The Issue Whether Petitioner's application for licensure as a practical nurse (PN) should be approved or denied.
Findings Of Fact At issue in this proceeding is the application for licensure by examination as a PN signed by Petitioner on August 6, 2012, and mailed to the Board for filing. This application will be referred to as the "August 2012 PN application." The purpose of an application for PN licensure by examination is to demonstrate that the applicant has the educational and background qualifications to be eligible to take the PN licensure examination. The Board uses the National Council Licensure Examination, commonly referred to as "NCLEX." The NCLEX is owned by the National Council of State Boards of Nursing, to which all state nursing boards, including Florida's, belong as members. There is an NCLEX for PN licensure (NCLEX-PN) and a separate NCLEX for RN licensure (NCLEX-RN). The August 2012 PN application stated that Petitioner obtained her nursing education from Lincoln Technical Institute in Fern Park, Florida, where Petitioner completed an LPN program from which she graduated on September 24, 2011. In the "examination history" section of the August 2012 PN application, Petitioner stated that she took the NCLEX-RN in Florida in November 2002 and passed. However, according to Mr. Spooner's credible testimony, Petitioner could not have taken and passed the NCLEX-RN in Florida in November 2002, as represented. The Board has no record of Petitioner ever having been approved to take the NCLEX-RN in Florida, much less having taken and received a passing score. As Mr. Spooner explained, in order for someone to take either the NCLEX-RN or the NCLEX-PN in Florida, that person must first submit an application to the Board for either RN or PN licensure by examination, and the application must be approved by the Board. If an application is approved, the Board then would send an "authorization to test" to the approved applicant. The Board would also transmit the applicant's name to the exam vendor, Pearson VUE, on a list identifying the applicant as eligible to take either the NCLEX-RN or the NCLEX-PN. Following the examination, the results would be transmitted by the exam vendor directly to the Board. In a section of the August 2012 PN application called "applicant background," Petitioner was asked a series of "yes-no" questions, asking whether she had "ever applied for" any of the following: RN licensure by examination in Florida; PN licensure by examination in Florida; RN licensure by endorsement in Florida; or PN licensure by endorsement in Florida. Petitioner did not answer either yes or no to any of these questions about prior applications in Florida. The "applicant background" section also asked Petitioner whether she has ever been licensed in Florida as an RN or a PN. Petitioner indicated that she had been licensed in Florida as an RN. Petitioner was required to list all nursing licenses she has held; and for any licenses that were no longer active, Petitioner was instructed to "state why and when" the license became no longer active. Petitioner listed her Florida RN license and offered the following as to why and when that license became no longer active: "lack of accreditation of the school (07-2007)." Evidence at hearing established that in the August 2012 PN application, Petitioner should have disclosed the following prior nursing applications filed in Florida: in May 2006, Petitioner applied for RN licensure by endorsement (May 2006 RN application); in October 2008, Petitioner applied for RN licensure by examination (October 2008 RN application); in January 2009, Petitioner applied for RN licensure by examination (January 2009 RN application); and in October 2011, Petitioner applied for PN licensure by examination (October 2011 PN application). The May 2006 RN application resulted in the issuance of an RN license to Petitioner. This was the RN license that Petitioner listed on the August 2012 PN application. However, the RN license was not rendered inactive for the reason stated by Petitioner ("lack of accreditation of the school"). Instead, the May 2006 RN application contained false information, misrepresenting that Petitioner graduated in 2002 from an ADN (associate degree in nursing) program at Laramie County Community College in Wyoming; that Petitioner had taken and passed the RN licensure exam in Wyoming in November 2002; and that in December 2002, the Wyoming Board of Nursing issued an RN license to Petitioner. Submitted with the May 2006 RN application was a falsified license verification form completed by someone identified as the director of Wyoming's Board of Nursing, verifying that Petitioner held an active RN license in Wyoming and providing the license number ostensibly corresponding to Petitioner's Wyoming RN license. The May 2006 RN application contained accurate personal information about Petitioner, including her social security number, date of birth, and her mother's maiden name. Some of the personal information was wrong, such as Petitioner's birth place. Petitioner's Orlando, Florida, home address was a bit garbled-- the street number and name were correct, but "Parkway" was left off of the street name and was, instead, put into the space for the city (so that the city was identified as Parkway instead of Orlando). However, the zip code was correct, so despite the garbled address in the application form, the Board got the address straightened out and was able to correspond with Petitioner about the application during its processing. Petitioner described the background leading up to the May 2006 RN application. Petitioner was born in Haiti. She said that she was a nurse in Haiti before moving to Florida. Petitioner offered no details regarding any formal education received or regulatory approvals to practice nursing held in Haiti. There was no evidence establishing when Petitioner moved to Florida, except that it was sometime before 2002. Once in Florida, she sought to take the steps needed to be allowed to practice nursing in Florida. Petitioner testified that based on her "accreditation" from her country, she was allowed to take an "online program" of some kind offered by the International School of Nursing, which she described as based in Wyoming, with "school" branches in Hallandale, Florida, and Nigeria. According to Petitioner, she successfully completed the online program in 2002; she understood that the purpose of the program was to allow her to "sit for the exam here in Florida." Petitioner testified that her online school took "them" (presumably Petitioner and other students) to Miami, Florida, to "the exam" in 2002. When asked what exam she took, Petitioner testified as follows: "When I go in the computer it says NCLEX, NCLEX exam."1/ Petitioner said that someone at the online school called her to tell her that she passed the exam, but she never saw the results. Petitioner said that she was told by the online school that she could not get a nursing license until she paid the school the rest of the money she owed for the online program. Petitioner testified that she paid off the debt between 2002 and 2006, at which point the school prepared the May 2006 RN application and filed it for Petitioner. Petitioner's testimony was not forthright about the May 2006 RN application. Petitioner claimed that she had no knowledge whatsoever about the contents of the May 2006 RN application, because the application was handled entirely by the online school. At first, Petitioner claimed that all she knew was that the school submitted the application for her, and the next thing she knew, she received her license. She claimed that she did not question the license when it appeared, because she thought she qualified for the license. However, Petitioner ultimately admitted that she was involved in the application process, because the Board corresponded with her at her home address and Petitioner responded to the Board's requests. The Board wrote to Petitioner to confirm receipt of her RN "endorsement application," but noted that she had omitted the filing fee; the filing fee was then paid by Petitioner. The Board then wrote to Petitioner to confirm receipt of the filing fee payment, but noted that Petitioner needed to get fingerprinted and have the fingerprint cards submitted for a background check; Petitioner followed those instructions. Petitioner admitted that she did not go to nursing school at a community college in Wyoming, did not take the NCLEX-RN in Wyoming, and never held an RN license in Wyoming. Petitioner denied signing the May 2006 RN application and noted that the signature is not even her name. Indeed, with the benefit of that testimony, if one stares at the signature long enough, the cursive scrawl takes on the appearance of the name of the street where Petitioner lives. However, the scrawled signature is far from legible; the letters are not distinct. At a quick glance, one could just as reasonably discern something approximating Petitioner's first initial and last name, instead of the name of Petitioner's street; those two alternatives are about the same length and end in the same letters ("on"). For someone expecting to see Petitioner's name and not studying the signature with the benefit of Petitioner's testimony, it is not so obvious that the signature is not Petitioner's name. Petitioner did not directly accuse someone from the online school of taking it upon himself or herself to submit for Petitioner a fraudulent application for RN licensure by endorsement without Petitioner's knowledge or permission, but that was the implication of Petitioner's testimony claiming that she had no idea what was in the May 2006 RN application. Petitioner's testimony is difficult to credit, especially since Petitioner did not identify who would have done such a thing or what that person's motive could possibly have been. Moreover, Petitioner's claimed ignorance of the application is not borne out by the evidence. At the very least, Petitioner knew that an application for RN licensure by endorsement was filed in her name, because she received the Board's letters acknowledging receipt of her "endorsement application," and she actively participated in the processing of that application by responding to the Board's requests. An application for licensure by endorsement means that the applicant has an active license in another state, which was obtained after the applicant took and passed that state's licensure examination, either the NCLEX or the State Board test pool. Thus, Petitioner knew, or certainly should have known, that she was not eligible for RN licensure by endorsement because she did not hold an RN license in another state. See § 464.009, Fla. Stat. (2006)(addressing the requirements for RN or PN licensure by endorsement). As Petitioner acknowledged, applicants for nursing licenses in Florida are required to know the licensure laws and rules. Despite not qualifying under Florida law for RN licensure by endorsement, Petitioner accepted the RN license issued by the Board on the basis of the falsified May 2006 RN application and practiced as an RN for several months. In early 2007, the Board received a "fraud list" from the National Council of State Boards of Nursing, identifying names of possible fraudulent applicants. As a result, the Board investigated Petitioner's May 2006 RN application. Using the Wyoming online licensure-look-up tool, the Board searched for Petitioner and found no nursing license history, a fact later confirmed to the Board in an affidavit from a Wyoming Board of Nursing representative. Using the same tool, the Board searched the records by the license number identified in the license verification form filed with Petitioner's May 2006 RN application. The results of that search showed that the license number did not correspond to an active RN license issued to Petitioner following successful