The Issue The issues under consideration in this case concern an administrative complaint placed by the Petitioner against Respondent accusing him of practicing medicine with an inactive license for the period of January 1, 1988 until on or about October 27, 1988. For this alleged activity Respondent is said to have violated Sections 458.327(1) (a) and 458.331(1)(x), Florida Statutes.
Findings Of Fact Respondent attended the University of Rochester from 1977 to 1990 and received a B.A. in biology and a B.S. in neuro- science. He then received his medical education at Upstate Medical Center in Syracuse, New York, from 1984 until 1985 and graduated as an M.D. He served surgical internship at Geisinger Medical Center, a general surgery internship, in the year 1985. From 1985 until the point of hearing, he had been receiving training as a resident at the University of Florida Department of Orthopedic Surgery. As such, he is employed by the University of Florida. The residency program in the Department of Orthopedics at the University of Florida is approved by the Council on Graduate Medical Education. His duties as a resident physician include assisting the attending physician and making diagnosis and carrying out treatment, as well as prescribing medication. These duties are performed in Shands Teaching Hospital in Gainesville, Florida, and at the Veteran's Administration Hospital in that same community. In the period January and February, 1988, he was at Shands Teaching Hospital in pediatric orthopedic service. He then served four months at the Veteran's Administration Hospital in the general orthopedic rotation. He then returned to Shands Teaching Hospital as part of the adult reconstructive service. At no time while participating in those programs did he undertake other medical employment. On March 4, 1985, Respondent executed a form provided by the Board of Medical Examiners entitled "Registration Application for Unlicensed Physicians." It may be found as Petitioner's Exhibit 3B-1 admitted into evidence. The purpose of this form was to identify his participation as a resident at Shands Teaching Hospital. In response to the questionnaire, Respondent indicated that he did not intend to become licensed in Florida. This form was submitted to the Department of Orthopedic Surgery at the University of Florida and was subsequently forwarded to the Department of Professional Regulation. Notwithstanding the lack of intention on the part of the Respondent to practice medicine in Florida as expressed in his application as executed on March 4, 1985, Respondent applied for and was given an active license to practice medicine issued on November 22, 1985. The medical license is no. ME0047478. He took this step at the instigation of his employer the University of Florida who remitted the necessary fees to obtain that license. On January 16, 1986, Shands Teaching Hospital submitted a list of unlicensed physicians participating in programs within the University of Florida College Medicine as of January 14, 1986 and employed by the University of Florida. This list was sent to Dorothy J. Faircloth, Executive Director of Board of Medical Examiners (Board of Medicine). The attached list included the Respondent's name as being among those persons who were unlicensed physicians working at the University of Florida College of Medicine, Shands Teaching Hospital a that time. A copy of the correspondence of January 16, 1986, is found as Petitioner's exhibit 3-C admitted into evidence and the list itself is Petitioner's exhibit 3-D admitted into evidence. A copy of a list dating from July 1, 1986 describing unlicensed physicians at the University of Florida reflects Respondent's name. However, a line is drawn through his name and other identifying data concerning the Respondent. It is unclear from this record who had drawn that line through the name as reported. A copy of that report may be found as Petitioner's exhibit 3- E admitted into evidence. The list of licensed physicians at the University of Florida as of July 1, 1987, submitted to the Board of Medicine did not reflect the Respondent's name. This can be seen in an examination of Petitioner's exhibit no. 3-G admitted into evidence. Likewise, on January 15, 1988, correspondence was directed to Ms. Dorothy Faircloth, Executive Director of the Board of Medicine, a copy of which is Petitioner's 3-H, admitted into evidence. A list of unlicensed physicians at the University of Florida was attached. That attachment is Petitioner's exhibit no. 3-I, admitted into evidence and it does not show the Respondent's name. That list reflects the circumstance of unlicensed physicians as of January 15, 1988. The Respondent's initial registration as a resident physician on March 4, 1985, was in an effort to comply with the requirements set forth in Section 458.345, Florida Statutes. The submission of the list of the resident physicians and other physicians by the University of Florida, College of Medicine, in the periods as reported above was in an effort to comply with that institution's obligations under Section 458.345, Florida Statutes. In late October or early November, 1987, Respondent received a notice from the Petitioner concerning the renewal of the medical license