The Issue The issue in these two consolidated cases is whether disciplinary action should be taken against Luis J. Marti, M. D., hereinafter referred to as "Respondent Marti," and/or Jesus Escar, M.D., hereinafter referred to as "Respondent Escar," based upon the alleged violations of Chapter 458, Florida Statutes, contained in the separate Administrative Complaints filed against each of the Respondents.
Findings Of Fact Based on the stipulations of the parties; on the testimony of the witnesses, and on the exhibits received in evidence at the hearing; I make the following findings of fact. Respondent Escar is, and has been at all times material hereto, a licensed physician in the state of Florida, having been issued license number ME 0034247. Respondent Escar's last known address is 935 West 49th Street, Suite #107, Hialeah; Florida 33012. Respondent Marti is, and has been at all times material hereto, a licensed physician in the state of Florida, having been issued license number ME 0034842. Respondent Marti's last known address is 24355 West Flagler Street, Miami, Florida 33125. Respondent Marti went to medical school in Madrid, Spain. In approximately 1970, while Respondent Marti was in medical school in Madrid, Spain, Respondent Marti met Jose A. Tudela for the first time. At the time, Tudela had come to Madrid, Spain, for the purposes of starting medical school. In approximately 1975, while Respondent Marti was working as a resident at Cedars of Lebanon Hospital, Respondent Marti again saw Jose A. Tudela. At about the same time, Respondent Escar met Tudela for the first time. Tudela's father, Francisco Tudela, a physician, was an attending physician at Cedars of Lebanon Hospital. Respondents Marti and Escar saw Jose and Francisco Tudela in 1975 while on rounds at the hospital. In 1979, while Respondents Marti and Escar were working at Palm Springs General Hospital, Jose A. Tudela came to the hospital to apply for a position as a house physician and saw Respondents Escar and Marti. When Tudela applied for the position of house physician at Palm Springs General Hospital, Respondents Marti and Escar were both residents at the hospital. On the day that Jose A. Tudela came to apply for the position of house physician at Palm Springs General Hospital, Tudela came to the doctors' lounge at the hospital where he spoke with Respondents Escar and Marti. Tudela had with him a diploma which appeared to Respondents Escar and Marti to be authentic and which appeared to have been issued by the Universidad Central del Este. The diploma had on the back what appeared to be official stamps and seals and the signature of the Vice Consul of the United States. Additionally, a translation of the diploma was attached to the diploma. On the date that Tudela came to apply for the position of house physician at Palm Springs General Hospital, Tudela also showed Respondents Escar and Marti what appeared to be a transcript of his grades from the Universidad Central del Este and a letter purportedly from one Victoria Marcial de Gomez. The transcript and letter appeared to Respondents Escar and Marti to be original and authentic. The letter from Gomez, who purportedly was the medical director for the health center of Trujillo Alto Health Department, in the associated Free State of Puerto Rico, appeared to verify the fact that Dr. Jose A. Tudela had worked in the Health Center of Trujillo Alto for seven months. When Respondent Marti reviewed Tudela's documents, he knew it was important that foreign papers be certified because he had had the experience of having to leave Cuba and re-establish himself. Respondent Marti's own diplomas from Spain bear attestations of notarization of a foreign government. Respondent Escar believed that Tudela's documents were originals because of his experience in having seen similar original documents of other residents in the past. On or about August 1, 1979, Jose A. Tudela completed an application for employment as a house physician at Palm Springs General Hospital. The application contained basic personal information about Tudela and listed some of Tudela's education and work experience. According to the application, Tudela went to Belle Glade High School, in Belle Glade; Florida; Warwick High School, in Newport News, Virginia, where he graduated in 1965; and the University of Miami; in Coral Gables, Florida where he graduated in 1970. According to the application, Tudela worked in an unspecified capacity in the Centro de Salud, in Trujillo Alto, Puerto Rico, from 1978 to 1979. The application form does not contain any information about Tudela's medical education. Specifically, it does not contain any mention of University of Santo Domingo, Universidad Central del Este, or U.C.E. On or about August 8, 1979, Jose A. Tudela was employed by Palm Springs General Hospital as a house physician. Jose A. Tudela remained at Palm Springs General Hospital as a house physician until October 29, 1979. Tudela left Palm Springs General Hospital on that date to become a surgical assistant at Miami Children's Hospital. While employed a Miami Children's Hospital, Tudela received the highest score on every item on his employee evaluation form. That hospital never knew of any problem with Tudela's performance or credentials until this case occurred. Between approximately 1979 and 1983, Respondents Escar and Marti practiced medicine together as partners. In 1980, Jose A. Tudela approached Respondent Marti and asked Respondent Marti to sign an affidavit on behalf of Tudela. Therefore, on or about March 13, 1980, Respondent Marti signed a Form B-1 which was addressed to Rafael A. Penalver, M.D., Director, Office of International Medical Education, University of Miami School of Medicine; Miami; Florida. The form B-1 contained the following sworn statement: This is to certify that Jose A. Tudela born in Cuba and a graduate from the University Santo Domingo on 1978 was legally engaged in the practice of medicine from ---- to in Puerto Rico. I have known the applicant since 1975 and was acquainted with him/her during the time he practiced medicine. I was algo (sic) engaged in the practice of medicine in Miami U.S.A. during the years of 1975 and up. At some time after Respondent Marti signed the Form B-1, the abbreviation "(U.C.E.)" was added to the above-referenced sworn statement after the school name, "University Santo Domingo." Respondent Marti did not place the quoted abbreviation on the Form B-1. Prior to signing the subject Form B-1, Respondent Marti reviewed, for verification purposes, the employment application of Jose A. Tudela for Tudela's employment as a house physician at Palm Springs General Hospital. However, the employment application in question does not reflect any attendance by Tudela at any educational institution in the Dominican Republic or Santo Domingo. Furthermore, the employment application does not indicate the capacity in which Tudela worked in the Centro Salud in Trujillo Alto, Puerto Rico, and does not specifically indicate that Tudela practiced medicine in Puerto Rico. In 1980, Jose A. Tudela also approached Respondent Escar and asked Respondent Escar to sign an affidavit for him. Therefore, on or about March 13, 1980, Respondent Escar signed a Form B-1 which contained the following sworn statement: This is to certify that Jose A. Tudela born in Cuba and a graduate from the University of Santo Domingo on 1978 was legally engaged in the practice of medicine from ---- to in Puerto Rico. I have known the applicant since 1970 and was acquainted with him/her during the time he practiced medicine. I was algo (sic) engaged in the practice of medicine in Miami, Fla during the years of 1977 and up. The Form B-1 was addressed to Rafael A. Penalver, M.D., Director; Office of International Medical Education, University of Miami School of Medicine, Miami, Florida. At some time after Respondent Escar signed the Form B-1, the abbreviation "(U.C.E.)" was added to the above-referenced sworn statement after the school name, "University of Santo Domingo." Respondent Escar did not place the quoted abbreviation on the Form B-1. Respondent Escar relied upon Respondent Marti's verification of Tudela's background information in signing the Form B-1 described in the immediately preceding paragraph. Respondent Escar did not personally review Tudela's application for employment at Palm Springs General Hospital but discussed the information contained in the employment application with Respondent Marti. At the time Respondents Marti and Escar signed the Forms B-1, they did not know Tudela very well and did not know very much about his background. Although they both thought Tudela was probably a graduate of a medical school, they did not remember what school he had supposedly graduated from, as evidenced by the fact that they put the wrong school name on the Forms B- 1. Both Respondent Escar and Respondent Marti lacked personal knowledge of the information contained in the Forms B-1 which they signed for Jose A. Tudela. Neither of the Respondents saw or taught Tudela at medical school in the Dominican Republic. Furthermore, neither Respondent Escar nor Respondent Marti was in Puerto Rico at the time Jose A. Tudela allegedly practiced medicine at the Centro Salud in Trujillo Alto, Puerto Rico. Neither of the Respondents had any source of information about Tudela's alleged medical education in the Dominican Republic or his alleged practice of medicine in Puerto Rico other than statements Tudela may have made to them, statements Tudela wrote on the application form at Palm Springs General Hospital, and whatever information could be gleaned from a casual review of Tudela's forged credentials. Jose A. Tudela has never graduated from the Universidad Central del Este, which is located in the Dominican Republic, nor from any other medical school. Tudela enrolled in the Universidad Central del Este (U.C.E.) medical school in August, 1977. There is no evidence in the school records for U.C.E. that Tudela passed any of his courses. In May of 1978 Tudela was no longer at the university. Tudela was given a special concession at U.C.E. so that upon presentation of a pre-medical certificate which Tudela claimed to possess, Tudela could receive credit for the pre-medical program training. However, Tudela never presented the required proof of his pre-medical program. Tudela did not complete any of the twelve semesters at U.C.E. which make up the medical degree program including pre-medical training. Although Respondent Marti first met Tudela in 1970 and Respondent Escar met him in 1975, the Form B-1 signed by Respondent Marti states that he met Tudela in 1975, and the one signed by Respondent Escar states that he met Tudela in 1970. The reason for this error is that both of the forms were prepared by Respondent Marti and the forms were inadvertently switched at the time they were signed. The Forms B-1 signed by Respondents Marti and Escar were submitted to the Board of Medical Examiners by Jose A. Tudela as attachments to an Application for Continuing Medical Education Program, which was submitted as part of Tudela's application for licensure as a physician in Florida. Tudela applied for licensure in Florida under the provisions of a special law which provided that the Board of Medical Examiners would establish continuing education courses designed to qualify for licensure those individuals who were resident nationals of the Republic of Cuba and were residents of Florida on July 1, 1977. In order to qualify for the continuing education program set up by the Board of Medical Examiners for Cuban nationals, an applicant had to demonstrate that he was a graduate from a medical school with a medical degree and that he was a resident national of the Republic of Cuba and a resident of Florida on July 1, 1977. Upon approval of the applicant to participate in the continuing education program set up by the Board of Medical Examiners, the applicant would have to complete the continuing education program. Upon completion of the continuing education program, the applicant would be qualified to take the licensing examination. In or about March of 1980, Tudela submitted an Application for Examination, an Application for Florida State Board of Medical Examiners Continuing Education Program, and the necessary attachments, which included the Forms B-1 signed by Respondents Escar and Marti and copies of what purported to be his diploma and transcript of grades. After successfully completing the continuing medical education program and the licensure examination, Tudela became certified to practice medicine and surgery by the Board of Medical Examiners on August 23, 1982. At the time of Tudela's application for medical license, the staff of the Board of Medical Examiners conducted the initial review and made the initial determination as to whether an individual was qualified to take the continuing education course and to take the licensure examination for certification to practice medicine and surgery in Florida. In making such determinations, consideration is given to all of the information contained in an applicant's file, which includes such things as the applicant's degree or diploma, transcript of grades, and the Forms B-1. At the time Tudela applied for licensure, the staff of the Board of Medical Examiners did not verify the medical education of applicants and conducted no investigation into the school or the graduation of applicants for licensure. Prior to approving Tudela's application, neither the Board members nor the staff independently contacted the Universidad Central del Este to verify whether Tudela actually graduated from medical school. The Board members did not personally review Tudela's application. The staff reviewed the papers and presented the Board with a list of applicants who appeared to be eligible for the continuing education course and the licensure examination. The diploma and the transcript of grades which Tudela showed to the Respondents and filed with the Board of Medical Examiners are forgeries. They are very good forgeries and bear a remarkable resemblance to genuine diplomas and transcripts issued by the Universidad Central del Este. The false documents provided by Tudela to the Board as part of his application, along with the Forms B-1 signed by Respondents Marti and Escar, deceived the staff into recommending Tudela for the continuing education course, the licensure exam, and ultimately for certification to practice medicine. Tudela's application to the Board also contains several letters of recommendation from other physicians who were convinced of Tudela's competence. The Educational Commission for Foreign Medical Graduates granted Tudela a certificate despite his forged documents. In November 1984, an Administrative Complaint was filed against Jose A. Tudela which alleged that Tudela did not graduate from or obtain a degree of Doctor of Medicine from U.C.E., contrary to what Tudela had indicated in his application for licensure examination described above. In March 1985, the Board of Medical Examiners entered an order accepting the surrender for revocation of Jose A. Tudela's license to practice medicine in lieu of further prosecution of the charges contained in the Administrative Complaint which had been filed in November 1984. Tudela is not currently licensed as a physician in the state of Florida. No further action was taken against him for his having fraudulently obtained a medical license in Florida. Respondents Escar and Marti were both aware of the fact that the Forms B-1 which they signed were to be submitted as part of the application for the continuing medical education program which had been established by the Board of Medical Examiners for Cuban nationals as a prerequisite to take the licensure examination. In fact; Respondent Marti became eligible to take the medical licensure examination in Florida by completing the same continuing medical education program. When the Respondents Escar and Marti signed the subject Forms B-1, neither of them had any personal knowledge as to the truth or falsity of the statements therein regarding Tudela's medical education and experience; yet they deliberately certified, under oath, to the truthfulness of matters about which they were distinctly uninformed. When the Respondents Escar and Marti signed the subject Forms B-1, both of them knew the purpose of the forms and both knew that the Board of Medical Examiners would rely on the information in the forms.
