Findings Of Fact Based upon the stipulation of the parties, the testimony of the witnesses, and the evidence received at the hearing, the following findings of fact are made: The Department is the state agency authorized to regulate the practice of medicine within the State of Florida. At all times material to the allegations of the administrative complaint, Respondent is and has been a licensed physician in the State of Florida having been issued license number ME 0017104. On April 21, 1986, the Board of Medical Examiners, now known as the Board of Medicine (Board), issued a final order which provided for the following conditions in connection with a stipulated disposition of an administrative dispute involving the Respondent. In pertinent part, that order required: the Respondent to pay an administrative fine in the amount of $8,000 in payments of $2,000; that the Respondent's license to practice medicine in Florida be placed on probation for a five year period; and that a monitoring physician make regular visits to Respondent's office and submit appropriate reports to the Board regarding Respondent's performance. On August 10, 1987, the Board of Medicine entered a final order which accepted the recommended order entered by a Hearing Officer on July 6, 1987. That recommended order found that the Respondent had violated the terms of the prior final order previously entered in a disciplinary proceeding (the final order described in paragraph 3). The Board imposed a three month suspension in connection with the violations and further clarified the terms of Respondent's probation. On March 1, 1988, the Board of Medicine filed a final order which extended Respondent's suspension for an additional 90 days in connection with additional violations of chapter 458 related to his failure to comply with the terms of the probation previously imposed upon him. On June 21, 1988, the Board of Medicine filed a final order which suspended Respondent's license to practice medicine until completion of continuing medical education courses and further specified that upon completion of the license suspension, Respondent's license to practice medicine would be on probation for a period of five years. That final order amended the due dates for the payment of the installments of the administrative fine to require a $2000 payment no later than December, 1988, and a $2000 payment no later than June, 1989. Subsequently, the Respondent requested that the terms of probation be modified and on March 22, 1989, an Order was entered by the Board of Medicine which granted several modifications to the terms of Respondent1s probation. That order provided that Dr. John S. Curran would serve as Respondent's supervising physician for Respondent's practice of pediatric medicine. On September 19, 1989, Dr. Curran wrote to the Board of Medicine to request that he be released from any further supervision responsibility for the Respondent. That letter provided, in part: Please be advised that I have received information that Dr. Archie Jones has closed his practice in Lutz, Florida. I last submitted a report late July 1989 when I visited his office and I reviewed all patient files. He informs me that he has seen between five and ten patients since the time of my review and the closure of his office approximately 12 August 1989. It is my understanding that he intends to move to the state of Georgia. I would respectfully request release from any further supervision responsibility for Dr. Jones effective the date of closure of his office. On November 14, 1989, Dorothy Faircloth as Executive Director for the Board of Medicine notified the Respondent that Dr. Curran had written requesting release from any further supervision responsibility. Further, that letter advised Respondent that: You are advised that according to the Final Order of the Florida Board of Medicine you may only practice under the supervision of a board certified pediatrician approved by the Board. To practice without the proper supervision is in direct violation of the Final Order and is grounds for further disciplinary action. The letter described above was received by the Respondent on November 27, 1989. On November 28, 1989, Respondent executed a Petition for Modification of Payment Schedule which requested an extension of time for payment of the balance of the fine amount due November 30, 1989. Respondent sought a payment date of May 30, 1990 for the final $2000 payment owed. That petition provided, in part: 4. That because of adverse publicity which negated patients, Respondents was forced to close his office in July of 1989 and has not been able to secure employment since that date. A letter written by Respondent to his landlords on stationery styled "Lutz Pediatric Center" stated: "It is with a heavy heart that I write to say that I have