The Issue This is a proceeding pursuant to the Florida Equal Access To Justice Act, Section 57.111, Florida Statutes, and Rule 22I-6.035, Florida Administrative Code. Petitioner seeks to recover his attorney's fees and costs incurred when defending an action brought against him by the Department of Professional Regulation, Board of Medicine. The issue for determination is whether Respondent, the state agency charged with regulation of the professional conduct of physicians in the State of Florida, was substantially justified with regard to the initiation of disciplinary proceedings against Petitioner, a licensed physician, in DOAH Case No. 90-4205, DPR Case No. 89-05921, and whether, in the absence of such substantial justification, Petitioner is entitled to the award of the amount of attorney's fees and costs sought, or if there exists special circumstances which would make an award unjust.
Findings Of Fact Respondent is a state agency which initiated a proceeding with the filing of an Administrative Complaint against Ronald F. David, M.D. As stipulated, Petitioner's Attorney's Fees and Costs are not unreasonable. Petitioner was the prevailing small business party in the underlying case, Department of Professional Regulation v. Ronald F. David, M.D., DOAH Case No. 90-04205, DPR Case No. 89-05921, when the case against Dr. David was dismissed on January 25, 1991. As stipulated, there are no known circumstances which would make an award of attorney's fees and costs unjust. The one remaining issue of fact to be determined is whether sufficient evidence was presented to the Probable Cause Panel of the Board of Medicine to support a finding of probable cause against the Petitioner, and whether the Panel properly considered that evidence. S. A. was a premature infant who had a patent ductus arteriosus (PDA). Petitioner, a pediatric surgeon with credentials to do general surgery, pediatric surgery, and chest surgery, was consulted by S. A.'s pediatrician. Petitioner, in turn, consulted Dr. Johnston, a thoracic cardiovascular surgeon, concerning surgery to close S. A.'s PDA. Dr. Johnston performed the surgery with Petitioner as assistant surgeon on May 31, 1986, at the Orlando Regional Medical Center. Petitioner had assisted in numerous such surgical procedures in the past but did not hold himself out as competent to perform them on his own. At surgery the left pulmonary artery was mistakenly ligated instead of the PDA. S. A.'s condition deteriorated and tests indicated the probable mistaken ligation. The baby was transferred to Shands Hospital where she died before a second operation could be performed. Autopsy revealed the mistaken ligation and the pathologist implicated the compromised cardiopulmonary system as a cause of death. No anatomical anomalies of the vessels were noted at autopsy. On the basis of a closed claim report to the Department of Professional Regulation, the circumstances surrounding the death of S. A. were reviewed by a physician employed by the Department's Division of Medical Quality Assurance. Petitioner was informed of this review on January 13, 1989. Review of the medical records resulted in cases being opened against three of the seven physicians who participated in the care of S. A. Petitioner was notified of the case by certified mail on August 1, 1989. Petitioner was interviewed on August 10, 1989. Dr. Johnston was interviewed by the same investigator on August 25, 1989. According to the investigator's notes, Petitioner stated that Dr. Johnston did not consult him during the surgery, that the anatomy did not appear to be the same as in prior cases, but that he did not question Dr. Johnston's decision as to which vessel to ligate. Dr. Johnston stated that he asked Petitioner to examine the anatomy when he (Johnston) had located what he thought was the ductus, and that Petitioner obliged by examining the operation field, but did not object to the procedure. The medical records of S. A. were obtained by subpoena from the Orlando Regional Medical Center. On February 5, 1990, both Petitioner's and Dr. Johnston's investigative files were sent to Dr. William Price, a thoracic and vascular surgeon, for his review. The letter requesting his opinion clearly separates the actions of Petitioner and Dr. Johnston to be considered. On February 21, 1990, Dr. Price's analysis stated, "The assistant, Dr. Ronald David, should have been accomplished enough to recognize the proper anatomy, but the ultimated [sic] responsibility was not his." (Respondent's exhibit 2, 3) The cases, Department of Professional Regulation v. Ronald F. David, M.D., DPR Case No. 89-05921, and Department of Professional Regulation v. Alan Johnston, M.D., DPR Case No. 89-05922, were prepared for the Probable Cause Panel meeting scheduled for May 11, 1990. Materials were sent to the three Panel members and their counsel at least one week in advance of the meeting. Materials sent to the panel included the complete investigative case file, including any exhibits, and a recommendation from the Department. Present at the meeting of the Panel on May 11, 1990 were: Dr. Robert Katims, Chairman of the Probable Cause Panel, Dr. Marilyn Wells and Mr. Gilbert Rodriguez, members of the Panel; Ms. Catherine Lannon, Assistant Attorney General and counsel to the Panel; Mr. Carlos Ramos and Ms. Stephanie Daniel, attorneys from the Department of Professional Regulation, and Mr. Brian