Findings Of Fact Respondent graduated from the University of Havana Medical School in 1951 and practiced medicine in Cuba from that time until he immigrated to the United States in 1960. In Cuba his practice was primarily in the fields of obstetrics and gynecology. In his application dated 9 February 1975 to take the Florida Medical Examination, Respondent listed work at Hudson County Hospital for Mental Diseases (New Jersey) in 1960, work for the American Plasma Company (Miami) from 1965 to 1968, work at the Opa Locka General Hospital from 1967 to 1970, and that he was presently working as assistant doctor at 620 Southwest 1st Street, Miami. Prior to commencing this work at the Southwest Medical Clinic he contacted Physicians's Association of Clinics, Hospitals and Annex (PACHA), an organization which helps Cuban doctors obtain Florida licenses, and was told he could work at the clinic under Dr. Tomas and should register with the Board of Medical Examiners. Respondent registered with the Florida State Board of Medical Examiners as an unlicensed physician in two undated registrations, copies of which were admitted into evidence as Exhibit 5. In the earlier registration he states he is not a naturalized citizen and in the later application he states he is a naturalized citizen, although the year of naturalization is not shown. Anne West, who was apparently running an abortion referral service, called the State's Attorneys office in Miami on behalf of Respondent and was told Respondent could work at the clinic under a licensed doctor. She subsequently became Mrs. Bulas. Respondent testified he commenced doing medical work in the Miami area in 1975 when he became associated with and worked under the supervision of Kamel Tomas, M.D. in a clinic located at 620 Southwest 1st Street, Miami. He subsequently worked at this clinic under the supervision of two other licensed doctors whose names are Hernandez and Martin. In 1976 Respondent successfully passed the Florida Medical Examination and was licensed in July 1976. While working at the clinic on Southwest 1st Street Respondent performed several abortions. In an 18-count Information filed 23 March 1978 (Exhibit 1) for the period 1 May 1975 through 5 March 1976 Respondent was charged with 11 counts of unlawful practice of medicine, 6 counts of larceny and one count of unlawful termination of pregnancy. At his trial and upon the advice of counsel he pleaded nolo contendere, was found guilty of 10 counts of unlawful practice of medicine, six counts of grand larceny and one count of unlawful termination of pregnancy, and Adjudication of Guilt was withheld (Exhibit 2). Most of these charges alleged felonies. In Exhibit 3 the court stayed imposition of sentence and placed Respondent on probation for 5 years with a condition of probation that he be confined in the Dade County Jail for a term of one year. From reading the counts of the Information, as well as from the testimony of Respondent, it is clear that the larcenies alleged resulted from the fees charged by the clinic to those patients treated by Respondent, which formed the bases for the unlawful practice of medicine counts. The information alleging unlawful termination of pregnancy was based upon the performance of an abortion by Respondent while not licensed in Florida. The testimony was unrebutted that numerous clinics in Miami employ Cuban doctors who are unlicensed in Florida. In a class conducted at Jackson Memorial Hospital to prepare former Cuban doctors for the Florida examination there were about 460 in the class attended by Respondent, most of whom worked in clinics in Miami. At the time Respondent worked at the clinic he believed that so long as he was under a licensed doctor the medical work he performed was lawful. However, Respondent was not under the direct supervision of the licensed doctor as each was working on a different patient in separate examining rooms at the same time. No evidence was presented to indicate Respondent was not fully qualified by training and experience to perform the medical practices that he performed prior to receipt of his Florida license.