had to close the Lutz Pediatric Center as of 9/8/89." That letter was dated September 14, 1989. A second letter written by Respondent "To whom it may concern" provided that: "As of 8/11/89 my office at the above address will be permanently closed for the practice of pediatrics." This letter was purportedly written on July 30, 1989, to advise the Department of the closure of the Respondent's office and his new mailing address of P.O. Box 757, Safety Harbor, Florida. On November 28, 1989, the Respondent telephoned in a prescription for a patient, D.T., to Freddy's pharmacy in Tampa, Florida. This prescription, for a legend drug known as Keflex, was requested for an adult friend of the Respondent's for whom Respondent had not made a medical examination nor received a fee for his services in connection with the prescription. On February 17, 1990, the Respondent received a notice that his request for an extension on the payment of the administrative fine had been denied. That notice requested that Respondent submit the remaining $2000 to the Board office within five days of the receipt of the letter. On February 21, 1990, the Respondent filed a bankruptcy petition in the Middle District of Florida. The discharge of debtor was entered by that court on May 25, 1990. Initially, Respondent was uncertain as to whether the administrative fine which had been due November 30, 1989, would be discharged by the bankruptcy proceedings. He paid the $2000 into his attorney's escrow account pending resolution of the legal issue. The exact date of that payment is uncertain. However, on June 20, 1990, Respondent, through his attorney, remitted the final $2000 payment to the Board of Medicine.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Board of Medicine enter a final order finding that the Respondent, Archbold M. Jones, M.D., violated Section 458.331(1)(x), Florida Statutes, and suspending his license for a period of two years. DONE and ENTERED this 29 day of November, 1990, in Tallahassee, Leon County, Florida. Joyous D. Parrish Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed this 29 day of November, 1990 with the Clerk of the Division of Administrative Hearings. APPENDIX TO CASE NO. 90-3591 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1 through 3 are accepted. With regard to paragraph 4, it is accepted that the Respondent was to pay an administrative fine in the amount of $8,000 with installments of $2000. Otherwise, rejected as irrelevant or immaterial to the allegations of this case. It is undisputed that the final $2000 payment was not remitted by Respondent until June, 1990. Paragraphs 5 and 6 are accepted in substance. To the extent that a clarification of the terms of Respondent's probation were required incidental to a subsequent disciplinary action, paragraph 7 is accepted. Paragraphs 8 through 10 are accepted. Paragraph 11 is accepted in that it accurately depicts the action taken by the probationary committee, however, that information was not contemporaneously shared with Respondent. The Respondent was, by then, not practicing at the Lutz Pediatric Center and therefore not in need of supervision (theoretically) since he was not supposed to be practicing. That he did so by issuing the prescription on November 28, 1989, is the crux of this case. As explained in paragraph 6 above, paragraph 12 is accepted. It should be noted that Respondent was not to be practicing medicine at the time in issue (November 28, 1989) at all. With regard to paragraph 13, it is accepted that the Respondent did not have an office at the Lutz address in October, 1989; otherwise, rejected as inaccurate statement of fact. Paragraph 14 is rejected as contrary to the weight of the evidence. Paragraph 15 is accepted but is irrelevant. Paragraph 16 is accepted but the Respondent has presented a reasonable explanation for the failure to timely remit the payment. Paragraph 17 is accepted. Paragraph 18 is accepted. Paragraph 19 is rejected as hearsay not supported by direct evidence. With regard to paragraph 20, it is accepted that at the time the prescription was telephoned in, Respondent's Lutz office was closed; otherwise rejected as speculation or irrelevant since at that time Respondent was not supposed to be practicing medicine at all. With regard to paragraph 21, it is accepted that Respondent by prescribing the substance practiced medicine other than as required under the terms of his probation. Otherwise, rejected as contrary to the evidence or irrelevant. See comments above. Paragraphs 22 and 23 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraphs 1 and 2 are accepted. Paragraph 3 is accepted but is irrelevant since at the time the prescription was made Respondent knew that Dr. Curran had requested to be released because Respondent was closing his office and would not