The Issue The issue posed for decision herein is whether or not the Respondent is able to practice medicine with reasonable skill and safety to patients based on his mental condition. Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence introduced, and the post-hearing memoranda, I hereby make the following:
Findings Of Fact By its Administrative Complaint filed herein dated July 2, 1982, Petitioner, Board of Medical Examiners, seeks to suspend, revoke or take other disciplinary action against the Respondent, Gordon Allen Genoe, as licensee and against his license as a physician under the laws of Florida, based on an alleged violation of Section 458.331(1)(s), Florida Statutes. Respondent is a physician and has been issued license No. ME0017002. The last known address of the Respondent is 1015 Southwest 9th Street, #F-2, Gainesville, Florida 32604 2/. Respondent suffers from a hi-polar, or manic depressive disorder, or possibly a borderline personality disorder, with a history of problems associated therewith which have been evident in an increasing fashion since birth. A manic depressive illness is an emotional or mental illness characterized by mood swings which leave such a person depressed. During the manic phase, that person is in lay terms, "high or accelerated" and displays a fast thinking process. He has been voluntarily admitted for psychiatric evaluation and treatment on numerous occasions for relatively short periods of time. On or about January 6, 1982, Judge Richard Miller, in and for the Circuit Court of Pinellas County, Florida, ordered that Respondent be admitted involuntarily to a mental health facility pursuant to Section 394.463(1)(b)1, Florida Statutes. The Order was based upon the sworn affidavit of three witnesses who swore to being witness to, or having knowledge of, aggressive, threatening, irrational, and unusual behavior on Respondent's part 3/. Following the entry of said Order, Respondent was admitted to Horizon Hospital in Clearwater, Florida, and was immediately discharged by the attending physician, Dr. Harry L. Sauers, a psychiatrist. At that time, Respondent represented to Dr. Sauers that he would immediately seek further psychiatric treatment at Goodwood Manor Psychiatric Center in Tallahassee, Florida. However, Respondent failed to submit himself to treatment at Goodwood Manor in Tallahassee. During July, 1982, Respondent made a serious attempt at suicide while under the care of Dr. Alfredo Hernandez, psychiatrist, and required emergency hospitalization and subsequent inpatient psychiatric treatment. Pursuant to an order of the Board of Medical Examiners, Respondent was examined by Sidney I. Holzberg, M.D., a psychiatrist. Dr. Holzberg, as did two other medical doctors trained in psychiatry, found that the Respondent suffers from either a bipolar, mixed mental disorder, or a personality disorder characterized as severe, either of which, when not under control, may seriously affect Respondent's ability to practice medicine consistently with reasonable skill and safety to patients. Dr. Holzberg's examination was conducted on November 4, 1982. At that time, Respondent presented himself as a calm and cooperative person whose mood was serious. There was no evidence of mental illness. Respondent's appearance was neat and he was able to intelligently comprehend questions and provide appropriate answers during that examination. At present, Respondent is receiving treatment from Dr. Hernandez for his mental condition and is being administered the drug lithium carbonate. Lithium carbonate is considered effective in the treatment and management of hi- polar disorders and has a success rate of between 60 and 80 percent, depending upon the phase of the mental condition that the patient is then suffering. Respondent appears to be in a state of remission from the symptoms of this chronic mental condition. Respondent has consented to continue ongoing treatment for his mental condition. Further, he has expressed a willingness to undergo reasonable detection and monitoring measures as required by the Petitioner. While the Respondent's mental disorder is under control, he poses no threat of danger to patients to the extent that he is actively practicing medicine. In this regard, Respondent has only practiced radiology for brief periods consisting of two temporary positions during the period 1980-1981. However, his license remains current and he may resume his practice of medicine at any time. Since 1981, to keep his knowledge of radiology and nuclear medicine current, Respondent reviews medical books and journals on a regular basis. Respondent's Educational Background Respondent has an exemplary educational background. He graduated in the top 2 percent of his high school graduating class. He attended his freshman year of college studies at Arizona State University where he received all A's with the exception of two B's in English. Respondent was highly sought after by college recruiters for graduate studies and from the Army for an appointment as a commissioned officer. After completing his freshman year at Arizona State University, Respondent transferred to Northwestern University (Illinois) and earned a grade point average of 3.4 out of a possible 4 points during his sophomore and junior years. Respondent was accepted in medical school at Northwestern after his junior year and earned sufficient credits during his first year in medical school to graduate from the undergraduate program at Northwestern. Respondent attended medical school at Northwestern University in Chicago. Respondent served an internship at Los Angeles County Hospital and completed two years of public health service. Following an appointment as a commissioned officer in the armed services, Respondent was accepted in the radiology program at the University of Chicago. He completed a two year residency in diagnostic and therapeutic radiology. That program is considered to be one of the leading radiology centers in the country. Following his residency, Respondent was appointed to the staff at the University of Chicago as a radiology instructor. In addition to his teaching duties, Respondent studied nuclear medicine, angiography research and wrote a scientific paper about the use of a technique called "bronchial brushing" in the diagnosis of various diseases such as lung cancer and infections. Respondent sat for and passed the medical licensure examination in Florida in 1971 on his first sitting. He thereafter joined the staff of University Medical Hospital in Jacksonville where he served as Chief of the Nuclear Medicine Department. While at University Hospital, Respondent was responsible for setting up the radiology department and instructed residents in phases of radiology, and more particularly nuclear medicine. Respondent also wrote a paper on the diagnosis of lung carcinoma utilizing the technique of bronchial brushing while at University Hospital. That paper was published in a major radiology journal. After serving two years at University Hospital, Respondent entered private practice at Doctors Hospital in Lake Worth, Florida. Respondent served as chief radiologist at Doctors Hospital. Respondent was also responsible for instituting both the radiology and nuclear medicine departments at Doctors Hospital. Respondent served in numerous positions at various hospitals, primarily in the south Florida area and based on contractual difficulties with professional associations (primarily financial in nature) Respondent became disenchanted with the practice of medicine and decided to pursue a career in law. Respondent has completed approximately two years of legal studies at the University of Florida and Stetson Law School.
The Issue The issues for determination in this case are: 1) whether Respondent, the Agency for Health Care Administration has made a nonrule policy statement which constitutes a “rule” as defined in Section 120.52(15), Florida Statutes, which in substance states that a hospital, licensed as a general hospital as defined in Section 395.002(10), Florida Statutes, may use the term “children’s hospital” and otherwise hold itself out and advertise as a “children’s hospital” without obtaining a license as a specialty hospital for children as defined in Section 395.002(27), Florida Statutes, and Rule 59A-3.02, Florida Administrative Code; 2) whether such agency policy statement, if made, constitutes a “rule” as defined in Section 120.52(15), Florida Statutes; 3) whether such agency policy statement, if made, has been adopted by rule as provided for in Section 120.54, Florida Statutes; and, 4) whether such agency policy statement, if made, constitutes an invalid exercise of delegated legislative authority as defined in Section 120.52(8), Florida Statutes.
Findings Of Fact Petitioner, ALL CHILDREN’S HOSPITAL, INC. (ALL CHILDREN’S), is a licensed Class II Children’s Specialty Hospital located in St. Petersburg, Florida. ALL CHILDREN’S is licensed for 168 beds, including 108 acute care beds, 36 Level II neonatal intensive care (NICU) beds, and 24 Level III NICU beds. Historically, since its founding in 1926, ALL CHILDREN’S has been primarily committed to providing medical services to children, although ALL CHILDREN’S does provide limited services to adult patients, including a shared open heart surgery program with Bayside Medical Center. Petitioner, VARIETY CHILDREN’S HOSPITAL, INC., d/b/a MIAMI CHILDREN’S HOSPITAL (VARIETY), is a licensed Class II children’s specialty hospital located in Miami, Florida. VARIETY is licensed for 268 beds, with 218 acute care beds, 20 psychiatric beds, 7 Level II NICU beds, and 23 Level III NICU beds. Respondent, FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION (AHCA), is the agency of the State of Florida vested with the statutory authority for administering the provisions of Chapter 395, Florida Statutes, relating to hospital licensure and regulation. Intervenor, ST. JOSEPH’S HOSPITAL INC. (ST. JOSEPH’S), is licensed as a Class I general acute care hospital located in Tampa, Florida. ST. JOSEPH’S is licensed for 883 beds, with 799 acute care beds, 42 adult inpatient psychiatric beds, 15 Level II NICU beds, and 27 Level III NICU beds. ST. JOSEPH’S operates a pediatric unit within the hospital which is designated as Tampa Children’s Hospital at ST. JOSEPH’S. ST. JOSEPH’S uses this designation in its publications and advertisements. Intervenors, FLORIDA STATUTORY TEACHING HOSPITAL COUNCIL and SHANDS AT THE UNIVERSITY OF FLORIDA (SHANDS), intervened jointly; however, the primary party substantially affected by the issues raised in this case is SHANDS. SHANDS is a statutory teaching hospital located in Gainesville, Florida. SHANDS is licensed as a Class I general acute care hospital and has 568 beds including 484 acute care beds, 24 adult inpatient psychiatric beds, 18 child inpatient psychiatric beds, 30 Level II NICU beds, and 20 Level III NICU beds. SHANDS provides children’s health care services in a distinct pediatric unit within the hospital. SHANDS uses the term “children’s hospital” in its publications and advertisements regarding the provision of the services in its pediatric unit. Intervenor, SOUTH BROWARD HOSPITAL DISTRICT d/b/a MEMORIAL REGIONAL HOSPITAL and JOE DIMAGGIO CHILDREN’S HOSPITAL (MEMORIAL), is licensed as a Class I general acute care hospital located in Ft. Lauderdale, Florida. MEMORIAL is licensed for 680 beds, including 515 acute care, 100 adult inpatient psychiatric beds, 36 comprehensive rehabilitation beds, 10 Level II NICU beds, and 19 Level III NICU beds. MEMORIAL operates the Joe DiMaggio Children’s Hospital (which MEMORIAL has registered as a fictitious name) as a distinct pediatric unit within MEMORIAL, and uses the term “children’s hospital” in its publications and advertisements. Intervenor, HOSPITAL BOARD OF DIRECTORS OF LEE COUNTY d/b/a LEE MEMORIAL HOSPITAL (LEE), is licensed as a Class I general acute care hospital located in Ft. Myers, Florida. LEE is licensed for 427 beds, including 367 acute care beds and 60 comprehensive medical rehabilitation beds. LEE also is licensed for its Health Park campus which contains 220 beds. Within the hospital LEE operates a distinct pediatric unit which has been designated the “Children’s Hospital of Southwest Florida” (registered as a fictitious name), and which designation LEE uses in its publications and advertisements. THE AGENCY STATEMENT As indicated above, the Petition filed in this case alleges that AHCA has made the following nonrule policy statement which constitutes a rule: The Agency for Health Care Administration takes the position that a hospital licensed as a general hospital, pursuant to Chapter 395, can designate itself as a “Children’s Hospital” and advertise such hospital status to the general public, without following the requirements of Rule 59A-3.202 and 59A- 3.201(65) and without obtaining a license as a Class II Specialty Hospital for Children. In this respect, Rule 59A-3.202(1), Florida Administrative Code, provides that AHCA will license four classes of hospital facilities. In pertinent part, the rule provides: 59A-3.202 Classification of Hospitals. The agency will license four classes of facilities: Class I or general hospitals which includes; General acute care hospitals with an average length of stay of 25 days or less for all beds; Long term care hospitals, which meet the provisions of 59A-3.201(31); and Rural hospitals designated under s. 395, Part III, F.S. Class II specialty hospitals offering the range of medical services offered by general hospitals, but restricted to a defined age or gender group of the population which includes; Specialty hospitals for children; and Specialty hospitals for women. Class III specialty hospitals offering a restricted range of services appropriate to the diagnosis, care, and treatment of patients with specific categories of medical or psychiatric illnesses or disorders which include; Specialty medical hospitals; Specialty rehabilitation hospitals; Specialty psychiatric hospitals, which may include beds licensed to offer Intensive Residential Treatment programs; Specialty substance abuse hospitals, which may include beds licensed to offer Intensive Residential Treatment programs; and Class IV specialty hospitals restricted to offering Intensive Residential Treatment Programs for Children and Adolescents, pursuant to s. 395.002(16), F.S. Regulation of advertisement by licensed hospitals is provided for in Section 395.003(1)(b)1., Florida Statutes, which states: (b)1. It is unlawful for any person to use or advertise to the public, in any way or by any medium whatsoever, any facility as a “hospital” or “ambulatory surgical center” unless such facility has first secured a license under the provisions of this part. For several years, and at least since 1990, concerns have been expressed to AHCA and its predecessor agency, the Florida Department of Health and Rehabilitative Services (HRS), regarding the use of the term “children’s hospital” by Class I general acute care hospitals. While not adopting a specific agency position on this issue, Sharon M. Gordon-Girven, the former HRS Director of Community Health Services & Facilities Regulation and Health Facilities, by letter dated June 1, 