examination in Wyoming. Instead, the license number corresponded to an RN license by endorsement that had been issued to a different person, not Petitioner, but that had expired in 2004. The Board's investigation also confirmed that the person identified as the director of Wyoming's Board of Nursing, who completed Petitioner's license verification form, was not the Wyoming Board of Nursing's director. On June 22, 2007, the Department of Health (Department) issued an emergency suspension order (ESO), suspending Petitioner's RN license. The ESO contained a detailed recitation of the facts regarding the May 2006 RN application, including the fact that it was an application for RN licensure by endorsement, which required verification that Petitioner held an active RN license in another state and that to address this requirement, a license verification form attested to Petitioner's RN license in Wyoming. The ESO set forth the results of the Board's investigation, by which it determined that the May 2006 RN application contained material misrepresentations and was supported by a falsified license verification form. The ESO concluded that because Petitioner's RN license was procured by knowing misrepresentations, when the actual facts showed that Petitioner was not qualified for the license issued to her, it was necessary to immediately suspend Petitioner's license. Petitioner did not contest the ESO. Petitioner testified that she did not fight the ESO, because she had no money to hire a lawyer. However, Petitioner also admitted that she did not have grounds to fight it, because she did not, in fact, qualify for RN licensure by endorsement. The Department issued an administrative complaint against Petitioner's RN license based on the same allegations as in the ESO. In lieu of further proceedings on the administrative complaint, Petitioner agreed to voluntarily relinquish her RN license, which the Board accepted by Final Order rendered December 24, 2007. As with the ESO, Petitioner attempted to explain her choice not to contest this action as a financial decision. However, Petitioner ultimately conceded that she could not have successfully fought to retain her RN license that she received by endorsement, because she was not qualified for licensure by endorsement. Petitioner claimed to not understand until sometime recently, when the Board sent her a copy of the May 2006 RN application, that fraudulent information and documentation were submitted to enable her to obtain an RN license. Petitioner claimed to have been "shocked" when she saw the application. Petitioner's testimony in this regard was not credible. Petitioner may have failed to previously obtain a copy of the application that she knew was submitted in her name. However, at least by mid-2007, Petitioner was informed, with great specificity set forth in the ESO and administrative complaint, of each aspect of false information and falsified documentation that the Board found in connection with her May 2006 RN application. Petitioner knew, from the ESO and administrative complaint, that her application for RN licensure by endorsement could only be approved if there was evidence that she had an active RN license in another state. Petitioner knew, from the ESO and administrative complaint, that her application was submitted with a falsified license verification form attesting to the RN license she supposedly held in Wyoming, when Petitioner knew she never had any such license. Although Petitioner denied completing and signing the May 2006 RN application, she admitted that she completed, signed, and filed the other applications enumerated in Finding of Fact 9, above. The October 2008 RN application was an application for licensure by examination by which Petitioner sought permission to take the NCLEX-RN. To demonstrate that she qualified for the educational requirements for RN licensure by examination, Petitioner reported that she had graduated in 2002 from an ADN program at the International Nursing School in Hallandale, Florida. This was the online school previously described as the International School of Nursing. The October 2008 RN application stated that Petitioner took the RN licensure exam in Florida in November 2002 and passed. As previously noted, Mr. Spooner credibly testified that Petitioner could not have taken the NCLEX-RN in Florida without first applying for RN licensure by examination, obtaining Board approval, and receiving an authorization to test from the Board, which she did not do before November 2002 (or at any other time). On October 31, 2008, the Board notified Petitioner that it was unable to approve her application for examination, because the school attended by Petitioner for the ADN program did not offer a Board-approved program of nursing education. Petitioner's January 2009 RN application was another attempt to obtain Board approval to sit for the NCLEX-RN. This application identified a different nursing school attended for Petitioner's nursing education. According to the application, Petitioner completed the ADN program at Valencia Community College, in Orlando, Florida, graduating on July 1, 2008. However, contrary to the application's representation, Petitioner did not "graduate" from an ADN program; instead, Petitioner took an online continuing education course called "RN Refresher 1" and received a certificate of participation on July 1, 2008. The January 2009 RN application also represented that Petitioner had taken and passed the RN licensure exam in Florida in May 2008. At hearing, Petitioner did not attempt to explain this reference, nor was there any other evidence to suggest that Petitioner took and passed the NCLEX-RN in Florida in May 2008 (or at any other time). Once again, the Board notified Petitioner that her January 2009 RN application could not be approved, because Petitioner failed to demonstrate that she met the educational qualifications necessary for RN licensure by examination. The Board noted that Petitioner's continuing education participation certificate was not adequate to meet the educational requirements for RN licensure. At hearing, Petitioner attempted to cast blame on staff persons at the Board who fielded her telephone calls asking how she could get relicensed following her relinquishment of the RN license. Petitioner testified that unnamed persons told her either that she needed to go back to school; or that she needed to go to an accredited school; or that all she needed to do was to take a refresher course. Petitioner's unsubstantiated testimony did not help establish that Petitioner's August 2012 PN application should be approved. In any event, the suggestion that Petitioner was told a refresher course was sufficient to meet educational requirements for RN licensure is rejected as lacking credibility. Petitioner may have been told that she had to graduate from a Board-approved ADN program to apply for RN licensure, which would explain why Petitioner represented in her January 2009 RN application that she graduated from an ADN program. However, as Petitioner admitted, she was never told that she should misrepresent the facts on her applications. After Petitioner's unsuccessful attempts to apply for RN licensure, Petitioner changed course and enrolled in a Board-approved PN program at Lincoln Technical Institute in Fern Park, Florida. She completed the program in September 2011, and then submitted the October 2011 PN application, seeking Board approval to sit for the NCLEX-PN. In the October 2011 PN application, Petitioner answered "no" to the question asking whether she had ever applied for RN licensure by examination in Florida (despite two prior applications), but Petitioner answered "yes" to the question asking whether she ever applied for RN licensure by endorsement in Florida, acknowledging the May 2006 RN application. Petitioner identified the RN license she received in 2007, but in response to the query, "[i]f no longer licensed, state why and when," she falsely stated that the "license expired." In the examination history section of the October 2011 PN application, Petitioner stated that she took and passed the NCLEX-RN exam in Wyoming, in February of either 2002 or 2006 (both years are written on top of each other; it appears that 2006 was written first, and then was changed to 2002, although it could be the other way around). The October 2011 PN application was considered by the Board at a public meeting in February 2012. Petitioner appeared and testified, although she said that she was not given enough time to explain about the May 2006 RN application and the relinquishment of her RN license. The Board issued a notice of intent to deny the October 2011 PN application based on misrepresentations in the application.2/ The Board referred to the fraudulent May 2006 RN application and relinquishment of Petitioner's RN license (contrary to the application's representation that Petitioner's RN license had expired). The Board also referred to the application's statement that Petitioner took and passed the NCLEX-RN in Wyoming in 2002, which was contrasted with Petitioner's testimony before the Board, when she "testified both that she did and did not take the NCLEX-RN in Wyoming." Petitioner did not request a DOAH administrative hearing to dispute the facts in the Board's notice of intent to deny the October 2011 PN application. Instead, Petitioner took the option offered in the Board's notice for an informal hearing before the Board "[i]f you do not dispute any material fact[.]" That hearing was held at a public meeting of the Board on June 7, 2012, but Petitioner did not appear. By Final Order rendered June 20, 2012, the Board denied the October 2011 PN application. The Final Order summarized the reasons previously recited in the notice of intent to deny, including the fact that the May 2006 RN application was fraudulent and resulted in the relinquishment of Petitioner's RN license, and including Petitioner's testimony before the Board in February 2012 that she did not sit for the NCLEX-RN in Wyoming as represented in the October 2011 PN application. The Final Order concluded that Petitioner "is in violation of Section 456.072(1)(f) and (h) and 464.018(1)(a) by attempting to obtain or obtaining a nursing license by bribery, misrepresentation or deceit." As authorized by sections 464.018(2) and 456.072(2), Florida Statutes (2011), the Board denied Petitioner's application. The August 2012 PN application repeated the same essential problems as the October 2011 PN application, which was denied by Final Order. Petitioner again misrepresented the reason why her Florida RN license was no longer active, although this time, instead of saying that the RN license had expired, Petitioner changed her response to "lack of accreditation of the school." Petitioner again misrepresented her NCLEX examination history, although this time, instead of saying that she took and passed the RN licensure examination in Wyoming in February 2002 or 2006, Petitioner said that she took and passed the RN licensure examination in Florida in November 2002. Petitioner was given the chance to explain the inconsistencies apparent from a side-by-side review of the applications she acknowledged having prepared and filed. Petitioner offered no explanation. The implication of the unexplained inconsistencies is that Petitioner intentionally gave false answers out of fear that the Board would deny her applications if the true answers were given and that Petitioner kept changing her false answers out of hope that a different (false) answer would lead the Board to approve the application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Board of Nursing, enter a final order denying Petitioner, Rose Fenelon's, application for practical nurse licensure by examination. DONE AND ENTERED this 25th day of March, 2013, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 2013.
