Findings Of Fact Petitioner applied for certification as a physician assistant by application dated June 29, 1991. Under the statutory scheme regulating physician assistants, in certain circumstances, the Board of Medicine may grant temporary certification to applicants for licensure. The temporary certification is good only until the applicant receives notice of the applicant's scores received on the first available examination. At its meeting of October 30 through November 1, 1992, the Board approved Petitioner for temporary certification contingent upon his completion of specified requirements prior to such temporary certification and his completion of 25 hours of continuing medical education after issuance of such certification. Petitioner completed the specified requirements for issuance of the temporary certification and was issued a temporary certificate. Petitioner was so notified by letter dated October 4, 1993. Petitioner was first notified of the need to pay a required fee for the licensure examination by letter dated February 27, 1993. That letter set forth that the fee must be paid by March 31, 1993. Petitioner did not pay the fee by that deadline. On June 8, 1993, Petitioner was notified that the deadline for payment of the required examination fee had been moved to June 25, 1993. The extension had been given because the Board was still involved with processing applications for this special licensure program. Petitioner did not pay the fee by that deadline. On October 11, 1993, Petitioner was sent another letter notifying him that the deadline had been extended once again. This time the deadline was set for November 15, 1993. The notice sent to Petitioner specified three times that the required examination fee must be received in the office of the Board by November 15, 1993. It specifically informed Petitioner that a postmark of November 15, 1993, would not be sufficient. Furthermore, the notice informed Petitioner that if he failed to submit the required examination fee in a timely fashion, he would not be eligible to take the licensure examination. Although Petitioner testified that he was confused with regard to when the required fee could be sent, it was established that he could read the letter and that he understood that his failure to timely pay the examination fee would result in his not being permitted to take the licensure examination. Petitioner did not have the money for the required examination fee until November 14, 1993. Petitioner mailed the examination fee from Miami to the Board office in Tallahassee by certified United States mail on November 15, 1993. Although Petitioner testified that he believed the fee would be delivered the same day or the next day, Petitioner did not use any type of special delivery to provide same day or next day delivery at the Board's office. The fee submitted by Petitioner in the form of three Travelers Express Company checks was received in the Board's office on December 22, 1993. Petitioner did not submit the required examination fee in a timely manner for any of the three deadlines set by the Board. With the exception of one case involving an applicant with a heart condition, the Board has uniformly denied any request for the late payment of the required examination fee. If he does not take and pass the first available licensure examination, Petitioner will not be able to receive his permanent certification as a physician assistant. The licensure examination for persons in Petitioner's category has not yet been given by the Board. Therefore, none of the applicants for certification as physician assistants through this special licensure program have yet been tested.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding that Petitioner is not eligible to take the physician assistant examination and that Petitioner's temporary certification is null and void. DONE and ENTERED this 9th day of February, at Tallahassee, Florida. LINDA M. RIGOT 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 9th day of February, 1995. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-4, 7-9, and 13 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 5 has been rejected as being irrelevant. Petitioner's proposed finding of fact numbered 6 has been rejected as being subordinate. Petitioner's proposed findings of fact numbered 10-12 have been rejected as being not supported by any evidence. Respondent's proposed findings of fact numbered 1-17 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 18 has been rejected as not constituting a finding of fact. COPIES FURNISHED: Allen R. Grossman, Esquire Office of the Attorney General PL-01, The Capitol Tallahassee, Florida 32399-1050 Alexander J. Alfano, Esquire 45 Southwest 9th Avenue Miami, Florida 33130 Dr. Marm Harris, Executive Director Agency for Health Care Administration, Board of Medicine 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Tom Wallace, Assistant Director Agency for Health Care Administration, Board of Medicine 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether the license of the Respondent, Virginia Downey White, License No. 24571-1, should be revoked or suspended, or whether the Respondent should be placed on probation.