1990, expressed the following concerns regarding the legal permissibility of the portrayal of pediatric beds within a general hospital as a separate and distinct licensed facility: The portrayal of the pediatric beds as a separate and district licensed entity from the licensee, Baptist Medical Center, may not be legally permissible. I call this to your attention so that you can obtain a legal interpretation concerning the provision of Chapter 395.003(1)(b)1. Subsequently, by letter to ALL CHILDREN’S dated March 17, 1994, Gloria Crawford Henderson, then Director of the Division of Health Quality Assurance for AHCA, expressed continuing agency concerns: First, let me address the issue as it relates to unlicensed acute facilities. Let me assure you that it is this agency’s policy to vigorously enforce the prohibition in section 395.003(1)(a), Florida Statutes (F.S.), against the establishment or operation of any hospital without first obtaining a hospital license. This agency will respond to any allegation received of any unlicensed facility operating and advertising itself to the public as a children’s hospital. Second, if I am correctly interpreting your letter, your clients’ greater concern is about licensed general hospitals that advertise to the public that they are in whole or in part a children’s hospital, although they have not been licensed as a specialty hospital, as defined in section 395.002(27), F.S. I too, am concerned with public perception, as it relates to this matter. Specifically, a hospital license issued by this office represents an assurance to the public that a hospital meets certain standards of safe and quality care. Clearly, a specialty children’s license, or a general acute license that includes specialty children’s beds/services as approved by the certificate of need office, represents to the public that the hospital has fulfilled particular certificate of need and licensure regulatory requirements related to children’s services. The same assurances of specialized capability and quality of care cannot be made to the public in the absence of such a specialty license or specialty notation on a general license. I believe that the hospital licensure rule as written, Chapter 59A-3, F.A.C., does not adequately address this issue. The rule is presently being substantially revised and it is my intent to include this issue in the revision. It is my objective to clarify the circumstances under which a hospital may advertise children’s services, relative to the statutory licensure and certificate of need framework under which this office regulates hospital quality of care. We will keep you informed as to the status of our rulemaking efforts, and invite your input regarding proposed language. Again, I appreciate you bringing this matter to my attention, and trust that we will be able to achieve a resolution that is satisfactory to the industry as a whole while preserving the integrity of the licensure process and its assurances of public safety and quality of care. On January 20, 1995, AHCA published proposed Rule 59A- 3.202(2) which provided the following restrictions on advertising by licensed hospitals: (2) Licensed hospitals may not advertise to the public, by any medium whatsoever, that they are a specialty hospital, unless they have been licensed as a specialty hospital, as defined in s. 395.002(27), F.S. Proposed Rule 59A-3.202(2), as set forth above was thereafter challenged under Chapter 120, Florida Statutes. AHCA then withdrew the proposed rule on advertising restrictions, and on July 13, 1995, the proposed rule challenge case was closed by the Division of Administrative Hearings. By letter dated April 11, 1996, in response to an inquiry by SHANDS, Daryl Barowicz, Supervisor of Hospital and Outpatient Services for AHCA, made the following statements regarding the agency’s position: This is in response to your recent letter and your subsequent telephone conversation with Mr. Elmo Elrod regarding Shands Hospital proposal to establish a Children’s Hospital within a Hospital. You will recall from your conversation with Mr. Elrod, that last year they agency proposed Rule 59A-3.202(2), which in essence would have prohibited licensed hospitals from advertising to the public that they are a specialty hospital, unless they had been licensed as a specialty hospital, as defined in s. 395.002(27), Florida Statute. The rule was challenged and the agency subsequently withdrew the rule, with the plan to develop standards for children’s hospitals in the coming months. The first workshop for developing children’s hospital standards was held on January 12. These standards will apply to free-standing premises, as well as portions of hospitals. Any facility that does not meet the requirements once they are established, will no longer be allowed to advertise itself as a “Children’s Hospital.” Although the present rules would not prohibit Shands from doing what they are proposing to do, we believe that they should consider the potential ramifications of this new rule, once it is adopted. The evidence does not establish that Respondent AHCA has made the specific statement set forth in the allegations of the Petition filed in this case; however, at final hearing in this case, the agency representative, Tanya Williams, AHCA’s Bureau Chief for the Bureau of Health Facility Regulation, testified that it is AHCA’s current position that the provisions of Sections 395.002 and 395.003, Florida Statutes, do not vest the agency with the statutory authority to regulate advertising by licensed hospitals beyond the express limitations of Section 395.003(1)(b)1., Florida Statutes. Because the statute contains no express limitation regarding specialty designations in advertising by licensed hospitals, the agency has taken the position that a rule prohibiting the use of the term “children’s hospital” in advertising by Class I general hospitals is without legislative authority. Accordingly, the agency has in substance adopted the nonrule policy statement at issue in this case. Status of Agency Rulemaking Subsequent to the agency’s withdrawal of proposed Rule 59A-3.202(2) in 1995, the agency has continued development of rules regarding standards for children’s hospitals, and conducted workshops for the development of such rules. The rules currently under development by the agency do not provide for restrictions on advertisement by licensed hospitals. Operation and Advertisement of Children’s Hospitals As indicated above, AHCA is in the process of developing rules regarding standards for children’s hospitals in Florida. On a national level, the National Association of Children’s Hospitals and Related Institutions (NACHRI) has promulgated criteria for children’s hospitals. Membership in NACHRI is limited to those hospitals and institutions which meet NACHRI’s membership criteria. The membership criteria require a commitment to providing children’s medical services, and include specific medical staff training and teaching, organizational support for the pediatric program, appropriate resource allocation, and community involvement. Petitioners, ALL CHILDREN’S and VARIETY, are the only hospitals in Florida with full institutional membership in NACHRI. Intervenor SHANDS has associate membership in NACHRI. Several charitable organizations, including the Children’s Miracle Network raise funds for children’s medical needs. ALL CHILDREN’S currently holds the franchise for the Children’s Miracle Network in central Florida. Advertising for charitable contributions for children’s medical needs may enhance the contributions to a medical institution. AHCA has not received any complaints regarding deceptive or misleading advertisements regarding children’s hospitals.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petition filed in this matter is hereby DISMISSED. DONE and ENTERED this 7th day of April, 1997, in Tallahassee, Florida. RICHARD HIXSON Administrative Law Judge Division of Administrative Hearings DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 1997. COPIES FURNISHED: Gerald B. Sternstein, Esquire Frank P. Rainer, Esquire RUDEN, MCCLOSKY, SMITH, SCHUSTER and RUSSELL, P.A. 215 South Monroe Street, Suite 815 Tallahassee, Florida 32301 Richard P. Ellis, Esquire Agency for Health Care Administration 2727 Mahan Drive, Building 3 Tallahassee, Florida 32308 Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300 R. Terry Rigsby, Esquire Wendy Delvecchio, Esquire Richard A. Lotspeich, Esquire BLANK, RIGSBY & MEENAN 204 South Monroe Street Tallahassee, Florida 32301 Mark K. Delegal, Esquire John C. Taylor, Jr., Esquire TAYLOR, DAY & RIO 311 South Calhoun Street, Suite 206 Tallahassee, Florida 32301 Glenn Burton, Esquire SHEAR, NEWMAN, HAHN & ROSENKRANZ 201 East Kennedy Boulevard, Suite 1000 Tampa, Florida 33601-2378 Robert C. McCurdy, Esquire Hospital Board of County Commissioners Post Office Box 2218 Ft. Myers, Florida 33902-2218 Sam Power, Agency Clerk Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
Findings Of Fact The application of Petitioner, John David Young, M.D., for licensure by endorsement initially was filed on March 13, 1991. The initial application was not completed within one year and, under F.A.C. Rule 61F6-22.016, was not acted upon by the Board of Medicine. The Petitioner reapplied on September 1, 1992, and his application was denied by Respondent's Order rendered on November 4, 1993. The basis of denial stated in the November 4, 1993, Order is: You failed to show a medical education as that term is used in Chapter 458 in Sections 458.313(1)(a) and 458.311(1)(f) and have failed to show medical practice as required by Section 458.313(1)(c). Additionally, you have misrepresented your education. Sections 458.313(1)(a) and (7); 458.311(1)(c) and (d); 458.331(1)(a) and (gg), F.S. Medical Education Dr. Young received his Doctorate of Medicine Degree from Grace University School of Medicine, St. Kitts, Nevis, West Indies, June 4, 1986. Grace University is registered with the World Health Organization. Dr. Young began his medical education on May 5, 1981, at the Universidad de Mundial, Dominican Republic, where he completed one year as reflected by the transcripts found at Joint Exhibit 1, page 195. Dr. Young transferred to CETEC, Dominican Republic, because of his concerns that Universidad de Mundial would close within a few years. The transfer to CETEC occurred in late December, 1981. CETEC allowed Dr. Young to take pathology and physiology at the University of Southern California on the condition that CETEC would administer exams on those subjects before they would give him credit. The University of Southern California did not give credit for the courses, which was not a concern to Dr. Young because he was seeking credit from CETEC upon taking the CETEC examination. CETEC attempted to establish a liaison with Orange State University School of Medicine in Southern California whereby students could take courses at Orange State and receive credit by CETEC. Dr. Young completed his basic science course work at Orange State as reflected by the transcript at Joint Exhibit 1, page 193, for which CETEC gave him credit. Melvin A. Shiffman, M.D., was temporary dean at Orange State University and submitted a letter to the Board of Medicine confirming Dr. Young's attendance from May through August, 1982, and that Dr. Young took the CETEC final examinations on all the subjects taught at Orange State for which they gave credit. Dr. Young began his clinical rotations upon completion of his basic sciences as follows: Basic Medicine at Pine Ridge Indian Health Hospital, Pine Ridge, South Dakota, from August 31, 1982 to September 30, 1982; surgery at Oral Roberts University School of Medicine from October 4, 1982 to December 22, 1982; surgery at Fitkin Hospital, Swaziliand, South Africa, in 1983; basic medicine at Pine Ridge Indian Hospital, Pine Ridge, South Dakota, from April 18, 1983 to May 29, 1983. While at Pine Ridge Indian Hospital the second time, Dr. Young was asked to leave by the acting hospital administrator, on the allegation that he was attending CETEC, which was not an approved school, which in fact it was. In shock at being asked to leave based on those allegations, Dr. Young travelled to Kansas City to stay with relatives to study for the Educational Commission for Foreign Medical Graduates (ECFMG) examination required for all foreign medical graduates. The Petitioner took and passed the ECFMG examination on July 27, 1983. Upon completion of the examination, Dr. Young continued his clinical rotations as follows: Psychiatry at Bay Front Medical Center, University of South Florida, St. Petersburg, Florida; medicine at University of Natal, Republic of South Africa, from September 26, 1983 to January 1, 1984; obstetrics/gynecology at Addington Hospital, University of Natal, Republic of South Africa, from January 3, 1984 to March 4, 1984; pediatrics from March 12 to May 13, 1984 at Addington Hospital; University of Natal; and surgery from May 13, 1984 to July 16, 1984 at Addington Hospital, University of Natal. In late May or early June, 1984, while Dr. Young was in the surgery rotation, he learned, upon calling home and speaking to his mother, that CETEC closed as of March 4, 1984. Dr. Young was shocked at learning of the closing, but decided to complete the surgery rotation, since he was working with a well known professor, and to return to the U.S. after that to try to find another medical school. Dr. Young registered at the University of Health Science in Antigua in September, 1984. The University of Health Science required Dr. Young to take their exams for credit of his basic sciences course work, which he took in December, 1984. Because the transcripts from CETEC were not available, Dr. Young produced to the University of Health Sciences cancelled checks showing payment for his tuition, which was accepted. The University of Health Sciences, therefore, required Dr. Young to pass their examinations for the basic science courses in lieu of the CETEC transcript. Dr. Young found the exams to be suspicious in that they seemed to be random photocopies of medical text book pages. Accordingly, Dr. Young went to the U.S. Embassy at Antigua to discuss the medical school and was advised to change schools because of problems they were having with the school. Dr. Young learned later that 30 former students filed suit in federal court against the school for the irregularities. Upon completion of the examinations, Dr. Young continued his rotations. He did a rotation in cardiology at Bay Pines Veterans Hospital, St. Petersburg, Florida from December 18, 1984 to January 31, 1985. He did a rotation in internal medicine at Metropolitan General Hospital, Pinellas Park, Florida from February 1, 1985 to April 30, 1985. He did a rotation in pediatrics with Dr. DeGall at All Childrens Office in St. Petersburg, Florida from May 1 to July 29, 1985. Dr. Young then enrolled in Grace University Medical School, St. Kitts, Nevis, West Indies, in December, 1985. Grace University gave Dr. Young credit for course work done for previous medical schools approved by the World Health Organization, but told him that he would be required to take validation exams for that course work and would probably