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
Conclusions Ms. Jackson had a legal duty to yield the right-of-way to Claimant. Because Ms. Jackson was acting in the course and scope of her employment at the time of the crash, the Department shared that duty. Ms. Jackson breached the duty by turning in front of Claimant's vehicle and the breach was the proximate cause of the collision and the injuries to Claimant that resulted from the collision. Whether Ms. Jackson was impaired by drugs at the time of the crash was not an issue presented in the trial court because liability was admitted by the Department. I conclude that whether Ms. Jackson was impaired by prescription or other drugs at the time of the crash is also irrelevant in this claim bill proceeding and, even if it were relevant, the evidence is insufficient to make a finding on that issue. I am persuaded that Claimant was not dishonest in her application for Social Security disability benefits and, therefore, there is no basis to doubt her credibility regarding the injuries she suffered in the crash. However, I believe the jury award is too high in the context of this claim bill, even when Claimant's unique situation with muscular dystrophy is taken into account. Claimant's counsel argued before the trial court that the law in Florida is that a jury verdict should not be disturbed by the court unless "it is so inordinately large as obviously to exceed the maximum reasonable range within which the jury may reasonably operate," citing Kaine v. Government Employees Insurance Company, 735 So. 2d 599 (Fla. 3d DCA 1999). He also emphasized that it was not the role of the judge to "assume the role of the seventh juror." However, that law is applicable to a trial judge's review of a jury award on a defendant's motion to reject or reduce the award. This claim bill process, on the other hand, involves a de novo proceeding in which I am rightfully assuming the role of a new jury. Furthermore, the payment of a claim bill is a matter of legislative grace and the Senate, unlike the trial court judge, is free to deviate from the jury award. It is reasonable for the Senate, in determining whether to pay a claim in excess of the sovereign immunity cap, to consider whether the jury award deviates substantially above or below the usual award for similar injuries. Claimant's attorney presented a number of examples of jury awards in excess of $5 million, but almost all of the cases involved paraplegia or amputation. There might be cases involving severe leg fractures, like the one suffered by Claimant, in which the jury awarded $5 million or more to the plaintiff. However, while no calculation was attempted by the parties or by me to determine the average or median jury award in cases involving severe leg fractures, using the legal reference books that compile and discuss jury verdicts, it appears that the vast majority of jury awards for severe fractures are significantly less than $5 million and closer to $1 million. Claimant made much of her determination before the 1999 crash to not let her muscular dystrophy prevent her from enjoying life fully. If Claimant dedicates herself just as enthusiastically to making the most of her present physical predicament as she did in the past, I believe her future quality of life can be much better than the one she predicted for herself at the claim bill hearing. Although Claimant deserves to be compensated for the injuries she suffered through the negligence of the Department's employee, I think a more reasonable award, taking into account the more common jury awards for severe limb fractures and the special circumstance of Claimant's muscular dystrophy, would be $3,000,000. ATTORNEY’S FEES AND LOBBYIST’S FEES: Claimant's attorneys agree to limit their fees to 25 percent of any amount awarded by the Legislature as required by s. 768.28(8), F.S. They object to the provision of the bill that limits attorney’ fees, lobbying fees, and costs to 25 percent of the award. Claimant’s attorneys report costs of $51,866. They propose a lobbyist's fee that would be an additional 6 percent of the award. The Florida Supreme Court held in Gamble v. Wells, 450 So. 2d 850 (1984) that the Legislature allows compensation pursuant to a claim bill “as a matter of grace” and it can determine the conditions to be placed on the appropriation. The Court specifically held that parties cannot enter into contracts, such as fee agreements, that bind the state in the exercise of its sovereign immunity. LEGISLATIVE HISTORY: Claim bills for Laura Laporte were first filed in the 2003 Session and have been filed in each session thereafter. A hearing was held before a Senate Special Master in 2002, but no report was issued. RECOMMENDATIONS: The claim bill should be amended to reduce the claim to $3,000,000. For the reasons set forth above, I recommend that Senate Bill 34 (2008) be reported FAVORABLY, as amended. Respectfully submitted, cc: Senator Al Lawson Representative Stan Mayfield Faye Blanton, Secretary of the Senate Bram D. E. Canter Senate Special Master House Committee on Constitution and Civil Law Michael Kliner, House Special Master Counsel of Record
The Issue The issue in this case is whether Dr. Bala violated Chapter 893, Florida Statutes, and failed to adhere to the professional standards for examination, treatment and prescription for patients as set forth in Counts I through XXIX of the Administrative Complaint and thereby is in violation of Chapters 458 and 893, Florida Statutes.