Findings Of Fact Laura Drinkwater, Respondent, was employed as a LPN by the Bond Clinic in Winter Haven, Florida in 1973 and has worked continuously at the Clinic since that time. At all times here relevant she assisted Dr. Erde, who specializes in obstetrics and gynecology. Respondent renewed her license annually from 1973 through 1976 but neglected to forward her renewal application to Petitioner in time for renewal prior to April 1, 1977. Respondent continued to be carried on the records of the Clinic as a LPN after 1 April 1977 and to perform the same duties she performed prior to 1 April 1977. On 18 October 1977 the Board of Nursing contacted the executive Director of Bond Clinic, learned that Respondent was still employed there, and advised the Executive Director (by phone) that Respondent could not continue to work as a LPN without a current license. Respondent submitted the application for renewal of her license bearing date of 6-2-77 which was received by the Board of Nursing on 31 October 1977 (Exhibit 2). By letter dated November 21, 1977 (Exhibit 1) to Respondent at an Alabama address, which had not been Respondent's address registered with the Board for several years, the Board advised Respondent that her reregistration was being denied because she had been working without a license and she could request a hearing on this denial of reregistration. This letter was never received by Respondent, nor was it returned to the Board. The Board instituted criminal proceedings, through the State's Attorney's office, against Respondent on charges stemming from her continuing to work as a LPN subsequent to the expiration of her license. This resulted in a trial at which Respondent was acquitted on 1 May 1978. On 11 May 1978 Respondent again requested reregistration as a LPN with the Board which was denied by Board's letter dated May 19, 1978 (Exhibit 3). Thereafter by letter dated May 26, 1978 Respondent requested an administrative hearing, the Administrative Complaint was filed and these proceedings followed. Upon receipt of information from the Board that Respondent was no longer licensed, the Executive Director of Bond Clinic contacted the Executive Director, Florida Board of Medical Examiners, who advised him that so long as Respondent was working under the supervision of a doctor at the Clinic she could, in his opinion, legally perform any medical task assigned by this doctor. Upon advice of counsel the Executive Director advised Respondent to remove indicia of LPN (cap, pin, etc.) and to cease giving injections to patients. Respondent gave no injections from 18 October 1977 until her acquittal in the criminal proceedings on 1 May 1978. Since Respondent had not worn the indicia of LPN before her license expired, no change in this regard was required. After 18 October 1977 Respondent's title was changed from LPN to Medical Assistant. Respondent was advised by her employer that she could continue her duties as an unlicensed assistant to the doctor, perform all duties previously performed except give injections, and after her acquittal on 1 May 1978 Respondent was authorized to resume giving injections. Several witnesses testified without objection regarding their interpretation of the Medical Practices Act, Chapter 458, Florida Statutes. Such "evidence" is disregarded as invading the province of this tribunal. All testimony of this nature purporting to show the practices of the profession is, of course, admitted. While Exhibit 5 purported to express the opinion of the Florida Board of Medical Examiners that "a licensed M.D. may employ any person to assist him in his office and in his medical practice and he may delegate to this employee any tasks which he feels are commensurate with that employee aptitude, proficiency and demonstrated abilities," the author of that opinion retracted the broad implications of the statement under cross-examination. Many unlicensed individuals are employed by medical doctors as their assistants and are given some training by these doctors. Some obviously receive more training than others and, regardless of the legality of the practice, many of these doctors assign tasks to these unlicensed employees that constitute the practice of nursing. The prevailing concept in this regard is expressed in th ultimate sentence of Exhibit 5 that "Otherwise, there is nothing in the laws pertaining to the practice of medicine which prevents any licensed physician from hiring anyone whom he chooses to perform any tasks in his office which he so designates or delegates to these employees." Unlicensed employees are normally paid lower wages than are licensed personnel and approximately one-third to one-half of the employees in doctors' offices and clinics are unlicensed.
The Issue The ultimate issues for determination are whether Respondent violated Section 458.331(1)(f) and (w), Florida Statutes (2000), by allowing or directing a nurse to fill out two separate written prescriptions for Keflex and Vicodin and to sign Respondent's name and the nurse's initials on each prescription; and, if so, what penalty, if any, should be imposed against Respondent's license to practice medicine. (All chapter and section references are to Florida Statutes (2000) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of medicine in Florida pursuant to Sections 20.165 and 20.43 and Chapters 455 and 458. Respondent is licensed as a medical physician in Florida pursuant to license number ME0054804. Respondent has been a board-certified plastic surgeon since 1992. After graduating from the University of Virginia Medical School in 1983, Respondent completed a three-year residency in general surgery at the University of Alabama, a two-year residency in plastic surgery at the University of Tennessee, and a one-year fellowship in breast reconstructive surgery at Vanderbilt University. Respondent completed his fellowship at Vanderbilt University in 1989 and began the private practice of medicine in the same year as a plastic surgeon in West Palm Beach, Florida. In 1997, Respondent moved to Naples, Florida, and joined the practice of Dr. Richard Maloney. Dr. Maloney operates a freestanding facility for plastic surgery known as the Aesthetic Surgery Center (the "Center"). Dr. Maloney has exclusive authority over the daily operation and policy of the Center. Respondent has authority over the medical care of Respondent's individual patients. On or about July 8, 1998, Ms. Deborah Puhl, LPN, was a nurse at the Center. Nurse Puhl completed two written prescriptions