Findings Of Fact The Hearing Officer's Finding of Fact in paragraph 5 of the Recommended Order that the Respondent made certain notification to the Florida Board of Medicine is rejected as not being supported by competent substantial evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Board impose a probation of five years upon the Respondent during which it can require him to do any of the things required in the agreement between the Respondent and the Georgia Board except those things which have already been performed and which are not recurring requirements. DONE and ENTERED this 19th day of April, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, 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 19th day of April, 1995.
The Issue Whether Respondent's medical license should be revoked, suspended, or otherwise disciplined on charges that he was convicted or found guilty of a crime directly relating to the practice of medicine or his ability to practice medicine, in violation of Section 48.331(1)(c), Florida Statutes.
Findings Of Fact At all times material to the charge, Respondent was a licensed medical doctor in the State of Florida, having been issued license No. ME 0020485. I. Prior Disciplinary Action Against Respondent The Respondent has been the subject of prior disciplinary proceedings instituted by the Department. On February 7 and 8, 1984, an administrative hearing was conducted by Diane Tremor, hearing officer with the Division of Administrative Hearings in Fort Myers, Florida. The issue for determination was whether his license as a medical doctor should be revoked, suspended, or otherwise disciplined for the medical treatment he provided to five named patients, one of whom was Holli Schmidt. On July 24, 1984, the hearing officer submitted her recommended order to the Board of Medical Examiners. With regard to patient Schmidt, the hearing officer found that Respondent inserted an intrauterine contraceptive device without taking adequate precautions to insure that the patient was not pregnant at the time of insertion, and concluded that his treatment of patient Schmidt fell below an acceptable standard of care, skill and treatment, in violation of Section 458.331(1)(t), Florida Statutes. On January 9, 1985, the Board of Medical Examiners adopted the hearing officer's Findings of Fact and Conclusions of Law, but modified her recommended penalty of a one year suspension by providing that he could petition for reinstatement after serving six months of the suspension. II. Criminal Proceedings Against Respondent In the meantime, Respondent was the subject of a criminal proceeding arising out of his treatment of patient Holli Schmidt. On October 28, 1981, the Assistant State Attorney of the Twentieth Judicial Circuit filed an information charging Respondent with Culpable Negligence, a misdemeanor violation of Section 784.05, Florida Statutes. The information alleged that between February 1, 1981 and March 30, 1981, Respondent "exposed Holli Schmidt to personal injury through culpable negligence." (Joint Exhibit 6). On March 23, 1984, in the County Court of Lee County, Florida (Case No. 81MM6984), a jury found Respondent guilty as charged. (Joint Exhibit 4). On June 18, 1984, County Judge Radford R. Sturgis, the presiding judge, entered an order (1) reciting that Respondent had been found guilty (by the verdict of a jury) of culpable negligence; (2) withholding adjudication of guilt; and (3) placing him on probation for a period of six months. The order also reflects that the Court was satisfied that Respondent was "not likely again to engage in a criminal course of conduct, and that the ends of justice and the welfare of society do not require that [he] should presently be adjudged guilty and suffer the penalty authorized by law." (Joint Exhibit 5). Respondent was ordered to serve 50 hours of Community Service, pay a $500 fine, and serve 59 days of jail time (49 days were suspended and 10 were to be served on weekends). The crime, of which Respondent was found guilty, related to the practice of medicine. In their prehearing stipulation, the parties agree that "[t]here is an identity of underlying facts supporting both [the] criminal conviction . . . and the current suspension of [Respondent's] license by the Board of Medical Examiners based upon the [prior hearing officer's] Recommended Order. . . . Respondent timely appealed the jury's verdict (finding him guilty of Culpable Negligence) to the Circuit Court of the Twentieth Judicial Circuit of Florida, which appeal is still pending.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondent's medical license be suspended for a period of six months, such suspension to run concurrently with the suspension previously imposed by the Board of Medical Examiners for his treatment of patient Holli Schmidt. DONE and ORDERED this 15th day of April, 1985, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 1985.