Lynch, Administrative Assistant at the Department, whose duty it was to prepare and distribute materials for the Panel's consideration. Ms. Lannon instructed the Panel members to direct any questions concerning their legal duties and interpretation of laws or rules to her. She cautioned the Panel members that any factual questions concerning the investigation or why a certain recommendation was made were to be directed to the Departmental attorneys. She asked if the members had sufficient time to review all the materials sent to them; each member replied in the affirmative. And she cautioned the members that it must be clearly stated or implied from the record that the members are making independent judgments on the cases and that they are discussing the correct case. The Panel first considered Dr. Johnston's case. The Department recommended that an Administrative Complaint be filed alleging that Dr. Johnston practiced below the standard of care in that, "[He] inadvertently ligated the left pulmonary artery instead of the patient ductus arteriosus, by relying on the anesthesiologist's observation that the murmur had disappeared and the surgical assistant's failure to object or recognize the proper anatomy." (Respondent's exhibit 1, page 4-5) The Panel was informed that Petitioner's companion case was on the agenda. The Panel at this time discussed Petitioner at some length, including Petitioner's role as the referring physician, that Petitioner assisted at the surgery, that Petitioner was not a chest but a pediatric surgeon, and that Dr. Johnston and Petitioner disagreed as what was said and done by whom at the operation. Dr. Wells acknowledged that the surgeon in charge in the "captain of the ship"; the Chairman, Dr. Katims, in response to a question from Ms. Lannon, denied that the assistant surgeon is exonerated from all responsibility. Thereupon Probable Cause was found in Dr. Johnston's case and the Panel voted to file an Administrative Complaint. (Respondent's exhibit 1, page 7-8) The Panel later in the meeting considered Petitioner's case. The Department had recommended that Probable Cause be found and a letter of guidance be issued. Mr. Ramos presented the basic facts to the Panel. Both physicians on the Panel immediately disagreed with the Department's recommendation and requested an Administrative Complaint to be filed against Petitioner. The Panel affirmed its two main concerns: that Petitioner referred the patient to Dr. Johnston, and that at surgery Dr. Johnston said he specifically asked the Petitioner to review his ligation. (Petitioner's exhibit 4, page 6-7) Consideration of the transcripts of both Dr. Johnston's and Petitioner's cases reveals that there was considerable discussion and awareness by the panel of the specifics of S. A.'s case, that they were quite sensitive to the fact that Petitioner was the assistant surgeon and that he denied he was asked to verify the procedure. The vote was unanimous that Probable Cause be found and that an Administrative Complaint be filed against Petitioner. The Administrative Complaint was duly filed on May 22, 1990, alleging Petitioner fell below the standard of care by failing to object to any part of the procedure performed by Dr. Johnston and by failing to point out the proper anatomy for ligation. (Petitioner's Exhibit 1) In a subsequent meeting of the Probable Cause Panel, the Department presented it's recommendation that Petitioner's case be closed without prosecution based on a second expert's opinion that " . . . ligation of the wrong vessel was a known but although unfortunate complication of this procedure but not necessarily below the standard of care . . . " (Petitioner's Exhibit 12, 1). This recommendation was eventually accepted. The ultimate dismissal of the complaint does not negate the fact that at the time that probable cause was found, the panel had sufficient and competent information upon which it made its decision. It had conflicting statements by the two physicians; it had an expert's opinion; and it had extensive medical reports. It was not required to seek out sufficient evidence to assure success in a formal hearing on the complaint.
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 Following the entry of a Final Order of the Board of Medicine dismissing the administrative action previously filed against him, the Petitioner filed the pending request for an award of attorney's fees and costs, pursuant to Section 57.111, Florida Statutes. Following the filing and disposition of motions, the Respondent, Department of Business and Professional Regulation, 3/ Board of Medicine (Department), filed a response which included the following: This matter is properly filed pursuant to Section 57.111, Florida Statutes and Rule 60Q-2.035 (formerly Rule 22I-6.035), Florida Administrative Code. * * * Respondent would agree that the action in Department of Professional Regulation v. Vladimir Rosenthal, M. D., DOAH Case No. 91-2815, DPR Case No. 89-10153, was initiated by the Department of Professional Regulation, a state agency, and there- fore the Department is not a nominal party only. On the basis of his counsel's representation in paragraph two of the Petition, Respondent would admit that Petitioner qualifies as a small business party as defined by Section 57.111, Florida Statutes. Respondent would admit that Petitioner prevailed in the underlying case, DPR v. Vladimir Rosenthal, DOAH