be in the practice of medicine. But for Respondent's insistence that the office would be closed, Dr. Curran would not have requested release. Paragraph 4 is rejected as contrary to the weight of the credible evidence. Respondent's account of whether he would or would not have issued the prescription was totally incredible. Respondent took the position that telephoning the prescription was not practicing medicine, a totally fallacious assertion. But for his license, Respondent would not be privileged to request prescriptions on behalf of others. Paragraph 5 is rejected as irrelevant. With regard to paragraph 6, the exact time Respondent notified the Board or the Department became aware of Respondent's accurate address is not established by this record. It is accepted that the Board did have access to Respondent's whereabouts at all material times. Otherwise the paragraph is rejected as not supported by the weight of the credible evidence. Paragraphs 7, 8 and 9 are rejected as irrelevant or argument; see comment to paragraph 6 above. Paragraphs 10 and 11 are accepted. With regard to paragraph 12, it is accepted that Respondent requested an extension within which to pay the final $2000 installment. Otherwise, rejected as irrelevant or unsupported by the evidence. Paragraph 13 is accepted. Paragraphs 14 and 15 are rejected as irrelevant, argument, or unnecessary to the resolution of the issues of this case. Paragraph 16 is accepted in substance; the exact date the monies were placed in escrow is not known. With regard to paragraph 17, it is accepted that ultimately the Respondent remitted the final $2000 payment and that such payment was made approximately one month after the discharge was entered by the bankruptcy court. COPIES FURNISHED: Bruce D. Lamb Chief Trial Attorney Department of Professional Regulation 730 South Sterling Street Suite 201 Tampa, Florida 33609 Jerry Gottlieb GOTTLIEB & GOTTLIEB, P.A. 2753 State Road 580, Suite 204 Clearwater, Florida 34621 Dorothy Faircloth Executive Director Board of Medicine Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue On April 17, 2015, Respondent, Department of Health, issued a Notice of Agency Action Denial of License Renewal ("First Denial Notice"), notifying Petitioner, Alicia Chilito, M.D., that it had denied her application for renewal of her physician license. Thereafter, on May 19, 2015, Respondent issued an Amended Notice of Agency Action Denial of License Renewal ("Second Denial Notice"), reiterating, and stating alternative grounds for, its denial of Petitioner's physician license. Petitioner timely challenged Respondent's decision and the matter was referred to DOAH to conduct a hearing pursuant to sections 120.569 and 120.57(1). The final hearing initially was scheduled for August 14, 2015, but pursuant to motions, was set for December 16, 2015. On August 14, 2015, Respondent filed a Motion to Relinquish Jurisdiction, contending that there were no disputed issues of material fact to be resolved in a hearing conducted under section 120.57(1). This motion was denied by order issued on September 1, 2015, on the basis that disputed issues of material fact existed regarding whether Petitioner was entitled to renewal of her license by default pursuant to section 120.60(1). On December 11, 2015, Respondent filed Department of Health's Motion in Limine, seeking to limit the scope of the final hearing. A telephonic motion hearing was conducted on December 15, 2015, the day before the final hearing. The undersigned granted the motion and excluded evidence that may be offered at the final hearing to challenge the underlying factual basis on which the Termination Final Order was entered. The final hearing was held on December 16, 2015. Joint Exhibits 1 through 4 were admitted into evidence. Petitioner did not present any witnesses. Petitioner's Exhibits 1 through 10 were tendered but not admitted, and were proffered for inclusion in the record. Respondent presented the testimony of Heidi Nitty. Respondent's Exhibit 1 was admitted into evidence without objection and Respondent's Exhibits 5 and 6 were admitted over objection. Official recognition was taken of the Final Order issued by the Agency for Health Care Administration ("AHCA") in the case of Agency for Health Care Administration v. Alicia Chilito, M.D., Case No. 12-571PH (AHCA November 4, 2013) and the Order Granting Motion to Relinquish Jurisdiction in the case of Agency for Health Care Administration v. Alicia Chilito, M.D., Case No. 12-0859MPI (Fla. DOAH July 12, 2012). The one-volume Transcript was filed on January 8, 2016, and the parties were given until January 19, 2016, to file proposed recommended orders. The parties timely filed proposed recommended orders, which were duly considered in preparing this Recommended Order.