The Issue Whether respondent's licence as a medical doctor should be disciplined on charges that he: (1) was convicted in a foreign country of a crime relating to the practice of medicine, (2) obtained his license to practice medicine by fraud or deceitful misrepresentation, (3) had his license acted against by the licensing authority of another state, (4) made misleading, untrue, or fraudulent representations in the practice of medicine or employed a trick or scheme in the practice of medicine, (5) engaged in unethical, deceptive, or deleterious conduct harmful to the public, (6) failed to prescribe controlled substances in good faith and in the course of his medical practice, and (7) engaged in immoral or unprofessional conduct, incompetence, negligence, or willful misconduct, all in violation of Section 458.1201, Florida Statutes (1973), and Section 458.331, Florida Statutes (1981).
Findings Of Fact Count I: Conviction of a Crime Relating to the Practice of Medicine In 1960, respondent was a first-year medical student at Fribourg University in Switzerland. On May 11, 1960, he was tried and convicted by the Criminal Court of Sarine in Fribourg, Switzerland, of the crimes of "attempted abortion committed by a third person, attempted abortion on an unsuitable object by a third person, and violation of the law regarding the health regulations." He was sentenced to a ten-month prison term, minus the time of detention served while awaiting trial, with a suspended execution of sentence during five years. Respondent was also fined 500 Swiss francs, deported from Switzerland, and barred from reentry for a period of fifteen years. (Testimony of Gordon, Alonso; P-3.) II. Count II: Obtaining Florida Medical License by Fraud or Misrepresentation On December 17, 1971, respondent filed with the Florida State Board of Medical Examiners a sworn application for examination and licensure as a medical doctor in the State of Florida. On his application, he responded in the negative to questions asking whether he had ever been convicted of a felony or a misdemeanor. The application also contained the following statement, in bold type, above the signature line of the applicant: I have carefully read the questions in the foregoing application and have answered them completely, without reservations of any kind, and I declare under penalty of perjury that my answers and all statements made by me herein are true and correct. Should I fur- nish any false information in this applica- tion, I hereby agree that such act shall constitute cause for the denial, suspension, or revocation of my license to practice medicine and surgery in the State of Florida. (P-2.) On August 30, 1972, based on his application and passage of the examination, the Board of Medical Examiners issued respondent a license (license No. 24291) to practice medicine and surgery in Florida. (Testimony of Gordon; P-2.) Respondent explains his failure to reveal his Switzerland conviction on his application as a "peccadillo." (Tr. 245.) Since the New Jersey Medical Board records (where he was previously licensed) reflected his Switzerland conviction, he testified that he felt the New Jersey board would have notified the Florida board of the conviction. (Tr. 245-246.)(Testimony of Gordon.) By 1974, within two years after he was licensed in Florida, the Department became aware of his criminal conviction in Switzerland. In 1973 or 1974, soon after respondent opened his medical practice in North Miami Beach, a Department investigator, A. J. Stack, told him that the Department knew of his criminal conviction in Switzerland. (Testimony' of Gordon; R-2.) III. Count III: New Jersey's Action Against Respondent's Medical License On September 29, 1972, the New Jersey Board of Medical Examiners issued an administrative complaint seeking to suspend or revoke respondent's New Jersey medical and surgical license on charges he sexually assaulted two female patients and dispensed amphetamines to two other patients without good medical cause. One month later, the New Jersey board supplemented its complaint by adding two additional charges: (1) that he was convicted as an abortionist in Switzerland in May, 1960, and (2) that he failed to complete Section 12 of the application (i.e., disclose the Switzerland conviction), thereby obtaining his New Jersey medical license by fraud. (P-4, R-2.) On December 11, 1972, the New Jersey Department of Health suspended, for an indefinite period, respondent's New Jersey controlled substance registration. The suspension order states that, after being notified by certified mail, respondent failed to appear before the Department and show cause why his registration should not be suspended. No other reason is given for the suspension action. Respondent now asserts that the Department of Health did not notify him of its action to suspend his controlled substance registration. (Tr. 251-252.)(Testimony of Gordon; P-4.) The charges brought against respondent by the New Jersey Board of Medical Examiners were never adjudicated on their merits. On February 27, 1973, he resigned from the practice of medicine in New Jersey and surrendered his New Jersey medical license to the Board of Medical Examiners. (Testimony of Gordon; P-4, R-2.) When the New Jersey Board of Medical Examiners brought its charges against respondent, he had already obtained his Florida medical license. The Florida board of Medical Examiners learned of the New Jersey charges and respondent's resignation in May, 1973. In February, 1974, the board's counsel advised that "there is really nothing we can do unless Dr. Gordon violates the Florida laws." (R-2.) And, on May 15, 1974, the board's executive director made this notation in respondent's file: If he [respondent] has any trouble here in Florida we can suspend his license on the basis of the N.J. Board's action. (R-2.) IV. Counts IV, V, VI, and VII: Professional Misconduct in Treating Elizabeth Buffum Respondent began to practice medicine in Florida in 1973 at North Miami Beach, Florida. In December of that year--at the request of a third party--he went to the home of Elizabeth Buffum and treated her for alcoholism. Thereafter, he continued to treat her for chronic alcoholism. His treatment was to limit her use of alcohol and prescribe various sedatives, such as Thorazine and Sparine, which are scheduled controlled substances. In June, 1974, he and Ms. Buffum began living together; in September they were married. From December, 1973, until Ms. Buffum left him in November, 1975, respondent continuously acted as her physician and provided treatment for her alcoholism. (P-1.) Ms. Buffum was a woman of great wealth. During her marriage to respondent, she relied on respondent not only as her physician but also as her confidant and financial advisor. Extensive 9/ civil litigation which followed their broken marriage resulted in the Circuit Court of Dade County rendering a judgment in Bellman v. Gordon, Case No. 75-18967 (Fla. 11th Cir. Ct. 1979) [affirmed, Gordon v. Gordon, 386 So.2d 1326 (Fla. 3rd DCA 1980), opinion filed July 29, 1980], finding that: Edward Gordon breached this fiduciary duty [to Ms. Buffum and converted her assets to his own use and the use of his family so that nearly all of her assets were divested from her. The court ordered the return of her assets. (P-1, P-5.) In treating Ms. Buffum's alcoholism, respondent would allow her to drink limited amounts of alcohol: the thrust of his treatment program was to gradually decrease the dosages of alcohol. (Frequently, he would add water to her liquor bottles in an attempt to lessen the effects of alcohol.) He sometimes gave her an alcoholic drink to calm her, and ordinarily allowed her an alcoholic drink before evening meals. He also gave her vitamin B12 and Valium. When he thought she was having delirium tremors, he administered Thorazine. He acknowledges that, when she was in such a condition, it would have been proper to place her in the hospital, but he felt--at the time--that he could properly care for her at home. (Testimony of Gordon; P-1.) Dr. Delores Morgan, a qualified expert in family practice and alcoholism treatment, testified that respondent's medical treatment of Ms. Buffum deviated from the generally accepted and prevailing medical practice in the Miami area between 1973 and 1975. She testified Benzodiazepins (including Librium and Valium), rather than Phenathiazines (including Thorazine and Sparine) should be administered to patients suffering from alcohol withdrawal symptoms, such as delirium tremors; that such patients are medical emergencies and must be hospitalized, where their progress can be monitored and a thorough physical examination can be given, including checking eletrolyte patterns, potassium deficiencies, and chemical profiles; that, rather than decreasing doses of alcohol, treatment of alcoholism requires complete abstinence; and that if an alcoholic patient refused hospitalization, he or she should have been involuntarily hospitalized pursuant to state law. These opinions of Dr. Morgan are persuasive and are expressly adopted as findings. Respondent's contrary opinions are rejected as self-serving and uncorroborated. (Testimony of Morgan.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's license to practice medicine and surgery in Florida be suspended for one (1) year. DONE AND RECOMMENDED this 22nd of June, 1982 in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Telephone: (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1982.