Case No. 91-2815 in that the Board of Medicine, on March 3, 1992, [sic] dismissed the Administrative Complaint. Respondent would admit that Petitioner's claimed attorney's fees and costs appear reasonable but asserts that the statutory cap of $15,000.00 is applicable. At this time Respondent is unaware of any special circumstances which would make the award of attorney's fees and costs unjust. Respondent does assert that at the time this action was initiated there was reasonable basis in law and fact for the Agency's actions and that the proceedings were substantially justified. . . . In view of the above-quoted portions of the Department's response, the sole issue to be decided is whether the actions of the Department were "substantially justified" within the meaning of Section 57.111, Florida Statutes, when it initiated the underlying disciplinary action. In response to complaints about certain conduct at the Petitioner's facility, the Department embarked upon an extensive investigation of various aspects of the Petitioner's medical practice. Those investigative efforts resulted in an investigative report which consisted of 333 pages, including 12 interviews and 28 exhibits. The medical records of Patient #1 were later added to the report. These materials were sent to two expert physicians for their review. One found Petitioner's care of Patient #1 to be satisfactory, and the other found him to have been below the standard of care in certain respects and believed certain medical records had been falsified. Prior to the Probable Cause Panel meeting of February 22, 1991, the Department forwarded to the panel members the following materials to be reviewed before the meeting: a proposed Administrative Complaint, written expert opinions of Department experts Herman Epstein, M.D. and Pierre Bouis, M.D., licensure certification, and the entire DPR investigative report. In addition, Dr. Rosenthal had previously submitted an expert opinion from Richard Litt, M.D., to the Department on April 24, 1990, which was made a part of the investigative file presented to the Panel. Dr. Litt opined that Dr. Rosenthal had met the appropriate standard of care. Each panel member received and reviewed the materials prior to the Probable Cause Panel meeting. The materials provided to the members of the Probable Cause Panel contained information which was sufficient to indicate that the violations alleged against the Petitioner had in fact occurred. 4/ Present at the February 22, 1991, Probable Cause Panel meeting were panel members George P. Vitale, Fuad S. Ashkar, M.D., and Margaret Skinner, M.D. Also present were Catherine Lannon, Assistant Attorney General and counsel for the Probable Cause Panel for the Board of Medicine; Carlos Ramos, Larry McPherson, and Susan Lingard, attorneys for the Department of Professional Regulation. Prior to the consideration of any cases, Ms. Lannon advised the Panel members that any questions concerning the interpretation of the law or rules, or what the Panel's duties were, should be directed to her. Ms. Lannon also advised the Panel that questions about the facts of the case, or the recommendation should be directed to the Department attorney. Ms. Lannon advised the Panel members that they needed to discuss the case enough to show that they were bringing their independent judgment to the matter. The Department, represented by Carlos Ramos, Staff Attorney, recommended that probable cause be found and that an administrative complaint be filed against the Petitioner. The Panel discussion of the case reveals that all three members were adequately familiar with the circumstances of the case as specific issues were addressed by the Panel and their counsel. The Panel discussed each of the proposed charges. The Panel requested that paragraph 24 of the Administrative Complaint be redrafted, but otherwise agreed that the proposed Administrative Complaint covered the issues which needed to be charged. The Panel voted unanimously to find probable cause, and directed an Administrative Complaint be filed against Petitioner. The finding of probable cause was recorded by the Memorandum of Finding of Probable Cause. Probable cause was found to exist that Petitioner violated the following statutory provisions: Sections 458.331(h), (i), (k), (m), and (t), Florida Statutes. Vladimir Rosenthal, M.D., is a licensed physician in the State of Florida, having been so licensed since approximately 1984. On or about March 6, 1991, the Respondent initiated action against the Petitioner's license to practice medicine, as directed by the Probable Cause Panel of the Board in DPR Case No. 89-10153, through the filing of an Administrative Complaint. The Administrative Complaint in DPR Case NO. 89-10153 charged Petitioner with five counts in violation of the Medical Practice Act. Petitioner sought relief by requesting a formal hearing, and the formal hearing was held on September 4 and 5, 1991, at Miami, Florida, before Michael M. Parrish, Hearing Officer for the Division of Administrative Hearings. On October 2, 1992, the Hearing Officer issued a Recommended Order in which he recommended that all charges against Petitioner be dismissed. On December 29, 1992, the Board of Medicine issued a Final Order which, with minor amendments, adopted the Recommended Order and dismissed all charges against the Petitioner. The Petitioner thereafter filed a timely petition seeking an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes.