Findings Of Fact The Respondent, Virginia Downey White, holds Licensed Practical Nurse License No. 24571-1. During the time pertinent to this hearing the Respondent was employed as a licensed practical nurse at St. Catherine Laboure Manor a nursing home in Jacksonville, Florida. An Administrative Complaint was issued against the Respondent on April 20, 1979, alleging unprofessional conduct. The Respondent requested an administrative hearing. Prior to an investigation by the personnel at St. Catherine Laboure Manor, and prior to the issuance of the Administrative Complaint against Respondent White, a call had been received at the nursing home stating that medications were not being properly given by the Respondent to her patients. On her own initiative, Priscilla Garske, a co-worker and licensed practical nurse who knew Respondent White, made a random selection of ten (10) patients from approximately twenty-five (25) assigned to the Respondent, listing the names of those ten (10) selected and listing their medications by their names in her nursing notes on March 25, 1979. Ms. Garske did not work on March 26, but on March 27, 1979, she returned to work on the 7:00 a.m. to 3:00 p.m. shift. On that date, after Ms. Garske had again counted medications for the same patients listed in her nursing notes, she reported to Florence Thibault, R. N., Director of Nurses at St. Catherine Laboure Manor, that the count was identical. Ms. Garske had checked the patients' medication sheets on which medications which had been given were to be charted and found that the medications had in fact been charted for these particular patients on March 25, 26 and 27, 1979, by the Respondent. Ms. Garske gave her nursing notes to Ms. Thibault when she reported her findings. Ms. Thibault examined the list of patients in Ms. Garske's nursing notes and their list of medications and immediately directed two (2) other nurses to check the medication cards against the list. Alberta Neeley and Eva Itameri, both licensed practical nurses, went to the units and checked Ms. Garske's list against the medication cards for the numbers of medications that were left. They returned with their findings, which indicated that six (6) of the ten (10) patients on the list had the same numbers of pills on their cards on that date, March 27, as they had had on March 25, 1979. Ms. Thibault then made a list of the same patients with their medications by their names, called Respondent White and discharged her from her employment, indicating to the Respondent that she had failed to give patients their medications while improperly charting on their records that they had received such medication. Of the ten (10) patients listed in Ms. Garske's nursing notes and by Ms. Thibault, it was alleged that Respondent White had failed to give medications to six (6) of them, whose records were introduced into evidence. It was stipulated at the hearing that the remaining four (4) patients on the list had in fact received their medications from the Respondent. Respondent White was responsible for giving medications to half of some fifty-eight (58) patients on her floor, who were mainly aged and infirm people. The patients on the list had not been questioned as to whether they had in fact received medication during the time in question. Each patient on the floor had a medication card with twenty-five (25) to thirty (30) pills on it, each pill being encircled by a plastic bubble. Some patients had more than one card. Some patients had one card opened and one not opened, and some patients had two (2) cards opened, although it was the policy of the nursing home to give all the pills from one card before a new card was opened. On the medication cart there were additional stock medications, such as vitamins, which were given the patients from time to time. The counts made on the medication cards of the patients on the list who were the responsibility of the Respondent were made from one medication card only according to the testimony of Ms. Garske. Eva Itameri, a nursing supervisor at St. Catherine Laboure Manor during the time pertinent to this hearing, and who had been instructed by Ms. Thibault to accompany Alberta Neeley to the floor on which Respondent White worked and to make an examination of the medication cards of the ten (10) patients on the list, pulled the cards from the patients' files, and Ms. Neeley wrote down their names and the numbers of medications on their cards. Ms. Itameri did not question the patients at the time she was making her investigation, stating that the patients on the floor whore the Respondent worked were very confused and disoriented. Ms. Itameri stated that it normally took about an hour to pass out medications each morning, and that sometimes the stock medications from the medication cart were also dispensed to the patients. Alberta Neeley, the licensed practical nurse who accompanied Ms. Itameri as instructed by Ms. Thibault at the time pertinent to this hearing, stated she talked in general with the patients at that time, but that she did not make a list of those to whom she had talked and did not specifically ask whether they had received their medications. Ms. Neeley also stated that the situation at St. Catherine Laboure' Manor was subject to "a turn- over in staff." At the hearing, Ms. Garske stated that all ten (10) patients listed in her nursing notes had had the same numbers of medications on their cards when counted by her on March 27, 1979, as they had had on March 25, but that each of those patients had been charted by Respondent White as having been given their medications each day as required. It can not be reliably ascertained from the testimony and evidence presented at the hearing whether the medications for the six (6) patients, whose records were introduced into evidence, had in fact been given to them as indicated on their charts. Whether Respondent White gave them medications from a different card than previously used, whether some medications were given from the stock medications, or whether some of the six (6) patients were not medicated is unknown. The patients were not questioned, and if they had been questioned would not have remembered. Respondent White stated she gave the medications as required. There was ill feeling between Respondent White and Ms. Garske, her co- worker, who made the initial count of the medications and reported that the Respondent had not given medications to the patients. Alberta Neeley, one of the witnesses for the Petitioner Board, was in doubt as to whether the count she and Ms. Itameri made as instructed by Ms. Thibault would conclusively indicate that medications had not been given patients. From time to time during her employment at St. Catherine Laboure Manor, Respondent White misplaced medications for patients and required assistance from other nurses to locate such medications. She finished giving her patients medications in less time than did the two (2) other nurses, although each nurse had approximately the same number of patients to medicate. Both Eva Itameri and Alberta Neeley, as witnesses for the Petitioner Board, stated they felt Respondent White to be a good nurse, but they had some reservations as to her general nursing performance. No proposed findings of fact or memoranda of law were submitted to the Hearing Officer by the parties.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Petition in this matter be dismissed. DONE and ORDERED this 22nd day of October, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 William J. Sheppard, Esquire 215 Washington Street Jacksonville, Florida 32202 Geraldine B. Johnson, R. N. Board of Nursing Ill Coastline Drive East, Suite 504 Jacksonville, Florida 32202
The Issue Whether or not Petitioner is entitled to a license by endorsement to practice medicine pursuant to Section 458.313(1) F.S.
