The Issue The central issue in this case is whether Richard Koenig, D.P.M., should be licensed as a podiatrist in the State of Florida. More specifically, this case must determine these issues: whether Richard Koenig, D.P.M., has practiced podiatry in the past at an acceptable standard of care as required by Section 461.013(1)(s), Florida Statutes; whether he fraudulently misrepresented material facts on his application for licensure as a podiatrist in violation of Section 461.013(1)(a), Florida Statutes; and whether his application to become licensed as a podiatrist is barred on grounds of administrative res judicata because of the Board of Podiatry's denial of his application in 1994-1995.
Findings Of Fact Dr. Koenig is an applicant for licensure as a podiatrist in the State of Florida. He is presently licensed to practice podiatry in the State of Missouri and was previously licensed in Illinois and Florida. Both of the latter licenses have expired. Dr. Koenig meets all criteria for licensure in Florida other than the grounds for denial cited by the Board in its Notice of Intent to Deny and described in the Statement of the Issues, above. The Board is responsible for certifying individuals who are qualified to become licensed as podiatrists and the Department of Health is responsible for issuing the licenses after the Board's certification. Dr. Koenig permitted his Florida license to lapse while he practiced in Missouri. He initially sought to be licensed again in this state in 1994. At that time, his application to sit for the examination, and thereafter to be licensed, was denied by the Board. Dr. Koenig requested a hearing on the denial before the Division of Administrative Hearings (DOAH) and a case was opened as DOAH Case No. 95-0570. Dr. Koenig later dismissed his petition and the DOAH file was closed. The earlier denial thus became final. Dr. Koenig reapplied for licensure in 1997. It is this application which is the subject of the instant proceeding. Dr. Koenig has already taken and passed the national podiatric licensure examination in Louisiana in 1997, thus meeting the examination requirement. Dr. Koenig was involved in approximately eleven podiatric malpractice cases during his practice in Missouri in the 1980's and early 1990's. Eight of the cases were settled by his insurance carrier. Three additional cases were pending at the time of Dr. Koenig's initial application in 1994. Of these three, Dr. Koenig prevailed at trial in two cases. The third case has been voluntarily dismissed by the plaintiff and has not been refiled. Dr. Koenig has not been engaged in the practice of podiatry as his primary professional activity since 1993-1994. He occasionally provides podiatric services as part of his commitment to the U.S. Navy, but he has primarily been engaged in developing and marketing two devices for use in podiatric and related services and has been teaching. Dr. Koenig received and reviewed the 1994 Board Notice of Intent to Deny Application for Examination and Licensure prior to filing his 1997 licensure application. In addition, he was aware that he had dismissed his petition to review that decision and the Board's decision was thus final. Nevertheless when called upon to state in the 1997 application whether he had ever been denied licensure as a podiatrist, Dr. Koenig answered "No." (Petitioner's Exhibit No. 1) This answer was false. Question five of the application for podiatry licensure reads: "Has any podiatry license held by you ever been acted upon, suspended or revoked, or have you ever been denied licensure?" Dr. Koenig's explanation concerning his negative answer to this question was that he thought he was being denied the right to take the examination, which was a condition required before he could be licensed. His understanding is supported by a reading of the minutes of the Board meeting at which the decision was made: "Dr. Simmonds moved to deny Dr. Koenig from taking the examination based on not having the ability to practice Podiatric Medicine at a level of care and safety." (Petitioner's Exhibit No. 1) However, the Board sent, and Dr. Koenig received, a Notice of Intent to Deny Application for Examination and Licensure. While that document plainly states that he was both being denied the right to take the examination and the right to be licensed, he did not focus on the second point--the right to be licensed. Dr. Koenig offered his explanation to the Board at its meeting on July 25, 1997, and when asked about the application question, he stated, "Because it is a misunderstanding. I make a differentiation between being denied a license and being denied the opportunity to sit for a license, and I may be wrong, and I stand corrected if I am, but that's what my intention was." (Petitioner's Exhibit No. 1, Transcript pp. 21-22). He understood that the Board was denying him the right to take the examination, an essential element of his application process. Dr. Koenig's explanation has been consistent throughout this proceeding, both before the Board and in the formal hearing. Although Dr. Koenig did answer the question incorrectly, his explanation that he did so without any fraudulent intent is entirely credible. Had there been an intent to defraud the Board regarding his application, Dr. Koenig might have avoided disclosing the malpractice suits which resulted in the Board's earlier decision to deny him licensure. Those malpractice suits are no longer an appropriate basis to deny licensure. Dr. Koenig is a Board-certified podiatrist and is a Fellow of the American College of Foot and Ankle Surgeons. One becomes Board-certified by taking an examination, by meeting practice