The Issue The issue is whether Petitioner, Michael Anthony Dipple, is entitled to an award of attorney's fees against Respondent, Pinellas County Construction Licensing Board, pursuant to Section 57.111, Florida Statutes (2007).1
Findings Of Fact On January 3, 2008, Petitioner filed the Motion, seeking attorney's fees and costs as the prevailing party in DOAH Case No. 07-3664. On November 5, 2007, Respondent filed its Notice of Voluntary Dismissal of DOAH Case No. 07-3664, and the file of the Division of Administrative Hearings was closed by an Order entered on November 6, 2007. Respondent concedes that Petitioner is a prevailing small business party in the underlying proceeding, pursuant to Section 57.111, Florida Statutes. In the underlying proceeding, Respondent received a complaint from Joseph Lassen on January 26, 2007. Mr. Lassen stated that Mr. Dipple claimed to have run out of money and was therefore unable to complete the room addition he had contracted to perform on Mr. Lassen's house. Mr. Lassen stated that he feared Mr. Dipple was moving out of state and never had any intention of completing the work. With his complaint, Mr. Lassen included a copy of the contract, dated May 22, 2006, in which Mr. Dipple undertook to build the new room addition for the price of $76,350. The contract called for an initial deposit of $28,000, followed by three draws of $22,000, $17,000, and $10,000, to be paid as different phases of the work were undertaken. Mr. Lassen also included three canceled checks: one dated May 22, 2006, in the amount of $28,000; one dated August 8, 2006, in the amount of $22,000; and one dated September 25, 2006, in the amount of $18,000. In a letter dated March 2, 2007, signed by investigator Connie Garriques-Sang and sent to Mr. Dipple's business address in Largo, Respondent informed Mr. Dipple of the complaint. The letter stated, in relevant part: The enclosed complaint has been filed against you. If you wish to resolve this matter before the Pinellas County Construction Licensing Board takes further action, you may do so. Upon resolution, you should notify our office so that we may update your file on this matter. Please use the attached form in response to the complaint and return it to my office within ten (10) working days. (Emphasis added.) Respondent's probable cause panel convened on March 22, 2007. At that time, no response from Mr. Dipple had been received by Respondent. The probable cause panel considered Mr. Lassen's complaint and the attachments thereto. The panel also considered information obtained by Ms. Garriques-Sang from the City of Largo's building inspector indicating there were code violations regarding electrical work that were holding up the final inspection. Based on the information before it, the panel found probable cause to proceed with disciplinary action against Mr. Dipple. Mr. Dipple's response to Ms. Garriques-Sang's letter was received by Respondent on March 23, 2007, the day after the probable cause panel met and voted to proceed with an Administrative Complaint against Mr. Dipple. The delay in Mr. Dipple's response was due in part to the fact that he had moved to Oklahoma and the letter had to be forwarded to his new address. Nonetheless, he dated his response March 13, 2007, indicating that he must have received Ms. Garriques-Sang's letter on or before that date. However, the postmark on the envelope containing Mr. Dipple's response indicates that he waited an additional week, until March 20, 2007, to actually mail the response. Mr. Dipple's response included a letter from his attorney to Mr. Lassen and a copy of a phone message3 that Mr. Lassen left at Mr. Dipple's place of business stating that Mr. Lassen wanted another company to finish the work. Mr. Dipple generally contended that Mr. Lassen thwarted his attempts to complete the job. Respondent issued an Administrative Complaint, dated March 30, 2007, alleging the following facts: Mr. Dipple contracted with Mr. Lassen on February 22, 2006, to build a room addition at Mr. Lassen's Largo home; that Mr. Dipple obtained a permit for the work on June 23, 2006; that the permit was active, but work was not complete and there were outstanding tags for code deficiencies; that Mr. Dipple had changed his business address and had not performed any work on Mr. Lassen's house for over 90 days; that Mr. Dipple had informed Mr. Lassen that he did not have enough money to finish the job; and that Mr. Lassen was forced to hire another contractor to finish the job, at additional expense. The Administrative Complaint had three counts. Count One alleged that Mr. Dipple abandoned the job in violation of Subsection 489.129(1)(j), Florida Statutes, and Section 24(2)(k), Chapter 75-489, Laws of Florida, as amended. Count Two alleged that Mr. Dipple committed financial mismanagement or misconduct in the practice of contracting that caused financial harm to a customer in violation of Subsections 489.126(2) and (4), Florida Statutes, Subsection 489.129(1)(g), Florida Statutes, and Section 24(2)(h), Chapter 75-489, Laws of Florida, as amended. Count Three alleged that Mr. Dipple committed fraud or deceit or gross negligence, incompetency, or misconduct in the practice of contracting in violation of Subsection 489.129(1)(m), Florida Statutes, and Section 24(2)(m), Chapter 75-489, Laws of Florida, as amended. The