The Issue Whether Respondent should take final action to deny Petitioner's application for licensure as a practical nurse on the grounds set forth in Respondent's Notice of Intent to Deny.
Findings Of Fact Petitioner is a native of Haiti, where she graduated from the Université d'Etat d'Haiti, l' École Nationale des Infirmières, Haiti's national nursing school, in 1993. Since 1997, she has lived and received mail at a residence in North Miami Beach, Florida, having the following mailing address: 1120 Northeast 155th Street, North Miami Beach (or, alternatively, Miami), Florida 33162 (155th Street Mailing Address). In or about 2006 and 2007, Petitioner attended the Miami Lakes Educational Center's practical nursing program, but she never completed the program. Thereafter, Petitioner enrolled in and later completed (in or about June 2008) a "remedial" program of practical nursing coursework specifically designed for graduates of Haiti's national nursing school. The coursework was given at Miami-Dade College (North), under the directorship of Mariane Barrientos. On April 23, 2009, Petitioner filed with Respondent an Application for Nursing Licensure by Examination seeking a license to engage in the practice of practical nursing in Florida (First Florida Application). On the completed application form, in the spaces provided for the applicant to indicate the "Nursing School Attended" and "Additional Nursing Program Attended," she wrote "Universite D'Etat Ecole Nationale Des Infirmières" and "Miami Dade College Remedial Theory & Clinical," respectively. By letter dated April 30, 2009, addressed to Petitioner at her 155th Street Mailing Address (with "Miami" designated as the city), the address she gave as her mailing address on her First Florida Application, Respondent advised Petitioner that it had received her First Florida Application and, upon review, had determined it to be "incomplete" because the following requirements had not been met: Graduates of schools outside the United States must have credentials evaluated by a Board approved credentialing service. . . . Evaluation results must be mailed directly to the Florida Board of Nursing. Copies from the applicant are not acceptable. Graduates of schools outside the United States must provide proof of Board approved English competency. . . . Results must be mailed directly to the Florida Board of Nursing. Copies from the applicant are not acceptable. After having received this letter, as well as follow-up written correspondence from Respondent dated August 12, 2009, also addressed to Petitioner's 155th Street Mailing Address (with "Miami" designated as the city), Petitioner withdrew her First Florida Application by completing a Respondent-created form (on which she gave her address as "1120 NE 155 St Miami Fl 33162") and submitting it to Respondent on October 27, 2009. Approximately two months later, in or around December 2009, Petitioner submitted an Application for License by Examination: Practical Nurse, to the Colorado Board of Nursing (Colorado Application). The application was accompanied by a money order (in the amount of $88.00) Petitioner had obtained to pay for the application fee. On the completed application form, under "Name of Professional Nursing Program Attended," "Miami Lakes Educational Center" was written; in the space provided for the applicant to indicate the "Date of Graduation," it was claimed, falsely, that Petitioner had graduated from this "[p]rofessional [n]ursing [p]rogram" in June 2009; and Petitioner gave her 155th Street Mailing Address (with "Miami" designated as the city) as her mailing address. At the end of the form was the following "Attestation," which Petitioner signed and dated on December 14, 2009: I state under penalty of perjury in the second degree, as defined in 18-8-503, C.R.S., that the information contained in this application is true and correct to the best of my knowledge. In accordance with 18- 8-501(2)(a)(1), C.R.S. false statements made herein are punishable by law and may constitute violation of the practice act. In support of the Colorado Application, the Colorado Board of Nursing received a fraudulent Miami Lakes Education Center transcript showing, falsely, that Petitioner had completed the nursing program at the school on June 29, 2009. The transcript purported to be signed (on December 11, 2009) by Dr. Angela Thomas-Dupree, who was an administrator at the Miami Lakes Education Center at the time. In fact, the signature on the transcript was a forgery: it was not Dr. Thomas-Dupree's, and she had not authorized anyone to sign her name on any transcript issued by the Miami Lakes Education Center.3/ In response to the Colorado Board of Nursing's request that she "verify [the] transcript" it had received (a copy of which the Board sent to her), Dr. Thomas-Dupree advised the Board, in writing (through a memorandum dated March 16, 2010), that (contrary to what the transcript indicated) Petitioner "[a]ttended [but] did not complete" the nursing program at the Miami Lakes Education Center. Thereafter, the Colorado Board of Nursing made its determination to deny Petitioner's Colorado Application on the ground that she had "attempted to procure a license by fraud, deceit, misrepresentation, misleading omission, or material misstatement of fact" in violation of Colorado law.4/ By letter dated June 25, 2010, addressed to Petitioner at her 155th Street Mailing Address (with "Miami" designated as the city), the Colorado Board of Nursing advised Petitioner that a decision had been made to "deny [her] request for a license." The body of the letter read as follows: Panel B of the State Board of Nursing ("Board") reviewed your application for a Practical Nurse license on June 23, 2010. After careful consideration of all of the information contained in your application file, it was the decision of the Panel to deny your request for a license based on C.R.S. §12-38-118 and §12-38-117(1)(a) and its determination that you: have procured or attempted to procure a license by fraud, deceit, misrepresentation, misleading omission, or material misstatement of fact; If you feel that you have additional information or documentation to submit that would change the outcome of the Panel's decision you may write a letter and request that your file and the supplemental information be re-examined by the Panel. Feel free to contact me if you have any questions regarding this process. Pursuant to sections §12-38-1-117, 12-38-118, and 24-4-104(9), C.R.S., you have the right to request a hearing regarding the denial of your application. In order to exercise this right, you must provide written notification to the Board at the above listed address within sixty days from the date of this letter specifically requesting a hearing. In the event that you do not make a timely request for a hearing, the denial will become final. At the end of the letter was a Certificate of Service, signed by the letter's author, certifying that the letter: was sent First Class Mail from Denver, Colorado, this 25th day of June 2010, addressed as follows: Benita S. Jean-Noel 1120 NE 155th Street Miami, FL 33162[5/] Petitioner received the Colorado Board of Nursing's June 25, 2010, letter,6/ but did not request a hearing on the decision to "deny [her] request for a license." The decision therefore became final, as the letter indicated it would. From approximately December 2011 to December 2012, Petitioner took additional nursing coursework at Sigma Institute of Health Careers (Sigma). On November 5, 2012, before graduating from Sigma, Petitioner filed with Respondent a second Application for Nursing Licensure by Examination seeking a license to engage in the practice of practical nursing in Florida (Second Florida Application). Her signature (dated September 5, 2012) was affixed on the line provided for the "Applicant's Signature" on the penultimate page (page 17) of the completed application form, and it was immediately preceded by a statement reading, in pertinent part, as follows: I, the undersigned, state that I am the person referred to in this application for licensure in the State of Florida. I recognize that providing false information may result in disciplinary action against my license or criminal penalties pursuant to Sections 456.067, 775.083, and 775.084, Florida Statutes. I have carefully read the questions in the foregoing application and have answered them completely, without reservations of any kind. Should I furnish any false information in this application, I hereby agree that such act shall constitute cause for denial, suspension or revocation of my license to practice as a Registered Nurse or Licensed Practical Nurse in the State of Florida. At the time she filled out and signed the application form, Petitioner knew