Findings Of Fact Petitioner, Alicia Chilito, M.D., is a physician licensed to practice medicine in Florida pursuant to License No. ME 74131. Respondent, Department of Health, is the state agency charged with regulating the practice of medicine, including licensing physicians pursuant to chapters 456 and 458, Florida Statutes (2015). Petitioner timely filed a Renewal Notice, which constituted her application to renew her physician license.1/ Respondent received Petitioner's Application on January 5, 2015. Respondent did not, within 30 days of receipt of her application, request Petitioner to provide any additional information that it was permitted by law to require, nor did it notify her of any apparent errors or omissions in her application. Accordingly, Petitioner's application was complete on January 5, 2015, by operation of section 120.60(1), for purposes of commencing the 90-day period for Respondent to approve or deny her application.2/ The 90-day period from Respondent's receipt of Petitioner's complete application expired on or about April 6, 2015.3/ Heidi Nitty, a government analyst I with Respondent, was involved in the review of Petitioner's application. Her specific role in the application review process was "reviewing court documents and other orders for possible denial of renewal and also recording [Respondent's] final orders in the national practitioner database." In the course of Nitty's review, she determined that Petitioner previously had been terminated from the Florida Medicaid program. Accordingly, she entered a "do-not-renew modifier" to Petitioner's license application file in Respondent's computer system. On January 20, 2015, Petitioner called Respondent to inquire about the status of her application. She was referred to Ms. Nitty, who was not available to speak to her at that time. Petitioner and Nitty exchanged calls over the course of that day, but did not speak to each other until January 21, 2015, when Petitioner again called, and that time, reached, Nitty. At that point, Nitty verbally informed Petitioner that her application "was being denied" due to having previously been terminated from the Florida Medicaid program. On April 17, 2015——some 102 days after Petitioner filed her complete application——Respondent issued its First Denial Notice, notifying Petitioner that it was denying her application. The First Denial Notice stated that Petitioner's license renewal was being denied pursuant to section 456.0635(2)(e) because she was listed on the United States Department of Health and Human Services Office of Inspector General's List of Excluded Individuals and Entities.4/ On May 19, 2015——some 134 days after Petitioner filed her complete application——Respondent issued its Second Denial Notice, again stating its intent to deny Petitioner's application. However, the Second Denial Notice stated that Petitioner's license renewal was being denied pursuant to section 456.0635(3)(c) because she had been terminated for cause from the Florida Medicaid Program pursuant to section 409.913, Florida Statutes, as reflected in the Termination Final Order issued by AHCA on March 6, 2014. The stated basis for AHCA's March 6, 2014, Termination Final Order was that Petitioner previously had been terminated from the federal Medicare program and the Florida Medicaid program. The Termination Final Order is a final order issued by AHCA, who is not a party to this proceeding. Petitioner disputes the underlying factual basis for AHCA's Termination Final Order and claims that, in any event, she did not receive the notice, issued on January 17, 2014, that AHCA was proposing to terminate her from the Florida Medicaid program; thus, she did not challenge the proposed termination. Although Petitioner has raised these challenges to the Termination Final Order in her Petition for Hearing Involving Disputed Issues of Material Fact filed in this proceeding, the undersigned is not authorized to "reopen" AHCA's Termination Final Order and revisit its factual and legal underpinnings5/ so declined to take evidence on those issues at the final hearing in this proceeding.6/ Petitioner asserts that because Respondent's First Denial Notice and Second Denial Notice both were issued more than 90 days after Respondent received her complete application, she is entitled to licensure by default under section 120.60(1). Respondent counters that the 90-day period for approving or denying Petitioner's license commenced on February 4, 2015, so its First Denial Notice was timely issued. Respondent further asserts that, in any event, Nitty's statement to Petitioner during their January 21, 2015, telephone discussion satisfied the "90-day approval or denial requirement" in section 120.60(1), so that Petitioner is not entitled to issuance of a renewed license by default. It is undisputed that AHCA did not issue the written