for patient C.R. and signed Respondent's name to each prescription. Nurse Puhl wrote her initials beside the signature of Respondent's name on each prescription. One of the written prescriptions was a prescription for Keflex 500 mg. The other written prescription was for Vicodin 7.5 mg. Keflex is an antibiotic. Vicodin is the brand name for hydrocodone bitartrate. Hydrocodone bitartrate is an opiod analgesic similar to codeine and a controlled substance within the meaning of Chapter 893. When C.R. presented the two prescriptions to a pharmacist on duty at a local K-Mart, the pharmacist filled the written prescription for Keflex but correctly determined that the pharmacist has no legal authority to fill a written prescription for a controlled substance unless the prescription is signed by the physician. The pharmacist never filled the written prescription for Vicodin that was signed by Nurse Puhl. The pharmacist telephoned the Center and verified the written prescription for Vicodin with a nurse at the Center. Once verified by telephone, the Pharmacist determined that there was a valid verbal prescription for Vicodin, and the pharmacist filled the verbal prescription for Vicodin. The pharmacy then filed a complaint with Petitioner complaining of the procedure at the Center that allowed nurses to sign written prescriptions for a controlled substance. Petitioner investigated the complaint and determined there was probable cause to bring this action. By letter dated October 28, 1998, Petitioner notified the Center that it was illegal for nurses to sign written prescriptions. Dr. Maloney immediately terminated the office procedure. Neither Dr. Maloney, Nurse Puhl, nor Respondent had actual knowledge prior to the letter from Petitioner that a pharmacist has no legal authority to fill a written prescription for a controlled substance unless the prescription is signed by the prescribing practitioner. Petitioner argues in this case that Respondent violated an express provision in Section 893.04(1)(b). Petitioner construes the requirement in Section 893.04(1)(b) for a physician to sign a written prescription for a controlled substance as being enforceable against the physician. For reasons discussed more fully in the Conclusions of Law, Petitioner's statutory construction of Section 893.04(1)(b) may be misplaced. Even if Petitioner's statutory construction of Section 893.04(1)(b) were correct, Petitioner did not charge in the Administrative Complaint that Respondent violated Section 893.04(1)(b). Petitioner expressly limited the Administrative Complaint to allegations that Respondent violated Section 458.331(1)(f) and (w). Petitioner cited no legal authority at the hearing or in its PRO that authorizes Petitioner to prove that Respondent is guilty of charges that are not alleged in the Administrative Complaint. For reasons stated more fully in the Conclusions of Law, such a procedure would clearly violate fundamental principles of due process, deprive Respondent of adequate notice of the charges against him, and deprive Respondent of a fair opportunity to prepare a defense to allegations not included in the Administrative Complaint. Thus, matters relevant to the allegation that Respondent violated Section 893.04(1)(b) are beyond the scope of the Administrative Complaint and irrelevant to the allegations in the Administrative Complaint that Respondent violated Section 458.331(1)(f) and (w). Section 458.331(1)(f) and (w) contains no express requirement for written prescriptions to be signed a physician or prescribing practitioner. In relevant part, Section 458.331(1) prohibits a physician from: (f) Aiding, assisting, procuring, or advising any unlicensed person to practice medicine contrary to this chapter or to a rule of the department or board. (emphasis supplied) * * * (w) Delegating professional responsibilities to a person when the licensee delegating such responsibilities knows or has reason to know that such person is not qualified by training, experience, or licensure to perform them. Petitioner cited no provision in Chapter 458 or in any rule promulgated pursuant to Chapter 458 that expressly makes the signature of a nurse on a written prescription a violation of either Section 458.331(f) or (w). A determination of whether a nurse's signature on a written prescription violates either Section 458.331(f) or (w), or both, must be made based on all of the surrounding facts and circumstances established by clear and convincing evidence. Nurse Puhl's signature on the written prescription for Keflex did not violate either Section 458.331(1)(f) or (w). The procedure used for the Keflex prescription involved neither the practice of medicine nor the performance of any professional responsibilities by an unqualified person. In response to questions about a nurse calling in a prescription for Keflex, Respondent's expert explained: . . . I would say, [Nurse] Penny, would you please call in a prescription for Keflex 500 milligrams 14, directions take one twice a day and start the day before surgery . . . . Q. . . . you are not delegating to her any medical judgment? . . . . A. I'm simply using her as an extended agent of myself for the patient's benefit. Respondent's Exhibit 1, at 24-25. The substance of the testimony of the pharmacist called as a witness by Petitioner was consistent with the testimony of Petitioner's expert. The pharmacist determined that he was authorized to fill a written prescription for Keflex that was signed by a nurse. The signature of Nurse Puhl on the written prescription for Vicodin involved neither the practice of medicine nor the performance of any professional responsibilities within the meaning of Section 458.331(1)(f) or (w). Respondent did not delegate to Nurse Puhl any medical discretion concerning the care of Respondent's patient. Nor did Respondent aid, assist, procure, or advise Nurse Puhl in the exercise of any medical discretion or similar professional responsibility concerning the care of Respondent's patient. Respondent alone determined the type of medication, dosage, administration, strength, and other particulars of the prescription for Vicodin. Nurse Puhl merely acted as an "extended agent" or scribe for Respondent. The testimony of Respondent's expert elucidates the issue of whether a nurse practices medicine or performs professional responsibilities when she effectuates a physician's orders. Respondent's expert explained, in relevant part: Q. And you don't give your nurse the option of what kind of medication to