Findings Of Fact The general Findings of Fact made in Part II above are hereby incorporated and made a part of these findings on Count XXVIII of the Administrative Complaint. Carol Mather first saw the Respondent at his professional office in January of 1979. On her first visit, Mather filled out a personal medical history in which she recorded she was allergic to codeine, and she had her blood pressure taken. She complained of frequent headaches. The Respondent examined Mather and determined she was four to five months pregnant. Mather knew this. Respondent also noted the needle tracks in Mather's arms from injecting drugs. The Respondent advised Mather she should not use drugs if she was pregnant. Mather told the Respondent she was an addict and was going to take drugs no matter where she got them. Respondent wrote two prescriptions for Mather on her first visit, each for 40 Dilaudid 4 mg., but only after she had signed a release for any harm to the baby. Mather had no recollection of her second visit to the Respondent's office, but she went one time in November, 1979, with Detective Sullivan. On this last occasion, Respondent did not prescribe any drugs for her. Expert medical testimony based upon the community standards was received that the prescription of Dilaudid for a patient complaining of migraine headaches, particularly a patient four to five months pregnant, was inappropriate.
Conclusions The Board has charged the Respondent with violation of Sections 893.05 and 893.13, Florida Statutes (1979); Subsection 458.1201(1)(m), Florida Statutes (1978 Supp.); and Subsections 458.331(1)(h), (q) and (t), Florida Statutes (1979). As stated above, Subsections 458.331(1)(h), (q) and (t), supra, were not effective until May 30, 1979. This was after the date Respondent prescribed Dilaudid for Carol Mather. These subsections may not be applied retroactively, and the Respondent may not be charged under them. Sections 893.05 and 893.13, Florida Statutes, as stated previously in this order, remained essentially unchanged in 1977 and 1979. However, Chapter 893, Florida Statutes (1979), does not grant authority to the Board to enforce its provisions. Enforcement of Chapter 893, supra, by the Board must be authorized under the provisions of Chapter 458, Florida Statutes (1978 Supp.). Subsection 458.1201(1)(k), Florida Statutes (1978 Supp.), authorizes the Board to discipline its licensees for violation of the statutes such as Section 893.05, supra. However, the Board has not charged the Respondent under Subsection 458.1201(1)(k) Florida Statutes (1978 Supp.), which was the only statute making a violation of Chapter 893, supra, grounds for discipline at the time these acts occurred. The expert testimony was uncontroverted that prescription of Dilaudid to a patient for migraine headaches, particularly a patient four to five months pregnant, would be inappropriate. The fact that Mather signed a waiver of liability and admitted addiction did not alter this opinion. Treatment of a pregnant woman with narcotic drugs creates a risk to the fetus which, according to the expert testimony, is a fact widely known within the medical profession for many years. The record is clear that Respondent knew Mather was addicted to drugs and was pregnant and gave her two prescriptions, each of which was for 40 Dilaudid 4 mg. The testimony and evidence do show a violation of Subsection 458.1201(1)(m), Florida Statutes (1978 Supp.). Applying the rule applicable to general statutes, if this provision was reenacted substantially in 1979, the prosecution under the repealed provision may be maintained. The conduct prohibited or punishable under Subsection 458.1201(1)(m), supra, is prohibited or punishable under Subsections 458.331(1)(q) and (t), Florida Statutes (1979). The Respondent is guilty of violating Subsection 458.1201(1)(m) , Florida Statutes (1978 Supp.).