that she had applied for licensure as a practical nurse in Colorado and that her application had been denied on the grounds that she had "attempted to procure [the applied-for] license by fraud, deceit, misrepresentation, misleading omission, or material misstatement of fact." Nonetheless, wanting to keep this damaging information from Respondent, in response to Question 6A on page 13 of the form, which was, "Have you ever been denied or is there now any proceeding to deny your application for any healthcare license to practice in Florida or any other state, jurisdiction or country?," she checked the "No" box, knowing her answer to be false. Question 6A was one of four questions in the "Disciplinary History" section of the form, at the end of which was the following directive: If you answered "Yes" to any of the above questions, please send a written letter of self explanation. You must contact the Board(s) in the State(s) in which you were disciplined. You must request official copies of the Administrative Complaint and Final Order be sent directly to the Florida Board of Nursing. Consistent with her having answered Question 6A in the negative, Petitioner did not, along with the submission of her completed Second Florida Application, "send a letter of self explanation" concerning the denial of her Colorado Application.7/ Despite Petitioner's nondisclosure, in its investigation of Petitioner's application, Respondent found out about the Colorado Board of Nursing's denial of her application in 2010, and it obtained a copy of the June 25, 2010, denial letter that Petitioner had received from the Colorado Board of Nursing. Thereafter, by letter dated November 15, 2012, addressed to Petitioner at her 155th Street Mailing Address (with "North Miami Beach" designated as the city), the address she gave as her mailing address on her Second Florida Application, Respondent directed Petitioner to, among other things, "[r]equest that the Board(s) in the state[s] where [she was] previously denied send official copies of the final order to the Florida Board of Nursing" and to also "[s]ubmit a self explanation in reference to the denial(s)." In response to this request, Petitioner wrote Respondent a letter in which she denied, falsely, ever even having applied for a license in any state, including Florida, in the past. Respondent, however, knew better. On February 15, 2013, it issued the Notice of Intent to Deny set out in the Preliminary Statement section of this Recommended Order. The Notice's Certificate of Service reflects that it was mailed to Petitioner at her 155th Street Mailing Address (with "North Miami Beach" designated as the city) on February 18, 2013. In response to the Notice, Petitioner wrote a letter to Respondent, dated March 4, 2013, claiming, falsely, that she "never applied to the Colorado Board of Nursing"8/ and expressing her "read[iness] to challenge any misconception or any misunderstanding regarding the matter." Respondent treated Respondent's letter as a request for hearing and, on March 12, 2013, referred the matter to DOAH for the assignment of an administrative law judge to conduct the requested hearing. The assignment was made, and the hearing was held, as noted above. The foregoing Findings of Fact are based on the evidence received at that hearing and the record as a whole.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Nursing issue a final order denying Petitioner's pending application for licensure as a practical nurse on the grounds alleged in the Board's February 15, 2013, Notice of Intent to Deny.12/ DONE AND ENTERED this 11th day of June, 2013, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 2013.
The Issue The issue in this case is whether the allegations set forth in the Administrative Complaint filed by Petitioner, Department of Health, Board of Nursing, against Respondent, Zauher Karim, C.N.A., are correct, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of nursing assistance, pursuant to chapters 20, 456, and 464, Florida Statutes. At all times material to the Administrative Complaint, Respondent was a certified nursing assistant (C.N.A.) in the State of Florida, having been issued Certificate No. CNA 191405. The certificate was issued on June 27, 2009. At all times material to the Administrative Complaint, Respondent did not hold any other medical licenses or certificates issued by the Florida Department of Health. On October 17, 2010, Respondent submitted a Health Care Clinic Establishment (HCCE) application to the Department of Health for Chantilly Health Research (Chantilly Health) located at 12800 Indian Rocks Road, Indian Rocks, Florida 33774. Chantilly Health was also known as Chantilly Health and Wellness. At all times material to the Administrative Complaint, the address of record listed on Respondent’s C.N.A. certificate was the same location as Chantilly Health. Respondent’s current address of record is 12199 Indian Rocks Road, Largo, Florida 33774. In his application for HCCE license, Respondent listed Dr. Dunja Boljesic as the Designated Qualifying Practitioner. Respondent signed the application as the clinic manager. Dr. Boljesic had retired and was no longer physically present at Chantilly Health at the time of the investigation giving rise to the Administrative Complaint. It is unknown whether Dr. Boljesic currently maintains any ownership or financial interest in Chantilly Health. On November 30, 2010, the Florida Department of Health, Division of Medical Quality Assurance, issued the HCCE license to Chantilly Health, License No. 604026. Chantilly Health was also licensed with the City of Largo as a “Clinic of Doctors,” a health food store, and a dietary supplement store. Respondent had three different filings with the Florida Secretary of State, Division of Corporations (Sunbiz): one for a research company, one for “vitamin,” and one for a health and nutrition clinic. On January 27, 2012, Department investigator Michael Smith approached Respondent at Chantilly Health and told him he had been diagnosed with multiple myeloma. In response to Mr. Smith’s questions regarding his feigned illness, Mr. Smith testified that Mr. Karim informed him that he could draw blood from him and utilize an independent laboratory to obtain additional information about a specific type of cancer. The laboratory testing would neither be done by Respondent nor Chantilly Health, and would cost $195. Mr. Karim denies having offered to draw blood from Mr. Smith, but testified he could draw a small sample to send to an independent laboratory for testing. Respondent had a glucose and hemoglobin meter at Chantilly Health which he used to draw small samples of blood to determine iron and glucose levels. He did not perform these tests on Mr. Smith, primarily since Mr. Smith refused to have any actual tests performed upon him by Respondent. Had he drawn blood from Mr. Smith, Respondent would not have received any direct or indirect financial benefit or remuneration from the third-party laboratory. Respondent advised Mr. Smith that multiple myeloma, a form of cancer, is related to an inflammation in the gastro- intestinal tract as well as suffering from “toxicity.” He offered to help Mr. Smith strengthen his immune system, which would have included a liver detoxification. Respondent offered to have a blood test performed, after which he would devise a holistic plan of detoxification for Mr. Smith. Mr. Smith chose not to have any of these services performed or ordered by Respondent since he was acting as an investigator and not an actual potential customer of Chantilly Health. Mr. Smith asked Respondent if he was a doctor. Respondent stated he was a doctor “in nutrition medicine and no pharmaceuticals.” He handed Mr. Smith two business cards. The cards contained the following language: Card one: Chantilly Natural Health Research, Functional Blood Nutrition & Lipid-profile, Cardio Risk APW IN-Ratio, centres of enzyme research, Functional Medicine and Orthomolecular Medicine research, Board Certified Fellow of American Association of Integrative Medicine, Board Certified Am Anti-Aging & Regenerative Med, Board Certified American Alternative Medicine, Reg/Lic: Washington, D.C., West Virginia, DC . . .; WV . . . dr. karim, www.chantillyhealth.com Card two: Chantilly Natural Health Research, Functional Blood Nutrition & Lipid-profile, Cardio Risk APW IN-Ratio, z.karim, centres of enzyme research, Functional Medicine & Orthomolecular Medicine Research, Board Certified & Fellow of American Association of Integrative Medicine, Board Certified, Am Anti-Aging & Regenerative Med, Board certified American Alternative Medicine, Reg/Lic: Washington, D.C., West Virginia, Florida . . . www.chantillyhealth.com www.chantillyhealth.us The cards also displayed a logo