prescribe or the dosage or how often it should be taken, do you? A. . . . here's where the rub is, if there is anything to do with narcotics . . ., it's been my understanding that I need to write a prescription for it. And in fact when I've called to the pharmacy, for example, for Percocet, I have been told by the pharmacist that I cannot prescribe this over the phone and that there has to be a written prescription from me for the patient. That's the pharmacists that are here and that has been my experience here. . . . (emphasis supplied) * * * . . . with anything that I'm asking my nurse to do, it's something that I've thought through that is my responsibility that I have asked her simply as a convenience to take care of as an agent for me, as a go- between for me that I'm not asking her to think about. Respondent's Exhibit 1, at 25-26. The prescriptions for Keflex and Vicodin were part of the routine standing orders in place at the Center. They were written on preprinted prescription forms. There was no opportunity for Nurse Puhl to change either prescription. Respondent did not direct or allow Nurse Puhl to sign his name to the written prescriptions for Keflex and Vicodin. Nurse Puhl signed Respondent's name to the written prescriptions pursuant to the direction of Dr. Maloney. Dr. Maloney had exclusive authority to direct matters concerning office procedure. The signature of written prescriptions by nurses was part of the office procedure at the Center and within the sole and exclusive authority of Dr. Maloney. The signature of written prescriptions was not a matter of patient care over which Respondent had exclusive authority. The signature of Nurse Puhl on the written prescription for Vicodin caused no harm to the public. The pharmacist did not fill the written prescription. The amount of Vicodin prescribed in both the written and verbal prescriptions was a reasonable post-surgical prescription for pain. Pain management is part of all medical practices, including plastic surgery. Petitioner has no prior disciplinary history.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding that Respondent is not guilty of violating Section 458.331(1)(f) and (w) and dismissing the Administrative Complaint. DONE AND ENTERED this 27th day of February, 2001, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2001. COPIES FURNISHED: Ephraim D. Livingston, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Bruce M. Stanley, Esquire Henderson, Franklin, Starnes & Holt Post Office Box 280 Fort Myers, Florida 33902 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, A02 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, A02 Tallahassee, Florida 32399-1701
The Issue Whether Petitioner is entitled to temporary licensure as a physician assistant pending her successful completion of the licensure examination.
Findings Of Fact Petitioner is an applicant to sit for the examination for licensure as a physician assistant in Florida. Petitioner was found by Respondent to be eligible to sit for the licensure examination. Petitioner also requested a temporary certificate as a physician assistant, which request was denied by the Respondent. In requesting temporary certification, Petitioner relies on the provisions of Section 458.347(7)(b), Florida Statutes, which provide, in pertinent part, as follows: (b)1. . . . [T]he department shall examine each applicant who the board certifies: Has completed the application form ... Is an unlicensed physician who graduated from a foreign medical school listed with the World Health Organization .. Has applied for certification as a physician assistant in this state between July 1, 1990, and June 30, 1991. Was a resident of this state on July 1, 1990. . . The board may grant temporary certification to an applicant who meets the requirements of subparagraph 1. Petitioner's application to sit for the examination for licensure as a physician assistant was granted by an Order entered by the Board of Medicine on March 12, 1992. The Order also denied her request for temporary certification because she had not recently worked in the field of medicine and because she had not received significant continuing education in the interim. The Board determined that Petitioner had not established her ability to currently practice as a physician assistant with reasonable skill and safety to the public. The Board determined that Petitioner could establish that ability by passing the licensure examination. Petitioner graduated from medical school in Ecuador in December 1975. Between March 1976 and April 1980, she was in medical residency in Ecuador. She has not practiced medicine since April 30, 1980, when she moved from Ecuador to the United States. Physician assistants in Florida work under the supervision of a supervising physician. A physician assistant is permitted to examine patients, to diagnose conditions, and to prescribe treatment plans. Because of the rapid changes that occur in the field of medicine, the current ability to practice as a physician assistant should be demonstrated. The applicant can demonstrate that current ability through recent practice, through recent education, or through examination. Petitioner's testimony and the documentary evidence she presented at the formal hearing fail to establish that she is currently able to practice as a physician assistant with reasonable skill and safety to the public. She has not practiced medicine since 1980. Her participation in a program at the University of Miami School of Medicine in December 1991 and her volunteer work for Dr. Rodolfo Binker from August 1991 to November 1991, do not establish her current ability. The evidence offered by Petitioner as to continuing medical education likewise fail to establish her current ability. Both the quality and the quantity of her continuing education fail to meet the level of continuing education required of physician assistants.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's application for temporary certification as a physician assistant. DONE AND ORDERED this 28th day of July, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 28th day of July, 1993. COPIES FURNISHED: John H. Duhig, Esquire 702 National Bank Building 25 West Flagler Street Miami, Florida 33130-1770 Allen R. Grossman, Esquire Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth, Executive Director Department of Professional Regulation Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Louis John Tsavaris should be relicensed to practice medicine in this state.