Findings Of Fact Petitioner William D. Plummer is an applicant for licensure as a physician by endorsement in Florida. On May 2, 1991, Petitioner filed a licensure application with the Department of Professional Regulation. On page one of the application is the question: Are you now or have you ever been licensed in any State, Canada, Guam, Puerto Rico or U.S. Virgin Islands? Yes No . Petitioner marked the "No" answer to this question on his application. On page four of the application is the question: Have you ever been denied an application for licensure to practice medicine by any state board or other governmental agency of any state or country? Yes No . Petitioner marked the "No" answer to this question on his application. On June 11, 1991, Petitioner was sent a notice that his application was incomplete. In that notice, he was asked: Are you now, or have you ever been licensed to practice medicine in any State? In response, Petitioner sent a letter stating only that he had received a Pennsylvania medical license on July 3, 1991. This date was subsequent to his making the initial Florida application on May 2, 1991. As part of the application process in Florida, Petitioner was asked to appear before the Credentials Committee of the Board of Medicine on January 25, 1992, in Tampa, to discuss various matters regarding his application. In the course of discussing various issues with the Credentials Committee Petitioner was asked: Were you ever denied a license to practice medicine in another state? In response, Petitioner stated, No. I have my Pennsylvania license. In my training initially--my medical training license took some time, and I think that was in 1985 and it was because we didn't have a program in Pennsylvania to work with the State Board. Later, Petitioner told the Committee, I thought there was a difference between a medical training license and a medical license. A medical training license is under supervision at a hospital. In point of fact, in 1985, Petitioner had applied for a graduate medical license in Pennsylvania in order to enter the residency program at Misercordia, Mercy Hospital where he had already been accepted. The Pennsylvania graduate medical license allows the licensee to work as a physician under supervision only as a resident in the institution named on the license. Petitioner's application for this license was rejected because the Pennsylvania Board found that Petitioner had "knowingly falsified" an answer regarding his addiction to alcohol. The Pennsylvania Board further prohibited Petitioner from reapplying for a graduate medical license until June 6, 1986. After formal hearing, the Pennsylvania Board entered its order as follows: ... an Applicant with a proclivity toward engaging in word ploys in these important matters runs the risk, as here, of being in error and thus committing an active concealment and misrepresentation. A more prudent course perhaps for such an Applicant would be to err on the side of giving excess (voluntary) information in responding to such a formal and serious written questionnaire. Medical residents in training programs "practice medicine." In Pennsylvania, residents are prohibited from practicing medicine unless they receive a graduate medical license from the State of Pennsylvania. Because of the Pennsylvania Board's denial of Petitioner's application for a graduate medical license, he was unable to accept the position at Mercy Catholic Hospital. However, in 1986, Petitioner reapplied for a graduate medical training license in Pennsylvania and the application was granted. This graduate medical training license was renewed annually thereafter while Petitioner continued to train in Pennsylvania. Petitioner still held the latest renewed graduate medical training license when he applied for Florida licensure in May 1991. Petitioner was granted his permanent unrestricted medical license in Pennsylvania in July 1991. (See Findings of Fact 2 and 5 supra.) At formal hearing, Petitioner explained that because Pennsylvania's graduate medical training license only allows participation in a residency training program at an approved institution named on the face of the license, he did not consider it to be a "license to practice medicine," and accordingly he did not disclose to Florida the Pennsylvania Board's 1985 denial of such license. He represented that he believed that because the Pennsylvania graduate medical training license was institution-specific, limited to one year in scope, and only a prerequisite to supervised additional medical education, it did not constitute what Florida's inquiries were all about. By common English usage, Pennsylvania law, and Florida law, the authority that Dr. Plummer was denied in 1985 and granted in 1986 by the Pennsylvania Board constitutes a "license to practice medicine," contrary to his interpretation of that term when he filled out his Florida application and responded to inquiries during the course of Florida's licensure investigation. He should have identified it in response to each relevant question or inquiry. However, Petitioner's interpretation of Florida's questions and his answers thereto do not constitute attempting to obtain a license to practice medicine by fraudulent misrepresentation or concealment of a material fact for the following reasons: Petitioner's formal hearing testimony was credible and unrefuted. Petitioner was consistent in his interpretation of the questions on this subject in that he also did not disclose to Florida the "good" facts that the Pennsylvania Board had subsequently granted him the graduate medical license in 1986 and had renewed it annually and that he still held such a license at the time of filling out his Florida application. Also, in the Florida application, he readily and fully disclosed to Florida the "bad" facts of his detrimental past history of alcoholism. Dr. Lee testified as a medical physician licensed to practice in New York, Pennsylvania, and Iowa, that he considered Petitioner's interpretation of the Florida application questions concerning prior medical licensing reasonable and that he also considered Petitioner's answers to those questions reasonable. No contrary testimony was presented. The American Medical Association profile does not list Petitioner's Pennsylvania graduate medical training license as a "license to practice medicine." Various qualified credible witnesses acknowledged that Petitioner's failure to disclose his alcoholism to the Pennsylvania Board in 1985 was a denial symptom of his alcoholism at that time and was not symptomatic of his character makeup now that his alcoholism is in remission or at any time he responded during the Florida licensing process. Respondent presented