requirements, and by submitting a number of medical cases to the Board for evaluation. Only about 10 percent of all podiatrists are Board-certified. Dr. Koenig's specialty is foot surgery and he has operated more often than a podiatrist in standard practice. Dr. Koenig has written several articles in peer- reviewed journals, and has spoken widely in the United States and elsewhere at various continuing medical education seminars. A frequent topic of his speeches involves the use of an implant which he developed to replace the big toe joint. This implant is patented, approved as a safe device by the FDA, and is covered by Medicare and Medicaid. Dr. Koenig has developed and marketed a special shoe for patients who have had foot surgery. There have been no Medicare or Medicaid complaints brought against Dr. Koenig and he maintains Medicare and Medicaid provided numbers. The two lawsuits which went to a jury verdict were decided in his favor and there are no lawsuits pending now. The multiple claims of malpractice occurred when he was actively engaged in foot surgery practice in Missouri. His insurance carrier, without consulting him, settled those claims. After he changed carriers and contested the claims, he has prevailed. The Board in this proceeding presented no evidence that Dr. Koenig has practiced below the standard of care. Nor did it refute his credible testimony.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: that a Final Order be entered granting Dr. Koenig's license to practice podiatry in the State of Florida. DONE AND ENTERED this 24th day of April, 1998, in Tallahassee, Leon County, Florida. MARY CLARK 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 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 1998. COPIES FURNISHED: John J. Rimes, III Office of Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Eric B. Tilton Gustafson, Tilton, Henning & Metzger, P.A. Suite 200 204 South Monroe Street Tallahassee, Florida 32301 Angela T. Hall, Agency Clerk Department of Health Building 6 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Eric G. Walker, Executive Director Board of Podiatry Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether Kenneth D. Stahl, M.D. ("Dr. Stahl" or "Petitioner"), is entitled to an award of attorneys' fees and costs to be paid by the Department of Health, Board of Medicine ("Department" or "Respondent"), pursuant to section 57.105, Florida Statutes (2014).1/
Findings Of Fact Review of the record indicates that, at the time the Administrative Complaint was filed at DOAH, the following facts were known by Respondent, as later stated in the Findings of Fact of the Final Order of the underlying case: In February 2011, Patient C.C., a 52-year-old female, was admitted to Jackson Memorial Hospital ("JMH") with a diagnosis of perforated appendicitis. She also had a perirectal abscess. Her records indicate that she was treated with percutaneous drainage and a course of intravenous antibiotics. She was discharged on March 4, 2011. On June 22, 2011, Patient C.C. presented to the JMH Emergency Department complaining of 12 hours of abdominal pain in her right lower quadrant with associated nausea and vomiting. Shortly after her arrival, she described her pain to a nurse as "10" on a scale of one to ten. A computed tomography ("CT") scan of Patient C.C.'s abdomen was conducted. The CT report noted that the "the uterus is surgically absent," and "the ovaries are not identified." It noted that "the perirectal abscess that was drained previously is no longer visualized" and that the "appendix appears inflamed and dilated." No other inflamed organs were noted. The radiologist's impression was that the findings of the CT scan were consistent with non-perforated appendicitis. Patient C.C.'s pre-operative history listed a "total abdominal hysterectomy" on May 4, 2005. Patient C.C.'s prior surgeries and earlier infections had resulted in extensive scar tissue in her abdomen. Patient C.C. was scheduled for an emergency appendectomy and signed a "Consent to Operations or Procedures" form for performance of a laparoscopic appendectomy, possible open appendectomy, and other indicated procedures. Patient C.C. was taken to surgery at approximately 1:00 a.m. on June 23, 2011. Dr. Stahl was the attending physician, and notes indicate that he was present throughout the critical steps of the procedure. The Operative Report was dictated by Dr. Eddie Manning after the surgery and electronically signed by Dr. Stahl on June 23, 2011. The report documents the post-operative diagnosis as "acute on chronic appendicitis" and describes the dissected and removed organ as the appendix. Progress notes completed by the nursing staff record that, on June 23, 2011, at 8:00 a.m., Patient C.C. "denies pain" and that the laparoscopic incision is intact. Similar notes indicate that at 5:00 p.m. on June 23, 2011, Patient C.C. "tolerated well reg diet" and was waiting for approval for discharge. Patient C.C. was discharged on June 24, 2011, a little after noon, in stable condition. On June 24, 2011, the Surgical Pathology Report indicated that the specimen removed from Patient C.C. was not an appendix, but instead was an ovary and a portion of a fallopian tube. The report noted that inflammatory cells were seen. Surgery to remove an ovary is an oophorectomy and surgery to remove a fallopian tube is a salpingectomy. On Friday, June 24, 2011, Dr. Nicholas Namias, chief of the Division of Acute Care Surgery, Trauma, and Critical Care, was notified by the pathologist of the results of the pathology report, because Dr. Stahl had left on vacation. Dr. Namias arranged a meeting with Patient C.C. in the