Recommendation Having found the Respondent guilty as alleged in Counts IX, XII, XVII and XXVIII of the Administrative Complaint, the Hearing Officer recommends that the Board of Medical Examiners revoke the license of Dr. Clemente C. Bala, Jr., to practice medicine within the State of Florida. DONE and ORDERED this 31st day of March, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 31st day of March, 1982.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the final hearing, as well as the factual stipulations of the parties, the following relevant facts are found: Petitioner suffers from various medical problems, is a recipient of Medicaid benefits and is potentially eligible for supervision under the Florida Medicaid recipient case management program. The HRS policies governing recipient case management are set forth in Rule 10C-7.065, Florida Administrative Code. The purpose of the case management program is to limit inappropriate utilization of Medicaid services by recipients by enrolling them in a four-level program which includes education, counseling, a requirement of prior authorization for non-emergency medical services and "lock-in" to a single primary care provider for non-emergency services, as well as a single pharmacy provider. In a prior proceeding, Rule 10C-7.065 (formerly 10C-7.065) was challenged by the petitioner. The final result of that challenge was that those portions of the rule which require prior authorization for reimbursement of non- emergency, but medically necessary services were invalid. The remaining portions of the rule were declared valid. In an effort to remedy the defects found in the rule governing the recipient case management program, HRS now proposes two amendments to the prior rule. The first proposed amendment adds additional language to subsection (8)(c)(3) of Rule 10C-7.065. That subsection requires that a provider of services to a Level Three Medicaid recipient must contact the case manager and obtain payment authorization prior to the provision of services. The proposed amendatory language reads as follows: "Providers of medically-necessary services to a recipient at such times as the Case Manager is not available for prior authorization, such as after working hours, or on weekends, need only notify the Case Manager at a reasonable time, defined by the Department as the next working day, following provision of such services." Other provisions of Rule 10C-7.065(8)(c) pertaining to Level Three recipients require the recipient to contact the case manager prior to using his Medicaid identification card to obtain non-emergency services, require a case manager's verification on the provider claim form that prior authorization was obtained and provide that all other provider claim forms shall be denied Medicaid payment. HRS is not proposing any amendatory language to these subsections. The second challenged amendment proposed by HRS adds additional language to subsection (8)(d) 5 of Rule 10C-7.065. That portion of the rule pertains to Level Four recipients and requires such a recipient to utilize or be "locked-in" to a single primary care provider for all non-emergency services, except transportation. Subsection (8)(d) 5 requires the Level Four recipient to contact the lock-in primary care provider prior to using his Medicaid identification card to obtain non-emergency services and requires the lock-in provider to provide all necessary non-emergency care either directly or by referral. The proposed amendatory language adds the following words to subsection (8)(d) 5: "Referral by the lock-in primary care provider to a referred provider includes, but is not limited to, an acute care hospital provider for admission, or to another medical practitioner for professional consultation, special medical treatment, or temporary relief of lock-in responsibilities while on vacation, out of town, or otherwise unavailable to the recipient." The rule also provides that a lock-in pharmacy provider may be designated for Level Four recipients who have a utilization problem with prescribed drug services. In such an event, all prescribed drugs must be obtained from the lock-in pharmacy provider and no other pharmacy provider's claim forms will be reimbursable except for drugs provided in an emergency situation. Rule 10C- 7.065(8)(d) 8 and 10. No amendatory language has been proposed for those subsections of the rule pertaining to pharmacy providers. In proposing the added language to Rules 10C-7.065 (8)(c) 3 and (8)(d) 5, it was the intention of HRS to assure that reimbursement would be allowed for services provided a Level Three recipient when the case manager was not available for prior authorization and for services to Level Four recipients when the lock-in primary care provider was not available and had arranged for a referred provider.