Findings Of Fact By Final Order entered October 20, 1982, the Florida Board of Medical Examiners revoked Petitioner's license to practice medicine in this state. Although there were numerous charges in the Administrative Complaint and Amended Administrative Complaint upon which the hearing proceeded, the Hearing Officer found, and the Board adopted these findings, that Petitioner herein, Respondent in those proceedings, was guilty of two technical violations of Chapter 458, Florida Statutes, and one serious violation. The technical violations found in those proceedings was: (1) The failure to check one block in his drug authorization renewal application to authorize dispensing Class II drugs, which resulted in Respondent dispensing Class II drugs without proper authorization to do so, although no evidence was presented that any of these drugs were improperly prescribed; and (2) The issuance of a prescription for a Class IV drug in the name of Respondent rather than his office. No evidence was presented at that hearing that Dr. Tsavaris used that drug (Nortec) himself or allowed its misuse by any patient. At this hearing, uncontradicted evidence was presented that the failure to renew his DEA license to prescribe Schedule II drugs was an office oversight, and the one prescription in Petitioner's name was for one Class IV drug to dispense to suicidal patients from the office. The violation of Chapter 458 found by the Hearing Officer and the Board to justify revocation of this Petitioner's license was the conviction of Dr. Tsavaris of the crime of manslaughter which was found by the Hearing Officer to be a violation of Section 458.331(1)(c), Florida Statutes (1980), which proscribes being found guilty of a crime directly relating to the practice of medicine or the ability to practice medicine. Dr. Tsavaris was found guilty in 1981 of gross negligence in the death of a former patient whose apartment he visited in 1975 near midnight in response to her telephone call for help, and he was sentenced to imprisonment for 15 years. Petitioner was incarcerated at the Avon Park Correctional Institute (APCI) and served 2 1/2 years of his sentence before being paroled in July 1984. He is currently on probation until 1997. Petitioner's probationary supervision has been reduced to require him to report to his probation officer only once every six months. Evidence was presented that parolees are usually released from all probation shortly after their reporting interval is changed to six months. Evidence was presented, and unrebutted, that the jury found the cause of death of the victim Petitioner was charged with killing, was not proven. Further, the jury found the lesser included offense of manslaughter based upon Tsavaris' testimony that he had stopped for ice cream in route to the deceased apartment. The jury concluded that had he not stopped, the alleged victim may not have died. The jury found this act to constitute gross negligence under the circumstances. During his stay at APCI, Petitioner participated in a variety of self- help programs aimed at rehabilitation. William Pivnick, Chief of Rehabilitative Services at APCI during the time Petitioner was there, holds a Ph.D. degree in psychology and was accepted as an expert in rehabilitation. Pivnick opined that Petitioner is eminently qualified as a psychiatrist, and to the extent rehabilitation is applicable to the offense of which Petitioner was convicted, that Petitioner was rehabilitated and most unlikely ever to commit a similar offense or be a danger to society. Pivnick also gave Petitioner high marks for his assistance to, and relations with, other prisoners at APCI. When Petitioner was released from APCI in 1984, he was given a job in Tsavaris' Construction Company where he worked for one or two years. Thereafter, he was involved in developing mobile home parks and recently has begun managing a chiropractic office. Petitioner has become involved in a project to resolve questions regarding human longevity and has devoted considerable time to this study. For the past two years, Petitioner spent two or three days per month in a medical clinic in Perry, Florida, observing procedures and discussing these procedures with the clinic's owner and director. The clinical director, Dr. Euliogio Vizarra, at Petitioner's request, arranged for Petitioner to be evaluated by Dr. Paul Leone, forensic psychiatrist at the State Hospital at Chattahoochee, Florida. Objection to the introduction of the report of Dr. Leone of this evaluation was sustained. Petitioner was examined and tested by Dr. Vesley, a retired psychiatrist whose medical license is current. Dr. Vesley found Petitioner to be current in his medical knowledge and capable of practicing medicine with reasonable skill and safety to his patients. Petitioner was given a battery of tests by Dr. Merin, a psychologist who is board-certified in clinical psychology, in professional neuro-psychology, behavioral medicine, and medical psychotherapy. After some five hours of testing plus some 15 hours of additional tests given by others and interpreted by Dr. Merin, Dr. Merin found Petitioner to be very intelligent and fully able to practice medicine with skill and safety to his patients. Dr. Walter Afield is board-certified in adult psychiatry, child psychiatry, and mental health administration; and has been a senior member of the American Board of Psychiatry and Neurology for the past 21 years. Dr. Afield opined that Petitioner is competent and able to practice medicine with safety to patients. If Petitioner's license is restored under the condition he be supervised by another psychiatrist, Dr. Afield would be willing to assume that supervision. With respect to the professional ability of Petitioner to practice psychiatry after a 10 year hiatus, the evidence submitted leads to the conclusion that, although there has been a substantial change in the field of psychiatry, that change has been toward a greater use of chemical treatment with little or no change in analytical techniques. Petitioner's forte while practicing psychiatry was in his treatment of patients by analysis and group therapy. Although a psychiatrist who has not practiced his profession for some 10 years would not be expected to be current on psychotropic drugs presently being used, uncontradicted evidence was presented that a psychiatrist could become current in the use of psychotropic drugs in a two weeks training period. Petitioner testified that he had taken some continuing medical education courses from time to time since his release from prison, but submitted no documented evidence to support this testimony. He did submit evidence of completing 22 CME credits within the past year. Apart from the medical evidence submitted regarding Petitioner's knowledge of his field and his ability to resume practice with skill and safety to patients, several former patients of Petitioner testified to the excellent treatment and help they received from Petitioner and that if his license is restored, they would not hesitate to engage his services, if needed, or refer family members to him for treatment. It has been the practice of the Board of Medicine not to reinstate the license of a physician while the physician is on parole or probation.