that read “American Association of Integrative Medicine, The Medical Society for the 21st Century,” and contained a logo of a staff with two snakes entwined, commonly known as a “caduceus.” Respondent testified he applied for all the board certifications listed on his business cards and that he provided these credentialing associations with documentation of his credentials and transcripts. None of these board certifications are related to a Florida license held by Respondent. In January 2013, Mr. Smith returned to Chantilly Health and observed a certificate on the wall with Respondent’s name and the initials “M.D.” following his name. The initials “M.D.” commonly refer to “medical doctor.” Respondent is not licensed as a medical doctor in Florida. Respondent is not licensed as a naturopathic physician in Florida. Respondent admitted to Mr. Smith that he refers to himself as a doctor on his business cards and on the internet. He says he uses the term “doctor” to mean a doctor of oriental medicine. Respondent is not licensed as an acupuncturist in Florida. Respondent admitted giving information about Vitamin E supplements to Mr. Smith. Respondent admitted having a glucose meter and a hemoglobin meter at Chantilly Health. Respondent admitted performing blood glucose level screenings at Chantilly Health. Respondent testified that he performed hemoglobin tests at Chantilly Health to look at hematocrit iron levels and cholesterol levels. Respondent testified that he advised individuals on whom he performed blood glucose level screenings to “cut down” on their sugar intake. Respondent admitted telling individuals on whom he performed hemoglobin tests to increase their liver intake by once a week. Respondent admitted he should not use the term “doctor” in Florida. Respondent testified that he had never been licensed as a medical doctor in any state. Petitioner submitted into evidence in lieu of live testimony, the deposition transcript of Victor Mendez, C.N.A., who is accepted as an expert in nursing assistance based upon his credentials and experience. He testified as to the standard of care and scope of practice for C.N.A.s. A C.N.A. is restricted to working under the direct supervision of a licensed practical nurse or registered nurse. The job of a C.N.A. is to observe and assist patients. A C.N.A. is not permitted to prescribe any type of supplement or medication when performing his or her duties. A C.N.A. is not permitted to recommend vitamins or supplements even if they are available without a prescription, and may not recommend changes in dietary intake. According to Mr. Mendez, C.N.A.s are not permitted to run diagnostic tests, diagnose patients, evaluate diagnoses, or recommend treatments. Mr. Mendez observed that Chantilly Health was set up much like a medical office with a seating or waiting area, the credentials displayed, Respondent’s attire (personalized surgical scrubs), and the products displayed. Mr. Mendez noted that the type of surgical scrubs worn by Respondent were more akin to those worn by physicians in a health care setting than those worn by non-medical health care staff. Mr. Mendez opined that Respondent telling Mr. Smith he was suffering from “leaky gut” was a diagnosis of an individual’s condition which is clearly outside the scope of practice of a C.N.A. Likewise, Respondent’s offer both to conduct blood tests and create a treatment plan was outside the scope of a C.N.A.’s license. Petitioner also presented the expert testimony of Philip N. Styne, M.D., through a transcript of his deposition taken in lieu of live testimony at the final hearing. Dr. Styne was presented as an expert in the fields of internal medicine and gastroenterology. Dr. Styne has been licensed as a medical doctor in Florida since 1979, and is board certified in internal medicine and gastroenterology. He is also the medical director of Digestive Health Clinical Informatics and Liver Services for Florida Hospital. Based upon Dr. Styne’s credentials and experience, the undersigned accepts him as an expert for purpose of offering opinion testimony in this matter. Dr. Styne provided a description of what characterizes multiple myeloma, the disease feigned by Mr. Smith during his investigation of Respondent. Dr. Styne testified that multiple myeloma is treated by chemotherapy, an allogeneic or autologous blood or bone marrow transplant, or a combination of these. Detoxifying the liver is not an accepted form of medical treatment in his opinion. If a patient presented himself to Dr. Styne suffering from multiple myeloma, he would seek a referral to a board-certified oncologist, an internist who specializes in the treatment of cancer. He would make the referral since multiple myeloma is not particular to his specialty, and because it is usually a lethal disease. On December 30, 2013, Respondent submitted a copy of John Daidone’s registered nursing license to Petitioner along with his request for a hearing before the Board of Nursing. Respondent wrote on the copy of the license that Mr. Daidone had supervised him since February 2003. Respondent has only held a C.N.A. license since June 26, 2009. Mr. Daidone testified on behalf of Petitioner at the hearing. He has been licensed as a registered nurse in Florida since around 1990. After presenting a detailed description of his work experience, Mr. Daidone testified he had never supervised Respondent. Mr. Daidone was originally referred to Respondent when he needed a blood test performed. Respondent pricked Mr. Daidone’s finger to draw blood which he examined under a microscope. Respondent advised Mr. Daidone that he was suffering from mycoplasma pneumonia and gave him some supplements to treat his condition. Mycoplasma pneumonia is an infection of the lungs caused by bacteria of a similar name. Respondent gave Mr. Daidone a signed document stating he had the disease and signing it “Z. Karim, N.D.” The abbreviation N.D. stands for naturopathic doctor. Respondent also attached a Chantilly Health business card to the document listing him as an M.D. Mr. Daidone last spoke with Respondent about two months prior to the final hearing, at which time Respondent asked him to say he had supervised Respondent. When testifying, Respondent claimed that Mr. Daidone had signed Respondent’s name on the document with the initials “M.D.” after it. Respondent stated he may have signed a blank piece of paper that Mr. Daidone completed at a later time. Respondent further testified that Mr. Daidone must have picked up a business card from Chantilly Health and photocopied it to the document he created at a later time. Respondent admitted he kept his business cards in the lobby of Chantilly Health in an area accessible to the public. Mr. Daidone could not recall whether he or Respondent typed the letter, or whether it was his handwriting or that of another person appearing on the letter. Mr. Daidone candidly admitted he has problems with his recall and memory. In January 2013, Respondent was issued a Uniform Unlicensed Activity Citation by the Florida Department of Health for practicing medicine in violation of chapters 456 and 458, Florida Statutes. Respondent entered into a Settlement Agreement in that matter in which he neither admitted nor denied the facts alleged in the citation, and paid $4,754.11 (representing a fine of $1,000.00 and costs of $3,754.11) to resolve the citation. Respondent also agreed not to violate any provision of chapter 456 or any Florida statute or rule related to the practice of any health care profession.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order: Adopting the Findings of Fact and Conclusions of Law; Finding that Respondent violated section 464.204(1)(b), Florida Statutes, by intentionally violating section 456.072(1)(o) and (m), Florida Statutes, as alleged in the Administrative Complaint; and Revoking Respondent’s certificate to practice as a certified nursing assistant. DONE AND ENTERED this 5th day of December, 2014, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 2014. COPIES FURNISHED: Thomas W. Caufman, Esquire David M. Greene, Esquire Quintairos, Prieto, Wood and Boyer, P.A. 4905 West Laurel Street, Suite 200 Tampa, Florida 33607 (eServed) Yolonda Y. Green, Esquire Ana M. Gargollo-McDonald, Esquire Lauren A. Leikam, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Joe Baker, Jr., Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399 (eServed) Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 (eServed) Lavigna A. Kirkpatrick, BS, RN, Chair Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399
The Issue The issue to be resolved in this proceeding concerns whether disciplinary action should be taken against Respondent's nursing license based on an alleged violation of Section 464.018(1)(h), Florida Statutes.
