, ultrasound work requires specialized training and certification which the Petitioner did not have. 1/ There was evidence that the Respondent gave one white employee a desk job when he injured his knee. But his medical condition was both totally disabling (he initially was in a body cast and could not walk) and temporary (after a period of accommodation, he was able to return to work full-time and without restriction). Meanwhile, the Petitioner's injury, until towards the end, was not totally disabling; by the end of her tenure working for the Respondent, however, it appeared that she never would be able to perform the job requirements of a rad tech. These differences, not the Petitioner's race or age, explained the different treatment accorded to the two employees. There also was evidence that the Respondent accommodated another black employee who had AIDS by allowing him to work to the extent of his ability until he no longer could work at all. The Petitioner testified that, in approximately January, 1988, one of her supervisors suggested that she was too old for the job. But this evidence did not prove discrimination against the Petitioner on the basis of age. At the time, the Petitioner was approximately 42. The supervisor, who denied making the statement, was older than the Petitioner by approximately eight years. It is not likely that he made the statement that the Petitioner recalls. On the other hand, it is entirely possible, and reasonable under the circumstances that prevailed at the time (the Petitioner's apparently chronic neck and back problems), that the supervisor may have suggested that perhaps the Petitioner no longer could do the work. As for the circumstances surrounding the Petitioner's termination, the findings of fact reflect that the Petitioner was terminated, instead of further accommodated, initially because the Respondent believed the Petitioner had abandoned her job and later because of the personnel policy on abandonment of position. There may have other motivations for the termination, but it was not proved that the Respondent terminated the Petitioner because of race, age or handicap. There also was no evidence that, after the Respondent became aware that the Petitioner wanted to continue to work at Tampa General in some suitable job, a position was available that would meet both the Petitioner's desires for a rad tech job and the permanent physical limitations the Petitioner wanted to place on the job. The evidence did not prove that the Petitioner was discriminated against in any respect on the basis of race or age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order denying the Petition for Relief filed in this case. RECOMMENDED this 26th day of August, 1991, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 26th day of August, 1991.
The Issue Whether Respondent was convicted of or found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of nursing or the ability to practice nursing, in violation of Subsection 464.018(1)(c), Florida Statutes.
Findings Of Fact 1. Respondent, Sheree English, is, and has been at all time material hereto, a licensed registered nurse in the State of Florida since 1992, having been issued license number RN 2789282. 2. Respondent resides at 1215 East North Street, Tampa, Florida 33604. 3. In October 1998, Respondent was employed by Tampa General Healthcare as a registered nurse in the emergency room. 4. During October 1998, while employed by Tampa General Healthcare, Amy Fogelman Dean's credit card was stolen from the Tampa General Healthcare employee restroom by Respondent. At no time did Dean live with Respondent, loan money to Respondent, or give her permission to take or use her credit card. 5. Respondent proceeded to Best Buy store in the Tampa area on October 22, 1998, and purchased a computer and other items. 6. On October 25, 1998, Respondent was arrested for stealing Dean's credit card and fraudulent use of a credit card. Respondent admitted to stealing and using the credit card. The property purchased was returned to the store. 7. In November 1998, Respondent was terminated from her position at Tampa General Healthcare. 8. On February 9, 1999, Respondent was charged by information with grand theft and fraudulent use of a credit card, both third-degree felonies. 9. On May 6, 1999, Respondent pled nolo contendere in the Circuit Court of Hillsborough County, Florida, to one count of grand theft and one count of fraudulent use of a credit card. Grand theft and fraudulent use of a credit card are felonies as defined by Chapters 812 and 817, Florida Statutes. 10. Grand theft and fraudulent use of a credit care are crimes of moral turpitude that involve honesty. The scope of practicing nursing encompasses more than just the aspect of patient care. Honesty, integrity, and good moral character are integral components of a nurse's ability to practice nursing. 11. Stealing a credit card by a nurse from a co-nurse at their place of employment is related to the practice of nursing or the ability to practice nursing. Grand theft and fraudulent use of a credit card are crimes related to the practice of nursing or the ability to practice nursing. 12. On or about October 27, 1997, Respondent plead nolo contendere to the misdemeanor of possession of marijuana. She failed to report the plea to the Board of Nursing. Respondent is credible in her explanation that she does not use illegal drugs of any kind and that, in 1997, someone who had the use of her vehicle had left some "roaches" in her ash tray. She admitted she did not report this crime to the Board in the mistaken belief that only felonies had to be reported. 13. On or about September 8, 1998, Respondent was issued a disciplinary action by her employer, Tampa General Healthcare for falsification of hospital records. 14. Respondent demonstrated that her state-of-mind during the relevant time period was extremely depressed and distraught due to the occurrence of several traumatic incidents in her life, In November 1997, her house was robbed and later it flooded. In January 1998, a long-term relationship ended when she discovered she was pregnant. On February 3, 1998, she was abducted in the Tampa area, her wallet and check book stolen, repeatedly raped and left the following day in Lakeland. This incident adversely affected her emotional well-being, as well as, her credit. Respondent also underwent an abortion, shortly thereafter. The cumulative effect of these incidents left her feeling angry and powerless, and she didn't use rational thought before she took and used the credit card in October 1998. The incident has left her humiliated and ashamed and determined not to repeat this type of behavior in the future. 15. Respondent has demonstrated that during the relevant time period, and presently, she is a highly skilled registered nurse with special training in emergency medicine, critical care and cardiac care. Pétitioner is well regarded by her past and present employers and, except for Tampa General, is eligible for re-hire. 16. Following her sentencing by the circuit court, Respondent successfully completed probation. In addition, Petitioner voluntarily sought counseling therapy which has been very helpful. 17. .Respondent has shown by clear and convincing evidence that she is rehabilitated and is no longer a threat to harm patients, co-workers or the public.
Conclusions For Petitioner: Elizabeth Hathaway, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 For Respondent: Suzanne Hope Suarez, Esquire 150 Second Avenue, North Suite 1500 St. Petersburg, Florida 33701
Recommendation Based on the Forgoing, it is RECOMMENDED that the Board of Nursing enter a Final Order as follows: 1. Finding Respondent guilty of violation of Subsection 464.018(1) (c), Florida Statutes; and 2. Imposing the following discipline: 13 a. Respondent's License to practice in Nursing in the State of Florida be reprimanded; b. Respondent pay a fine of $500.00 to the Board of Nursing; c. Respondent pay costs of $2315.28 to the Board of Nursing, prior to the completion of her period of probation. dad. Respondent's license be suspended; this suspension shall be stayed as long as Respondent stays compliant with the terms of her probation; e. Respondent be placed on unsupervised probation for one year; and f£. Respondent complete courses in Legal Aspects of Nursing and Legal Ethics of Nursing; these courses must be done in addition to the required continuing education courses and completed prior to the termination of probation. DONE AND ENTERED this / YC day of July, 2001, in Tallahassee, Leon County, Florida. - Cc ™~ LG; GEA DANIEL M. KILBRIDE 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 14 Filed with the Clerk of the Division of Administrative Hearings this [Xfe_day of July, 2001. COPIES FURNISHED: Elizabeth Hathaway Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 34 Tallahassee, Florida 32308 Suzanne Hope Suarez, Esquire 150 Second Avenue, North Suite 1500 St. Petersburg, Florida 33701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 Ruth R. Stiehl, Ph.D., R.N. Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701
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