need to take some additional clerkships. This was explained to the Board of Medicine by the Vice President and CEO of Grace University, J.P. McNaughton-Louden, M.D., by letter dated February 20, 1991, found at Joint Exhibit 1, page 103. In that letter, Dr. Louden also confirms that CETEC was approved by the World Health Organization, that CETEC closed while Dr. Young was taking rotations in South Africa, that students at University of Health Sciences in Antigua were advised by the U.S. Consul authorities to transfer because of problems, that Dr. Young would be given credit for studies done at medical schools approved by the World Health Organizations co-validated by examinations at Grace University, and that Dr. Young's clerkships had been accepted and that he graduated on June 4, 1986. The transcripts of Grace University found at Joint Exhibit 1, page 104, shows that Dr. Young was admitted in March, 1984, even though his actual enrollment was December, 1985, because the school dated the admission retroactively to the date that CETEC closed. Dr. Young listed what he considered to be his accurate date of enrollment on his application for licensure as December 21, 1985. Dr. Young did the following additional rotations for Grace University: pediatrics with Dr. DeGall in St. Petersburg, from December 29, 1985 to February 26, 1985; and general medicine and emergency medicine at a refugee camp under the auspices of the United States and Christian Missionary Life from March 3 to April 30, 1985. FLEX Exam Dr. Young took and passed the Federation of State Medical Boards' Licensing Examination (known as "FLEX") on the first attempt in December, 1988. Residency 21 Dr. Young completed one year of residency in internal medicine at Marshall University on January 31, 1989. Maurice A. Mufson, M.D., Dr. Young's professor and Chairman of the Department of Internal Medicine, submitted an evaluation of the residency to the Board of Medicine recommending him as qualified and competent. After completion of the one year residency in internal medicine, Dr. Young realized that in order to fulfill his desire to practice missionary medicine, he would need a broader education. Accordingly, he changed his residency to family practice. Marshall University gave Dr. Young seven months credit from his one year of internal medicine residency towards his family practice residency which was completed in June, 1991. Robert B. Walker, M.D., Dr. Young's professor and Chairman of the Department of Family and Community Health, submitted to the Board of Medicine and evaluation of Dr. Young's family practice residency recommending him as qualified and competent. The AMA physician profile on Dr. Young, submitted to the Board of Medicine by the AMA, shows that Dr. Young completed the family practice residency and one year of internal medicine residency. However, the AMA profile mistakenly shows Dr. Young's internal medicine residency as from 2/87 to 1/88, instead of the accurate dates of 2/88 to 1/89. Dr. Young brought this error to the attention of the AMA which did not correct it. Letters recommending Dr. Young for licensure were sent to the Board of Medicine by: Stephen Petrany, M.D., Dr. Young's former Director of the Family Medicine Residency at Marshall University; and Jack Ditty, M.D., a Board certified dermatologist in Kentucky who was adjunct professor at University of Kentucky and Marshall University (who writes that Dr. Young is of high moral character and has knowledge and experience which would be necessary to practice medicine in Florida.) Post-Residency After completion of his residency in 1991, Dr. Young became licensed to practice medicine in West Virginia. Since his licensure, there have been no complaints or probable cause determinations made against his license, and no malpractice claims have been filed against him. Since completion of his residency, he has served as Assistant Professor of Clinical Medicine at the University of West Virginia and as Adjunct Professor of Medicine at Marshall University School of Medicine. He also has worked as a ship's doctor for a cruise line, worked as Assistant Professor of Medicine at University of West Virginia, moonlighted as an emergency room doctor in Beckley, West Virginia, lectured extensively in the Republic of South Africa on sexually transmitted diseases, and has worked as an emergency room doctor for the U.S. Military in Arizona. ECFMG Certification The Educational Commission for Foreign Medical Graduates (ECFMG) verifies the medical education of each person to whom it awards a certificate following passage of its examination. The ECFMG's investigation of Dr. Young's medical education took several years, because of allegations involving a Mr. Pedro de Mesones falsifying information from some medical schools in the Dominican Republic, including CETEC, on behalf of some applicants to various state medical boards. Dr. Young never met nor spoke with Pedro de Mesones nor was he involved with him in any way. The ECFMG advised Dr. Young of this investigation by letter dated June 7, 1984, found at Joint Exhibit 1, page 167. Further complicating the ECFMG investigation of Dr. Young's medical education was the closing of CETEC. The Dominican Republic government established an agency known as CONES to assist in getting transcripts of students who attended CETEC. Dr. Young wrote to CONES in an attempt to obtain his CETEC transcript from CONES. Even though Dr. Young was unable to obtain transcripts of CETEC from CONES, ECFMG verified all of Dr. Young's medical education, clinical rotations, and residency. The ECFMG investigation of Dr. Young's medical education concluded with no irregularities in his credentials having been found. The ECFMG issued its certificate to Dr. Young on October 13, 1987; it is valid indefinitely. Specialty Board Certification Dr. Young is certified as a diplomate of the American Board of Family Practice for the period of 1992 - 1999. The certificate from the American Board of Family Practice indicates: that Dr. Young met the requirements to be certified as a Diplomate of the Board; that he has completed a 3-year residency; and that the American Board verified Dr. Young's medical education and found it to be authentic. Board of Medicine Investigation As part of the routine investigation of Dr. Young's application for licensure filed with the Board of Medicine, the Board staff wrote to CONES requesting confirmation of the CETEC education and received a response dated March 6, 1992, by letter found at Joint Exhibit 1, page 87, stating that Dr. Young was not found on their lists and that they could not process the Board's request until they had Dr. Young's student registration number. However, an earlier certification by CONES dated May 12, 1987, found at Joint Exhibit 1, pages 9 and 10, shows that CONES did have Dr. Young's student identification number and had a file on him. Paul L. Allyn, M.D. also confirmed to the Board of Medicine by letter dated June 30, 1993, found at Joint Exhibit 1, page 88, that Dr. Young did attend CETEC. The transcript of the Credentials Committee Meeting at Joint Exhibit 2 shows that the committee focused on the March 6, 1992, letter rather than the May 12, 1987, letter. The Board staff contacted the University of Health Sciences to confirm Dr. Young's attendance and received a letter from its President dated October 21, 1991, found at Joint Exhibit 1, page 99. That letter states that Dr. Young did not receive credit for his previous medical education, that he attended the institution from September 19, 1984 to July 11, 1985, that he did not leave the institution in good standing, and that he was dismissed because he was unable to provide the school with official transcripts from the previous medical school he attended. Dr. Young had not seen that letter until a few months before hearing while reviewing the Board's file on him in preparation for the hearing. Dr. Young takes issue with the statements in the letter because the school did give him credit for the rotations he completed while enrolled at Universidad de Mundial and because he never had been told that he left the institution in poor standing. Dr. Young left the University upon advice of the U.S. Consulate in Antigua. The transcript of the Credentials Committee Meeting at Joint Exhibit 2 shows that the committee focused on this letter rather than Dr. Young's affidavits submitted with his application which contradict the letter. The Board obtained and reviewed the ECFMG file on Dr. Young in considering his application. In the ECFMG file at Joint Exhibit 1, page 230, is a letter to the ECFMG from John Casken, Quality Assurance Coordinator, Department of Health, Education, and Welfare, dated May 15, 1985, relating to Dr. Young's second clinical rotation at Pine Ridge Indian Health Hospital in 1983. In the letter, Mr. Casken states: that a closer look at Dr. Young's credentials after he presented himself for the second time showed that he had basically no medical education; that Dr. Young was asked to leave; and that, had they known in 1982 when he appeared for his first rotation what they knew in 1983, they would not have taken on Dr. Young as a m edical student. Dr. Young first saw that letter a few months before the hearing while preparing for trial. Dr. Young disagrees with that letter in that the schools he was attending, Universidad de Mundial, and after that, CETEC, were both approved by the World Health Organization. Further, a letter written on April 18, 1985, by Leonard L. Finger, Hospital Administrative Officer, Department of Health, Education, and Welfare, to the ECFMG, found at Joint Exhibit 1, page 231 , verifies Dr. Young's rotation without adverse comment. Further, the ECFMG found no problem with Dr. Young's education or with the rotations at Pine Ridge. The transcript of the Credentials Committee Meeting at Joint Exhibit 2 shows that the committee focused on Dr. Caskin's letter rather than Mr. Finger's letter and the fact that all of Dr. Young's medical schools were approved by the World Health Organization. Board of Medicine Practice and Policy The Board of Medicine has licensed individuals who have attended CETEC. The Board of Medicine and its staff rely upon the ECFMG certifications of applicants as verification of their education. The certification by the American Board of Family Practice complies with the requirement of Rule 61F6-22.004(2) and 61F6-22.018(3)(d). The ECFMG certificate complies with the requirements of Section 458.311(1)(f), (2), and (3), Florida Statutes; There is nothing in the rules of the Board or Chapter 458, and no Board policy or practice, which prohibits an applicant from going to more than one university or medical school, from going to more than one medical school and failing out of one, or from going to a school that later goes out of business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration, Board of Medicine, enter a final order granting the Petitioner's application for licensure by endorsement. RECOMMENDED this 30th day of September, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 30th day of September, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-7146 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. Accepted and incorporated. 2.-4. Accepted but subordinate and unnecessary. 5.-15. Accepted and incorporated. 16. The pediatrics rotation at Addington Hospital, University of Natal was from March 12 to May 13, 1984, and the surgery rotation was from May 13, 1984 to July 16, 1984. Otherwise, accepted and incorporated. 17.-30. Accepted and incorporated. 31.-37. Accepted but subordinate and unnecessary. 38. Accepted and incorporated to the extent not subordinate or unnecessary. Respondent's Proposed Findings of Fact. 1.-4. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. First sentence, rejected as being contrary to the greater weight of the evidence. Second sentence, accepted but subordinate and unnecessary. 7.-8. Accepted and incorporated to the extent not subordinate or unnecessary. 9.-10. Accepted and incorporated to the extent not subordinate or unnecessary. However, the lack of a credible Orange State transcript to support the Petitioner's testimony is more a reflection on Orange State's credibility than on the Petitioner's. Orange State was in existence for a short period of time, never was recognized by the State of California, and has been defunct for about ten years. It is understandable why the Petitioner has had difficulty getting a credible response from Orange State. The irregularities in the response from Orange State do not impugn the Petitioner's truthfulness in attempting to describe his unorthodox and circuitous medical education in his application for licensure. Last sentence, rejected as contrary to the greater weight of the evidence. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. However, it is even more understandable why the Petitioner has had difficulty getting a credible response from CETEC. As with Orange State, CETEC was closed about ten years ago. In the case of CETEC, which was in the Dominican Republic, the closing was under allegations of misconduct and fraud. Records were unavailable for a period of time while the government of the Dominican Republic investigated. Later, records were destroyed. As with Orange State, the irregularities in the response from CETEC do not impugn the Petitioner's truthfulness in attempting to describe his unorthodox and circuitous medical education in his application for licensure. Rejected as contrary to the greater weight of the evidence that the Respondent did not leave UHSA in good standing. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. 14.-16. Accepted and incorporated to the extent not subordinate or unnecessary. Second sentence, rejected as contrary to the greater weight of the evidence. First sentence, accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary. Third and fourth sentences, rejected as contrary to the greater weight of the evidence. First two sentences, accepted and incorporated to the extent not subordinate or unnecessary. 20.-21. Accepted and incorporated to the extent not subordinate or unnecessary. The city in South Africa was Durban, not Durham. CETEC was the affiliate until it closed in March, 1994. The rest is accepted and incorporated to the extent not subordinate or unnecessary. First sentence, accepted. The rest is rejected as being contrary to the greater weight of the evidence. 24.-25. Accepted and incorporated. 25. Accepted but unnecessary. (No such finding was made.) COPIES FURNISHED: Paul Watson Lambert, Esquire 2851 Remington Green Circle Suite C Tallahassee, Florida 32308-3749 Gregory A. Chaires Assistant Attorney General Department of Legal Affairs Administrative Law Section PL-01, The Capitol Tallahassee, Florida 32399-1050 Dr. Marm Harris Executive Director Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Harold D. Lewis, Esquire General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
The Issue The central issue in this case is whether Petitioner is entitled to licensure by endorsement. Specific to the grounds for denial are the issues of whether Petitioner is of good moral character and whether he is able to practice with skill and safety.