notices of its decision to deny Petitioner's license renewal until well after April 6, 2015. Therefore, unless Nitty's statement to Petitioner on their January 21, 2015, telephone call constituted Respondent's denial of Petitioner's application within 90 days after its receipt, Petitioner is entitled to issuance of her license by default, pursuant to section 120.60(1). The evidence establishes that when Nitty told Petitioner on January 21, 2015——notably, in response to communication that Petitioner initiated——that her license "was being denied," Respondent had not yet made its final decision to deny her application, so had not yet "approved or denied" Petitioner's license. Nitty's role in the application review process was limited to determining whether Petitioner previously had been terminated from the Florida Medicaid program, and, if so, to draft a denial letter for review and approval by her superiors. That is precisely what she did. Based on her confirmation that Petitioner had previously been terminated from the Florida Medicaid program, Nitty drafted a denial letter, which was then sent up Respondent's "chain of command" for approval or rejection, and, ultimately, for signature by Respondent's Deputy Secretary for Administration. The "chain of command" included her immediate supervisor, the bureau chief, the division director, and legal counsel——any and all of whom had the authority to reject her recommendation. To that point, Nitty acknowledged that the denial letter she drafted had "some rewrite issues" and that her supervisor, had, in fact, rewritten the letter. Nitty was not the person authorized by Respondent to make its final, binding decision to approve or deny Petitioner's application, and she did not know who actually made the ultimate decision to deny Petitioner's license renewal. Thus, at bottom, when Nitty told Petitioner that her license "was being denied," she was only conveying her preliminary assessment, as application review staff, that Petitioner's application was being denied. Nitty's communication of her preliminary assessment could not, and did not, constitute Respondent's "approval or denial" of Petitioner's application.7/ Thus, Respondent did not approve or deny Petitioner's application within the 90-day approval/denial period. Accordingly, pursuant to section 120.60(1), Petitioner's application is "considered approved." There is no evidence showing that, as of the date of the final hearing, Petitioner had notified Respondent's agency clerk of her intent to rely on the default license provision in section 120.60(1).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order that: (1) acknowledges that Petitioner's application for renewal of License No. ME 74131 is considered approved pursuant to section 120.60(1), Florida Statutes, and (2) directs Respondent's agency clerk, upon Petitioner's notification to said agency clerk that complies with section 120.60(1), to issue Petitioner's license, which may include such reasonable conditions as Respondent is authorized by law to require. DONE AND ENTERED this 29th day of February, 2016, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 29th day of February, 2016.
Findings Of Fact At all times, material hereto, Respondent Antonio J. Maniglia, M. D., has been licensed as a medical doctor under the laws of the State of Florida. Respondent graduated from medical school in Brazil in December, 1962. He came to the United States in 1963, and has practiced from then until the present date. He was licensed as a medical doctor by the State of Florida in 1971. On or about February 11, 1976, Maury Braga appeared at Respondent's office requesting to see him. Respondent had never before met Braga and had never heard of him. Braga brought with him a letter of introduction from a processor in Brazil whom Respondent knew. Braga advised Respondent that, he was a medical doctor from Brazil, that he had attended and graduated from the Faculdade de Ciencias Medicas de Santos, Brazil, that he had practiced the profession of medicine in Brazil during the years of 1967 through 1972, that he was in the process of, obtaining his medical license in Florida, and that to complete his Florida medical application he needed statements from local doctors acknowledging that Braga was a Brazilian medical doctor. Braga showed to Respondent documentation concerning his education and practice, including his medical diploma. Based upon his interview of Braga and his examination of Braga's documents, Respondent signed a form utilized by Petitioner, which form is entitled "Affidavit" and which reads, in pertinent part, as follows: - I, Antonio J. Maniglia, M. D., F.A.C.S., of 1776 NW 10th Ave, Miami, Florida 33136, do hereby swear and affirm by my personal knowledge, that Maury Braga attended and graduated from Faculdade de