no direct evidence to prove that Petitioner had a fraudulent intent in answering as he did. Although fraudulent intent may sometimes be inferred from the circumstances, the circumstances herein do not permit such an inference. On his initial Florida application, Petitioner could not correctly recall the dates of his medical training because he had not kept accurate records himself and because of his alcoholic condition in prior years. One representative error he made is that he listed a full year in one program which he attended for only four months. However, he approximated the dates as best he could and revealed all training programs, even those in which he was unsuccessful, and he consistently responded to the Board that he would defer to whatever the training institutions' records showed. He also concealed no rehabilitation programs he had been in. No intent to defraud or conceal can be inferred from these circumstances. Petitioner is an alcoholic. Petitioner's alcoholism had its inception sometime during his childhood, possibly as early as the age of eight years. Petitioner graduated from Pennsylvania State University summa cum laude, in 1976. He matriculated from the Uniformed Services University in 1980. Toward the end of his time in medical school, approximately 1980, Petitioner began to realize that he had a problem with alcohol. In 1980, Petitioner entered a surgical training program at Balboa Hospital in San Diego, California. As a direct result of his problems with alcohol, Petitioner left that surgical training program in 1981 without completing his training. Between 1981 and 1983, Petitioner was partially supported by his parents, performed odd jobs as a handyman and searched for a new training program. In July, 1983, Petitioner entered an internal medicine training program at St. Raphael Hospital in New Haven, Connecticut. After approximately five months and prior to completion of training in New Haven, Petitioner's problems with alcohol forced him to terminate participation in the internal medicine training program. In December 1983, Petitioner entered a rehabilitation program at Marworth in Waverly, Pennsylvania. He remained as an inpatient at Marworth until February 1984 when he was discharged to Little Hill--Alina Lodge, a continuing care facility in Blairstown, New Jersey, where he remained as an inpatient until May 1984. Petitioner left Little Hill--Alina Lodge with staff approval. Between May 1984 and November 1986, Petitioner worked at various odd jobs as a handyman and helped his parents relocate and build in Florida. He also waited for his graduate medical training license in Pennsylvania. (See Finding of Fact 7, supra) Petitioner described both the periods of 1981-1983 (See Finding of Fact 18 supra.) and 1984-1986 as periods of "self-employment" whereas "unemployment" might have been more accurate. This discrepancy was neither "fraud" nor "concealment," as those terms are generally understood. In November, 1986, Petitioner entered an internal medicine training program at Misercordia, Mercy Catholic Medical Center in Philadelphia, Pennsylvania. Petitioner's problem with alcohol caused him to behave in a manner which indicated the presence of an active physical impairment of alcoholism and resulted in Petitioner's suspension and later resignation from that program after approximately three and a half months and prior to completion of training. In June 1987, Petitioner returned to Marworth as an inpatient. He remained under treatment for approximately one month and then stayed on at Marworth as an inpatient for approximately a month. Thereafter, he worked as a janitor and groundskeeper for nearly two years while concentrating on his life problems that had contributed to his alcoholism. Many professionals reviewing his case have been favorably impressed with Petitioner's dedication and sacrifice during this period of time. In 1989, Petitioner entered an internal medicine training program at Robert Packer Hospital in Sayre, Pennsylvania. This hospital is part of the Guthrie Healthcare System where Petitioner is currently employed. (See Findings of Fact 28, 43, 49 infra.). In June 1990, Petitioner took a vacation to the Florida keys and while on vacation went on a four day drinking binge. Petitioner voluntarily reported himself for further treatment and returned to Pennsylvania. While awaiting placement in another rehabilitation program, he suffered an alcohol withdrawal induced seizure. In July 1990, Petitioner entered his fourth inpatient treatment program for alcoholism at Bethany Center in Homesdale, Pennsylvania, where he remained for one month. His absence was counted as vacation and sick time while he was able to complete his internal medicine training program at Robert Packer Hospital on schedule in April 1992. The Guthrie Health Care System immediately offered him his current position, with full knowledge of his excellent academic record and clinical references and his alcohol recovery history. (See, Findings of Fact 43 and 49 infra). Currently, Petitioner participates in the Physician's Health Program of the Pennsylvania Medical Society and since January 1991 has been participating, through counseling, in a program of recovery from alcoholism with the Bradford Sullivan Drug and Alcohol Program. Both the Florida Physician Resource Network and the Pennsylvania Physician's Health Program impaired physicians programs have opined that Petitioner's history of alcoholism should not bar his licensure in Florida at the current time. (See, Findings of Fact 31-39 infra.) Dr. Roger Goetz is the Director of Florida's PRN and is the Department of Professional Regulation's consultant charged with implementing Florida's Impaired Practitioner Program. The Physician Resource Network includes the Physician Recovery Network (PRN). In the past five years, the PRN has evaluated approximately 350 physicians with impairments at the request of the Board of Medicine. Over this period, Dr. Goetz cannot recall a single instance where an applicant endorsed by PRN has failed to maintain sobriety. PRN statistics show that at least 97 per cent of the practitioners on contract have not reverted to alcohol or chemical use. Petitioner is willing to enter such a contract with PRN if he is licensed. Dr. Goetz believes Petitioner will be able to practice medicine with skill and safety to patients in Florida, provided he enters into a contract with the PRN. Dr. Goetz opined that Petitioner's relapse in 1990 does not indicate the likelihood of future relapses because Petitioner has continued with a more effective treatment program and support system geared to his needs as a physician. Dr. Goetz, on behalf of PRN, recommended a five-year contract for Petitioner