which had been issued on November 22, 1985. Following the receipt of that notice, he executed the necessary paperwork and submitted it to the accountant at the University of Florida who was responsible for paying Respondent's fees for the medical license as an employee of the University of Florida, School of Medicine, within the Department of Orthopedic Surgery. Respondent took no further action to assure that his license was renewed until late March or early April, 1988. It was at that point that the Respondent was made aware that the replica of his medical license that he kept in his wallet reflected an expiration of that license. He made this discovery when attempting to use that replica as a form of identification. At that juncture he reported to Ms. Jeri Dobbs, an employee of the University of Florida, who indicated that paperwork associated with this license may have been destroyed in a fire at Johnson Hall where certain records of the Department of Orthopedic Surgery were kept. Ms. Dobbs' responsibility in the relevant time period under question, encompassed money matters within the Department of Orthopedics. This included the payment of license fees for residents in the University of Florida Department of Orthopedics. The technique was to request a check from the University of Florida and send that check along with the requisite forms to the Department of Professional Regulation. Sometime in November or early December, 1987, a fire occurred in Johnson Hall at the University of Florida. Within that building were found invoices to be paid or checks requested and they were lost in the fire. In November, 1987, Ms. Dobbs had originally requested a check from the finance and accounting office at Johnson Hall to pay for the re-licensure of certain physicians. The names of those physicians are set forth in Respondent's exhibit no. 3, admitted into evidence. The package of paperwork on license renewal related to the named physicians was lost in the Johnson Hall fire. Respondent's name is not found in that list. Nonetheless, the circumstance that occurred with the physicians listed there may have well have occurred to the Respondent and in his conversation in late March or early April, 1988 with Ms. Dobbs he was impressed with the idea that his paperwork on license renewal may have been destroyed as was the situation with those other physicians. The physicians whose names are listed on Respondent's exhibit no. 3 would have had their medical licenses expire on December 31, 1987, as was the case with Respondent's license. In March, 1988, through efforts of Ms. Dobbs, the licenses of those physicians set forth in Respondent's exhibit no. 3 were renewed upon the payment of a $50 reinstatement or penalty fee as required by Petitioner. There is no indication that those persons as listed in Respondent's exhibit no. 3, were ever subject to disciplinary action for practicing medicine with an inactive license as has been the fate of Respondent in the present case, even though it can be fairly inferred that they had been participating as physicians at the University of Florida in the period January 1, 1988 through latter March, 1988 while their medical license had not been renewed before expiration on December 31, 1987. In conversations between Ms. Dobbs and someone associated with the Petitioner, she expressed her concern at having to pay an additional $50 late fee in the face of the circumstance in which records had been lost in the Johnson Hall fire. In this conversation she was not lead to believe that there would be any problem with the practice of those physicians who were on that list found in Respondent's exhibit no. 3. In her testimony, although Ms. Dobbs acknowledges that Respondent's name is not on the list of physicians whose licenses were reapplied for, she also indicates that she could not say for an absolute fact that these names were the only ones whose information on license renewal was lost. Being of the belief based upon his conversation with Ms. Dobbs that the necessary paperwork for renewal had been destroyed in the Johnson Hall fire, Respondent took the initiative to ascertain the appropriate method to rectify the situation of his license renewal. To this end, at approximately the same time period as the discussion with Ms. Dobbs, he spoke with Ms. Faircloth. He explained the circumstances to Ms. Faircloth of his renewal and specifically the idea in which he was persuaded that his renewal papers had been burned up in the fire at the University of Florida. Her instructions to him were that the paperwork would be forthcoming, to fill it out as quickly as possible and that he should not worry that this sort of thing happened all the time. He was not told by Ms. Faircloth that he should not continue in his duties as a resident physician, given the status of his license renewal. Having not heard from Ms. Faircloth within the week of his initial contact with her, he called her a second time. At that point she said that he should have received the materials. A month after the second contact, another call was made from the Respondent to Ms. Faircloth because he had not received the materials. She indicated that by that time the materials should have been received and therefore