Findings Of Fact Based upon the stipulation of the parties, the testimony of the witnesses, and the documentary evidence received at the hearing, I make the following findings of fact: The Petitioner, Norman M. Phillips, M.D., is a graduate of St. George's University School of Medicine, Grenada, West Indies, a foreign medical school. Petitioner holds a certificate from the Educational Commission on Foreign Medical Graduates (ECFMG) and has passed the ECFMG examination. Petitioner obtained a passing score on the licensing examination of the Federation of State Medical Boards of the United States, Inc. (FLEX). Petitioner is licensed to practice medicine in New Jersey. Petitioner is over 21 years of age. Petitioner has completed at least one year of an approved residency. The Petitioner has not committed any act or offense in any jurisdiction which would constitute the basis for disciplining a physician, pursuant to Section 458.331(1) or (2), Florida Statutes. Petitioner applied for licensure by endorsement as a physician in Florida. On March 26, 1988, Petitioner appeared before the Credentials Committee of the Board regarding his application for licensure. The Credentials Committee recommended to the Board that Petitioner's application be denied. The basis for this recommendation was Petitioner's alleged inability to practice medicine with reasonable skill and safety due to a mental condition and his prior performance during his medical training. The recommendation also claimed Petitioner was not of good moral character. The Board adopted the recommendation of the Credentials Committee and issued an Order stating its intent to deny the Petitioner's application. Thereafter, Petitioner timely filed for an administrative review of the denial. After graduation from medical school, Petitioner was accepted into a residency program at St. Peter's Medical Center, New Brunswick, New Jersey. This program was in internal medicine and was to cover three years of postgraduate work. After the first year, Petitioner was evaluated and offered a contract for the second year of the program. Dr. Andrew L. Hahn was the program director of the internal medicine residency program. Dr. Hahn is an expert in the matter of residency training of medical students. Dr. Hahn evaluated Petitioner's performance as satisfactory. During the second year of the residency, Petitioner received an unfavorable evaluation which placed him on notice of a need to improve in order to receive a contract for the third year of the program. Petitioner ably made necessary corrections, improved his work performance, and, consequently, received a contract for the third year. After Petitioner had received notice of his contract for the third year, he was required to perform a rotation in radiology. This rotation was selected as it was the only available course given in the time period. While Petitioner would have preferred another topic, he accepted the assignment and agreed to the rotation. The rotation consisted of approximately three weeks of classroom lectures given at a location away from Petitioner's hospital assignments. After attending a few early sessions, Petitioner determined that he had already studied the subject matter of the course in medical school and that further attendance would not benefit him. Petitioner erroneously concluded attendance was not required. Instead of attending the rotation course lectures, Petitioner remained home studying other materials, performed his hospital duties, and made applications relating to future work. Petitioner's patients did not suffer as a result of the missed classroom sessions. Petitioner attended the clinic he was assigned to during the rotation period. When Petitioner's superiors were informed of the failure to attend the classroom sessions, they approached Petitioner for a satisfactory explanation which he was unable to provide. Since they (including Dr. Hahn) considered the failure to attend a serious breach of his professional responsibility, Petitioner was given the choice of either resigning his third year placement or being terminated. Petitioner agreed to resign his third year and was given a certificate for the two years he completed. At the time of his resignation Petitioner offered to repeat the classroom work but that option was rejected by Dr. Hahn. After resigning, Petitioner told his superiors that he had worked in a pharmacy (he is a licensed pharmacist) during the time he was supposed to have been in the radiology classes. He indicated he had done this because he needed money. Petitioner had not worked in a pharmacy, however, and had fabricated the story in a lame effort to excuse his nonattendance. Subsequently, Petitioner was interviewed by Dr. Bernard Sandler for a residency program in physical medicine and rehabilitation at the Robert Wood Johnson, Jr. Rehabilitation Institute of the John F. Kennedy Medical Center in Edison, New Jersey. Petitioner was accepted into the program and fell under the supervision of Dr. Thomas Edmund Strax. Petitioner successfully completed this program in December, 1987. Petitioner did not disclose the underlying facts of his resignation from the internal medicine program to either Dr. Sandler or Dr. Strax, however, neither physician questioned him at length about it either. Petitioner did not misrepresent any pertinent history; he simply did not volunteer embarrassing information. During his residency in rehabilitation, Petitioner was observed by Drs. Sandler, Harold Arlen, and Fazal Panezai. All of these physicians found Petitioner to be able to practice medicine with skill and safety. Petitioner did not exhibit any problem related to malfeasance or incompetence. Petitioner got along with staff and worked well with others. As a resident in the rehabilitation program, Petitioner was evaluated by Dr. Strax who determined that Petitioner would require improvement in order to meet the high standards Dr. Strax maintained for his course of study. Petitioner was able to make the necessary improvements and satisfactorily met Dr. Strax's objectives. Dr. Strax is an expert in the matter of residency training of medical students. Dr. Strax had an opportunity to review Petitioner's work on numerous occasions. Dr. Strax recommended Petitioner for licensure and - found him to be qualified and competent. Petitioner is presently employed as a physician at the Veterans Administration Medical Center in Miami, Florida. Petitioner is not required to be licensed in his present employment since such position is exempt from licensure. Petitioner's present supervisor is Dr. Dorothea Glass, Chief of Rehabilitation Services. Dr. Glass interviewed Petitioner and reviewed references Petitioner had given to her. Dr. Glass knows Dr. Strax who recommended Petitioner for the position which he currently holds. While Dr. Strax advised Dr. Glass to "keep an eye on him," Dr. Glass has done as she would with all young doctors. Dr. Glass has worked with Petitioner on a daily basis since February, 1988, and believes he is competent, hardworking and honest. Petitioner is able to practice medicine with skill and safety. Petitioner is of good moral character. Petitioner did not misrepresent material information when he appeared before the credentials committee.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Board of Medicine enter a final order approving the application for licensure by endorsement for the Petitioner, Norman M. Phillips, M.D. DONE and RECOMMENDED this 30th day of May, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 30th day of May, 1989. APPENDIX RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: Paragraphs 1 through 9 are accepted. To the extent addressed in findings of fact paragraphs 11-16, paragraphs 10 through 32 are accepted. Paragraphs 33 through 36, are accepted but are irrelevant to the issues of this case. Paragraph 37 is accepted. Paragraph 38 is rejected as speculation or argument. Paragraph 39 is accepted. Paragraphs 40 through 51 are accepted. Paragraph is rejected as irrelevant. Paragraphs 53 through 63 are accepted. To the extent addressed in findings of fact paragraph 21, paragraphs 64 through 68 are accepted. Paragraphs 69 through 71 are accepted. Paragraphs 72 through 73 are rejected as immaterial, recitation, or argument. Paragraphs 74 through 76 are rejected as recitation of testimony or argument. See findings of fact paragraph 20. Paragraph 77 is rejected as argument. RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT: Paragraphs 1 through 10 are accepted. Paragraph 11 is rejected as irrelevant to the extent that it refers to Petitioner's performance as "marginal." Petitioner was rated satisfactory and was permitted to continue. There were areas in which he required improvement, which he was able to correct. Paragraph 12 is accepted with the clarification that the radiology rotation was selected because it was the only one available to Petitioner at the given time. That portion of paragraph 12 which relates a fourth week work in the emergency room is rejected as contrary to the weight of credible evidence. With regard to paragraph 13, that portion which states Petitioner did not attend the classroom radiology rotation is accepted, the remainder is rejected as either unsupported by the record, contrary to the weight of the evidence, or irrelevant. To the extent addressed in findings of fact paragraphs 11-16, paragraphs 14 through 16 are accepted otherwise rejected as irrelevant or contrary to the weight of the credible evidence. It should be noted that any reference to emergency work deficiencies have not been credited nor are they supported by this record. Paragraph 17 is rejected as argument. Paragraph 18 is rejected as contrary to the weight of the credible evidence or argument. Paragraph 19 is rejected as argument, irrelevant, or immaterial to the issues of this case. Paragraph 20 is rejected as argument. Paragraph 21 is rejected as unsupported by the weight of credible evidence or argument. Paragraph 22 is accepted to the extent addressed In findings of fact paragraph 17; otherwise rejected as irrelevant or contrary to the weight of credible evidence. To the extent addressed in findings of fact paragraph 19, paragraph 23 is accepted. Paragraph 24 is accepted. Paragraph 25 is rejected as recitation of testimony, argument, or irrelevant. Paragraph 26 is accepted. Paragraph 27 is rejected as unsupported by the weight of the credible evidence, irrelevant, or argument. COPIES FURNISHED: Robert S. Turk VALDES-FAULI, COBB, PETREY & BISCHOFF, P.A. Suite 3400-One Biscayne Tower Two S. Biscayne Boulevard Miami, Florida 33131 Allen R. Grossman Assistant Attorney General Department of Legal Affairs Suite 1603, The Capitol Tallahassee, Florida 32399-1050
The Issue Whether Petitioner is qualified to be licensed as a medical doctor in Florida by endorsement.
Findings Of Fact Petitioner Jeffrey Jad Gaier applied for licensure by endorsement in Florida by filing a written application in November of 1983 with the Board of Medical Examiners, which is within the Department of Professional Regulation. He made a personal appearance before the Foreign Graduate Committee of the Board of Medical Examiners in April 1984. After Petitioner's appearance before the Foreign Graduate Committee, the Foreign Graduate Committee made a favorable recommendation regarding Petitioner's application for licensure to the Board of Medical Examiners. However, the full Board of Medical Examiners voted to deny Petitioner's application for licensure. On May 21, 1984, the Board of Medical Examiners rendered an Order denying Petitioner's application for licensure as a physician by endorsement, stating as the grounds: Your application and supporting documentation does not provide sufficient information to demonstrate that you can practice medicine with reasonable skill and safety. See Section 458.331(3), F.S. More specifically, the clinical training you received while attending the American University of the Caribbean as disclosed within your documentation was determined to be insufficient insofar as the clinical training was not received at a hospital affiliated with a medical school approved by the Counsel [sic] on Medical Education of the American Medical Association. The denial of Petitioner's application for licensure by endorsement was taken before the Board of Medical Examiners for reconsideration on February 3, 1985. Counsel for Petitioner was present at the hearing. At that hearing, the discussion by the Board of Medical Examiners of the request for reconsideration clarified the basis for the denial of the medical license as being the overall inadequacy of the clinical training and not specifically because the clinical training was not obtained at teaching hospitals. Except for the purposes of clarifying the issue(s) herein the collegial actions of the board are irrelevant to the instant de novo proceedings. Petitioner received a B.S. degree from Clark University, Massachusetts and a Masters degree in science education from Florida Institute of Technology, August 1978. Petitioner was granted a medical degree by the American University of the Caribbean after being enrolled at that school for less than three years. During that time, Petitioner was on the campus of the American University in Montserrat, British West Indies for only eight months. There the class used prepared slides instead of gross tissue samples. Before that, Petitioner studied at the campus in Cincinnati, Ohio, where the class used rubber cadavers instead of human cadavers. All of the clinical training received by Petitioner as part of the requirements for the completion of the medical degree consisted of preceptorships at hospitals in south Florida which included Florida Medical Center, Plantation General Hospital, University Community Hospital, and Bennett Community Hospital. Dr. Neil Katz, Petitioner's principal expert medical witness, supervised Petitioner for six weeks in a preceptorship in Family Practice. Dr. Katz is a board-certified Family Physician and a fellow of the American Academy of Family Practice. He has been Chairman of the Emergency Room Department, a member of the Credentials and Qualifications Committee, and a member of the Intensive Care Unit Committee at University Hospital, Tamarac, Florida. He has taught both foreign medical students in a clinical setting and has briefly qualified as a preceptor for the University of Florida College of Medicine. Dr. Katz actually supervised Petitioner only for the six-week period at the very beginning of Petitioner's rotations. After that six-week period of time, he only "touched base" with Petitioner, seeing him on an informal basis in the cafeteria or at meetings. During the six weeks formal observation period, Petitioner accompanied Dr. Katz in his work in his office, during hospital rounds, at the emergency room, and for most other activities that Dr. Katz participated in, including committee meetings at the hospital. Petitioner took histories and did physicals on patients under direct supervision. Petitioner displayed enthusiasm and energy in his association with Dr. Katz and the rest of the program. Dr. Katz found Petitioner "barely acceptable" in three of the nine categories for which he was to evaluate Petitioner during the preceptorship. These categories were diagnostic acumen, therapeutics and management, and medical knowledge. In explaining that evaluation, Dr. Katz testified that although Petitioner was able to take a history and a physical examination, he was not able to make a diagnosis. In fact, Dr. Katz testified that Petitioner did not have truly acceptable knowledge at the time as to the various therapeutic modalities available to a physician. He encouraged Petitioner to do more reading. During his preceptorship with the University of Florida Medical School students in their first clinical semester, Dr. Katz also saw problems similar to those exhibited by Petitioner, specifically that the University of Florida students were not "super ready," so to speak, on diagnosing and doing differential diagnoses and therapeutics at that particular stage in medical school because they were still learning. I accept Dr. Katz' opinion that Petitioner had adequate exposure to the major diseases and injuries which are common to Family Medicine, sufficient for Petitioner to go into an internship, but in light of his lack of involvement with Respondent's other preceptorships in several different hospitals after the first six weeks, and in light of his specific testimony that in his professional opinion, American-trained students were far superior to the Caribbean-trained students at the same level in terms of general knowledge (TR-65-66), Dr. Katz' opinion that Petitioner did "quite good" at the end of the year and a half period is without adequate predicate and is not persuasive. Dr. Isidoro Dunn was the primary force in the arrangements for preceptorships. Dr. Dunn talked with each preceptor to work out areas which should be covered in their respective rotations. Each preceptor had a "fair amount of latitude" in deciding how to supervise the students. Petitioner was assigned by his school to do his clinical rotations in Florida. He did 14 weeks in internal medicine, 14 weeks in surgery, 10 weeks in pediatrics, 10 weeks in obstetrics/gynecology, 4 weeks in psychiatry, and 10 weeks in electives. This totals 62 weeks, not even close to two years which is the norm in medical schools in the United States. Petitioner was required to follow patients from admission to discharge in each specialty within each of these clinical rotations. Petitioner had didactic teaching on a daily basis, weekdays. Petitioner represents that he had specific didactic courses in hematology, EKG readings, pathology, orthopedics, cardiology, radiology, and gastrointestinal invasive procedures. In each subspecialty, he had a written examination after completion of the rotation, didactic teachings in each rotation, and was required to read medical journals. On Saturdays, Petitioner was required to participate in case conferences, make case presentations, and complete assigned reading from current medical journals. The case presentations necessitated review of patient records, laboratory tests, x-rays, and pathology slides. On "patient management reviews," the Petitioner was "exposed to" or "spent time in" the dialysis unit, pathology laboratory, intensive care unit, emergency room, gastrointestinal unit, blood lab, catherization department, radiology department, EKG unit, and cardiac surgery unit. Petitioner testified, and Dr. Katz