Findings Of Fact The Petitioner, Harry M. Katz, M.D., is a medical doctor. His address is P.O. Box 192, Cedar Hill, Missouri 63016. He maintains an active family practice in the area of that location and is licensed by the agency charged with regulating and licensing medical doctors in the State of Missouri ("Missouri Board"). The Petitioner is seeking reinstatement of his medical doctor's license revoked by the Florida Board's Final Order of February 14, 1966. The Respondent is the Board of Medicine of the Department of Business and Professional Regulation located at 1940 North Monroe Street, Tallahassee, Florida. It has denied the Petitioner's reinstatement of his Florida medical doctor's license, which initial agency action resulted in this formal proceeding. The Petitioner falls within that class of physicians whose licenses were revoked prior to June 1994 and under the legal authority cited herein, are entitled to petition for reinstatement. In order to have his license reinstated, the Petitioner must demonstrate that he is capable of practicing medicine with reasonable skill and safety, as required by Subsection 458.331(4), Florida Statutes (1991). On February 14, 1966, the State Board of Medical Examiners revoked the Petitioner's medical license for aiding, assisting and promoting an unlicensed physician to practice medicine and surgery at his hospital and by apparently failing to correctly perform physical examinations upon pilots for the Federal Aviation Administration (FAA), although he certified them as physically fit. The Petitioner had employed a physician (surgeon) to practice at his hospital in Clearwater, Florida, including the performance of surgery. Sometime later, while that physician was in his employ, the Petitioner learned that his license had been either revoked or suspended. The Petitioner states that he promptly contacted the State Board of Medical Examiners to ascertain what his responsibility was in terms of employing such a physician, who was unlicensed, without the Petitioner's knowledge. The Petitioner states that he was informed by the Executive Director of the Medical Board that, in effect, he was not liable or subject to enforcement action by the Board for unknowingly allowing the unlicensed physician to practice under the circumstances described in the Petitioner's testimony in this case. Nevertheless, the Petitioner was ultimately prosecuted by the Medical Board for this activity, some of which occurred soon after he became aware of the doctor's license suspension, and also for allegedly certifying pilots as physically fit to the FAA when he had not actually done complete physical examinations. The Petitioner maintains that, indeed, he did do physical examinations on the four pilots, but testified that he did not do prostate examinations because it was not medically necessary, with pilots of such a young age to do such examinations. The Board found that he could not have done adequate physicals if the pilots were not required to disrobe. In any event, his medical license was revoked, which he freely admits. Sometime in 1972, the Petitioner was prosecuted on a federal indictment, concerning charges in the nature of "medicare fraud". In essence, the Petitioner was charged with billing the medicare system for doctor/patient visits, for patients in his hospital, for each day the patients resided in his hospital, which apparently did not conform to medicare regulations. The Petitioner maintains that, indeed, he made the visits he billed for and believed that he was billing correctly for them. Nonetheless, he acknowledges that he was convicted and sentenced to two years in the federal prison facility at Eglin Air Force Base for those charges. Shortly after his confinement, the sentence was reduced to one year. The Petitioner appealed both the state license revocation and the federal criminal conviction, but both were upheld on appeal. The Petitioner testified concerning circumstances surrounding his federal trial involving purported inappropriate, ineffective and possible failure by the prosecution to reveal potential exculpatory evidence representation by his counsel, the effect of which he was unable to overturn in the appellate process. Be that as it may, as the Petitioner concedes, he did have his medical doctor's license revoked in 1966 and suffered a federal conviction in 1972. The Petitioner's license to practice medicine in the Commonwealth of Kentucky was revoked based upon the Florida disciplinary action, and his Alabama license was voluntarily surrendered on the same basis. His application for licensure in South Dakota was denied based, in effect, upon the Florida disciplinary action, and his application for a State of Louisiana medical license was denied, as to full licensure, on the same basis. The State of Louisiana, however, did grant him a conditional license to practice medicine, which authorized him to practice as an employed physician at the Louisiana State Penitentiary at Angola. He served in that capacity and was promoted to medical director of the facility, providing medical care for some 4,000 inmates. Additionally, the Petitioner applied for licensure with the Kansas Board of Healing Arts, but elected not to pursue that licensure. The application was deemed withdrawn. The various state medical licensing boards revoked the Petitioner's pre-existing licensure or denied his applications for licensure based upon the Florida disciplinary action. Those other state boards took the position that he had to cure the licensure deficiency in Florida before he could be licensed in the other states. Those licensure actions were not based upon any independent disciplinary prosecutions in those states. The Petitioner practiced as a physician III and physician IV in the Louisiana Department of Corrections at the penitentiary at Angola from sometime in 1973 until 1981. He became medical director of that facility. He performed a competent and honorable medical practice at that facility, as shown by unrefuted testimony in this proceeding and by the testimonial letters stipulated into evidence. The Petitioner is currently licensed to practice medicine in the State of Missouri, where he has conducted a family practice since 1981. During his tenure in practice in Missouri, he had four malpractice suits filed against him. The first suit was settled for the sum of $1,200.00. The second and third suits were dismissed. The fourth suit resulted in a verdict in his favor. The verdict was later set aside, but the case was settled for the sum of $15,000.00. One of the malpractice suits resulted in the State