Ciencias Medicas de Santos and did lawfully prac- tice the profession of medicine, in Brazil during the years of 1967 through 1972, and that I also practiced the same, profession in Brazil. When Respondent signed the "affidavit," it was not notarized. Respondent had no personal knowledge regarding whether Braga had ever attended or graduated from medical school or regarding whether Braga had ever practiced medicine in Brazil. Respondent relied totally on the information contained in the documents, Braga showed to him and upon what Braga told him. After Braga left Respondent's office, he had the "affidavit" signed by Respondent notarized. He attached the "affidavit" to an Application for Examination and Course in Continuing Medical Education, which application he then submitted to the Florida Board of Medical Examiners. "On February 26, 1976, the same day that Braga's application was received, the Executive Director of the Board of Medical Examiners wrote to Braga advising him that his application was received after the deadline of January 26, 1976, and was therefore rejected. The application was not returned to Braga, but rather was placed in a file opened under Braga's name to be retained in the event that Braga again applied within the next three years to take the course in continuing medical education and the examination for licensure. On January 17, 1977, Braga filed a second application to take the course in continuing medical education which would then qualify him to take the examination for licensure. The second application included "affidavits" from medical doctors other than Respondent. One of Braga's two applications was approved; Braga completed the course in continuing medical education; Braga took and passed the examination for licensure; and Braga was licensed as a medical doctor in the State of Florida on March 10, 1978. Maury Braga did not attend or graduate from the Faculdade de Ciencias Medicas de Santos, and did not lawfully practice the profession of medicine in Brazil during the years 1967 through 1972. Braga's license to practice medicine in the State of Florida has been revoked. At least prior to the revocation of his license, Braga's file with the Petitioner contained both the application he filed in 1976 and the application he filed in 1977 No evidence was introduced to show which application was reviewed when Braga's application to take the educational course and examination for licensure was approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the violation charged in Count Two of the Administrative Complaint, dismissing Counts One, Three and Four of the Administrative Complaint, and placing Respondent's license on probation for a period of one year, subject to terms and conditions set forth by the Board. DONE and RECOMMENDED this 17th day of February, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1983. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Jack E. Thompson, Esquire Ingraham Building, Suite 516 25 SE Second Avenue Miami, Florida 33131 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy J. Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Petitioner took the podiatry licensure examination administered by the Respondent in July, 1989, receiving a grade of 61.3%, with 221 correct answers. A score of 75%, with 270 correct answers, is required to pass the examination for licensure. This podiatry examination was developed by the Bureau of Examination Services in conjunction with consultants who served as "item writers", and Florida licensed podiatrists. Five Florida licensed podiatrists selected items written by the various consultants from a bank of questions available for the 1989 examination. Competent substantial evidence was not introduced on behalf of the Petitioner to establish that the examination was in any way flawed in its preparation or method of selecting the actual questions used on this exam. The Petitioner testified that several questions were misspelled in the examination booklet which he received at the exam site. The actual question booklets used for the July, 1989, exam were introduced in evidence, but the Petitioner failed to establish, by competent substantial evidence, that there were any significant misspellings in these booklets which would in any way impair the fairness or validity of the examination results. It is also asserted by the Petitioner that he was given insufficient time to review his examination in order to identify problems in the grading of the examination, and that the review room was cramped and noisy. The review session was conducted on October 24, 1989, and the Petitioner attended. The review session began at 8:30 a.m. and concluded at 1:00 p.m. on that date, and was conducted in the Respondent's office in Tallahassee, Florida. The Petitioner actually began his review at 8:35 a.m., and completed the review and left the review room at 12:52 p.m. Thus, the Petitioner has failed to establish, by competent substantial evidence, that he lacked sufficient time to complete his review, and has also failed to prove by competent substantial evidence that conditions in the review room deprived him of an opportunity to conduct a meaningful review of his exam. There is a lack of competent substantial evidence in the record to establish that the grades which the Petitioner received on the July, 1989, podiatry licensure examination were incorrect, unfair, or invalid, or that the examination, and subsequent review session, were administered in an arbitrary or capricious manner.