case was referred to the Division of Administrative Hearings on August 16, 2007, and assigned DOAH Case No. 07-3664. With the Administrative Complaint, Respondent forwarded Mr. Dipple's Motion to Dismiss and Statement of Facts, originally served on Respondent on August 9, 2007. Mr. Dipple denied the allegations of the Administrative Complaint, stating that Mr. Lassen had interfered with the contract by refusing to allow Mr. Dipple to work on scheduled days; that Mr. Lassen wrongfully terminated the contract before the work was completed and refused to allow Mr. Dipple to complete the work; that Mr. Lassen owed money to Mr. Dipple; and that all portions of the work performed by Mr. Dipple had passed all building inspections. Mr. Dipple moved that the charges be dismissed on the ground that the alleged facts did not support any of the three counts stated in the Administrative Complaint. With the Administrative Complaint, Respondent also forwarded Mr. Dipple's notice to Respondent of his intent to recover attorney's fees and costs, originally served on Respondent on July 20, 2007. DOAH Case No. 07-3664 was scheduled for hearing on September 24, 2007, in Largo, Florida. On Mr. Dipple's motion, the hearing was continued and rescheduled for November 27, 2007. On November 5, 2007, Respondent filed its Notice of Voluntary Dismissal of the Administrative Complaint. The Division of Administrative Hearings' file in DOAH Case No. 07- 3663 was closed by Order dated November 6, 2007. Mr. Dipple's contends that the probable cause panel lacked other available information that could have and in fact did subsequently exonerate him of the charges,4 and that Respondent violated its own rules, Chapters 455 and 489, Florida Statutes, and fundamental principles of due process in precipitously arriving at a probable cause determination before Mr. Dipple had a fair opportunity to respond to the March 2, 2007, letter from Ms. Garriques-Sang. It is found that the information before the probable cause panel was sufficient to support the panel's decision to pursue an Administrative Complaint against Mr. Dipple, in the absence of any contrary information. The evidence submitted in Mr. Dipple's March 23, 2007, response to Mr. Lassen's allegations provided an insufficient basis for a finding that the response would have altered the probable cause panel's decision. While it does appear that Mr. Dipple submitted evidence that Mr. Lassen had instructed him to stop work, such evidence did not necessarily refute Mr. Lassen's allegations that Mr. Dipple's actions had forced him to seek another contractor to complete the job. Mr. Lassen also alleged something approaching fraud against Mr. Dipple, stating that he feared Mr. Dipple was planning to move away from Largo and never intended to complete the work. Mr. Dipple's response did not directly address this allegation. Further, even if the probable cause panel had timely received Mr. Dipple's response, the fact that the response was mailed from Mr. Dipple's new residence in Oklahoma would, if anything, have provided circumstantial support to Mr. Lassen's allegations.
Findings Of Fact Petitioner, Daniel J. Callahan, is a physician currently licensed to practice medicine in the State of Florida pursuant to Chapters 455 and 458, Florida Statutes. Respondent, Agency for Health Care Administration, Board of Medicine, (Board of Medicine), is the state agency charged with the duty and responsibility to administer Chapter 458, Florida Statutes. Petitioner is the subject of three disciplinary actions brought by the Board of Medicine which are now pending before the Division of Administrative Hearings, case Nos. 93-6020, 93-6021, and 94-3208. The Administrative Complaints filed in these cases set forth allegations of sexual misconduct against Petitioner. The Board of Medicine has filed a motion for official recognition of Rule 59R-9008, Florida Administrative Code, in the disciplinary actions against the Petitioner. Hearing in the disciplinary cases against Petitioner is currently scheduled to begin on March 29, 1995.
Findings Of Fact Luis Arias, M. D. was, at all times material to this proceeding, a licensed physician in Florida. Similarly, Martin Belle, M. D. was, at all times material to this proceeding, a licensed physician in Florida. Doctors Arias and Belle maintained their practices in Dade County and practiced from the same office, Suite 300, 1444 Biscayne Boulevard, Miami, Florida 33132. The Department of Professional Regulation performs a computerized review of prescriptions written by Florida physicians for Schedule II drugs (this is know as the EPSON survey) to identify physicians who may be engaging in inappropriate practices in prescribing those drugs. If a questionable pattern is detected by the program, it identifies the drug, prescribing physician, the patient, the pharmacy at which the prescription was filled, and the date of the prescription. The survey revealed that patient R. F. had received prescriptions for 400 tablets of Dexedrine and 200 tablets of Seconal written by Dr. Belle during the period from June 13 to August 30, 1985, and one prescription each for 100 tablets of Dexedrine and Seconal written by Dr. Arias during that period. At the time of the investigation R. F. was an eighty-year-old man. Since 1945 he was treated for lack of energy by New York physicians with Dexedrine during the day and Secanol at night to help him