confirmed, that there was an entity called the "Doctors' Club," which had a considerable amount of audiovisual equipment available for use 7 days a week, 24 hours each day. Practicing physicians used this media to obtain continuing medical education approved for credit by the American Medical Association. Petitioner represented that "on several days" he signed out equipment or reading material. There is no precise language in his testimony that he used the equipment or that he read the reading material, but drawing any other inference is straining the clear meaning of Petitioner's unrebutted testimony. Petitioner and the other students were required to use various materials from this service, but there is no evidence that Petitioner or other students were objectively checked by Dr. Dunn or their preceptors to verify that they had actually read or viewed the material assigned. Petitioner specifically testified that there was not necessarily any follow-up by the preceptors. Dr. Katz did talk with Petitioner about the reading assignments he gave. Petitioner was required to pass a competency examination for each rotation. Petitioner's clinical studies evaluation forms in his school records indicate no overall evaluation grades below "Good." Petitioner was required to attend and pass both a written and practical examination for a two-day Advanced Cardiac Life Support Course. This course is required even of board certified emergency room (ER) physicians. In Petitioner's opinion, this course was imperative for medical doctors who might work in an emergency room because they need to be very familiar with how to handle a patient presenting with a cardiac arrest, including the administration of drugs, "cardioversion" and "intubation." To the best of Petitioner's knowledge, Dr. Dunn was to report the students' progress to the dean of the American University of the Caribbean. However, the predicate for that testimony is hearsay, uncorroborated by any direct, credible evidence. As for the relationship with the university, Dr. Katz had no knowledge as to any arrangement between Dr. Dunn and the American University of the Caribbean or any counterpart-sponsoring organization in the United States. He did not know if there was any arrangement whatsoever. Dr. Katims was accepted as an expert physician witness, as an expert teaching fellow witness, and as an expert witness in medical applications and licensure. He testified that in the normal course of medical education in the United States, part of a student's medical education is clinical training, and that experience consists of bedside outpatient treatment and supervised training under the supervision of a faculty selected particularly for their knowledge, background, and interest in education and teaching. Dr. Katz testified unequivocally that a preceptorship is very different from a clinical rotation or a clerkship. A clerkship takes place in a teaching hospital, which is a very structured environment, wherein students make rounds in a very large hospital and are given instruction in an approved clinical structure. In contrast, a preceptorship gives students more knowledge about what private practice is like and it gives students a view of direct patient care, but does not replace a formal teaching setting in clinical medicine. As recognized above, in Dr. Katz' opinion, American-trained students were far superior to the Caribbean-trained students at the same level in terms of general knowledge. In Dr. Katims' opinion, Petitioner's clinical studies consisting of only four semesters were not sufficient for him to practice medicine with reasonable skill and safety. Dr. Katims testified concerning the importance of clinical training in medical education, commenting that clinical training is the sine qua non of the practice of medicine. In the usual clinical rotation, medical students are assigned to a particular area of a hospital and perform under the full-time supervision of attending physicians. In teaching hospitals, faculties are selected for their ability, interest, and dedication to education, as well as to the practice of medicine. The attending staff at a teaching hospital include house physicians, interns, and residents. Dr. Katims himself has served as a preceptor and testified that a preceptorship is one method of obtaining a minor portion of clinical training, but is very unstructured and unsupervised. Dr. Katims testified that preceptorship training is an inferior method of training because the quality of training depends totally on the quality of the physician to whom the student is assigned and the program is unstructured. There was no testimony that any of the preceptors that supervised, or purportedly supervised, Petitioner were faculty members of any medical school, let alone the American University of the Caribbean. Upon the Requests for Admissions and the Joint Pre-Trial Stipulation of the parties, it is found that: the State of Florida Board of Medical Examiners has granted a medical license to a Dr. Flugsrud-Breckenridge and a Dr. Cobb, both having non-teaching clerkships. Three doctors, Adela Fernandez, Andrew Gonzalez, and Manuel E Garcia, did their clerkships principally at the International Hospital (Miami), a non-teaching/non-medical school-associated hospital, and obtained Florida medical licenses. At least 25 foreign graduates received Florida medical licenses within the years 1981-1984 and did their clerkships principally in non-teaching/non-medical school associated hospitals. No further information appears of record by which the undersigned may determine any other similarities or dissimilarities of these licensees to each other and/or to Petitioner. Nor does the record divulge what, if any, other facts may have been considered in these cases. Petitioner is licensed to practice medicine in Georgia and is a resident of Florida. Petitioner passed the first time his Educational Commission for Foreign Medical Graduates' (ECFMG) examination was given in June, 1981. The examination is a prerequisite to acceptance in a medical residency program. The Federation of State Medical Boards of the United States, Inc.'s (FLEX) examination is recognized by all 50 states, including Florida. Petitioner took this examination after completing his rotations in Florida. Petitioner passed the June 1982 FLEX examination with an 84 percentile ranking. Fifty percent of this test is on patient management. This clinical competence examination was taken before Petitioner started his first year of residency. Petitioner had passed the FLEX examination, completed one year of residency, and obtained a medical license in another state, Georgia, by the time of the April 1984 application hearing. In Dr. Katims' opinion, Petitioner's successful passage of the FLEX examination in the 84 percentile does not show Petitioner to have had good clinical rotations, even though the FLEX test consisted of 50 percent on patient management. Dr. Katims did not feel that by the time Petitioner was in his fourth year of residency, this would be curative of deficiencies in the clinical semesters at a non-teaching hospital, but expressed the opinion that if Petitioner passes his internal medicine board examination and becomes board certified, his clinical deficiencies would be cured and Petitioner should then be granted a Florida medical license by endorsement. Dr. Katz opined that Petitioner presently possesses the medical knowledge, judgment and competency to act with reasonable skill and safety in the practice of medicine in Florida. Affidavits of Ira Spiler, M.D. and John R. Middleton, M.D. support similar opinions of these New Jersey medical physicians. Petitioner has completed three years (July 1, 1982 to June 30, 1985) of Internal Medicine residency at Raritan Bay Medical Center, Perth Amboy General Hospital, New Jersey. Petitioner is presently enrolled in a Nephrology Fellowship program, Medical College of Georgia, a teaching hospital located at, and affiliated with, the University of Georgia Medical School. Petitioner is currently eligible for board certification in internal medicine and will be certified in the event he passes the board examination taken September 10-11, 1985. Petitioner has submitted letters of Ira Spiler, M.D. and Salvatore Chiaramida, M.D., both of New Jersey attesting to Petitioner's good moral character, and no contrary evidence was turned up by the Board's investigation. The parties have stipulated that Rule 21M-22.18, Florida Administrative Code, is not applicable to Petitioner's situation.
Recommendation That the Florida Board of Medical Examiners enter a final order denying Petitioner a medical license by endorsement. DONE and ORDERED this 16th day of January, 1986, in Tallahassee Florida. ELLA JANE P. DAVIS 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 16th day of January, 1986.
Findings Of Fact On August 7, 1984, the Petitioner, Abraham W. Chames, executed an application for examination for licensure as a medical doctor which was filed with the Florida Department of Professional Regulation on behalf of the Board of Medical Examiners, (now Board of Medicine), on August 9, 1984. Among other information required on the application was a section requesting information regarding the applicant's medical education. That question reads as follows: Be specific. Account for each year. List all universities or colleges where you attended classes and received training as a medical student. In response and on each of four lines which required the name of the medical school and location and the dates of attendance, the applicant listed the names of the appropriate universities. These were: Universidad Del Noreste/Tampico, Mexico, from August, 1978 to June 1979. Universidad Del Noreste/Tampico, Mexico, from August 1978 to June, 1979 [sic] CETEC University/Santo Domingo, Dominican Republic, from June, 1980 to June, 1981. CETEC University/ Santo Domingo, Dominican Republic, from June, 1981 to December 1981. The question immediately preceding the one just described requires the applicant to list all places of residence since initiation of medical training. In response, the applicant listed, Tampico, Tamps, Mexico, from August, 1978 to June, 1980 and on the second line, Miami Beach, Florida from June, 1980 to June, 1982. For the question that requires the applicant to account for all time from date of graduation to present, the Petitioner stated: "Started my residency in family medicine at the University of Miami: June 83 until present." Dr. Chames also indicated on his application that his Doctor of Medicine degree was obtained from CETEC University, Santo Domingo, Dominican Republic from which he graduated on December 12, 1981. As a part of the narrative reports submitted with his application and relating to the period of time spent at CETEC University from June, 1980 through December, 1981, Dr. Chames stated: "During this time, I performed all of my required and elective clinical rotations under the auspices of CETEC University and its New York City based office of C.J. Institute. I lived at 1247 West Avenue, Apt No. 1, Miami Beach, Florida." By so doing, he explained the apparent ambiguity between his place of residence and his medical education during the period, June, 1980 through December, 1981. The rotations taken and the dates thereof were thereafter listed immediately below the above-cited statement. It should be noted that all the rotations were completed at hospitals in the Miami, Florida area. It is not at all unusual for situations like this to happen and it is not improper. Along with the application submitted by Dr. Chames was a certification that he had successfully passed the examination of the Educational Commission for Foreign Medical Graduates, (ECFMG), which he took on July 21, 1982. On August 20, 1984, Dr. Chames was notified by the Board that it had been advised by the ECFMG that as of March, 1984, that body was withholding verification of its certificates for individuals with medical credentials issued in the name of CETEC University because of alleged irregularities with regard to these medical credentials. The Board requested that Dr. Chames waive the 90 days that it had for approval or denial of his application for licensure, which he did. ECFMG subsequently verified Dr. Chames' certification and this information was sent directly to the Board. On September 18, 1984, the Board advised Dr. Chames that he would be required to appear personally before the Foreign medical Graduate Committee, (FMGC), of the Board when notified. Two days later, on September 20, 1984, the Board advised him that his application was considered incomplete because he had failed to submit a copy of his medical school diploma, (notarized and certified as a true and correct copy) and a certified translation thereof. He was further advised that he had failed to submit an accounting for all of the time between December, 1981 and May, 1983, and a FLEX application with Part A completed. On August 23, 1985, Dr. Chames submitted a notarized affidavit in which he attempts to account for all time from December, 1981 through May, 1983 as requested. On August 15, 1985, Ms. Dorothy Faircloth, Executive Director of the Board, notified Petitioner that his application was still considered incomplete because of the failure to submit certain documentation including his diploma and translation thereof, an examination fee, a standard ECFMG certificate, photographs, letters of recommendation, an accounting for all of the time since graduation, and a FLEX application. By letter dated August 23, 1985, Dr. Chames' counsel, Deborah J. Miller, forwarded a notarized copy of the medical school diploma certified by the U.S. Vice-Consul, a notarized copy of the original translation thereof, a notarized copy of the ECFMG clearance, a notarized copy of the original standard ECFMG certificate, an accounting of Dr. Chames' time since graduation, and a comment that the addition application fee requested had been forwarded previously. The two photographs requested were forwarded by counsel on September 3, 1985. In her September 3, 1985 letter, Ms. Miller indicated she understood the ECFMG would contact the Board directly in the event that written verification had not been received by the time Dr. Chames was to appear before the FMGC. On September 27, 1955, the Board, by letter, advised Dr. Chames, (the salutation refers to Dr. Eaton) that he was required to appear personally before the FMGC at Sarasota on October 4, 1985. Dr. Chames appeared as required and was examined verbally by committee members, primarily Dr. Robert Katims, Chairman, on his credentials as a graduate of CETEC. His answers apparently raised some further questions and an extract of the minutes of that committee meeting reflects that Dr. Chames, a candidate for licensure by examination and a graduate of CETEC University, received a... unanimous vote to recommend unfavorably for examination based upon a total lack of credibility, deliberately failed to tell the truth in the application process. It cannot be determined in whose handwriting this notation was made. Dr. Katims, who was Chairman of the FMGC since its founding until just prior to the hearing, examined Dr. Chames from the file maintained by the Committee on foreign medical graduates. The Petitioner's testimony was not of a nature to inspire confidence in his credibility. He was hesitant in his answers and those which he gave were, if not evasive, at least not definitive. While acknowledging he made several mis-statements of fact on his application, Petitioner contended these were made through honest error rather than through design. He was obviously not believed by any committee member. No doubt this antipathy toward the applicant, manifested by the blatant hostility and outrage evidenced by Dr. Katims during his questioning and his threats to carry the matter further, even to the pressing of criminal charges if available, indicates that no matter what Dr. Chames would have said, the likelihood of his being voted upon favorably was remote. The file examined by Dr. Katims and the committee consisted of the application, letters of reference, test scores and other matters relevant to the candidate's suitability for licensure. This file documentation is knows as the Agenda Book. The Agenda Book maintained on Dr. Chames was reviewed by Dr. Katims prior to Petitioner's appearance. In his evaluation of this file, Dr. Katims looked primarily at Petitioner's application to take the ECFMG exam and his attention was drawn to the sites of medical education listed thereon. The file contained several different applications which, when reviewed, reflected that on two, Dr. Chames listed his medical schools as Del Noreste and Dominica and on a third he listed CETEC and Del Noreste. Dr. Katims also noted a different listing for undergraduate education. He did not look so much at the dates listed, though dates are important. At that time, his policy as Chairman and that of the committee, was to look closely at CETEC graduates because of that institution's reputation for fraud in the issuance of diplomas. It was his understanding that several people associated with CETEC, including some applicants, had been jailed in the United States and as a result, CETEC graduates got a lot of scrutiny. In fact, Dr. Katims threatened to "...pursue this beyond the actions of this Board, if it seems appropriate, along the lines indicated by Board Counsel...." The Board's counsel had just previously noted a change in the Florida law to make it a criminal offense to obtain or attempt to obtain a license by knowing misrepresentation. Dr. Katims categorically denies that he felt all CETEC students were trained by this "stink of corruption". In fact, he recalls many CETEC graduates have been voted upon favorably after they had been afforded an opportunity to prove their credentials and discuss their applications before the committee. As a result, Dr. Katims felt he did not prejudge the Petitioner. Dr. Katims has interviewed many applicants during his term in office and this includes many CETEC graduates. Consequently, he looked closely at Dr. Chames' application but it was the discrepancy in the applications and the applicant's failure to clarify it satisfactorily that was the problem here, not the fact that he was a CETEC graduate. Dr. Chames was called before the FMGC because it was felt necessary to have him amplify his file and give greater information on his actual scholastic residence. This was because several applicants had told Dr. Katims their only visit to the CETEC campus