Recommendation It is recommended that the license of Louis John Tsavaris as a medical doctor be restored upon the following conditions: That he work under the direct supervision of a psychiatrist acceptable to the Board of Medicine for a period of one year. That Dr. Tsavaris take an intensive course in the use of psychotropic medicine. That for the next two years Dr. Tsavaris complete annually the CME credit hours required by other physicians biannually. ENTERED this 2nd day of July, 1991, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1991. APPENDIX Proposed findings submitted by Petitioner are accepted, except as noted below. Those not included in the Hearing Officer's findings were deemed unnecessary to the results reached. 7. Ultimate sentence rejected. Dr. Leone's report was not admitted into evidence. 16. Rejected as legal conclusion. 27. Rejected as irrelevant. 29. First sentence accepted only as Dr. Tsavaris' testimony. See HO #15. Accepted only as unrebutted testimony of Dr. Tsavaris. Rejected as irrelevant. Proposed findings submitted by Respondent are accepted, except as noted below. Those proposed findings not included in the Hearing Office findings were deemed unnecessary to the results reached. Third sentence rejected. CME courses of approximately 25 hours were documented. Dr. Tsavaris testified he attended other CME courses for which he had no documentation. Sixth sentence rejected as conclusion. Ultimate sentence rejected as conclusion. Ultimate sentence rejected. The court held that evidence was presented to support a finding that Tsavaris accidently strangled the victim and, if so, under the circumstances this would constitute culpable negligence and thereby support the jury's verdict of manslaughter. Rejected as unsupported by credible evidence. First sentence rejected. Tsavaris acknowledges that his judgment was faulty in the acts that led to his conviction of manslaughter. Last two sentences rejected. Although Dr. Tsavaris grew up in Tarpon Springs, he was practicing in Tampa when the incident arose which led to the revocation of his license. COPIES FURNISHED TO: Louis John Tsavaris Post Office Box 733 Tarpon Springs, FL 34689 Ann Cocheu, Esquire Suite 1603, The Capitol Tallahassee, FL 32399-1050 Dorothy Faircloth Executive Director Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Jack McRay General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 =================================================================
Recommendation The recommendations contained in the joint stipulation of the parties are hereby adopted verbatim as follows: Respondent agrees to the terms and conditions for probationary limitations of his licenses under the provisions of Chapter 483, Florida Statutes, in lieu of the revocation of that license. Respondent shall retain his Clinical Laboratory Technologists License in serology, clinical chemistry and hematology. (There was no agreement as to paragraph 3) Respondent shall actively participate in a drug rehabilitation program approved by the Department for a period to be determined by the program selected. Respondent shall ensure that the program submits quarterly reports from the drug program to the Department for the period Respondent is enrolled in the rehabilitation program. The Petitioner shall provide that the reports will be reviewed by the Department and clinical laboratory advisory council. Respondent shall report to the Department representative, in person, for an annual interview for the first two years of the probationary period. The Petitioner may require and request unannounced urine specimens of Respondent during the probationary period for the purpose of drug screening. Respondent or Petitioner shall notify Respondent's current employer, if a clinical laboratory, of the nature of his problem and offense and shall require an annual report of his performance in the laboratory for the duration of the five years probation. Respondent shall advise the Department of any change in employment or address or any additional laboratory employment within 30 days during the five year probationary period. Respondent agrees that non-compliance with the terms of probation will be cause for immediate revocation of his Clinical Laboratory Personnel License. Respondent further agrees that any renewal or reissuance of license will. be taken subject to the terms herein until such terms have been fully satisfied. That the Secretary of the Department of Health and Rehabilitative Services shall enter a final order requiring the probationary limitation of Respondent's Clinical Laboratory Personnel License, incorporating this Joint Stipulation and the Recommended Order entered in this cause." In addition to the recommendations contained in the. Joint Stipulation it is further recommended that Respondent be required to work under direct supervision only in the area of immunohematology (blood banking) until such time as he presents evidence, satisfactory to the Administrator of Laboratory Personnel Licensure, Office of Licensure and Certification, DHRS, that he has successfully completed his present treatment at the Broward Methodone Maintenance Rehabilitation and Research Facility and the Christian Mental Health Clinic or in the al alternative, during the period that he is enrolled in the drug treatment program selected by DHRS, whichever occurs first. DONE and ORDERED this 26th day of February, 1986, in Tallahassee, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1986. COPIES FURNISHED: Steven Rowitt 5966 N.W. 28th Street Sunrise, Florida 33313 Harold L. Braynon, Esquire District X Legal Counsel Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, Florida 33301 David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Steve Huss, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 4. Adopted in Finding of Fact 10. Adopted in Finding of Fact 9. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 6 and 7.I Partially adopted in Findings of Fact 12 and 21. Matters not contained therein are rejected as unnecessary. Rejected as subordinate and not supported by competent substantial evidence. Partially adopted in Findings of Fact 6 and 7. The third sentence is rejected as not supported by competent substantial evidence. Adopted in Findings of Fact 14. The first sentence is rejected as not supported by competent substantial evidence. The last two sentences are rejected as subordinate. Partially accepted in Finding of Fact 10. Matters not contained therein are rejected as subordinate. Rejected as argumentative. Adopted in Finding of Fact 16. Rejected as legal argument. Partially adopted in Finding of Fact 22. Matters not contained therein are rejected as not supported by competent substantial evidence.