Board of Registration for the Healing Arts in Missouri inquiring into his practice in that instance. His licensure status was not disciplined, but the Missouri Board required him to take the SPEX examination administered by the Federation of State Medical Boards. He took that examination and passed it with a score of 81. The Petitioner is held in high esteem by his colleagues in the medical profession in Missouri, as shown by the testimonial letters in evidence and by a certificate of appreciation he was awarded by the St. Louis University Medical Center for his support and medical practice in conjunction with the St. Louis University Hospital's clinical services and teaching mission in conjunction with its operations as a teaching hospital. He has referred numerous patients to that facility and has received favorable comment on his evaluation, treatment of patients, and the good standards with which he has conducted his practice. The Petitioner is licensed to prescribe narcotics without restriction. He is current with all of the required continuing medical education requirements and exceeds those requirements. He held a certificate of membership in good standing with the American Medical Association at least through July 1, 1993. He is a participant in good standing in the Medicare and Medicaid programs in the State of Missouri. He holds a valid certificate from the United States Department of Health and Human Services for clinical laboratory services. He is a participating physician in good standing with the Medicare and Medicaid programs and with the Blue Cross/Blue Shield program and is approved by the United States Department of Transportation to perform its required physicals. During his tenure in Louisiana, he was a member in good standing in the Louisiana State Medical Society from approximately 1976 to 1980 and an officer of that association. He is a member in good standing of the American Medical Association as an AMA senior physician, the Southern Medical Association, since about 1982, and the American Correctional Association. Additionally, he has been board certified in the field of family practice by the American Board of Family Practice since 1976, in good standing. The Petitioner has labored with a commendable dedication to good medical practice in amassing the above-found credits to his medical practice since suffering the above-referenced blemishes on his professional record so long ago, culminating in his demonstration to the Missouri State Board of his ability to safely engage in the practice of medicine by passing the SPEX examination with a high score. He has demonstrated that he is capable of and has practiced medicine with reasonable skill and safety, as required by Subsection 458.331(4), Florida Statutes (1991). The testimony of Georgia Leigh Katz, the Petitioner's daughter, speaks eloquently to the high level of character demonstrated by the Petitioner's single-minded dedication to his medical practice, even under his diminished professional standing for over 20 years. That demonstration of the perseverance and character with which he has approached his practice of medicine, under professionally and legally straitened circumstances during that time, certainly militates in favor of finding him rehabilitated from his prior disciplinary blemishes. Ms. Katz' testimony was unrefuted and is adopted herein by reference as true. She thus established that, although not the fault of the medical board nor the federal court, the Petitioner's disciplinary action in Florida and the federal court conviction effectively destroyed his family. Shortly thereafter, he and his wife were divorced; and he, for much of the ensuing, approximate quarter century, has had to live apart from his children, in a distant state, while attempting, with his licensure impairment, to earn a relatively meager living and to support his family. He has made herculian efforts to support his family and himself with his medical practice, which could not reach its full potential because of the blemishes upon his professional record. Ms. Katz' testimony demonstrated, in a truly heart-rending way, the effect which this has had upon the Petitioner, his children and his former wife, their mother, in terms of the lack of financial security these circumstances imposed and, more importantly, the emotional hardship caused to the Petitioner and his family. The Petitioner's dedication to his profession under these debilitating circumstances for these long years certainly demonstrates a rehabilitation of character in the Petitioner. This rehabilitation, coupled with the showing that he is competent and capable of practicing medicine with reasonable skill and safety, shows that his new licensure in Florida would pose no risk to its citizens but rather would be a benefit to them. Counsel for the Board apparently avers that the Petitioner unrealistically claims that the Florida Board of Medicine, and its counterparts in other states, are engaged in some covert conspiracy to continue to deny him licensure, to impair his professional standing and medical practice. Questions by counsel, however, as well as those by the Hearing Officer, reveal that, although it is granted that the Petitioner has a great deal of emotional investment and anguish resulting from his multiple bouts with his licensure restrictions, that he really intended to explain in his testimony, in an imperfect way, that his licensure problems in the other states are interrelated with the root disciplinary action in Florida and that the Florida disciplinary action and the federal conviction, has had a legally operative effect with the medical practice acts in the other named states which cannot be cured until his licensure status in Florida can be restored. The Hearing