was to get their diploma. This is exactly what Dr. Chames stated in his interview. Though enrolled at both (Dominica) Ross and CETEC at the same time, he says he did not attend any classes at either campus, did not ever visit the (Dominica) Ross campus, and in fact visited the CETEC campus only once, in December, 1981, to get his diploma. In short, it appears that neither school required regular on-site educational activities. In substance, the Board considered that Dr. Chames' attendance at CETEC raised a question that required a more detailed examination. However, Dr. Katims, on behalf of the committee, clearly contends that CETEC graduates were held to no more strict standards of qualifications than other graduates of foreign medical schools. With regard to this Petitioner, the Board only looked at the educational discrepancies. Nothing else was looked into by the committee before it's report the next day to the full Board. Dr. Katims felt that Petitioner's story was "incredible." He could not accept Petitioner's story that he simultaneously applied to and attended both CETEC and Dominica (Ross) and concluded that Dr. Chames deliberately falsified his application. The discrepancies regarding the schools attended were not consistent with his explanation, and to this date, Dr. Katims feels the same way. He concludes that Petitioner lied in his applications and may have conspired with unknown others to do so but he has no proof of a conspiracy. The important issue to Dr. Katims was initially the caliber of education available at both (Dominica) Ross and CETEC. It was only when Petitioner testified and his testimony was felt to be "incredible" that the issue became his credibility. Dr. Chames graduated from Miami-Dade Community College with an AA degree; then from Yeshive University in New York with a BA degree and thereafter from Florida International University with a BS degree. He then entered Universidad Del Noreste medical school in Tampico, Mexico where he actually attended classes for two years. At his hearing before the FMGC, he stated that during his fourth semester there, he decided to transfer and looked into two medical schools both located in the Caribbean. They were the University of Dominica (Ross) and CETEC. He contends that he applied to both, took some entrance exams for Dominica which he passed and paid some initial fees to that school. He states, however, that it was CETEC that he stayed with and from which he got his degree. According to Dr. Chames, this was a tumultuous time for foreign medical schools. Many students of these institutions wanted to come back to do their obligatory rotations in the United States. As a result, he enrolled in both schools, though he felt affiliated with Dominica (Ross) and paid it only. CETEC indicated he could pay later. In the fall of 1981, he switched to CETEC because a number of states were determining that students of proprietary foreign medical schools could not do U.S. residencies. CETEC was considered to be a higher quality school and had a greater legitimacy in the Dominican Republic. It was a viable school in disciplines other than medicine and was not categorized as an "offshore" medical school. Dr. Chames was expelled from Dominica (Ross) on July 12, 1982, because he failed to pay for the fourth year of medical school. He had, by this time, transferred his credits to CETEC and had graduated from there in December, 1981. Neither school had a requirement for on-campus participation. Students paid their money and turned in the paperwork, and the rotations--the learning periods spent in active hospitals--which constitute the greatest part of the last two years of medical school, were done in the United States. In reality, Dr. Chames arranged his clerkships and rotations by himself. When asked by the various hospitals to which he applied where he was in school, he would say either Del Noreste, Dominica (Ross), or CETEC depending on the time in question. He claims he considered himself to be a student at both Dominica (Ross) and CETEC at the same time. He gave his clerkship evaluations, however, only to Dominica (Ross) until the end of the fourth year of training, when he also gave one to CETEC. He first started paying fees to CETEC and provided a clerkship evaluation there in the fall of 1981, even though he says he considered himself a student there from the beginning. He intended to graduate in December, 1981. This date was established in the fall of 1981 when he started sending CETEC the evaluations of clerkships he had completed almost two years previously which had already been sent to Dominica (Ross). Dominica (Ross) required the taking of a basic second examination upon starting and a final examination prior to graduation unless one took and passed the ECFMG examination. Petitioner admittedly failed the final at Dominica (Ross). CETEC required no examinations. He took and passed the ECFMG exam long after he graduated from CETEC. Petitioner applied to CJ Institute, CETEC's U.S. affiliate, in November, 1981. He contends that he had applied to CETEC previous to that time, but paid no money to CETEC until approximately two weeks prior to graduation, and he got credit from CETEC for rotations/clerkships performed while enrolled at Dominica (Ross). In reality, what appears to be the fact, and it is so found, is that Dr. Chames was enrolled for by far the greatest majority of the last two years of his medical training at Dominica (Ross). Having failed the final examination and being concerned over the ECFMG examination, he looked around and found another medical school that would grant him a diploma based on work done at his former institution, Dominica (Ross). This he found in CETEC which had no requirements and was willing to give him full credit for all work performed at or under the auspices of Dominica (Ross). It would graduate him, awarding him a medical degree upon payment of the required fees, even though no work was done either in the classroom or in rotations while enrolled at that university. When the applicant subsequently filled out the forms for admission to licensure in Florida, he unfortunately listed only CETEC and not Dominica (Ross) as his medical school, even though the application form instructed him to list all schools and omit nothing. He admits that since he did his rotations, and since CETEC granted him credit for them even though he did them while enrolled at another school, he didn't feel it necessary to list Dominica (Ross) as one of his schools. Notwithstanding the apparent lapse as defined above, Respondent's reputation for honesty is generally good. His wife for almost nine years, who has known him since he was fifteen, considers him a most honorable man who makes no distinction between his personal and business ethics which are high in both categories. Though she is an attorney and notarized at least one of the applications he filled out, she did not discuss them with him. She has no reason to believe that they were not accurate and knows no reason that Petitioner would falsify them as she knows he dearly wants to be a doctor. When he filled out his applications, he did them based on his recollection and not on files or documents. She knows he has a terrible memory for dates and numbers and this may have contributed to his mistake. Mrs. Chames' testimony is not credited highly as to her failure to discuss the applications with her husband, however. Dr. Lynn Carmichael, Chairman of the Department of Family Medicine at the University of Miami Medical School, supervised the Petitioner in the Family Practice service at Jackson Memorial Hospital when Petitioner was a resident there. Petitioner's employment file contains all materials received regarding him including evaluations, letters, applications, etc., and a review of this file reveals that all evaluations rendered on Petitioner over the three years of his residency were above average. At the time Petitioner applied for the residency program in October, 1982, he listed his medical school as CETEC University. While he was in the residency program, Petitioner consistently performed in an outstanding manner in all six criteria considered and his reputation for truth and veracity, a highly important factor in evaluation, is good. Dr. Carmichael became aware of the denial of Petitioner's application for licensure after the fact and is aware now of the reasons therefor. Based on his knowledge of the Petitioner, he does not feel that Dr. Chames is a perjurer, or a liar, or would deliberately falsify an application. He was very surprised at the result of the committee hearing because the facts discussed there did not fit in with his evaluation of Petitioner. In fact, his peers at the University Hospital thought so highly of Dr. Chames, that if he had been licensed, the hospital was going to ask him to stay on for a fellowship, for which a license is required. Dr. Carmichael does not consider the listing of the medical school on the application for as a particularly important factor in evaluating foreign medical graduates for the simple reason that these graduates are required to show ECFMG certification which, in fact, the Petitioner was able to do. Ms. Deborah Miller, an attorney specializing in administrative and governmental law, represented Petitioner in his efforts to apply for licensure in Florida. He was concerned that foreign medical graduates were being unduly scrutinized and discriminated against in the licensing process. In this case, the Board of Medicine had asked Petitioner to waive the 90 days they had to rule one way or another on his application and she looked into this for him. In doing so, she procured the Petitioner's application file and went over it item by item with a representative of the Board. It was after this that Dr. Chames was notified of his requirement to appear before the FMGC, as were most foreign medical graduates and all CETEC graduates. Ms. Miller wrote to the Board just before the meeting to see if there was anything else in Petitioner's file than that of what she had been notified and was told that there was not. However, an AMA profile on Petitioner was in the file which listed both CETEC and Dominica (Ross) medical schools and this document may not have come to her. In the past, it has been Ms. Miller's experience that the Board does not always give a "full" file upon request, at times holding matters back. Based on what she knew, Ms. Miller had no reason to believe Dr. Chames had concealed anything regarding his application. Had Petitioner told her that he had applied to both CETEC and Dominica (Ross), she would have advised him to amend his application to correctly reflect the situation which could have been done at that time. On cross examination, Ms. Miller indicated that Petitioner told her that he applied to CETEC and Dominica (Ross) because he had heard of CETEC and was impressed by its good reputation. When he was accepted at CETEC, he dropped all further dealings with Dominica (Ross). He felt the board was concerned more with the courses and rotations not with which school was listed on the application form. This third story regarding Dr. Chames' reasons for switching from Dominica (Ross) to CETEC, clearly establishes that his application forms were consciously filled out; that he knew what he was doing; that his omission was more-than mere oversight; and that he was not particularly concerned with the accuracy of his application and the requirements for forthrightness contained on the face of it. On all of the reports of rotations and clerkships submitted to Dominica (Ross) during the time he was enrolled there and performing them, Dr. Chames was always highly rated and no adverse comments about his ability, his sensitivity, his patient relationships or his integrity was ever raised. There is no doubt that Dr. Chames possesses the clinical and technical skills necessary to be an excellent physician. He also apparently possesses the sensitivity to patients which separates a healer from a technician. In substance, then, it is found that Dr. Chames was enrolled for the last two years of his medical education at Dominica (Ross) and completed the course work/rotation/clerkships satisfactorily. Unfortunately for him, Dominica (Ross) required the passing of an examination prior to the award of the medical diploma, which Dr. Chames failed once and chose not to taken again. He found another school, CETEC, that would award him his medical degree upon payment of the required fees on the basis of the work done while a student at Dominica and without any work being done under the auspices or supervision of CETEC at all. Thereafter, when he applied for licensure in Florida, notwithstanding the fact that the application form clearly required a listing of all medical schools attended, Dr. Chames neglected to list his enrollment at Dominica (Ross), choosing instead, to list only his graduation from CETEC. It is this failure to list Dominica, coupled with the apparently false listing of the true term of the CETEC enrollment which constitutes the discrepancy of such grave concern to the Board and, the ultimate basis for its denial of Petitioner's application. Notwithstanding the apparent hostility of the Chairman of the FMGC and his predisposition to vote unfavorably on this Petitioner's application, it would appear that the unfavorable vote was justified and appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is, therefore, RECOMMENDED that Petitioner's current application for examination as a physician in Florida be denied. RECOMMENDED this 14th day of April, 1987, in 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 14th day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1438 The following constitutes my specific rulings pursuant to Section 120.57(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By Petitioner Petitioner failed to number his proposed Findings of Fact. To facilitate identifying them for ruling, I have numbered them consecutively as they appear in the Proposed Recommended Order. Accepted. Accepted. Accepted. Accepted except for the reason for changing schools which is contrary to the better evidence. Accepted. Accepted. Accepted. Accepted. Accepted as to date of filing and schools listed. Rejected as to his reason for failing to list Dominica, Petitioner's different stories as to the point make it impossible to determine why he failed to list Dominica. Accepted. Accepted. Accepted. Accepted except for words "sting of corruption" which should be "stink of corruption." Accepted. Accepted. Accepted. Accepted. Sentence 1 rejected as comment and not a Finding of Fact. Sentence 2 accepted. Sentence 3 & 4 rejected as speculation. Sentence 5 accepted. Sentence 6 rejected as argument. Sentence 7 accepted. Sentence 8 rejected as argument or contrary to the weight of the evidence. Rejected as contrary to the weight of the evidence. Rejected as irrelevant except for the last sentence which is argument, not Finding of Fact. Sentences 1-3 rejected as argument. Sentence 4 et seq. accepted. By Respondent Accepted. Accepted. Accepted. Accepted. First sentence accepted, Second sentence rejected as irrelevant. Accepted. Accepted. Accepted. Sentences 1 & 2 accepted. Sentences 1 & 2 rejected as recitations of the evidence. Sentence 3 rejected as contrary to the better evidence. Sentence 4 et seq. are recitations of the evidence and not Finding of Fact. Rejected as a recitation of the evidence. Accepted. No numbered paragraph. Accepted. COPIES FURNISHED: Dorothy Faircloth, Executive Director Florida Board of Medicine 130 North Monroe Street Tallahassee, Florida 32301 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harold M. Braxtone Esquire Suite 406, Datran Center 9100 South Dadeland Blvd. Miami, Florida 33156 Catherine Lannon, Esquire Department of Legal Affairs Room 1601, The Capitol Tallahassee, Florida 32399-1050 =================================================================