The Issue Whether Respondent is guilty of the allegations contained in the Amended Administrative Complaint filed against her, and, if so, what disciplinary action should be taken against Respondent, if any.
Findings Of Fact At all times material hereto, Respondent has been a licensed physician, having been issued license number ME 0020714 by the State of Florida. By Final Order entered September 5, 1986, the Board of Medical Examiners, now known as the Board of Medicine, revoked the license to practice medicine of Celestino De La Heria Ledesma (hereinafter "De La Heria"). The revocation of De La Heria's license was predicated, in part, on findings that De La Heria was not competent to perform plastic surgery. Specifically, the Board's Final Order reflects that De La Heria treated a patient with "cupped" ears by suturing that patient's ears to the patient's head. At all times material hereto, Respondent practiced medicine at her office located at 1995 East Fourth Avenue, Hialeah, Florida. Respondent purchased the building in 1982. Respondent had her office, consisting of two examining rooms, an office and a bathroom, on one side of the building. At the front entrance to Respondent's office, was a waiting room for patients. Until about 1987, Respondent lived in the other half of the building that housed her office. That portion of the building consisted of three rooms of moderate size, an office, and two bathrooms. There was an additional exterior door, which opened onto Fourth Avenue, in what was initially the residential side of Respondent's office building. Respondent has known De La Heria since about 1951, when they met as students at the University of Havana, in Cuba. Respondent was subsequently the physician for De La Heria's former wife and his daughters. Additionally, De La Heria's family had visited Respondent in her home. Prior to October 1, 1987, Dr. Carlos Garrido, a practicing physician in the Miami area, De La Heria, and a mutual friend of theirs, approached Respondent to discuss renting from her the space in which she lived in order to open a plastic surgery clinic. One meeting occurred among those four individuals. No formal arrangement resulted from that meeting. Subsequent to that meeting, Respondent and De La Heria had discussions about De La Heria renting the space from Respondent to open a plastic surgery clinic. Respondent knew that De La Heria either was having problems with his medical license or no longer had a license to practice medicine. She told De La Heria that he would have to obtain someone's medical license in order to operate the plastic surgery clinic and in order to lease space for a medical office from her. De La Heria produced a copy of the medical license of Dr. Garrido. Respondent moved out of the space in which she was living. On October 1, 1987, Respondent entered into a business lease agreement, not with De La Heria and not with Garrido but with De La Heria's son, in which Respondent leased the space in which she had previously resided to De La Heria's son for the sum of $600 per month. The premises being leased were to be used to establish a plastic surgery clinic, although the lease itself referred to the premises being used as a medical clinic. No evidence was offered to show that De La Heria's son was a licensed physician. De La Heria was not a party to the lease agreement, and Garrido was not a party to the lease agreement. Although Garrido never practiced medicine at that location, an occupational license for the leased premises was obtained in Garrido's name, the electrical service was established in Garrido's name, and telephone service was obtained in De La Heria's name. The copy of Garrido's medical license was hung in De La Heria's office, and a sign was placed on De La Heria's desk indicating that he was a doctor. Only Respondent's name appeared on the outside of the building. After October 1, 1987, De La Heria began to practice medicine in the portion of the premises leased to De La Heria's son by Respondent. Respondent knew that De La Heria was practicing medicine although Respondent knew at the time that De La Heria was either having problems with his medical licensure or no longer had medical licensure. Respondent specifically questioned De La Heria about his licensure problems when the two passed in the waiting room area that they shared. On a prior occasion, Respondent discussed De La Heria's licensure problems with his ex-wife. On one occasion subsequent to October 1, 1987, Garrido stopped by Respondent's office building to visit and made a comment to Respondent about De La Heria's lack of licensure. By Respondent's own admission, she knew something was not proper when De La Heria had the lease placed in his son's name. After October 1, 1987, Respondent's office hours were Monday, Wednesday, and Friday, from 2:00 p.m. until 7:00 p.m. De La Heria's office was open in the mornings, Monday through Friday. Although Respondent's office hours were in the afternoon, on occasion she would come to the office in the morning. When she did, she would enter through the waiting room which she shared with De La Heria. When she did, she saw patients sitting in the waiting room waiting for De La Heria. On those occasions, when she saw De La Heria in the