The Issue The issue in this case is whether the Petition for Relief, charging the Respondent with illegal discrimination on the basis of a perceived handicap (a history of back surgery and mild hypertension), should be granted.
Findings Of Fact On or about April 30, 1991, the Petitioner, Malcolm L. Deane, II, applied for a job as a tanker driver with the Respondent, Fleet Transport Company, Inc., at its Tampa, Florida, terminal. Tankers transport gasoline, which is classified as a hazardous material. The Respondent hired the Petitioner, who had extensive tanker experience, conditioned on passing the physical and written examinations required by the Florida Department of Transportation (the DOT). He passed the written examination. The Respondent's physician examined the Petitioner and determined that the Petitioner had mild hypertension, which the Petitioner believes was caused by stress in his personal life at the time. Under DOT guidelines, a systolic blood pressure reading of between 161 and 180, or a diastolic blood pressure reading of between 91 and 104, is considered mild hypertension. The Petitioner's blood pressure was 140/104. In accordance with DOT regulations, the physician qualified the Petitioner to drive a tanker for three months, during which time the Petitioner would be required to reduce his blood pressure to 160/90, or better, in order to continue to be qualified, physically, to drive a tanker. The Respondent's physician also prepared a medical report of his examination of the Petitioner. In it, he not only reported the Petitioner's mild hypertension, he also reported that the Petitioner had back surgery January 3, 1991, which was "O.K. now," and made the comment: "I advise Mr. Malcolm [sic] to refrain from doing heavy lifting due to his recent back surgery." After the Petitioner's back surgery, the Petitioner successfully attended an eight-week back school and was released by his physician on or about March 6, 1991, to return to work driving a truck full-time with no restrictions. Once the Petitioner received his three-month Medical Examiner's Certificate, the Respondent hired him. He started training, with another driver, on May 1, 1991. Training continued on May 2, 3 and 4, 1991. After a day off, the Petitioner began working solo. He worked May 6, was off the next day, worked May 8 and 9, was off the weekend of May 10-12, and worked May 13 through 21, at which point he was "out of hours" for the month under DOT regulations and was required to take off. Throughout his work with the Respondent, the Petitioner's work was satisfactory and merited commendations and exhortations to keep up the good work. Neither his mild hypertension nor his back hampered his ability to perform the work in any way. At the end of the work day on May 21, 1991, the Respondent's terminal manager approached the Petitioner to tell him that the Respondent was terminating his employment. The manager conceded that the Petitioner's work had been excellent but that the company considered him a medical risk the company could not afford to take, due to the mild hypertension and the prior back surgery. The Petitioner was able to confirm through others in the company what the terminal manager had told him. The Respondent pays its drivers between $500 and $550 a week. The Petitioner was unemployed for four weeks after the Respondent terminated him. (He did not collect unemployment compensation.) He then got a job as a heavy equipment operator for a landfill, making $330 a week. Under the circumstances of his discharge, he does not seek to be rehired by the Respondent. He believes that his discharge by the Respondent has made it impossible for him to be hired by any other company as a tanker driver. On or about August 30, 1991, the Respondent (and other related companies) filed a petition for relief under Chapter 11 of the federal Bankruptcy Code and became a protected debtor in possession. Creditors were given notice of commencement of the proceeding and notice of the possible operation of Section 362 of the Bankruptcy Code (which prohibits some creditors from taking certain actions against a debtor in possession).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order granting the Petition for Relief filed in this case, prohibiting the Respondent from the practice of discriminating against the Petitioner on the basis of a perceived handicap, and requiring the Respondent to pay the Petitioner $2,000. RECOMMENDED this 26th day of March, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1993. COPIES FURNISHED: Malcolm L. Deane, II 727 Brook Street Largo, Florida 34640 Norman Block, Esquire Spengler Carlson Gubar Brodsky & Frischling 520 Madison Avenue New York, New York 10022 Ronald M. McElrath Executive Director Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
The Issue The issue is whether Dr. Veloso is subject to discipline because he was convicted of the first degree misdemeanor of Medicaid fraud.