she was going to send another set of those forms for him to fill out. A further call was made to Ms. Faircloth and she indicated to the Respondent that the forms had been sent out, and sometime in late June or early July, 1988, information concerning the obtaining of his renewed license began to be received by Respondent. Documents pertaining to the activity of gaining a new license may be found within Petitioner's composite exhibit no. 2 admitted into evidence, in particular those portions 2D through 2J. Throughout this process Respondent cooperated and made timely responses to what was asked of him to effectuate these purposes. Finally, effective October 24, 1988, Respondent obtained his renewed license. Throughout this endeavor neither Ms. Faircloth in conversations with Respondent nor anyone else associated with Petitioner indicated that the Respondent should cease his practice pending the issuance of the renewed license. None of the materials that were forwarded to the Respondent for purposes of license renewal had any admonition against his carrying forward his duties as a resident of the University of Florida pending the resolution of this license problem. After returning the necessary materials to obtain his license, Respondent had not heard from the Department of Professional Regulation, so he checked with Jeri Dobbs and was told that the necessary cash had been remitted for renewal. He called someone within the Petitioner's organization and that person confirmed that the check in furtherance of his license renewal fee had been cashed and that it was probably still in the computer that the license had been printed, but probably had not been sent in the mail. According to Barbara Kemp an employee of Petitioner, who has responsibility for processing requests for license renewal, the detailed requirements set forth in Petitioner's composite exhibit 2 are utilized in the instance wherein the license was not renewed in the ordinary period for renewal. Respondent's situation was perceived in that way. Ms. Kemp refers to this as the reactivation of a license and describes this exhibit as being an indication of the materials necessary to reactivate. As Ms. Kemp explained in her remarks, typically the renewal packet is dispatched 60 days prior to the expiration of the license. That would correspond in this instance to 60 days before December 31, 1987. That circumstance, unlike the situation reflected in Petitioner exhibit no. 2 admitted into evidence, does not contemplate the need to document compliance with certain requirements related to license renewal. In the reactivation mode, that documentation as evidenced by items set forth in Petitioner's exhibit no. 2 would be necessary. According to Ms. Kemp, in the instance where there is a belief that the practitioner has been practicing medicine without the benefit of an active license, a memorandum is sent to those persons within the Petitioner's organization who are responsible for considering administrative complaints. This does not usually occur within the first couple of months beyond the period of license expiration. In this instance, that would correspond to the first couple of months beyond December 31, 1987. The reason for not reporting tardiness in license renewal is due to the fact that Petitioner is busy trying to renew a high number of licenses and the computer takes time to catch up and conclude that activity. This describes the time necessary for data to be entered in the computer system. In this instance, Ms. Kemp complained to the investigatory arm of her organization about the Respondent's possible practice without the benefit of a license and that complaint was made on September 16, 1988.
Recommendation Based upon the findings of fact made and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which dismisses this administrative complaint. DONE and ENTERED this 13th day of February, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, 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 13th day of February, 1990. APPENDIX The following discussion is given concerning the proposed facts of the parties. Petitioner's Facts Paragraphs 1-8 and all of paragraph 9 save the last phrase are subordinate to facts found. The idea of a supposition by the Board of Medicine that Respondent had withdrawn from the residency program and had become licensed is not crucial to the disposition of this case. Paragraphs 10 and 11 are subordinate to facts found. Paragraph 12 is contrary to facts found. Paragraphs 13-17 are subordinate to facts found. Respondents's Facts Paragraphs 1-9 are subordinate to facts found. Paragraph 10 with the exception of the last sentence is subordinate to facts found. The exact whereabouts of the paperwork necessary for renewal was not established with certainty. Paragraphs 11-20 are subordinate to facts found. Copies furnished: Wellington H. Meffert II, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Barbara C. Wingo Associate General Counsel University of Florida 207 Tigert Hall Gainesville, FL 32611 Dorothy Faircloth, Executive Director Department of Professional Regulation, Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether the Petitioner is entitled to be licensed as a physician assistant.