office, he was wearing surgical scrubs. After October 1, 1987, Orfelina Guerra, Respondent's employee who performed receptionist/secretarial duties for Respondent in the afternoons, requested Respondent's permission to work for De La Heria in the mornings, answering the telephones. Respondent gave her permission. After October 1, 1987, only De La Heria practiced medicine in the leased portion of Respondent's building. Respondent knew that no other physician was practicing medicine in the leased portion of her building. Respondent knew that De La Heria was treating patients in the leased portion of her building. In early 1988, the Department of Professional Regulation was advised that De La Heria was practicing medicine at 1995 East Fourth Avenue, in Hialeah, Florida, while De La Heria's license was in a revoked status. Georgina Jorge, an investigator with the Department assigned to the matter, went to Respondent's office building. On the exterior of the building, she observed Respondent's name along with two telephone numbers. She then attempted to telephone De La Heria at one of those telephone numbers and was advised that he was not available at that particular moment. She next contacted Maria Zerquera, a police officer with the State Attorney's Office, and requested that Officer Zerquera go to De La Heria's office in an "undercover" capacity in order to determine whether De La Heria was practicing medicine without a license. Zerquera telephoned Respondent's office to arrange an appointment with De La Heria. Orfelina Guerra answered the telephone and advised the caller to call back using a different telephone number. When Zerquera did so, Orfelina Guerra answered that telephone and gave Zerquera an appointment to see De La Heria on February 19, 1988, at 10:30 a.m. When Zerquera arrived for her appointment, there were patients waiting in the waiting room. A short time thereafter, De La Heria came into the waiting room, introduced himself to Zerquera as "Dr. De La Heria" and took her into the inner office area. During the course of this appointment, De La Heria represented to Zerquera that he could remove a scar on Zerquera's right eye and could "fix" Zerquera's neck. He offered to do the right eye immediately free of charge and suggested that Zerquera return later to have the work performed on her neck for which he was going to charge "a couple of thousand dollars". Officer Zerquera was taken by De La Heria into an operating room, which appeared to be fully equipped for surgery. In the operating room, Zerquera saw gauze with blood on it from an eye operation De La Heria had just performed on another woman. When Officer Zerquera identified herself to De La Heria, the other investigators waiting outside entered De La Heria's office. While there, they found in De La Heria's office four blank prescriptions which had previously been signed by the Respondent. De La Heria directed Orfelina Guerra to contact Respondent who then came to the office. Respondent admitted that the four prescriptions had been signed by her in blank. She stated that she had left about six or seven presigned blank prescriptions because she was going on vacation and some of her patients might need medication on an emergency basis. Only four of the "six or seven presigned blank prescriptions were found. Only licensed physicians are authorized by law to issue prescriptions. The individual who makes the judgment as to what medication is necessary, based upon seeing the patient and gathering data, is practicing medicine. Even in instances where patients come in with an established diagnosis, medical evaluation is necessary to determine whether the person continues to require the same medication. Each time a prescription is given, a medical judgment is made. Delegating the prescribing activity to unlicensed individuals can result in harm to the patient. The practice of plastic surgery is the practice of medicine. The prescription of plastic surgery for a human deformity is the practice of medicine.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT a Final Order be entered finding Respondent guilty of the allegations contained within the Amended Administrative Complaint filed against her and permanently revoking Respondent's license to practice medicine in the State of Florida. DONE and ENTERED this 22nd day of August, 1989, 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 22nd day of August, 1989. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 88-6469 Petitioner's proposed findings of fact numbered 1-9 and 12-26 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 10 has been rejected as not being supported by the evidence in this cause. Petitioner's proposed finding of fact numbered 11 has been rejected as being unnecessary for resolution of the issues in this cause. Petitioner's proposed finding of fact numbered 27 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel or a conclusion of law. COPIES FURNISHED: Dorothy Faircloth Executive Director, Board of Medicine Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Kenneth D. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Stephanie A. Daniel, Chief Attorney Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Ana D. Hernandez, M. D. 1995 East 4th Avenue Hialeah, FL 33010