sleep. He began to see Dr. Arias in 1970, and Dr. Bell in 1983. R. F. had tried to cut down his use of Dexedrine in 1986, but found he was mentally slow and foggy without it, and unable to perform his work as a marketing director for a large Miami real estate agency. For a man of his age, R. F. was remarkably active. A pharmacy consultant, Lee Pat Strickland, reviewed the EPSON printout and requested further investigation to determine whether Doctors Arias or Belle were inappropriately prescribing excessive quantities of Scheduled II drugs for R. F by filing a complaint with the Department. The information from Mr. Strickland was provided to Medical Quality Assurance Investigator Albert Rourke on March 27, 1986. Upon investigation, Mr. Rourke found another prescription for 100 tablets of Seconal written by Dr. Arias for the patient during the period at issue, June 16 through August 30, 1985. These nine prescriptions provided the patient 500 tablets of Dexedrine and 400 tablets of Seconal within 75 days. Mr. Rourke notified Doctors Arias and Belle of the investigation and interviewed them separately at their offices on April 10, 1986. Both doctors were cooperative during investigation. The patient, R. F., was not interviewed. The Department believes that patients who receive large quantities of drugs often are addicted to them and will not cooperate in an investigation, because it could lead to a cut-off of their source of drugs. While this explains why R. F. was not interviewed, there was no evidence that the patient was, in fact, addicted to either drug. The investigator was merely following a more generalized departmental procedure. The Department thereafter subpoenaed the medical records of patient R. F. This was done without the knowledge or consent of the patient, but by statute such knowledge or consent is unnecessary. After receipt, the medical records were sent to a consulting physician, Dr. John V. Handwerker, who had been used over a long period of time by the Department to review patient records. Dr. Handwerker has a reputation among members of the Bar who defend license disciplinary matters as a tough consultant who commonly made recommendations for the prosecution of physicians under investigation. Dr. Handwerker also had a reputation for being fair, and would not review a case if he felt that he could not be fair. His opinions often were accepted by probable cause panels of the Board of Medicine in determining whether or not to prosecute a physician. Dr. Handwerker received the sealed medical records of R. F. from Investigator Rourke on May 27, 1986. Dr. Handwerker indicated that he knew who Dr. Arias and Belle were, but this would not color his opinion when he reviewed R. F.'s records. The office records for R. F. were contained in a single chart which both Doctors Arias and Belle used at their office. Dr. Handwerker wrote a brief report for the Board of Medicine on June 2, 1986, which consist of three one sentence paragraphs. He determined that the administration of Dexedrine in the quantities prescribed by the doctors were justified but did not explain his reasoning. He gave no opinion as to the appropriateness of prescribing the Seconal, either alone, or in combination with the Dexedrine. Dr. Handwerker did state that he had known Doctors Arias and Belle "personally and professionally for a number of years and their reputations are impeccable." The brief report crosses the line from the tolerably terse to the intolerably mute because it provides a conclusion but no analysis. The Department's investigative files for Doctors Arias and Belle were sent to members of the probable cause panel of the Board of Medicine on July 7, 1986. The files contained the EPSON survey materials, copies of the prescriptions, copies of the medical records for R. F., the statements of Doctors Arias and Belle taken by Investigator Rourke, Dr. Handwerker's opinion, and a recommendation from the Department of Professional Regulation that the matter be dropped. The cases were considered by a probable cause panel of the Board composed of Dr. Emilio Echevarria, the Board chairman, and Mr. Roger Lutz, an attorney, on July 17, 1986. The panel members were assisted by counsel to the panel, Assistant Attorney General Catherine Lannon, and the case was presented by attorneys for the Department, Stephanie Daniel and Bruce Lamb. Department's prosecutors recommended that a closing order be entered and the investigation closed, and they submitted proposed closing order to the panel. Probable cause panels commonly accept a prosecutor's recommendation of no probable cause, and issue closing orders in 80 to 85% of such cases. That did not happen here. Before the discussion on all the cases under consideration that day began, Ms. Lannon cautioned the panel members that any questions concerning applicable laws, rules, or the duties of the panel should be directed to her, and any questions concerning the facts of the case or investigation should be directed to the prosecuting attorneys for the Department, that if any documents were defective copies would be provided, and if clear copies were unavailable the case could be passed until the panel members were provided with everything they needed to consider. She also asked both panel members if they had received the materials in time to review them before the meeting and both Doctor Echevania and Mr. Lutz said that they had. The panel first considered the case of Dr. Arias, and Mr. Lutz stated MR. LUTZ: I tell you what I thought on that one. The consultant says he's a good friend of this guy. It looks like to me we need an independent consultant before we can close it. We'll probably end up closing it, but I don't like closing it based on the guy saying he's my long and personal friend. He's supposed to be a consultant that knows what he's doing, too, we've had him [before?]