clinic the following Monday. At the meeting, Patient C.C. made statements to Dr. Namias regarding her then-existing physical condition, including that she was not in pain, was tolerating her diet, and had no complaints. Dr. Namias explained to Patient C.C. that her pain may have been caused by the inflamed ovary and fallopian tube or may have been caused by appendicitis that resolved medically, and she might have appendicitis again. He explained that her options were to undergo a second operation at that time and search for the appendix or wait and see if appendicitis recurred. He advised against the immediate surgery option because she was "asymptomatic." The Second Amended Administrative Complaint alleged that Dr. Stahl performed a wrong procedure when he performed an appendectomy which resulted in the removal of Patient C.C.'s ovary and a portion of her fallopian tube instead. The Final Order concluded that the evidence did not clearly show that the wrong procedure was performed. It concluded that it was more likely that exactly the right procedure was performed on Patient C.C. That is, it was likely that an oophorectomy and salpingectomy were the right procedures to remove the inflamed organs and address the abdominal pain that caused Patient C.C. to present at the JMH emergency room, but that the right procedure was initially denominated incorrectly as an "appendectomy," as a result of patient history and erroneous interpretation of the CT scan.
The Issue Whether Respondent violated a rule of the Board of Medicine or the Department by advertising in a deceptive or misleading manner, thereby violating a provision of Chapter 458, Florida Statutes, which makes a licensee subject to disciplinary action if found guilty of violating a rule of the Board or Department.
Findings Of Fact Respondent has been licensed as a physician by the Florida Board of Medicine since 1976 and holds license number ME0026906. He has completed a residency program in his speciality of orthopedics but has not been Board certified in this speciality by a member board of the American Board of Medical Specialists. Respondent identifies himself as a diplomate of the Academy of Neurological and Orthopedic Surgeons on letterhead on correspondence mailed from his office. He has been so designated by this Academy since 1980. Respondent also identified himself as a diplomate of the Academy of Neurological and Orthopedic Surgeons on various correspondence disseminated to Associated Insurance Brokers Claims Management in regard to patient E.S. Although Respondent contends that he did not intend his identification on his letterhead as a diplomate to be advertising, he did acknowledge that such designation enhances his stature as an orthopedic surgeon. Many insurance carriers approve for payment higher patient charges assessed by various specialists. Respondent testified that in order to be designated as a diplomate of the American Academy of Neurological and Orthopedic Surgeons he had to pass a rigorous examination; however, no evidence was submitted from which a comparison could be made between this designation and a similar designation from a Board approved by the American Board of Medical Specialists (ABMS). The American Academy of Neurological and Orthopedic Surgeons is not now and never has been a member of the American Board of Medical Specialties. Nor has it ever pertitioned the Florida Board of Medicine for recognition as a speciality board. The American Federation of Medical Accreditation, which recognizes the American Academy of Neurological and Orthopedic Surgeons, has never been a member board of the American Board of Medical Specialists; nor has the Federation ever petitioned the Florida Board of Medicine for approval as a recognizing agency for medical specialties.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That a final order be entered finding Edward Neil Feldman guilty of violation of Sections 458.331(1)(d) and (x), Florida Statutes; and that he be given an official reprimand and fined $2,000.00. DONE AND RECOMMENDED this 20th day of December, 1993, in Tallahassee, Leon County, Florida. K. N. AYERS 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 Hearing this 20th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3804 Proposed findings submitted by Petitioner are accepted. Proposed findings submitted by Respondent are accepted except as noted below: Accepted as testimony of Dr. Feldman. However, no evidence was submitted comparing this test to the test given by a speciality board approved by the ABMS. Second sentence rejected. By stating he is a diplomate, Respondent implies certain recognition. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected. See Hearing Officer #5 and #6. See Hearing Officer #5 and #6. Rejected as irrelevant. 15. Respondent's attempt to equate the notice on letterhead that Respondent was a diplomate to an entry in a curriculum vitae (c.v.) is misplaced. A c.v. is similar to a professional life history and is totally inapt for advertising. The same cannot be said when the achievement is placed on a letterhead. 18. Rejected. COPIES FURNISHED: Britt Thomas, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Thomas Saieva, Esquire SAIEVA & WALSH, P.A. 800 West DeLeon Street Tampa, Florida 33606-2722 Jack McRay, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Dr. Marm Harris, Executive Director Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether disciplinary action should be taken against Respondent's license to practice medicine and surgery based on the violations of Section 458.331(1), Florida Statutes, alleged in the Administrative Complaint filed in this proceeding.