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing the Petitioner's challenge to the grades he received on the July, 1989, podiatry licensure examination. RECOMMENDED this 7th day of May, 1991 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2799 Despite waiting an additional seven days until April 25, 1991, as requested by counsel for the Petitioner in his letter filed on April 19, 1991, no proposed recommended order was filed on behalf of the Petitioner. Rulings on the Respondent's Proposed Findings of Fact: Adopted in Finding 1. Adopted in Findings 2 and 3. Adopted in Finding 3. COPIES FURNISHED: Melvyn G. Greenspahn, Esquire 3550 Biscayne Boulevard Suite 404 Miami, FL 33137 Vytas J. Urba, Esquire Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esquire Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford Executive Director Board of Podiatry 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact The findings of fact stipulated to by the parties are as follows: The Respondent's license was suspended for a period of three years by Final Order of the Board of Medical Examiners filed on or about June 25, 1985. The Respondent filed a timely Notice of Appeal of the foregoing Final Order. The Respondent filed a Motion to Stay the Final Order with the Board of Medical Examiners, through appellate counsel, but said motion was not ruled upon by the Board of Medical Examiners at any time pertinent to the dates related to the Administrative Complaint. No petition for stay was filed by the Respondent until August 6, 1985, with the appellate court having jurisdiction of the direct appeal, when said motion was filed by appellate counsel. The District Court of Appeal, First District, entered a temporary stay of the Final Order of the Board of Medical Examiners on August 6, 1985, but dissolved the stay on August 9, 1995, upon written response from the Department of Professional Regulation. No other stay was in effect at any time pertinent to the times material to the matters raised in the Administrative Complaint filed herein. The Respondent continued to practice medicine subsequent to the filing of the Motion to Stay filed with the Board of Medical Examiners until contacted in person by investigators of the Department of Professional Regulation who informed the Respondent, on August 12, 1985, that no stay of the Final Order was in effect. At that point, the Respondent immediately surrendered his medical license to the investigators of the Department of Professional Regulation and informed said investigators that the investigators should contact his appellate Counsel because of the "Confusion." The Respondent believed, and was specifically advised by appellate Counsel, that the Final Order of the Board of Medical Examiners filed June 25, 1985, was stayed automatically by the District Court of Appeal, First District, notwithstanding the fact that the only stay entered by the District Court of Appeal, First District, was from August 6 to August 9, 1985. Not only was the Respondent advised by appellate counsel orally that such a stay was automatically effected by the filing of the Notice of Appeal with the District Court of Appeal, First District, but appellate counsel provided written confirmation of the alleged existence of such a stay to Jacksonville hospitals providing medical privileges to the Respondent. An example of such written confirmation is a letter dated July 30, 1985, to the President, Board of Trustees of St. Vincent's Medical Center advising St. Vincent's Medical Center that the Final Order of the Board of Medical Examiners was automatically stayed by operation of Section 120.68(3), Florida Statutes. In that letter, appellate counsel not only advised St. Vincent's Medical Center of the existence of an alleged automatic stay, but copied the Respondent with said advice, confirming to the Respondent that the Final Order of the Board of Medical Examiners had in fact been stayed.