. I hope you all don't pay him, for God sake, he shouldn't take a job being a consultant on his pal. DR. ECHEVANIA: So what are you suggesting? MR. LUTZ: Get another consultant. I'm sure we're going to close it but it just looks bad. (Joint exhibit 2, page 6.) When the panel later considered the case of Dr. Belle, Mr. Lutz recognized it as a companion case to that of Dr. Arias and requested that a new expert also review that case. There was no evidence from which Mr. Lutz reasonably could have concluded that Dr. Handwerker was a good friend of either Dr. Arias or Dr. Belle. All that the report of Dr. Handwerker suggests is that he had been acquainted with them. As the Hearing Officer found in the underlying case, Doctors Arias and Belle did not know Dr. Handwerker except on a casual basis, they would say hello while passing in the halls of Mercy Hospital where they practiced, but they did not socialize with each other or refer patients to one another. The probable cause panel of the Board did not request that staff inquire of Dr. Handwerker what he meant in his letter when he wrote that he had both personal and professional knowledge of Drs. Arias and Belle. The Department did not independently undertake to make that determination during the nine months intervening before the next meeting of the probable cause panel at which the cases of Doctors Arias and Belle were reconsidered. Ultimately, however, these cases did prompt a change in Department policy, so that the reviewing physician-consultant would be asked, before giving an opinion, whether the consultant was acquainted with the doctor whose conduct was under review, and if so, how well. In fairness and logic that same inquiry should have been made of Dr. Handwerker. Although this is, to some extent, second guessing both the members of the probable cause panel, and the investigative staff of the Department, such an inquiry would have been consistent with the Department policy ultimately adopted. The policy should have been followed in this instance. The transcript of the probable cause panel meeting on July 17, 1986, does not disclose any discussion or analysis of the patient's medical records upon which Dr. Handwerker determined that there was no violation of the Medical Practice Act. The panel members focussed only on Dr. Handwerker's disclosure that he was acquainted with Doctors Arias and Belle. The medical records which had been subpoenaed and all materials reviewed by Dr. Handwerker were then sent to Dr. Laurence Neufeld of Tampa, Florida, on December 3, 1986. Dr. Neufeld is not a specialist, he is engaged in family practice. Dr. Neufeld was never told that the cases had been previously been to a probable cause panel, nor did he know of Dr. Handwerker's opinion. The three page opinion written by Dr. Neufeld on January 25, 1987, is internally inconsistent. It states that the medical records for patient R. F. "support the use of longterm Seconal for sleep in this patient," but also that the prescription of Seconal was inappropriate. (Portions of his report are set out below.) Dr. Neufeld also relied, in his opinion, on the statements which the investigator attributed to Doctors Arias and Belle that the patient "had been treated for severe depression for the prior twenty years and was given Dexedrine to relieve his symptoms." I find that Doctors Arias and Belle never made such a statement to Mr. Rourke. The Investigator must have misunderstood something the doctors said. The patient was never severely depressed. Dr. Neufeld also claims to have found, from the medical records, that the patient "developed hypertension while being treated with Dexedrine." The patient was not hypertensive. The report goes on to state: When [the patient] developed hypertension, the Dexedrine and other stimulants should have been discontinued. The patient should have been referred to a psychiatrist for further evaluation and treatment of his depression. Dexedrine should be used very cautiously in an elderly patient and should not be used in order to control symptoms of fatigue. I do not feel that they adequately tried to use therapeutic doses of antidepressants to control the patient's depression. The patient appeared to be extremely manipulative and the doctors continued to prescribe Dexedrine and Seconal to this patient. It appears that the patient is addicted to Dexedrine and Seconal. The Dexedrine in large doses is more likely to cause fatigue and mental depression. * * * I do not feel that the use of Seconal on a longterm basis is in the best interest of the patient. It is addicting and tolerance rapidly develops to this medication. Both Doctors Belle and Arias prescribed controlled substances to the above patient in excessive and inappropriate amounts. The new probable cause panel met on April 27, 1987, who was made up on Dr. Joseph O'Bryan, Board Chairman, Dr. Armando Santelices and a lay member, Ms. Ernestine Cooper. Also present were counsel for the Board of