Findings Of Fact The following paragraphs of the findings of fact submitted by the Respondent have been accepted and included in the findings of fact in this Recommended Order at least in substance and in most instances in their entirety. Editorial modifications have been made in some instances in the interests of accuracy and clarity; as well as when consolidating similar proposals submitted by both parties: 1, 2, 3, 4, 15, and 17. Paragraph 5 is rejected as constituting argument rather than proposed findings of fact. Paragraph 6 is rejected as constituting primarily argument about the credibility of witnesses rather than proposed findings of fact. To the extent findings are proposed in this paragraph, they are rejected as subordinate. The first two sentences of paragraph 7 are rejected as constituting argument about the credibility of witnesses rather than proposed findings of fact. The last sentence of paragraph 7 is accepted. The first five sentences of paragraph 8 are accepted. The last two sentences of paragraph 8 are rejected as constituting legal argument and/or subordinate facts. Paragraphs 9 and 10 are rejected as constituting argument about the credibility of witnesses rather than proposed findings of fact. The substance of the first three sentences of paragraph 11 is accepted. The last two sentences of paragraph 11 are rejected as constituting argument about the credibility of witnesses rather than proposed findings of fact. Paragraph 12 is rejected as for the most part constituting argument rather than proposed findings of fact. To the extent findings are proposed; they are rejected as subordinate. With the exception of the last sentence; all of paragraph 13 is rejected as for the most part constituting argument rather than proposed findings of fact. The substance of the last sentence of paragraph 13 is accepted. The fourth sentence of paragraph 14 is accepted with the deletion of the last clause. The remainder of paragraph 14 is rejected as constituting argument or as proposing irrelevant and/or subordinate facts. Paragraph 16 is accepted in substance, but only as to when and where the Respondent and Vicente met and as to what Vicente told the Respondent he was doing. Paragraph 18 is rejected as constituting argument about the credibility of some of the evidence rather than constituting proposed findings. Paragraph 19 is rejected as constituting argument about the credibility of some of the evidence rather than constituting proposed findings. Further, the implications of the arguments are rejected as being contrary to my resolution of credibility issues. The substance of the first two sentences of paragraph 20 is accepted. The remainder of paragraph 20 is rejected as irrelevant commentary about testimony rather than proposed findings on a material issue. Paragraphs 21, 22, and 23 are rejected as constituting argument rather than proposed findings of fact.
Recommendation For all of the foregoing reasons, it is recommended that the Board of Medical Examiners enter a Final Order in this case dismissing all charges against the Respondent, Roberto Cuesta, M.D. DONE AND ORDERED this 12th day of March, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 12th day of March, 1986. COPIES FURNISHED: Leonard Sussman, Esquire 7195 S.W. 47th Street Suite #101 Miami, Florida 33155 Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 APPENDIX The following are my specific rulings on each of the proposed findings of fact submitted by each of the parties. By way of preface to the specific rulings which follow, I feel constrained to make the following observations regarding three of the principal witnesses in order that the parties may more clearly understand the basis for certain of the findings of fact. With regard to conflicts between the testimony of the Respondent and the witness Carlos Ramirez, I have generally tended to credit the testimony of the Respondent, largely on the grounds that the Respondent's version was more consistent with other evidence. Further, I found the Respondent to be sincere, candid, accurate, and honest in his testimony. Accordingly, I have given a great deal of weight to the Respondent's testimony. I found the witness Armando R. Vicente to be otherwise. Accordingly; I have given very little weight to Mr. Vicente's testimony except to the extent that it was corroborated by other reliable evidence or constituted admissions against interest.