designed to identify pre-relapse behavior and entail that he remain chemically abstinent, be subjected to random body fluid analysis, establish a doctor/patient relationship and receive care from another physician for his personal health, obtain a monitoring physician, attend group therapy, attend Alcoholics Anonymous meetings, have significant family members involved in his recovery, notify the PRN of any problems in his life, including changes in his physical health, be willing to withdraw immediately should there be any problems surrounding his practice, and participate and cooperate with the PRN at all times. Such a contract would provide Petitioner with an environment in Florida which is similar to his current recovery environment in Pennsylvania. Dr. Goetz testified that to the extent of his knowledge Petitioner has a good reputation for truth and veracity. At the request of PRN, Petitioner was evaluated for chemical dependency by Leah H. Williams, M.D. in July 1991. Dr. Williams reported to PRN that she was in favor of Florida licensure for Petitioner. In September 1991, Petitioner received a thorough outpatient evaluation from Dr. Lynn Hankes, PRN's approved evaluator. Dr. Hankes also endorsed Florida licensure for Petitioner, contingent upon Petitioner entering the PRN program and participating in ongoing psychotherapy. Penny Ziegler, M.D., Medical Director of the Pennsylvania Physician's Health Program, supports Petitioner's application for licensure in Florida. Nicholas F. Colangelo, Ph.D., a psychologist, supports Petitioner's application for licensure in Florida. Dr. Colangelo may be considered as a past and currently treating psychologist for Petitioner. They have known each other since Petitioner was at Marworth. Dr. Colangelo is a nationally certified alcohol and drug counselor who is Vice-President of Clearbrook, Inc., an alcohol and drug addiction treatment facility. He is a recovering alcoholic who has been sober for over seventeen years. Twenty-five to thirty-five per cent of his addiction counseling focuses on professionals. According to Dr. Colangelo, professionals and other high-achieving individuals like Petitioner often have difficulty accepting that they must submit to the whole program for recovery from alcoholism but once they do, they recover at a higher than average rate. In Dr. Colangelo's opinion, Petitioner has demonstrated conduct which gives him a better than average prospect for continued sobriety. Dr. Colangelo opined that Petitioner's current employment in a tertiary care facility, the Guthrie Clinic, coupled with the management of the ongoing licensure proceedings in Florida, provide Petitioner with as much environmental stress as he has ever experienced, but the existence of environmental stress does not play a significant role in Petitioner's continued sobriety. Dr. Colangelo perceived Petitioner as a person of truth and veracity. Petitioner is currently employed by the Guthrie Healthcare System, a multi-specialty private medical practice clinic employing approximately 110 physicians in non-surgical areas of medicine. Petitioner is responsible for the initial evaluation of nonsurgical patients. It is within his job duties to determine the type of medical care to be provided to each nonsurgical patient entering the clinic. In that position, he sometimes provides all primary care to the patient or directs the patient to the appropriate subspecialist. Apart from the four days in 1990, Petitioner has been continuously sober for five and one-half years. That 1990 four day relapse did not detrimentally affect his patient care. At that time, Petitioner contacted Florida's PRN. He has maintained contact with Dr. Goetz ever since. According to Dr. Colangelo and Dr. Goetz, two years of continuous sobriety is a benchmark most professional associations accept for granting a license or privilege. The American Board of Internal Medicine uses such a two year benchmark. Petitioner has met all credentialing requirements to obtain certification by the American Board of Internal Medicine. Dr. Ferrol Lee currently is responsible for the nonsurgical quality of medicine at Guthrie, with overall supervision of the 110 physicians employed there, including Petitioner. He has worked with Petitioner both during Petitioner's residency at Robert Packer and during his current employment. He views Petitioner as a hard worker whose personal struggle with alcoholism gives him valuable insight into the care of patients who struggle with similar problems. He ranks Petitioner within the top 5-10 residents of the 100 he has worked with over the past nine years. Dr. Lee testified that Petitioner has continually demonstrated good moral character and has a flawless reputation for truth and veracity. Dr. Lee endorses Petitioner's licensure in Florida. The State of Pennsylvania has never taken disciplinary action against Respondent's license to practice medicine in that state.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered certifying Petitioner for licensure with placement of Petitioner on probation for five years subject to his entering into and abiding by a contract acceptable to the Physicians Recovery Network. RECOMMENDED this 20th day of April, 1993, 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 20th day of April, 1993.
Findings Of Fact On April 30, 1985, Petitioner filed an application for employment as a clinical laboratory technician with Indian River County, Florida and in support of that application presented a temporary license from Respondent authorizing Petitioner to work in the capacity of a clinical laboratory technician until the receipt of the April 27, 1985examination results but no later than December, 1985. The license provided that failure to appear to take the April 27, 1985 examination invalidated the temporary license. On April 30, 1985, Petitioner filed an application with Respondent for licensure as a clinical laboratory-technician. Prior to April 30, 1985, Petitioner had not filed an application for licensure as a clinical laboratory technician with Respondent. He did not take the April 27, 1985 examination. On May 2, 1985, Doris E. Roy, an employee of Indian River County, mailed a copy of the temporary license presented by Petitioner to the Respondent as a result of a telephone conversation with Nancy Chapman, an employee of Respondent. Prior to making application for employment with Indian River County, Petitioner had worked as a clinical laboratory technician with Insta Med Clinic, Inc. from June, 1984 to April, 1985 and had taken laboratory training as a clinical laboratory technician at University Community Hospital, Tamarac, Florida from September, 1982 until May, 1983. The temporary license