Findings Of Fact Respondent, Gregory Norton, is a licensed registered nurse in the State of Florida holding License No. RN 2219032. On December 5, 2001, M.E. presented at Wolfson Children’s Hospital with complaints of pneumonia and fever and was admitted for treatment. M.E. had been previously diagnosed with sickle cell disease prior to his admission to the hospital. Respondent was not working at Wolfson Children’s Hospital on December 5, 2001. In compliance with his duties at Wolfson Children’s Hospital, Respondent performed a full assessment on M.E. on December 6, 2001. M.E. was discharged from the hospital on December 7, 2001. Again, Respondent was not working at Wolfson Children’s Hospital on December 7, 2001. At the final hearing, M.E. stated under oath that he had no recollection of any events at Wolfson Children’s Hospital on December 6, 2001, the only date alleged in the Administrative Complaint. Specifically, M.E. testified that he did not remember any examination by or discussion with Respondent on December 6, 2001. On December 6, 2001, M.E., in R.A.’s presence, denied to Kip Deckerhoff that Respondent had engaged in any inappropriate conduct during his examination. M.E.’s denial is confirmed by sworn testimony provided by both R.A. and Kip Deckerhoff, the nurse manager of M.E.’s floor at Wolfson Children’s Hospital. R.A. has no personal knowledge regarding Respondent's examination of her son, M.E. Worthlyn White, an expert witness presented by Petitioner, has no current clinical nursing role or consulting contracts with any other employers at this time. White has a contract/fee agreement with Petitioner to serve as an expert witness. This is the only Florida case in which White has offered an expert opinion. Before she became a consultant for Petitioner, White worked at the facility, Express Care, where she rarely saw pediatric sickle cell patients. Her primary area of certification is neonatal nursing. A neonate is a newborn child up to 28 days of age. Teenagers are not classified as neonates. At the final hearing, White conceded that according to Stedman’s Medical Dictionary for the Health Professional, perineum is defined as the area between the thighs extending from the coccyx to the pubis and lying below the pelvic diaphragm and, accordingly, Respondent's care and examination of M.E.’s perineum was appropriate. Respondent’s total examination of M.E. was within the standard of care and Respondent's femoral pulse check on M.E. was not below the standard of care. Respondent testified regarding his treatment of M.E. on December 6, 2001. Respondent has worked clinically at Wolfson Children’s Hospital for 20 years. He has practiced as a registered nurse in the State of Florida for 12 years. There has never been an investigation of Respondent’s license prior to Petitioner’s allegations in this case. Respondent testified that he performed a required physical examination on M.E on December 6, 2001. When asked his personal opinion on the standard of care, Respondent testified that his treatment of M.E. on December 6, 2001, was appropriate. Cynthia Gerdik, an expert in the area of pediatric nursing, has practiced as a registered nurse for 30 years. She is currently the nurse manager of Pediatric Services at Shands Jacksonville and the manager of the only sickle cell clinic in North Florida. Testimony of Gerdik establishes that Respondent's full head-to-toe assessment on M.E., including an examination of all body systems was within the standard of care. Further, it was within the standard of care for Respondent to perform a femoral pulse check and assess M.E.’s perineum. None of Respondent's actions, pertaining to the treatment of M.E. on December 6, 2001, fell below the standard of care.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED That a final order be entered dismissing the complaint against Respondent Gregory Norton. DONE AND ENTERED this 14th day of February, 2003, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 14th day of February, 2003. COPIES FURNISHED: Amy M. Pietrodangelo, Esquire Michael T. Flurry, Esquire Department of Health Bureau of Health Care Practitioner Regulation - Legal 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Harvey L. Jay, Esquire Erica Vitsky, Esquire Saalfield, Coulson, Shad & Jay, P.A. 1000 First Union Tower 225 Water Street Jacksonville, Florida 32202-4458 Dan Coble, Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue for determination is whether Respondent, a licensed physician, committed a violation of Section 458.331(1)(x), Florida Statutes, as alleged in the Administrative Complaint, and, if so, what disciplinary sanctions should be imposed against his license.
Findings Of Fact Respondent is Grayson C. Snyder, a licensed physician at all times pertinent to these proceedings, holding medical license number ME 0004035. Respondent's last known address is 635 West Central Avenue, Blountstown, Florida 32424-1909. Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.165, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 458, Florida Statutes. On December 29, 1994, the Board of Medicine issued a final order against Respondent. The final order suspended Respondent’s license to practice for at least 6 months, pending his demonstration to the Board that he could practice medicine with skill and safety by undergoing an evaluation by a psychiatrist approved by the Physicians Recovery Network (PRN). The final order also required Respondent’s completion of a period of probation after reinstatement and his payment of an administrative fine in the amount of $5,000 within 30 days of the final order. Respondent has consistently failed to comply with the final order, inclusive of the payment of the $5,000 administrative fine. Other requirements of the final order relating to psychiatric evaluation and completion of a probationary period have also not been met.
Recommendation Based on the foregoing and in accordance with Petitioner's penalty guidelines set forth in Rule 64B-8.001, Florida Administrative Code, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of the violation alleged in the administrative complaint and revoking Respondent's license. DONE AND ENTERED this 2nd day of April, 1998, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1998. COPIES FURNISHED: Carol Lanfri, Esquire Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403 Michael Stone, Esquire 116 East 4th Street Panama City, Florida 32401 Marm Harris, Executive Director Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0750 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard, Building 6 Tallahassee, Florida 32399-0700 Pete Peterson, General Counsel Department of Health Building 6, Room 102-E Tallahassee, Florida 32399-0700 Dr. James Howell, Secretary Department of Health Building 6, Room 306 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues under consideration in this case concern an administrative complaint placed by the Petitioner against Respondent accusing him of practicing medicine with an inactive license for the period of January 1, 1988 until on or about October 27, 1988. For this alleged activity Respondent is said to have violated Sections 458.327(1) (a) and 458.331(1)(x), Florida Statutes.
Findings Of Fact Respondent attended the University of Rochester from 1977 to 1990 and received a B.A. in biology and a B.S. in neuro- science. He then received his medical education at Upstate Medical Center in Syracuse, New York, from 1984 until 1985 and graduated as an M.D. He served surgical internship at Geisinger Medical Center, a general surgery internship, in the year 1985. From 1985 until the point of hearing, he had been receiving training as a resident at the University of Florida Department of Orthopedic Surgery. As such, he is employed by the University of Florida. The residency program in the Department of Orthopedics at the University of Florida is approved by the Council on Graduate Medical Education. His duties as a resident physician include assisting the attending physician and making diagnosis and carrying out treatment, as well as prescribing medication. These duties are performed in Shands Teaching Hospital in Gainesville, Florida, and at the Veteran's Administration Hospital in that same community. In the period January and February, 1988, he was at Shands Teaching Hospital in pediatric orthopedic service. He then served four months at the Veteran's Administration Hospital in the general orthopedic rotation. He then returned to Shands Teaching Hospital as part of the adult reconstructive service. At no time while participating in those programs did he undertake other medical employment. On March 4, 1985, Respondent executed a form provided by the Board of Medical Examiners entitled "Registration Application for Unlicensed Physicians." It may be found as Petitioner's Exhibit 3B-1 admitted into evidence. The purpose of this form was to identify his participation as a resident at Shands Teaching Hospital. In response to the questionnaire, Respondent indicated that he did not intend to become licensed in Florida. This form was submitted to the Department of Orthopedic Surgery at the University of Florida and was subsequently forwarded to the Department of Professional Regulation. Notwithstanding the lack of intention on the part of the Respondent to practice medicine in Florida as expressed in his application as executed on March 4, 1985, Respondent applied for and was given an active license to practice medicine issued on November 22, 1985. The medical license is no. ME0047478. He took this step at the instigation of his employer the University of Florida who remitted the necessary fees to obtain that license. On January 16, 1986, Shands Teaching Hospital submitted a list of unlicensed physicians participating in programs within the University of Florida College Medicine as of January 14, 1986 and employed by the University of Florida. This list was sent to Dorothy J. Faircloth, Executive Director of Board of Medical Examiners (Board of Medicine). The attached list included the Respondent's name as being among those persons who were unlicensed physicians working at the University of Florida College of Medicine, Shands Teaching Hospital a that time. A copy of the correspondence of January 16, 1986, is found as Petitioner's exhibit 3-C admitted into evidence and the list itself is Petitioner's exhibit 3-D admitted into evidence. A copy of a list dating from July 1, 1986 describing unlicensed physicians at the University of Florida reflects Respondent's name. However, a line is drawn through his name and other identifying data concerning the Respondent. It is unclear from this record who had drawn that line through the name as reported. A copy of that report may be found as Petitioner's exhibit 3- E admitted into evidence. The list of licensed physicians at the University of Florida as of July 1, 1987, submitted to the Board of Medicine did not reflect the Respondent's name. This can be seen in an examination of Petitioner's exhibit no. 3-G admitted into evidence. Likewise, on January 15, 1988, correspondence was directed to Ms. Dorothy Faircloth, Executive Director of the Board of Medicine, a copy of which is Petitioner's 3-H, admitted into evidence. A list