Findings Of Fact The Petitioner made application to the Board and its physician assistant committee for certification as a physician assistant, pursuant to Section 458.347(7)(b), Florida Statutes. After three appearances before the committee, the committee recommended and the Board voted to deny his application by order of February 9, 1993. That order indicated that the Petitioner had failed to demonstrate to the committee's satisfaction that he had received a medical education, as the term is defined and employed in Chapter 458, Florida Statutes (specific citations omitted). The Petitioner timely sought a formal proceeding to contest that denial, which resulted in the matter being referred to the Division of Administrative Hearings and the undersigned Hearing Officer for conduct of that proceeding. The Respondent is an agency of the State of Florida charged, in pertinent part, with administering the provisions of Chapter 458, Florida Statutes, and related rules involved in regulating entry and licensing of persons entering the physician assistant professional field. Among other duties, the Respondent agency is charged with ascertaining whether an applicant for certification has completed an appropriate medical education so as to be entitled under the relevant statutes for admission to the certification examination. Such a determination was made in this case, which resulted in the denial of the application and this formal proceeding. In addition to finding in its order of February 9, 1993 that, in effect, the medical education of the Petitioner was deficient under the relevant statutes, the Board also determined that there were discrepancies in the applications on file with the Board and in the supporting documentation and testimony before the Physician Assistant Committee (Committee). The Board also determined that due to the extended length of time since the Petitioner last worked in the field of clinical medicine and because of the length of time since any significant medical education or training had taken place, the Petitioner had not established that he was currently able to practice as a physician assistant with reasonable skill and safety to the public, as envisioned by Sections 458.331(4) and 458.301, Florida Statutes (1991). Prior to the hearing, the Hearing Officer granted a motion to amend the denial order to add as a basis for denial the Petitioner's alleged ineligibility to sit for the examination for certification because of failure to pay the required fee. See Section 458.347(7)(b), Florida Statutes. A passing score on the certification examination is a prerequisite to being certified as a physician assistant. There are certain discrepancies between the applications that the Petitioner filed with the Board, as well as with regard to documentation submitted to the Committee and to the Board. The Petitioner filed three applications with the Board. On each, he, in essence, swore that he had carefully read the questions on the application, had answered them completely without reservation, and that all statements were true and correct. On all of the applications, the questions required the applicant Petitioner to be specific as to the medical schools attended, to account for each year, and to list all universities and colleges attended where medical training was received. On the first application, the Petitioner stated, in response to the question to list all universities or colleges attended or where medical training was received, that he attended Universidad Central De Este (UCE) from November 1977 to August 1980, and that he attended CETEC University from August 1980 to June 1982. When he appeared before the Committee, he acknowledged also attending classes or receiving training at Ross University (formerly known as the University of Dominica). After that appearance before the Committee, he filed a second application and in response to the same question concerning his medical education, he responded that he had attended UCE from November 29, 1977 to August 24, 1980; that he attended the University of Dominica (Ross) from August 24, 1980 to August 7, 1981; and that he attended CETEC University from August 24, 1980 to June 12, 1982. Thus, he claimed that his attendance at Ross and CETEC actually overlapped. Documentation submitted, contained in Petitioner's exhibit 17 and in the Respondent's composite exhibit, reveals that he was not accepted as a student at CETEC until August 7, 1981, however. Subsequently, he filed a third application. On this application, he, in response to that same question, as pertinent to this issue, listed attendance at UCE from November 29, 1977 to August 24, 1980; at University of Dominica from August 24, 1980 to August 6, 1981; at CETEC from August 7, 1981 to June 12, 1982; at CJ Institute from April 26, 1982 to June 8, 1982; at Adelphi University from April 4, 1981 to June 12, 1981; and CETEC (graduation) on June 12, 1982. The Petitioner, at the hearing, admitted that he had not completed an application listing Ross University until after the Committee already knew he had attended Ross. When asked at the hearing why he omitted Ross from his first application, he testified that he did not put it on the application because he did not consider that he had attended Ross. This response as to why he had made a misrepresentation on his initial application is lacking in credibility. His own testimony and evidence established that he took examinations at Ross on August 24 and 25, 1980, but he paid $9,000.00 in entrance fees to Ross in the fall of 1980, that Ross arranged a psychiatry clerkship, that he took a course in physical diagnosis specifically because Ross informed him that he needed to do so in order to take future medical clerkships; that he paid $75.00 in the spring of 1981 for malpractice coverage for those clerkships under the alleged auspices of Ross and that he was still considered a student at Ross when he began his pediatric clerkship. If he did all of this educational effort supposedly in connection with Ross University, according to his own testimony and other evidence, it is unbelievable that he could not have considered that he had attended Ross University when he filled out the subject application. His own sworn affidavit submitted to the Board explaining why he did not list Ross on the applications stated that he did not list Ross University because he did not think that there were any transcripts to indicate that he had attended Ross. He testified and stated on affidavits to the Board that the reason he transferred from Ross to CETEC was because of a sudden demand by Ross for an additional $24,000.00 in order for him to continue his education there, in excess of the amount the initial agreement had provided for. Even if that is the case, it does not change the fact that, by his own testimony, he knew that he had attended Ross University and did, in fact, attend it. Thus, under all of these circumstances, it is apparent that, for whatever reason, he intentionally misrepresented this portion of his educational history. Another discrepancy or area of misrepresentation occurred on the three applications concerning the medical clerkships which the Petitioner supposedly completed. On all three applications, he was requested to specifically describe and account for each clerkship, giving specific dates, type of rotation, the name and location of the hospital, institution or individual where or with whom the clerkship was performed or supervised. He was required to list all affiliated universities or colleges. In responding to this question, he listed on his first application the following: Psychiatry October 13, 1980 to January 1, 1981. Pediatrics July 13, 1981 to December 4, 1981. Internal medicine September 7, 1981 to October 5, 1981. Internal medicine October 5, 1981 to February 1, 1982. Surgery February 1, 1982 to April 30, 1982. OB/GYN May 1, 1982 to June 6, 1982. On the second application, he added a third internal medicine clerkship stating that it took place from October 3, 1981 to February 28, 1982. It thus overlapped his surgery clerkship. On his fourth application, he added a clerkship for radiology, showing that that clerkship had taken place from February 1, 1982 to April 30, 1982. During parts of February 1982, the Petitioner was taking clerkships in three subject areas at the same time, internal medicine, surgery, and radiology, if the disclosures on his third application are true. In discussing the radiology clerkship on cross- examination, the Petitioner acknowledged that it was somewhat of a combined surgery and obstetrics and gynecology clerkship as part of the same program. The Petitioner received an M.D. degree from CETEC. He began his medical education at UCE. He attended this university as a resident student on its campus. His transcript from UCE shows a lack of a passing score on nine courses. Ross University wrote a letter to him dated June 16, 1981, which he, in turn, provided to the Board, to the effect that he needed transcripts from UCE showing passing scores in histology, biochemistry, neuroanatomy, micro- biology, or that he would otherwise receive F's in those courses. However, the later CETEC transcript shows that CETEC "convalidated" those four courses, even though there was no evidence that he passed them. Convalidation means that the courses were accepted as having been taken and passed at another school. In fact, the accuracy and sufficiency of his medical education is complicated by the fact that his CETEC transcript credits him with courses as having actually been taken at CETEC that even the Petitioner acknowledges were not actually taken at CETEC, such as: community health III and IV, human behavior III, physiopathology, and family medicine. His speculation as to what courses he took at UCE must have counted at CETEC misses the point that CETEC does not "count" them as convalidated, but as taken at CETEC. These discrepancies bring into question the validity of his CETEC education and the documentation submitted regarding it. Whether the inaccuracy is the Petitioner's or attributable to the fault of CETEC is of no moment in determining whether the Petitioner actually received the medical education claimed or the medical education actually "documented". The Petitioner called into question Ross University's record-keeping accuracy, blamed Ross for changing its requirements, for losing his records, and allegedly reneging on certain promises, such as counting courses he supposedly previously took at UCE. However, the Petitioner has not shown any explanation of the CETEC record-keeping "errors" which give him credit for completion of courses at CETEC which he did not even take at CETEC, for his completion of courses at UCE which UCE documents as incomplete, nor for his completion of courses or credits at Ross for which there is no documentation either. It is also noted that he "attended Ross" without ever going to its campus and attended "CETEC" by only appearing on campus for his graduation. Additionally, besides the discrepancies in the academic courses established, there were a number of discrepancies related to the clerkships and preparation for the clerkships. The first of these was that he stated that he had to take a course in physical diagnosis before he could take a pediatrics clerkship through Ross. He therefore obtained an old family friend, Dr. Fleisher, to teach him physical diagnosis. Additionally, he took two nursing courses in physical diagnosis at Adelphi University. Dr. Fleisher is not an M.D., however, but rather is a podiatrist. Dr. Winchester, testifying as an expert in the medical field at hearing, established that a podiatrist cannot teach a physical diagnosis course sufficiently detailed and thorough for a medical student seeking an M.D. degree because a podiatrist is trained, experienced and qualified only to practice at or below the knee. When podiatrists are on hospital staffs in Florida, they may admit patients for surgery, but they must have an M.D. perform the history and the physical examination because of their limited expertise. See, Section 461.003(3), Florida Statutes. A medical student cannot obtain the appropriate education and physical diagnosis by taking a nursing course. In fact, physical diagnosis is an integral part of any quality medical education program and, although it may not be taught as a separate course in all of the accredited medical schools in the United States, it is taught as part of the ongoing education by the faculty of the medical school itself. Students are not sent off to find their own tutors or to attempt to obtain physical diagnosis training from taking nursing school courses in medical schools or medical education programs which are deemed in Florida to be programs or schools which have furnished their successful graduates an adequate medical education. It is thus found, based upon Dr. Winchester's testimony, that the Petitioner's education under the auspices of Ross or CETEC, whichever it was, did not constitute a medical education with regard to the physical diagnosis education. The clerkships were not taught by faculty members of medical schools or in teaching hospitals. In fact, the Petitioner began the pediatrics clerkship under the auspices of one school and finished under the auspices of another school. As established by Dr. Winchester at hearing, this would be unheard of in an accredited medical school in the United States. Since the clerkships are supervised by faculty of the medical school, a student would not transfer medical schools without having to change from one school's clerkship program to another. In addition, the clerkships are characterized by physicians writing letters of verification as to their clerkships or observerships. An observership is an educational experience in which a student only observes what is going on with regard to a particular procedure and does not actually participate. Finally, the testimony revealed that the Petitioner received clinical credit for taking an examination preparation course. This, too, would be unacceptable in a legitimate medical education setting, as shown by Dr. Winchester. Additionally, it is noted that three of the clerkships, internal medicine, surgery, and radiology all overlapped in some point in time, with all three being taken during February of 1982. A clerkship is essentially a full- time experience. A medical education, as that term is used in Florida, does not contemplate taking multiple clerkships at the same time. It is expected that a medical student will give full attention to the area of study and to the patients to which the student is assigned during the clerkship. This cannot be done if three clerkships are being performed at the same time. That this might be perceived as inadequate, even by the Petitioner, is evident in his letter of November 11, 1992 to the Board in which he stated that he had not mentioned his radiology clerkship previously because it overlapped his surgery clerkship. In summary, as to the clerkships, it is determined that they were not of the quality required to be considered a medical education in the State of Florida. This finding is based upon the testimony of Dr. Winchester, which is accepted over that of the Petitioner. Ability to Practice with Reasonable Skill and Safety The testimony and evidence of record does not indicate that the Petitioner has had an adequate medical education. In addition to the inadequacies in his medical education described in the above Findings of Fact, he has not practiced medicine since his graduation from medical school in 1982 nor has he had employment or practice experience related to the field of medicine. He has not worked in a hospital, doctor's office, clinical laboratory, or any other setting in which he might keep his medical knowledge current. He has taken a large number of continuing medical education courses of late, since he filed his initial application. The concept of continuing medical education, however, is that a person should be continually building on an actual basic medical education. The Petitioner has not demonstrated that he is currently able to practice medicine with reasonable skill and safety because of this lack of continuing medical experience and education when added to the basic inadequacy of his underlying medical education, as proven by the evidence in this record. Examination Fee Section 458.347(7)(b)1., Florida Statutes, requires that an applicant pay the application fee and the examination fee. This statutory provision specifically provides that the applicant must pay the fee for the examination and if he is later deemed ineligible to take the examination, then the fee will be refunded. The Petitioner admits that he never paid the examination fee. He insists that he should not have to pay the fee until after he is declared eligible for the examination. While one can understand the applicant feeling that he should not have to pay the fee until after being ruled eligible, the legislature decided otherwise and directed that the fee be paid in order for an applicant to be considered eligible for the examination on a threshold basis. Ms. Faircloth testified that the names of students who were to take the examination have to be sent to the Bureau of Examination Services prior to the examination so that expense and other arrangements can be made for the correct number of examination booklets and proctors for the practical examination. This is a practical policy reason underlying the passage of the statute providing for the advance payment of the fee and for the manner in which the agency interprets that statute. Educational Commission for Foreign Medical Graduates Examination. The Petitioner submitted evidence that he had obtained a score of 65 on the Educational Commission for Foreign Medical Graduates Examination (ECFMGE). He thus maintained at hearing that he was eligible for certification as a physician assistant simply because he had received a score of 65. This evidence was presented and admitted over objection by the Respondent on the grounds that the Respondent had not been placed on notice of such issue because it was not raised in the petition. Be that as it may, the Petitioner has failed to establish eligibility for examination under that provision for the reasons stated in the Conclusions of Law below.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that a Final Order be entered by the Board of Medicine denying the Petitioner's application for certification as a physician assistant. DONE AND ENTERED this 12th day of October, 1993, in Tallahassee, Florida. P. MICHAEL RUFF 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 13th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1310 Petitioner's Proposed Findings of Fact 1-5. Accepted. 6. Rejected, as not in itself dispositive of the issue presented. 7-15. Accepted. 16. Rejected, as unnecessary and immaterial. 17-23. Accepted. 24. Accepted, but not itself dispositive of material issues. 25-30. Accepted, in part, but subordinate to the Hearing Officer's findings of fact on this subject matter and to some degree not supported by the preponderant evidence of record. 31-33. Rejected, as immaterial. 34-35. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, although the fact that he took a physical diagnosis course from Dr. Fleischer is accepted. Rejected, as not itself materially dispositive of the relevant issues. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not in itself dispositive of material issues. 39-43. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter and not in themselves materially dispositive findings of fact. 44. Rejected, as not supported by the preponderant evidence of record. 45-46. Accepted, but not in themselves materially dispositive. 47. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 48-50. Accepted, but not in themselves materially dispositive findings of fact. 51-60. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely in accord with the preponderant evidence of record. 61-73. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter and not in their entirety materially dispositive. Rejected, as not entirely in accord with the preponderant evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not itself material, and subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not itself materially dispositive. 77-84. Accepted, in part, but subordinate to the Hearing Officer's findings of fact on this subject matter and not in themselves materially dispositive. 85. Accepted. 86-98. Accepted, but not in themselves materially dispositive, and subordinate to the Hearing Officer's findings of fact on this subject matter. 99-101. Accepted, but not in themselves material. Respondent's Proposed Findings of Fact 1-31. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. COPIES FURNISHED: Robert J. Boyd, Esquire BOND & BOYD 411 East College Avenue Post Office Box 26 Tallahassee, FL 32302 M. Catherine Lannon, Esquire Assistant Attorney General The Capitol, PL-01 Tallahassee, Florida 32399-1050 Ms. Dorothy Faircloth Executive Director Board of Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esquire General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