Findings Of Fact The Petitioner Mario Alberto Almeida applied to the Respondent Board of Medical Examiners to sit for the medical licensure examination and paid his application fee in September, 1985. At that time, the Petitioner Almeida was interning in New York and his wife, concerned that a prior application had been untimely filed, assisted the Petitioner in filling out the subject application. When filling out the application, Mrs. Almeida erroneously wrote on the application form that her husband had a "B.S. 1979, University of Miami," which error arose from the fact that she was unaware that the Petitioner had not completed his University of Miami undergraduate degree work despite completing 137 credit hours of courses and being eligible for graduation. Mrs. Almeida believed that her husband graduated from the University of Miami because he had not informed her that he had left prior to graduating and Mrs. Almeida had seen solicitations for funds addressed to her husband as a 1979 University of Miami graduate. Also omitted by the Almeida's was the Petitioner's race (which is caucasian), that he had successfully attended a junior college and that he was a United States citizen who had legally changed his name to reflect his father's name, Alberto. Other than these erroneous statements and omissions, the Petitioner Almeida supplied the Respondent with all information requested, including additional information requested by letter dated November 4, 1985. Thereafter, the Respondent Board issued to the Petitioner Almeida an authorization to sit for the December, 1985, examination which card was inadvertently issued to and returned by the Respondent. In support of his application, the Petitioner was issued a letter which requested that he personally appear in Tampa, Florida, at 4:15 p.m. on November 22, 1985, at a meeting before the Foreign Medical Graduate Committee of the Board of Medical Examiners. Although the Petitioner was put under oath and was questioned at that meeting, he was not represented by legal counsel. The Committee referred his application to the full Board with no recommendation regarding approval. On November 23, 1985, the Board voted to deny the Petitioner's application. The Petitioner did not receive notice of this second meeting and, therefore, did not attend. By order dated September 9, 1986, the Petitioner was notified of the Respondent's denial of his application based upon "material discrepancies between the information stated on the application and the testimony given with regard to the applicant's education," citing Section 458.331(1)(a) and (2), Florida Statutes. The Petitioner's application did misstate his undergraduate, pre- medical school data. He failed to disclose his successful completion of Miami- Dade Community College and his 137 credit hours when he left the University of Miami before attaining the "B.S. 1979, University of Miami." He did however, accurately testify concerning these discrepancies under oath at the November 22, 1985, committee meeting. These discrepancies were unintentional and resulted from the Petitioner's preoccupation with his medical duties and his wife's concern that another application deadline not be missed. No evidence was submitted which would support a finding that fraud or deceit was intended by either of the Almeida's or that any advantage would be gained as a result of any errors or omissions in completing the form. The Respondent's order of September 9, 1986, finds that the Petitioner either has been found guilty of attempting to obtain a license to practice medicine by fraudulent misrepresentation or adjudicates him guilty of attempting to obtain a license to practice medicine by fraudulent misrepresentation. The Petitioner is presently a duly licensed physician in the State of New York.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the Board of Medical Examiners approving the application of the Petitioner Mario Alberto Almeida Suarez, to sit for the next scheduled medical license examination. DONE and ENTERED this 26th day of May, 1987 in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3996 Petitioner's Proposed Findings of Fact Accepted. Accepted. Accepted. Accepted, but not in issue. Accepted. Accepted, but not in issue. Accepted. Rejected, not relevant to this proceeding. Accepted in part, rejected in part. Accepted. Accepted. Accepted. Rejected, not relevant. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Respondent's Proposed Findings of Fact Accepted. Accepted. Accepted, but relevant only insofar as educational background is concerned. Accepted. Accepted. Accepted. Accepted, but not relevant. Accepted. Accepted. Accepted, but not relevant. Accepted, but not relevant. Accepted insofar as the information is characterized as incomplete. Accepted. Accepted. Accepted. Accepted insofar as this concerns Mrs. Alemeida's knowledge subsequent to completing the application. Accepted insofar as this concerns Mrs. Alemeida's knowledge subsequent to completing the application. Accepted. COPIES FURNISHED: Stephen Marc Slepin, Esquire SLEPIN & SLEPIN 1114 East Park Avenue Tallahassee, Florida 32301 Allen Grossman, Esquire Assistant Attorney General Department of Legal Affairs 1601 - The Capitol Tallahassee, Florida 32399-1050 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van B. Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dorothy Faircloth, Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact At all times pertinent to the allegations involved herein, Respondent was licensed as a licensed practical nurse in the State of Florida. On September 25, 1985, Respondent came to the CHCC where she was employed as a nurse to pick up her paycheck. It was her day off and she was not there for duty. After she was given her check, she was advised by the Director of Nursing that because of an alleged argument the day before with Assistant Director, Respondent was being given the opportunity to resign her employment at the Center or be discharged. Miss Jones, believing that she had done nothing improper, refused to resign and was immediately told she was terminated. She immediately left the Director's office and went down the hall to one of the nursing stations where she saw Ms. Drawbaugh, the Assistant Director. Ms. Drawbaugh had been attending an in-service training session that day and had come to the home to check and make sure all was going well. She was making her rounds in the south wing and reviewing a chart a little after 2:00 p.m. on this day, when Respondent came to the nursing station and started talking with another nurse in what Ms. Drawbaugh described as a loud tone. There is some inconsistency in the evidence as to what transpired next - whether there was a conversation between Respondent and Ms. Drawbaugh or not is really of little consequence. The fact remains, and it is admitted by Respondent that Respondent lost control of herself and assaulted Ms. Drawbaugh, hitting her about the head several times. Thereafter, Ms. Jones pleaded guilty in County Court on January 23, 1986 to a charge of battery, was adjudicated guilty, and placed on six months reporting probation. Ms. Jones contends that she had been badgered by Ms. Drawbaugh on several occasions prior to the incident in question and that on the day of the assault, when she arrived at the nursing station, having just been fired, Ms. Drawbaugh said to her, "I told you what would happen." In response to this, Respondent alleges that she warned Ms. Drawbaugh to leave her alone, whereupon Ms. Drawbaugh laughed at her and walked off. It was at this point that Ms. Jones lost control of herself and struck Ms. Drawbaugh. Ms. Drawbaugh indicates that a day or two prior to the incident, she had given Respondent an oral warning to report to her supervisor before leaving duty because Respondent had left her duty station prior to the end of the shift. She further alleges that in June, 1985, Respondent had objected to an assignment Ms. Drawbaugh had given her and in the discussion which followed, Respondent was loud and had to be warned to mind her conduct. Ms. Drawbaugh further alleged that a complaint had been received from a family of a resident as to the inappropriate way Respondent had talked to that resident. This, however, is uncorroborated hearsay and is not considered to be credible evidence. Ms. Drawbaugh further relates an incident when, she contends, it was necessary for her to correct the Respondent on an occasion when Respondent refused to give a patient with Multiple Sclerosis a cigarette. Ms. Drawbaugh concluded at the time that Respondent's conduct indicated a lack of sensitivity to the needs of a special patient. However, Respondent presented evidence tending to indicate there was justification for failing to comply with the patient's request. She contends that there was no other person available to watch the patient to see that she did not set the bed or herself on fire. Further, with regard to the alleged failure to report to the supervisor prior to leaving, evidence presented by Respondent indicates there may have been some matters brought into the conversation by Ms. Drawbaugh that were not appropriate. For example, there is some evidence that Ms. Drawbaugh cast aspersions on the way Respondent had been brought up and was, herself, not totally sensitive to the feelings of others. Taken as a whole, the more credible evidence seems to be on the side of Respondent in these two incidents. None of these matters, however, while they may constitute provocative behavior and explain Respondent's actions, justify her attack on Ms. Drawbaugh in the facility. Uncontradicted expert testimony clearly indicates that a battery by a nurse on a supervisor in the facility, falls below acceptable and accepted standards of nursing practice and definitely relates to the practice of nursing. It makes no difference if the nurse is off duty or had just been fired or had been provoked by the victim of the assault. Basic nursing training teaches that a nurse must not react with violence to any provocation of any kind on anyone on any basis. Even assuming that Ms. Drawbaugh's relationship with Respondent was unsatisfactory and constituted badgering, this nonetheless does not justify or excuse Respondent's attack on her.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent's license as a licensed practical nurse in Florida be suspended for one year and that she be required to establish to the satisfaction of the Board of Nursing that she has taken continuing nursing education in the area related to the offenses committed here. RECOMMENDED this 16th day of March, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 16th day of March. COPIES FURNISHED: Judie Ritter, Executive Director Board of Nursing Room 504, 111 East Coastline Drive Jacksonville, Florida 32201 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Michael J. Cohen, Esquire Cohen, Mee & Kennedy, P.A. 517 S.W. First Avenue Fort Lauderdale, Florida 33301 Thelma L. M. Jones 729 Commercial Street Clewiston, Florida 33440 =================================================================
The Issue The issue in this proceeding is whether Petitioner attempted to obtain his license by fraudulent misrepresentations to the Board, related to his medical education at Loma Linda University, thereby lacking good moral character and ineligible for licensure as a physician in the State of Florida.