of unlicensed physicians at the University of Florida was attached. That attachment is Petitioner's exhibit no. 3-I, admitted into evidence and it does not show the Respondent's name. That list reflects the circumstance of unlicensed physicians as of January 15, 1988. The Respondent's initial registration as a resident physician on March 4, 1985, was in an effort to comply with the requirements set forth in Section 458.345, Florida Statutes. The submission of the list of the resident physicians and other physicians by the University of Florida, College of Medicine, in the periods as reported above was in an effort to comply with that institution's obligations under Section 458.345, Florida Statutes. In late October or early November, 1987, Respondent received a notice from the Petitioner concerning the renewal of the medical license which had been issued on November 22, 1985. Following the receipt of that notice, he executed the necessary paperwork and submitted it to the accountant at the University of Florida who was responsible for paying Respondent's fees for the medical license as an employee of the University of Florida, School of Medicine, within the Department of Orthopedic Surgery. Respondent took no further action to assure that his license was renewed until late March or early April, 1988. It was at that point that the Respondent was made aware that the replica of his medical license that he kept in his wallet reflected an expiration of that license. He made this discovery when attempting to use that replica as a form of identification. At that juncture he reported to Ms. Jeri Dobbs, an employee of the University of Florida, who indicated that paperwork associated with this license may have been destroyed in a fire at Johnson Hall where certain records of the Department of Orthopedic Surgery were kept. Ms. Dobbs' responsibility in the relevant time period under question, encompassed money matters within the Department of Orthopedics. This included the payment of license fees for residents in the University of Florida Department of Orthopedics. The technique was to request a check from the University of Florida and send that check along with the requisite forms to the Department of Professional Regulation. Sometime in November or early December, 1987, a fire occurred in Johnson Hall at the University of Florida. Within that building were found invoices to be paid or checks requested and they were lost in the fire. In November, 1987, Ms. Dobbs had originally requested a check from the finance and accounting office at Johnson Hall to pay for the re-licensure of certain physicians. The names of those physicians are set forth in Respondent's exhibit no. 3, admitted into evidence. The package of paperwork on license renewal related to the named physicians was lost in the Johnson Hall fire. Respondent's name is not found in that list. Nonetheless, the circumstance that occurred with the physicians listed there may have well have occurred to the Respondent and in his conversation in late March or early April, 1988 with Ms. Dobbs he was impressed with the idea that his paperwork on license renewal may have been destroyed as was the situation with those other physicians. The physicians whose names are listed on Respondent's exhibit no. 3 would have had their medical licenses expire on December 31, 1987, as was the case with Respondent's license. In March, 1988, through efforts of Ms. Dobbs, the licenses of those physicians set forth in Respondent's exhibit no. 3 were renewed upon the payment of a $50 reinstatement or penalty fee as required by Petitioner. There is no indication that those persons as listed in Respondent's exhibit no. 3, were ever subject to disciplinary action for practicing medicine with an inactive license as has been the fate of Respondent in the present case, even though it can be fairly inferred that they had been participating as physicians at the University of Florida in the period January 1, 1988 through latter March, 1988 while their medical license had not been renewed before expiration on December 31, 1987. In conversations between Ms. Dobbs and someone associated with the Petitioner, she expressed her concern at having to pay an additional $50 late fee in the face of the circumstance in which records had been lost in the Johnson Hall fire. In this conversation she was not lead to believe that there would be any problem with the practice of those physicians who were on that list found in Respondent's exhibit no. 3. In her testimony, although Ms. Dobbs acknowledges that Respondent's name is not on the list of physicians whose licenses were reapplied for, she also indicates that she could not say for an absolute fact that these names were the only ones whose information on license renewal was lost. Being of the belief based upon his conversation with Ms. Dobbs that the necessary paperwork for renewal had been destroyed in the Johnson Hall fire, Respondent took the initiative to ascertain the appropriate method to rectify the situation of his license renewal. To this end, at approximately the same time period as the discussion with Ms. Dobbs, he spoke with Ms. Faircloth. He explained the circumstances to Ms. Faircloth of his renewal and specifically the idea in which he was persuaded that his renewal papers had been burned up in the fire at the University of Florida. Her instructions to him were that the paperwork would be forthcoming, to fill it out as quickly as possible and that he should not worry that this sort of thing happened all the time. He was not told by Ms. Faircloth that he should not continue in his duties as a resident physician, given the status of his license renewal. Having not heard from Ms. Faircloth within the week of his initial contact with her, he called her a second time. At that point she said that he should have received the materials. A month after the second contact, another call was made from the Respondent to Ms. Faircloth because he had not received the materials. She indicated that by that time the materials should have been received and therefore she was going to send another set of those forms for him to fill out. A further call was made to Ms. Faircloth and she indicated to the Respondent that the forms had been sent out, and sometime in late June or early July, 1988, information concerning the obtaining of his renewed license began to be received by Respondent. Documents pertaining to the activity of gaining a new license may be found within Petitioner's composite exhibit no. 2 admitted into evidence, in particular those portions 2D through 2J. Throughout this process Respondent cooperated and made timely responses to what was asked of him to effectuate these purposes. Finally, effective October 24, 1988, Respondent obtained his renewed license. Throughout this endeavor neither Ms. Faircloth in conversations with Respondent nor anyone else associated with Petitioner indicated that the Respondent should cease his practice pending the issuance of the renewed license. None of the materials that were forwarded to the Respondent for purposes of license renewal had any admonition against his carrying forward his duties as a resident of the University of Florida pending the resolution of this license problem. After returning the necessary materials to obtain his license, Respondent had not heard from the Department of Professional Regulation, so he checked with Jeri Dobbs and was told that the necessary cash had been remitted for renewal. He called someone within the Petitioner's organization and that person confirmed that the check in furtherance of his license renewal fee had been cashed and that it was probably still in the computer that the license had been printed, but probably had not been sent in the mail. According to Barbara Kemp an employee of Petitioner, who has responsibility for processing requests for license renewal, the detailed requirements set forth in Petitioner's composite exhibit 2 are utilized in the instance wherein the license was not renewed in the ordinary period for renewal. Respondent's situation was perceived in that way. Ms. Kemp refers to this as the reactivation of a license and describes this exhibit as being an indication of the materials necessary to reactivate. As Ms. Kemp explained in her remarks, typically the renewal packet is dispatched 60 days prior to the expiration of the license. That would correspond in this instance to 60 days before December 31, 1987. That circumstance, unlike the situation reflected in Petitioner exhibit no. 2 admitted into evidence, does not contemplate the need to document compliance with certain requirements related to license renewal. In the reactivation mode, that documentation as evidenced by items set forth in Petitioner's exhibit no. 2 would be necessary. According to Ms. Kemp, in the instance where there is a belief that the practitioner has been practicing medicine without the benefit of an active license, a memorandum is sent to those persons within the Petitioner's organization who are responsible for considering administrative complaints. This does not usually occur within the first couple of months beyond the period of license expiration. In this instance, that would correspond to the first couple of months beyond December 31, 1987. The reason for not reporting tardiness in license renewal is due to the fact that Petitioner is busy trying to renew a high number of licenses and the computer takes time to catch up and conclude that activity. This describes the time necessary for data to be entered in the computer system. In this instance, Ms. Kemp complained to the investigatory arm of her organization about the Respondent's possible practice without the benefit of a license and that complaint was made on September 16, 1988.
Recommendation Based upon the findings of fact made and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which dismisses this administrative complaint. DONE and ENTERED this 13th day of February, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, 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 13th day of February, 1990. APPENDIX The following discussion is given concerning the proposed facts of the parties. Petitioner's Facts Paragraphs 1-8 and all of paragraph 9 save the last phrase are subordinate to facts found. The idea of a supposition by the Board of Medicine that Respondent had withdrawn from the residency program and had become licensed is not crucial to the disposition of this case. Paragraphs 10 and 11 are subordinate to facts found. Paragraph 12 is contrary to facts found. Paragraphs 13-17 are subordinate to facts found. Respondents's Facts Paragraphs 1-9 are subordinate to facts found. Paragraph 10 with the exception of the last sentence is subordinate to facts found. The exact whereabouts of the paperwork necessary for renewal was not established with certainty. Paragraphs 11-20 are subordinate to facts found. Copies furnished: Wellington H. Meffert II, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Barbara C. Wingo Associate General Counsel University of Florida 207 Tigert Hall Gainesville, FL 32611 Dorothy Faircloth, Executive Director Department of Professional Regulation, Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