Officer does not find from the testimony and evidence that the Petitioner has an unrealistic thought process leading to a perception on his part that there is a real conspiracy between the medical boards of the various named states or any of their personnel. The Respondent also appears to take the position that the Petitioner cannot truly demonstrate rehabilitation unless he comes before the Board to express apology and contrition for his past conduct, and it decries his remonstrances concerning his disciplinary record. In fact, however, the Petitioner does not deny the past disciplinary actions, although he did seek to explain their circumstances in an exculpatory way. On one level, it might seem a valid criticism that the Petitioner expresses no contrition or apology for his past conduct. On the other hand, he appears to genuinely believe in his innocence or at least his lack of moral turpitude concerning his disciplinary circumstances. This genuine belief on his part has motivated him to resist expressions of apology to the Florida Board, while exercising every available remedy to overturn the disciplinary action. This fact supports an inference that he is a man who has adhered to genuinely- held convictions, even through years of professional and personal adversity such a stand may have imposed upon him; rather than to "kowtow" to expediency and, by humble contrition, surrender those convictions simply to facilitate his re-entry into a lucrative profession in Florida. Given the preponderant evidence adduced by the Petitioner in this proceeding, such a lack of expressed apology or contrition evinces more of strong character than a lack of rehabilitation. In any event, the Petitioner has certainly already suffered sufficiently for any such lack of contrition.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor, demeanor and credibility of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that the license to practice medicine in the State of Florida of Harry Meyer Katz, M.D., be reinstated. DONE AND ENTERED this 28th day of June, 1994, in Tallahassee, Florida. P. MICHAEL RUFF 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 28th day of June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2797 Petitioner's Proposed Findings of Fact 1-25. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Respondent's Proposed Findings of Fact 1-14. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. 15. Rejected, in favor of the Hearing Officer's findings of fact on this subject matter and as subordinate thereto. 16-18. Rejected, in favor of the Hearing Officer's findings of fact on this subject matter and as subordinate thereto. Accepted. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as not entirely consonant with the preponderance evidence of record and subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter and not itself dispositive of the material issues presented. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. COPIES FURNISHED: Paul Watson Lambert, Esquire 2851 Remington Green Circle Suite C Tallahassee, Florida 32308-3749 Michael A. Mone, Esquire Gregory A. Chaires, Esquire Office of the Attorney General The Capitol, PL-01 Tallahassee, Florida 32399-1050 Dr. Marm Harris Executive Director Board of Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esq. General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Petitioner was licensed as a clinical social worker by the State of Georgia on June 4, 1987. Petitioner is now an applicant for Florida licensure by endorsement as a clinical social worker. Her application was filed prior to August 25, 1990, the date on which the Florida Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counselling met to consider her application. The September 29, 1990 Florida Board's Order of Intent to Deny Petitioner's application stated, in pertinent part: 2. The Board stated the following factual grounds for denial: At the time your license as a clinical social worker was obtained in the State of Georgia, the requirements were not substantially equivalent to nor more stringent than those set forth in Chapter 491, Florida Statutes; therefore, you are not eligible for endorsement under s. 491.006, Florida Statutes. Specifically, although the Georgia Board did not require a master's degree in social work, the information submitted concerning the educational criteria in that state did not list any specific clinical coursework requirements. In addition, a review of the transcript of your master's program in social work indicates that you would not meet Florida's clinical social work education requirements. Your master's program at University of Georgia School of Social Work did not contain 21 semester or 31 quarter hours in theory of human behavior and practice methods as courses in clinically oriented services, including a course in psychopathology, as required by Chapter 21CC-11.002(1), Florida Administrative Code. The Board did not find a course in psychopathology and determined you completed only 24 quarter hours of the 31 quarter hours of clinical coursework required. In addition, your transcript did not document that you completed an advanced field placement in a clinical (direct service) setting as required by Chapter 21CC-11.002(2), Florida Administrative Code. Therefore, your master's program did not emphasize direct clinical patient or client health care services as defined by Board rule and required by Chapter 491.005(1)(b), Florida Statutes. The two year post-master's level supervised experience requirement for licensure in Florida [s. 491.005(1)(c), F.S.] was also not documented by your application materials. [Emphasis supplied] At formal hearing, Petitioner documented that her master's program at University of Georgia School of