presented by Petitioner to Indian River County had been altered to show Petitioner as the temporary licensee but the evidence was insufficient to prove that Petitioner had in any way altered the temporary license. Petitioner's testimony that he received the temporary license through the corporate office of his previous employee, Insta Med Clinic, Inc. is believable, but his testimony that he had no knowledge of, or any reason to believe that, the temporary license was anything other than genuine prior to presenting it to Indian River County on April 30, 1985 is not credible. This is based on the following considerations: Particularly when you consider: (a) Petitioner's completion of required laboratory training wherein individuals are trained to meet the requirements for licensure as a clinical laboratory technician in Florida; (b) Petitioner's knowledge of the language in the temporary license indicating that Petitioner's application had been reviewed when, in fact, Petitioner had never submitted an application: (c) the statutory language requiring the application to be under oath which puts Petitioner on notice that he must fill out the application personally and not rely on someone else to file his application; and, (d) Petitioner's failure to take the April 27, 1985 examination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent, Department of Health and Rehabilitative Services enter a final order DENYING Petitioner's application for licensure as a clinical laboratory technician. Respectfully submitted and entered this 1st of November, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 1st day of November, 1985. COPIES FURNISHED: K. C. Collette, Esq. HRS District Nine Legal Counsel 111 Georgia Avenue, 3rd Floor West Palm Beach, FL 33401 Mr. Richard J. Strang 8775 20th Street, No. 157 Vero Beach, FL 32960 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32301 ================================================================ =
The Issue Whether Respondent, a medical doctor, in his treatment of Patient M.A., failed to keep legible medical records in violation of section 458.331(1)(m), Florida Statutes (2007); prescribed or administered inappropriate or excessive quantities of controlled substances in violation of section 458.331(1)(q), Florida Statutes (2007); committed medical malpractice by practicing below the standard of care in violation of section 458.331(1)(t), Florida Statutes (2007); failed to perform a statutory or legal obligation placed upon a licensed physician in violation of section 458.331(1)(g), Florida Statutes (2007); and violated any provision of chapter 458 or chapter 456, or any rules adopted pursuant thereto in violation of section 458.331(1)(nn), Florida Statutes (2007), as Petitioner alleges in the Third Amended Administrative Complaint; if so, whether (and what) disciplinary measures should be imposed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order: Finding that Paul M. Goldberg, M.D., violated sections 458.331(1)(g) and (nn), Florida Statutes, as charged in Counts IV and V of the Complaint; Dismissing Counts I-III of the Complaint; Imposing $20,000 in administrative fines; issuing a reprimand against Dr. Goldberg's medical license; requiring Dr. Goldberg to complete the "Laws and Rules" Course; suspending Dr. Goldberg's medical license until such time as Dr. Goldberg undergoes a "UF CARES" evaluation; and placing Dr. Goldberg's license on probation for three years under indirect supervision with 100 percent chart review of cosmetic surgery patients and 25 percent chart review of all other patients. DONE AND ENTERED this 4th day of March, 2015, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2015.
The Issue The issue in these two consolidated cases is whether disciplinary action should be taken against Luis J. Marti, M. D., hereinafter referred to as "Respondent Marti," and/or Jesus Escar, M.D., hereinafter referred to as "Respondent Escar," based upon the alleged violations of Chapter 458, Florida Statutes, contained in the separate Administrative Complaints filed against each of the Respondents.
Findings Of Fact Based on the stipulations of the parties; on the testimony of the witnesses, and on the exhibits received in evidence at the hearing; I make the following findings of fact. Respondent Escar is, and has been at all times material hereto, a licensed physician in the state of Florida, having been issued license number ME 0034247. Respondent Escar's last known address is 935 West 49th Street, Suite #107, Hialeah; Florida 33012. Respondent Marti is, and has been at all times material hereto, a licensed physician in the state of Florida, having been issued license number ME 0034842. Respondent Marti's last known address is 24355 West Flagler Street, Miami, Florida 33125. Respondent Marti went to medical school in Madrid, Spain. In approximately 1970, while Respondent Marti was in medical school in Madrid, Spain, Respondent Marti met Jose A. Tudela for the first time. At the time, Tudela had come to Madrid, Spain, for the purposes of starting medical school. In approximately 1975, while Respondent Marti was working as a resident at Cedars of Lebanon Hospital, Respondent Marti again saw Jose A. Tudela. At about the same time, Respondent Escar met Tudela for the first time. Tudela's father, Francisco Tudela, a physician, was an attending physician at Cedars of Lebanon Hospital. Respondents Marti and Escar saw Jose and Francisco Tudela in 1975 while on rounds at the hospital. In 1979, while Respondents Marti and Escar were working at Palm Springs General Hospital, Jose A. Tudela came to the hospital to apply for a position as a house physician and saw Respondents Escar and Marti. When Tudela applied for the position of house physician at Palm Springs General Hospital, Respondents Marti and Escar were both residents at the hospital. On the day that Jose A. Tudela came to apply for the position of house physician at Palm Springs General Hospital, Tudela came to the doctors' lounge at the hospital where he spoke with Respondents Escar and Marti. Tudela had with him a diploma which appeared to Respondents Escar and Marti to be authentic and which appeared to have been issued by the Universidad Central del Este. The diploma had on the back what appeared to be official stamps and seals and the signature of the Vice Consul of the United States. Additionally, a translation of the diploma was attached to the diploma. On the date that Tudela came to apply for the position of house physician at Palm Springs General Hospital, Tudela also showed Respondents Escar and Marti what appeared to be a transcript of his grades from the Universidad Central del Este and a letter purportedly from one Victoria Marcial de