Medicine, Catherine Lannon, and a new prosecutor for the Department of Professional Regulation, Leslie Brookmeyer. Ms. Lannon again reminded the new panel that questions concerning their legal duties and responsibilities, or the laws and rules that might apply should be directed to her but that questions concerning the facts of the case, or why a certain recommendation was made should be directed to the Department prosecutor. Ms. Lannon also cautioned members to discuss each case in sufficient detail to show that they were exercising independent judgment in reaching their decision on whether to find probable cause to prosecute the case. There was specific discussion of the reasons why the members found probable cause. The panel found Dr. Neufeld's opinion letter persuasive. THE CHAIRMAN: A-2 is two physicians. Dr. Luis Arias, 0068951, and Dr. Arias was allegedly inappropriately prescribing controlled substances, including Dexedrine and Seconal and did not properly refer a patient who was probably depressed. There was some disagreement among the consultants, but I favored the consultant who agreed they (sic) were enough allegations to advise an Admini- strative Complaint and I agree. MS. COOPER: Cooper, and I agree also. I read the report. THE CHAIRMAN: Dr. Santelices? DR. SANTELICES: I just have a question before I say whether I agree or not. Was Dr. Handwerker, Jr.'s letter requested by us? THE CHAIRMAN: Yes, he (sic) one of our experts. MS. BROOKMEYER: He's on of our experts. Yes. You're referring to the fact that there's not a letter requesting his evalua- tion? DR. SANTELICES: Well, the thing is this -- MS. BROOKMEYER: He's basically saying they're friends of mine and I know them. DR. SANTELICES: And it says that they're justified, that the administration is justi- fied. So if it was requested by us we have a consultant who is telling us that it was justified. If it wasn't requested by us it just means the other doctor had a friend write a letter on his behalf. MS. BROOKMEYER: No. I'm pretty sure he was requested by Mr. Wood (phonetic) to write the letter, but the fact that he stated that he had known these people and their reputation is why it was put out to a second expert. We ask our experts in evaluating cases if they know or feel like they have such an intimate relationship with them -- once he identified it then we went on to a second expert. The attorney expert witnesses for Doctors Arias and Belle believed that the probable cause panel should have reviewed the medical records themselves and come to their own conclusions based upon review of the records, which those attorney-experts contend would have confirmed Dr. Handwerker's opinion and caused the panel to disbelieve the report of Dr. Neufeld. That opinion testimony is rejected as unpersuasive. It is not necessary for the probable cause panel to go behind the opinions of consultants hired by the Department, and to make independently their own examination of records, duplicating the evaluation of the consultant. If they must do so, there is little purpose in retaining consultants to review cases and little utility in having lay members of probable cause panels. Neither is it necessary, when a probable cause panel sees there is a disagreement among their consultants, to submit the case to a third expert to act as a sort of arbitrator to resolve the differences among the consultants. Members of a probable cause panel are not required to be skeptical of the conclusions reached by consultants. Were that so, the Board would have had as much reason to question the brief and unenlightening letter from Dr. Handwerker as the discursive report of Dr. Neufeld. The memorandum filed by the probable cause panel on April 27, 1987, against Dr. Arias and the separate memorandum finding probable cause against Dr. Belle had charged both physicians with prescribing schedule II drugs (Dexedrine) for unauthorized reasons, inappropriately prescribing Dexedrine in the presence of hypertension, inappropriately prescribing Seconal, not keeping medical records justifying the use of steroids, and practicing below the applicable standard of care because they did not refer R. F. to a psychiatrist for evaluation and treatment of severe depression. The material submitted to the probable cause panel was sufficient for its members to believe that there was some evidence which, if believed at final hearing, would justify the imposition of discipline against Doctors Arias and Belle. After a full evidentiary presentation the Hearing Officer found that the facts were not as the investigator and Dr. Neufeld supposed them to be. The outcome of the prosecutions ultimately confirmed the opinion of Dr. Handwerker that there was no dereliction on the part of Doctor Arias or Doctor Belle. After the prosecution began, the attorney for the Department sent the matter back to a probable cause panel for additional review on two occasions. The attorney for the Department believed that the evidence would not sustain the allegations of the Administrative Complaint at the requisite level of proof. This was based, in part, on the opinion of an additional expert, Dr. Martin Cohn of the Mt. Sinai Hospital Sleep Disorder Center. Dr. Cohn had given the Department an opinion that the continued prosecution of Doctors Arias and Belle was ill-considered because they had appropriately treated the patient, R. F., for the sleep disorder of narcolepsy.