The Issue The following issues of fact were considered: Did the Respondent aid, assist, procure, or advise an unlicensed person to practice medicine? Did the Respondent delegate professional responsibilities to persons when he knew or had reason to know that said persons were not qualified by licensure to perform them? Did the Respondent presign prescription forms? Both parties submitted posthearing findings of fact, which were read and considered. Those findings not incorporated herein are found to be either subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.
Findings Of Fact The Respondent, Albert P. Oteiza, is licensed to practice medicine and surgery in the State of Florida and has been so licensed at all times relating to the charges in the Administrative Complaint. The Respondent was president and director of the Union Latina Association, Inc. (the Association), located at 1313 Southwest First Street, Miami, Florida. The Respondent was paid by the Association, which provided medical services to patients who were members of the Association. The Respondent practiced at Clinical Union Latina (the Clinic), located at 1313 Southwest First Street, Miami, Florida, and was the medical director of the Clinic. The Respondent was not an officer or director of the Clinic. The president of the Clinic was Rigoberto Garcia, and the business manager was Christian Carmona. Florencio Sanchez-Lopez was employed as a physician's assistant at the Clinic by Christian Carmona, who assigned Sanchez-Lopez's duties. Sanchez-Lopez was not a licensed physician and was not a certified physician's assistant. Sanchez-Lopez admitted seeing and treating patients at the Clinic. Sanchez- Lopez saw those patients who were in serious condition in the presence of the Respondent. Those patients who were not in serious condition, Sanchez-Lopez saw without the Respondent being present, and Sanchez-Lopez prescribed treatment and medications for these patients. Sanchez-Lopez examined and prescribed medications and treatment for Ralph Nunez, an investigator for the Board of Medical Examiners, in the manner Sanchez-Lopez had admitted to examining and prescribing for other patients. Valerio Matta was employed as a physician's assistant at the Clinic by Carmona, who assigned Matta's general duties. Matta was not a licensed physician or a certified physician's assistant. Matta saw patients at the Clinic, examining them and prescribing medications and treatment for them without the presence of a licensed physician, as he did with Georgina Jorge, an investigator with the Department of Professional Regulation. Matta also admitted that he had performed minor surgery on patients, but only when the Respondent was present in the Clinic. Carlos Manuel Rodriguez-Murgia was employed as a physician's assistant at the Clinic by Carmona, who assigned Rodriguez-Murgia his general duties. Rodriguez-Murgia was not a licensed physician or certified physician's assistant. Rodriguez- Murgia saw patients at the Clinic, examining and prescribing medications and treatment for them without the presence of a licensed physician, as he did with Georgina Jorge, an investigator with the Department of Professional Regulation. The acts performed by Sanchez-Lopez, Matta, and Rodriguez-Murgia all constituted the practice of medicine. However, these acts did not exceed the acts which could have been performed by a physician's assistant. The Respondent was aware or should have been aware that Sanchez-Lopez, Matta, and Rodriguez-Murgia were engaged in seeing patients at the Clinic and performing acts which constituted the practice of medicine. Carmona was deceased at the time of the hearing. Garcia, president of the Clinic, outlined Carmona's duties. Carmona was responsible for having Sanchez-Lopez, Matta, and Rodriguez-Murgia certified as physician's assistants. All three men confirmed that Carmona represented to them they would be licensed and they were "legal" to perform their duties. Sanchez-Lopez, Matta, and Rodriguez-Murgia could not swear that it was the Respondent's signature on the prescriptions they used or that they had seen the Respondent sign the prescriptions. There were other licensed physicians who worked at the Clinic.
Recommendation Having found the Respondent guilty of three counts of violating Section 458.331(1)(w), Florida Statutes, as alleged in the Administrative Complaint, it is recommended that the Board of Medical Examiners suspend the license of the Respondent, Albert P. Oteiza, for a period of 12 months and assess a civil penalty against him of 3,000. DONE and RECOMMENDED this 17th day of October, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 1983. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Blas E. Padrino, Esquire 2355 Salzedo, Suite 309 Coral Gables, Florida 33134 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE BOARD OF MEDICAL EXAMINERS DEPARTMENT OF PROFESSIONAL REGULATION Petitioner, vs. Case No. 83-122 ALBERT P. OTEIZA, M.D., License No. 20879 Respondent. /