Findings Of Fact William E. Dalton, fifty-seven years of age, is currently licensed as a medical doctor in the States of California, Texas, Georgia and Arkansas. He commenced his medical school education in Loma Linda, California, in 1962. He failed no courses that first year and was ranked 54 out of 94 in his class. The second year he failed Medical Microbiology and Human Pathology, and made "D" in General Pharmacology. He was ranked 104 out of 104. He repeated the second year and achieved a "C-" in Medical Microbiology, a "C" in Human Pathology and a "D" again in General Pharmacology. At Loma Linda, a "D" was considered a passing grade. After Dr. Dalton repeated the three courses, the Associate Dean at Loma Linda visited his house and explained that the Executive Committee at the University did not believe that he was proficient enough to pass the National Board exam. Dr. Dalton assumed that he was dismissed from Loma Linda, because it was his understanding that you had to have a sponsor to take the exam and that, without the exam, you could not continue with the third and fourth years of medical school training. In September 1966, he enrolled as a medical student at the University of Guadalajara in Mexico. He completed his third, fourth and fifth years of medical school at the University of Guadalajara, completed other requirements for graduation and was awarded a degree from that institution. After satisfying its requirements and passing its examination, Dr. Dalton was certified by the Educational Council for Foreign Medical Graduates (ECFMG) on September 15, 1971. He passed the California FLEX examination in December 1972. In addition to the various state licenses addressed above, William Dalton received a license to practice medicine in Florida in 1981. This was a license by endorsement and required that he commence practice in Florida within three years. He started practicing after the June 16, 1984 deadline and his license was revoked. He submitted his application for licensure by examination in February 1985. At the request of the Foreign Medical Graduate Committee of the Board of Medical Examiners, he appeared before the Committee on May 30, 1985. Then asked by the committee whether he had all his training in Mexico, he replied that he had ". . . two years at Loma Linda, the first and second." [JE #1, transcript, p.3] He told the committee that he was successful in both years but did not return because the university did not think he was strong enough to pass the national boards. He said he was dismissed from the school. He also made these responses: Q. Did you fail any courses at Loma Linda? A. I did not fail any course. Q. Did you get credit for all of those courses at Guadalajara? A. That's right. Unable to resolve what they deemed was a conflict between the "dismissal" and "passing," the committee voted to permit Dr. Dalton to take the examination but that a transcript would be obtained from Loma Linda and he would have to appear before the committee again before being licensed. Even after the committee voted, and Dr. Dalton was aware of the committee's decision, he responded again: DR. KATIMS: You have testified to us that you passed all your courses? THE WITNESS: I did. [JE #1, transcript, p. 13] After passing the examination, Dr. Dalton appeared again before the Board of Medicine on October 12, 1986. On this occasion he stated that he took pharmacology twice; the first time he didn't pass; the second time, he did. He also stated, "I have no failing subjects at Loma Linda, which the transcript should indicate." [JE #1, transcript, p. 3] When confronted with the two failing grades in Medical Microbiology and Human Pathology, he explained that he repeated the courses and passed them, and had passed all his courses. The Board voted to deny Dr. Dalton licensure by examination. At the formal hearing, Dr. Dalton explained the circumstances of his apparent inconsistencies in careful detail. It was never his intention to deliberately mislead the Board; he passed the courses; he got his medical education and that was, to him, the significant fact. He had not taken the time to review his paperwork prior to testifying before the Board. Although it took him three years to complete the first and second years of medical school at Loma Linda, he did complete those years with passing grades. Counsel for the Board theorizes, in her proposed recommended order, that Dr. Dalton knowingly and deliberately misled the Board