Social Work, completed prior to Georgia licensure, did, indeed, contain 21 semester or 31 quarter hours of the appropriate type studies, and included a "practicum" or clinical direct service requirement completed before Georgia licensure. Petitioner also presented documentation and testimony to establish that she had satisfactorily completed a course in psychopathology during the summer of 1991 at Florida State University, after her Georgia licensure (1987) and after her initial application for licensure by endorsement in Florida. At the time Petitioner applied for Florida licensure, she was two months short of the two years of post-master's clinical supervision required by Florida. At formal hearing, Petitioner was able to document that since applying for Florida licensure by endorsement, she had completed the last two months of the required two years of post-master's level supervised experience under Imogene Darby, CSW. Petitioner's testimony that she had done similar supervised work before Georgia licensure was unrefuted. Thereafter, Respondent's counsel stipulated at formal hearing that the post-master's clinical supervision requirement and the number of hours and content in Petitioner's master's program were "no longer issues." Specifically, Respondent's stipulation was, "I don't think there is an issue with the specific course work. I don't think that that is an issue. I think . . . after having heard her testimony regarding the psychopathology course that she took as well as the two additional . . . months experience, . . . that those are not longer issues. . . . I will be more than happy to stipulate to those issues on behalf of the Board." (TR 25-26) Prior to the Respondent Florida Board's August 25, 1990 consideration of Petitioner's application, the Georgia State Board of Professional Counselors, Social Workers and Family Therapists sent the Florida Board a verification of Petitioner's Georgia license. This verification form, independently submitted by the Georgia authorities on or about May 16, 1989, represented that Petitioner was originally licensed in Georgia by examination. In marking the box showing that Petitioner had been licensed in Georgia by "examination," the Georgia authorities simultaneously rejected the boxes that would have designated Petitioner as having been originally licensed in Georgia "without examination," by "grandfathering," or by "reciprocity." However, in the course of formal hearing, Petitioner testified, Question by Respondent's counsel: Were you grandfathered in? By that I mean: Did you take any examination? Petitioner's Answer: No, because I was not offered an exam, and I showed proof I met the requirements of the State of Georgia for licensure without exam. Q You have not taken any examination by the State of Georgia regarding your licensure as a social worker? A No, sir, because I was not offered an exam. When I submitted my application, I was qualified, according to the Board of the State of Georgia. Upon learning for the first time at formal hearing that Petitioner had not taken a written examination for licensure in Georgia, Respondent's counsel asserted that because Petitioner was able to obtain Georgia licensure in 1987 without taking a written examination, the Georgia requirements for licensure were not substantially equivalent but were less stringent than the Florida requirements, and therefore Florida licensure by endorsement was not appropriate, but that Petitioner would be eligible to sit for the Florida license examination on the basis of all the evidence. The reason given for lack of prior notice that a written examination was necessary for Florida licensure by endorsement was that Respondent first became aware at formal hearing that, contrary to the prior representations of the Georgia Board, the Petitioner had not been licensed originally by written examination in Georgia. Neither party offered any testimony to show that the licensure requirements in Florida and Georgia were similar or dissimilar on June 4, 1987, the date Petitioner was originally licensed in Georgia, nor was a copy of the applicable Georgia statute(s) submitted by the parties. The record is devoid of evidence as to the precise date Petitioner applied in Florida, but since 1981 Florida continuously has required a written examination for Clinical Social Worker licensure. See, the pertinent portions of Sections 491.005-491.006 F.S., first enacted effective October 1, 1987 by Section 15, Ch. 87-252 Laws of Florida, and the pertinent parts of predecessor statutes, Sections 490.005(2)(a)4. and 490.006 F.S. [1981-1986 Supp.], first enacted by Sections 1, 3, Ch. 81-235 Laws of Florida.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a Final Order denying Petitioner's application for Florida licensure by endorsement and determining her eligible to sit for the Florida Clinical Social Worker license examination. DONE and ENTERED this 8th day of November, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 8th day of November, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 91-1003 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: Petitioner waived the filing of PFOF. Respondent's PFOF: 1, 3-5 Accepted. 2, 7 Accepted in substance; modified to conform more closely to and reflect the factual nuances of the record. 6 Sentence 1 is rejected as contrarty to the evidence (See Respondent's Exhibit 1). Sentence 2 is rejected as conclusionary legal argument and contrary to the evidence (See TR and Respondent's Exhibit 1). COPIES FURNISHED TO: Edwin A. Bayo, Esquire Department of Legal Affairs The Capitol, MS #4 Tallahassee, FL 32399-1050 Elaine L. Owens 304 South Division Street Lake City, FL 32055 Diane Orcutt, Executive Director Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