Findings Of Fact A three count information was filed against Dr. Veloso in the circuit court for Palm Beach County on April 2l, 1989, alleging that Dr. Veloso was guilty of filing a false Medicaid claim, receiving payment for a false Medicaid claim, and grand theft. A probable cause affidavit had been executed by a special agent for the Medicaid fraud control unit of the Office of the Auditor General on July 19, 1988, setting forth the results of interviews the agent had with persons on whose behalf Medicaid billings had been submitted by Dr. Veloso in 1986 and 1987. Patients stated that they had not actually been treated by Dr. Veloso. According to the judgment entered by the circuit court in Palm Beach County on October 2, 1989, Dr. Veloso entered a plea of guilty to the first degree misdemeanor of Medicaid fraud, as a lesser included offense encompassed within Count I of the information, which had charged him with the felony of filing a false Medicaid claim in violation of Section 409.325(4) (a), Florida Statutes. The judgment bears a hand interlineation that the guilty plea is an "Alford" plea. The judge withheld adjudication of guilt on October 6, 1989, and placed Dr. Veloso on probation for a period of one year, subject to a number of conditions, including that he pay restitution to the Department of Health and Rehabilitative Services of $492, along with $5,000 as the cost of investigation and $80.25 in court costs. A separate order requiring restitution in those amounts was also entered on October 2, 1989. At the time Dr. Veloso entered his guilty plea, he was represented by counsel. At the time of the events charged in the information, Dr. Veloso had been licensed as a medical doctor by the State of Florida since 1975. He was also a licensed pharmacist. Dr. Veloso has never before been the subject of disciplinary action by the Board of Medicine or the Board of Pharmacy. Dr. Veloso testified during the hearing that he is innocent of any wrong doing, and entered his plea of guilty only as a plea of convenience. He testified about the six patients who are named in Count I of the information, in an attempt to demonstrate that he had actually treated those persons, was familiar with them, and was therefore entitled to bill Medicaid for his services as a physician. Dr. Veloso also testified that he would not have pled guilty if he had known that doing so would jeopardize his licensure. The testimony of Dr. Veloso is not convincing. At the time when the State of Florida was prepared to go to trial on the criminal charges Dr. Veloso himself determined that there was a sufficient likelihood that his testimony would not be persuasive that he declined to go to trial, and entered the plea of guilty which is the basis for the board's administrative complaint. Dr. Veloso himself describes an "Alford" plea in his proposed findings of fact in the following way: A plea of "Alford" is the result of the holding in North Carolina v. Alford, 400 U.S. 25 (1970). Essentially, the Alford plea recognizes three elements: (a) a consistent affirmance of innocence, (b) a waiver of the right to a trial and (c) the existence of a record, at the time of the plea which contains overwhelming evidence against the accused. Based upon the certified copies of the documents from the criminal prosecution, Dr. Veloso's probation should have terminated by October 6, 1990. Dr. Veloso apparently has successfully completed his period of probation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Dr. Veloso be found guilty of having violated Section 458.331(1)(c), Florida Statutes (1985), that his license to practice medicine be suspended for a period of six months, and that he be fined $1,500. DONE and ENTERED this 26th day of February, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-5481 Rulings on findings proposed by the Respondent: Findings 1 and 2 have been accepted. Finding 3 has been rejected. The reasons for the rejection are detailed in the Findings of Fact. COPIES FURNISHED: Richard Grumberg, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Andrea Newman, Esquire Law Office of Michael P. Weisberg 1840 Coral Way, 4th Floor Miami, FL 33145 Dorothy Faircloth, Executive Director Department of Professional Regulation Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