Gomez. The transcript and letter appeared to Respondents Escar and Marti to be original and authentic. The letter from Gomez, who purportedly was the medical director for the health center of Trujillo Alto Health Department, in the associated Free State of Puerto Rico, appeared to verify the fact that Dr. Jose A. Tudela had worked in the Health Center of Trujillo Alto for seven months. When Respondent Marti reviewed Tudela's documents, he knew it was important that foreign papers be certified because he had had the experience of having to leave Cuba and re-establish himself. Respondent Marti's own diplomas from Spain bear attestations of notarization of a foreign government. Respondent Escar believed that Tudela's documents were originals because of his experience in having seen similar original documents of other residents in the past. On or about August 1, 1979, Jose A. Tudela completed an application for employment as a house physician at Palm Springs General Hospital. The application contained basic personal information about Tudela and listed some of Tudela's education and work experience. According to the application, Tudela went to Belle Glade High School, in Belle Glade; Florida; Warwick High School, in Newport News, Virginia, where he graduated in 1965; and the University of Miami; in Coral Gables, Florida where he graduated in 1970. According to the application, Tudela worked in an unspecified capacity in the Centro de Salud, in Trujillo Alto, Puerto Rico, from 1978 to 1979. The application form does not contain any information about Tudela's medical education. Specifically, it does not contain any mention of University of Santo Domingo, Universidad Central del Este, or U.C.E. On or about August 8, 1979, Jose A. Tudela was employed by Palm Springs General Hospital as a house physician. Jose A. Tudela remained at Palm Springs General Hospital as a house physician until October 29, 1979. Tudela left Palm Springs General Hospital on that date to become a surgical assistant at Miami Children's Hospital. While employed a Miami Children's Hospital, Tudela received the highest score on every item on his employee evaluation form. That hospital never knew of any problem with Tudela's performance or credentials until this case occurred. Between approximately 1979 and 1983, Respondents Escar and Marti practiced medicine together as partners. In 1980, Jose A. Tudela approached Respondent Marti and asked Respondent Marti to sign an affidavit on behalf of Tudela. Therefore, on or about March 13, 1980, Respondent Marti signed a Form B-1 which was addressed to Rafael A. Penalver, M.D., Director, Office of International Medical Education, University of Miami School of Medicine; Miami; Florida. The form B-1 contained the following sworn statement: This is to certify that Jose A. Tudela born in Cuba and a graduate from the University Santo Domingo on 1978 was legally engaged in the practice of medicine from ---- to in Puerto Rico. I have known the applicant since 1975 and was acquainted with him/her during the time he practiced medicine. I was algo (sic) engaged in the practice of medicine in Miami U.S.A. during the years of 1975 and up. At some time after Respondent Marti signed the Form B-1, the abbreviation "(U.C.E.)" was added to the above-referenced sworn statement after the school name, "University Santo Domingo." Respondent Marti did not place the quoted abbreviation on the Form B-1. Prior to signing the subject Form B-1, Respondent Marti reviewed, for verification purposes, the employment application of Jose A. Tudela for Tudela's employment as a house physician at Palm Springs General Hospital. However, the employment application in question does not reflect any attendance by Tudela at any educational institution in the Dominican Republic or Santo Domingo. Furthermore, the employment application does not indicate the capacity in which Tudela worked in the Centro Salud in Trujillo Alto, Puerto Rico, and does not specifically indicate that Tudela practiced medicine in Puerto Rico. In 1980, Jose A. Tudela also approached Respondent Escar and asked Respondent Escar to sign an affidavit for him. Therefore, on or about March 13, 1980, Respondent Escar signed a Form B-1 which contained the following sworn statement: This is to certify that Jose A. Tudela born in Cuba and a graduate from the University of Santo Domingo on 1978 was legally engaged in the practice of medicine from ---- to in Puerto Rico. I have known the applicant since 1970 and was acquainted with him/her during the time he practiced medicine. I was algo (sic) engaged in the practice of medicine in Miami, Fla during the years of 1977 and up. The Form B-1 was addressed to Rafael A. Penalver, M.D., Director; Office of International Medical Education, University of Miami School of Medicine, Miami, Florida. At some time after Respondent Escar signed the Form B-1, the abbreviation "(U.C.E.)" was added to the above-referenced sworn statement after the school name, "University of Santo Domingo." Respondent Escar did not place the quoted abbreviation on the Form B-1. Respondent Escar relied upon Respondent Marti's verification of Tudela's background information in signing the Form B-1 described in the immediately preceding paragraph. Respondent Escar did not personally review Tudela's application for employment at Palm Springs General Hospital but discussed the information contained in the employment application with Respondent Marti. At the time Respondents Marti and Escar signed the Forms B-1, they did not know Tudela very well and did not know very much about his background. Although they both thought Tudela was probably a graduate of a medical school, they did not remember what school he had supposedly graduated from, as evidenced by the fact that they put the wrong school name on the Forms B- 1. Both Respondent Escar and Respondent Marti lacked personal knowledge of the information contained in the Forms B-1 which they signed for Jose A. Tudela. Neither of the Respondents saw or taught Tudela at medical school in the Dominican Republic. Furthermore, neither Respondent Escar nor Respondent Marti was in Puerto Rico at the time Jose A. Tudela allegedly practiced medicine at the Centro Salud in Trujillo Alto, Puerto Rico. Neither of the Respondents had any source of information about Tudela's alleged medical education in the Dominican Republic or his alleged practice of medicine in Puerto Rico other than statements Tudela may have made to them, statements Tudela wrote on the application form at Palm Springs General Hospital, and whatever information could be gleaned from a casual review of Tudela's forged credentials. Jose A. Tudela has never graduated from the Universidad Central del Este, which