until it was apparent that they had the true facts at hand; then he became candid and forthright. This is not supported by the record. If misleading the Board had been his intent, he never would have testified at his first appearance in May 1985 that he was dismissed from Loma Linda. He could have simply said he transferred to a different school. Further, it is not clear from the record that he was "dismissed" from Loma Linda. He did successfully complete two years there, but had a sincere belief that since the school felt he was not prepared to take the National Board examinations, he could not take them, that he needed the Boards to go on with his medical school education, and he was, therefore, de facto dismissed. Even after the Foreign Medical Graduate Committee voted to get the Loma Linda transcript for verification, Dr. Dalton still affirmatively responded that he passed all his courses. At this point, given Respondent's theory, he should have started recanting his earlier testimony. Some of Dr. Dalton's erroneous testimony was against his interests -- for example, in his second appearance, before the full Board, he stated that he first failed, then passed Pathology. He never failed that course. Dr. Frank David Kuitems testified as a character witness. He has worked closely with Dr. Dalton during the past fifteen months. Dr. Kuitems has high regard for Dr. Dalton, both as to his proficiency as a physician and as to his integrity and honesty. Dr. Kuitems' testimony corroborates and is consistent with the letters of recommendation in Dr. Dalton's application file. Dr. Dalton is licensed to practice in four states and has actively practiced medicine for over fifteen years. The Board's investigation reflects no blemishes on his professional record. He is a Board-certified diplomate of the American Board of Family Practice. It is apparent from the evidence in this proceeding that Dr. Dalton did not deliberately mislead or lie to the Board. He never contemplated that the Board would deny him access to a license if they knew he had originally failed two courses at Loma Linda. He was previously licensed by endorsement in Florida without any apparent difficulty. What the Board perceived as persistent evasive answers was more likely "tunnel-vision" and failure to grasp the Committee's concern about his peculiar story that although he passed his courses, he was still "dismissed." Dr. Dalton meets the requirements for licensure by examination, including good moral character. He has not attempted to obtain his license through fraudulent misrepresentations.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That a Final Order be entered by the Board of Medicine approving William E. Dalton's application for licensure as a physician in the State of Florida. DONE AND RECOMMENDED this 13th day of August, 1987, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1147 The following constitute my specific rulings on the parties' proposed findings of fact: Petitioner: 1-2. Rejected as irrelevant to the issues framed in the pleadings in this case. Adopted in substance in paragraph 2. Adopted in substance in paragraph 3. 5-8. Adopted in substance in paragraph 5. The details of his education at Guadalajara are omitted as immaterial. Adopted in paragraph 5. Adopted in paragraphs 1 and 12. Rejected as cumulative and unnecessary. Adopted in paragraph 12. Adopted in paragraph 6. Rejected as cumulative and unnecessary. Adopted in substance in paragraph 6. 16-19. Adopted in paragraph 7. 20-21. Rejected as immaterial. 22-23. Adopted in paragraph 8. Adopted in substance in paragraph 10. 25&27. Rejected as immaterial and unnecessary. 28&29. Adopted in paragraph 11. Respondent: 1-2. Adopted in paragraph 7. Adopted in paragraph 8. Addressed and essentially adopted in the Background portion of this Recommended Order. 5-6. Adopted in substance in paragraphs 2 and 3. 7-10. Rejected as argumentative and unsupported by the evidence as a whole. 11. Rejected as inconsistent with the evidence as a whole. COPIES FURNISHED: Charles A. Stampelos, Esquire Finley, Kumble, Wagner, Heine, Underberg, Manley, Myerson & Casey Post Office Box 2174 Tallahassee, Florida 32316-2174 M. Catherine Lannon, Esquire Assistant Attorney General Suite 1601, The Capitol Tallahassee, Florida 32399-1050 Ms. Dorothy Faircloth Executive Director Board of Medicine 130 North Monroe Street Tallahassee, Florida 32399-0750 Honorable Van B. Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