is located in the Dominican Republic, nor from any other medical school. Tudela enrolled in the Universidad Central del Este (U.C.E.) medical school in August, 1977. There is no evidence in the school records for U.C.E. that Tudela passed any of his courses. In May of 1978 Tudela was no longer at the university. Tudela was given a special concession at U.C.E. so that upon presentation of a pre-medical certificate which Tudela claimed to possess, Tudela could receive credit for the pre-medical program training. However, Tudela never presented the required proof of his pre-medical program. Tudela did not complete any of the twelve semesters at U.C.E. which make up the medical degree program including pre-medical training. Although Respondent Marti first met Tudela in 1970 and Respondent Escar met him in 1975, the Form B-1 signed by Respondent Marti states that he met Tudela in 1975, and the one signed by Respondent Escar states that he met Tudela in 1970. The reason for this error is that both of the forms were prepared by Respondent Marti and the forms were inadvertently switched at the time they were signed. The Forms B-1 signed by Respondents Marti and Escar were submitted to the Board of Medical Examiners by Jose A. Tudela as attachments to an Application for Continuing Medical Education Program, which was submitted as part of Tudela's application for licensure as a physician in Florida. Tudela applied for licensure in Florida under the provisions of a special law which provided that the Board of Medical Examiners would establish continuing education courses designed to qualify for licensure those individuals who were resident nationals of the Republic of Cuba and were residents of Florida on July 1, 1977. In order to qualify for the continuing education program set up by the Board of Medical Examiners for Cuban nationals, an applicant had to demonstrate that he was a graduate from a medical school with a medical degree and that he was a resident national of the Republic of Cuba and a resident of Florida on July 1, 1977. Upon approval of the applicant to participate in the continuing education program set up by the Board of Medical Examiners, the applicant would have to complete the continuing education program. Upon completion of the continuing education program, the applicant would be qualified to take the licensing examination. In or about March of 1980, Tudela submitted an Application for Examination, an Application for Florida State Board of Medical Examiners Continuing Education Program, and the necessary attachments, which included the Forms B-1 signed by Respondents Escar and Marti and copies of what purported to be his diploma and transcript of grades. After successfully completing the continuing medical education program and the licensure examination, Tudela became certified to practice medicine and surgery by the Board of Medical Examiners on August 23, 1982. At the time of Tudela's application for medical license, the staff of the Board of Medical Examiners conducted the initial review and made the initial determination as to whether an individual was qualified to take the continuing education course and to take the licensure examination for certification to practice medicine and surgery in Florida. In making such determinations, consideration is given to all of the information contained in an applicant's file, which includes such things as the applicant's degree or diploma, transcript of grades, and the Forms B-1. At the time Tudela applied for licensure, the staff of the Board of Medical Examiners did not verify the medical education of applicants and conducted no investigation into the school or the graduation of applicants for licensure. Prior to approving Tudela's application, neither the Board members nor the staff independently contacted the Universidad Central del Este to verify whether Tudela actually graduated from medical school. The Board members did not personally review Tudela's application. The staff reviewed the papers and presented the Board with a list of applicants who appeared to be eligible for the continuing education course and the licensure examination. The diploma and the transcript of grades which Tudela showed to the Respondents and filed with the Board of Medical Examiners are forgeries. They are very good forgeries and bear a remarkable resemblance to genuine diplomas and transcripts issued by the Universidad Central del Este. The false documents provided by Tudela to the Board as part of his application, along with the Forms B-1 signed by Respondents Marti and Escar, deceived the staff into recommending Tudela for the continuing education course, the licensure exam, and ultimately for certification to practice medicine. Tudela's application to the Board also contains several letters of recommendation from other physicians who were convinced of Tudela's competence. The Educational Commission for Foreign Medical Graduates granted Tudela a certificate despite his forged documents. In November 1984, an Administrative Complaint was filed against Jose A. Tudela which alleged that Tudela did not graduate from or obtain a degree of Doctor of Medicine from U.C.E., contrary to what Tudela had indicated in his application for licensure examination described above. In March 1985, the Board of Medical Examiners entered an order accepting the surrender for revocation of Jose A. Tudela's license to practice medicine in lieu of further prosecution of the charges contained in the Administrative Complaint which had been filed in November 1984. Tudela is not currently licensed as a physician in the state of Florida. No further action was taken against him for his having fraudulently obtained a medical license in Florida. Respondents Escar and Marti were both aware of the fact that the Forms B-1 which they signed were to be submitted as part of the application for the continuing medical education program which had been established by the Board of Medical Examiners for Cuban nationals as a prerequisite to take the licensure examination. In fact; Respondent Marti became eligible to take the medical licensure examination in Florida by completing the same continuing medical education program. When the Respondents Escar and Marti signed the subject Forms B-1, neither of them had any personal knowledge as to the truth or falsity of the statements therein regarding Tudela's medical education and experience; yet they deliberately certified, under oath, to the truthfulness of matters about which they were distinctly uninformed. When the Respondents Escar and Marti signed the subject Forms B-1, both of them knew the purpose of the forms and both knew that the Board of Medical Examiners would rely on the information in the forms.