Findings Of Fact Petitioner sat for the physician assistant licensure examination administered by Respondent October 6 - 9, 1995. Petitioner passed all portions of the examination except for the “Clinical Exam” part of the examination. Because he did not pass the Clinical Exam, Petitioner failed the licensure examination. Thereafter, Petitioner requested the opportunity to review the scoring of his examination and the video that was made of the performance. Petitioner was given ninety minutes for that review. The clinical exam required the candidate to physically examine “patients” with stated vital signs and presenting symptoms. The “patients” were healthy models. The candidate's examination of each patient was closely viewed by two examiners who separately graded various components of the candidate’s performance. The performance was video taped. The video tape included audio so that the verbal instructions to the candidate and the candidate's explanation of his examination could be heard. The Petitioner challenged the scoring of 17 components of the examination. Upon review of Petitioner’s challenge, Respondent gave him additional credit for 10 of the challenged components. That additional credit raised his score from 425 to 500, still short of the 600 points needed for a passing grade. Respondent established that Petitioner was given all the credit he deserved for his performance on the clinical examination. Even if Respondent had given additional credit for all 17 components he challenged, the Petitioner would not have achieved a passing score. This test was not arbitrary or capricious. The questions used were consistent with the instructions given the candidates and similar in nature to those used in other clinical examinations. Petitioner failed to establish that he was entitled to additional credit for his performance on the Clinical Exam portion of the physician assistant licensure examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order dismissing Petitioner’s challenge to the scoring of his performance on the clinical exam portion of the physician assistant examination administered in October 1995. DONE AND ENTERED this 11th day of June, 1997, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The 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 11th day of June, 1997
The Issue Whether Respondent, Ernesto Sinda Colina, M.D., violated Section 458.33(1)(t) and (v), Florida Statutes, as alleged in the Administrative Complaint and, if so, what disciplinary action should be taken against Respondent's license to practice medicine.
Findings Of Fact Respondent, Ernesto Sinda Colina, M.D. (Respondent), is and has been at all times material hereto, a licensed physician in the State of Florida, having been issued License No. ME-0031020. Respondent's last known address is 4002 West Thonotosassa Road, Plant City, Florida 33565-8593. On or about December 1, 1993, Patient E.C., a 61-year- old male, presented to the Orlando Vascular Clinic (Clinic) for evaluation of impotence. Respondent was the physician at the Clinic who treated Patient E.C. The evaluation included three visits, beginning with laboratory studies, physical examination, and concluding on December 7, 1993, with the injection of Prostaglandin E-1 into the corpora of Patient E.C.'s penis by order of Respondent. The injection of Prostaglandin E-1 produced an immediate erection which did not subside and became painful. On December 9, 1993, Patient E.C. contacted the Clinic complaining of an erection and discomfort and was advised to take Ibuprofen and pack the penis in ice. However, the rigidity persisted. Later on December 9, 1993, Patient E.C. presented to the South Seminole Hospital Emergency Room for further evaluation of a priapism (persistent erection of the penis, accompanied by pain and tenderness, resulting from a pathologic condition rather than sexual desire) of approximately 56 hours' duration. On December 9, 1993, Patient E.C. was seen by Elias Jacobo, M.D., who irrigated Patient E.C.'s corpora with normal saline and Heparin, evacuating old clots under sterile conditions and with antibiotic coverage. On December 10, 1993, Patient E.C. was re-evaluated because the priapism was continuing. On January 17, 1994, Patient E.C. returned to Dr. Jacobo due to recurrence of the priapism with tenderness and evidence of infection. That same day Patient E.C. was admitted to South Seminole Hospital (hospital) in Longwood, Florida. After Patient E.C.'s admission to the hospital, he was taken to the operating room where his corpora was drained, explored, and irrigated with alpha agonist ephedrine. The surgical procedure was performed by Dr. Jacobo. Patient E.C. was seen in consultation by an infectious disease specialist and maintained on antibiotics. The diagnosis was corporitis, which gradually resolved with proper drainage and antibiotic therapy. An injection of Prostaglandin E-1 may be used for the treatment of impotence. However, once the injection is given, the physician should monitor the patient's progress to determine what degree of rigidity is achieved over a given period of time and then make dosage adjustments. Moreover, the patient should be advised of the potential complications of procedures, such as priapism and infection. Finally, the patient should be instructed to return for an evaluation if the rigidity persists longer than four to six hours. Respondent failed to inform Patient E.C. of the risks of iatrogenic priapism, and failed to instruct Patient E.C. to return for immediate evaluation within four to six hours of persistent rigidity. Ibuprofen has no effect on reversing the effects of the Prostaglandin E-1. Recommending Ibuprofen and ice packs is inadequate treatment and is below that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances in the treatment of Patient E.C. The management of impotence with pharmacologic erection programs with injectible agents should be performed by or under the supervision of a specialist trained in the treatment of impotence, such as urology. Respondent had no such specialized training and the treatment of Patient E.C. without training was below the standard of care. Patient E.C. suffered permanent damage as a result of Respondent's treatment, which fell below the standard of care.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent's license to practice medicine in the State of Florida be revoked. DONE AND ENTERED this 27th day of April, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2000. COPIES FURNISHED: Kristy M. Johnson, Esquire Department of Health Post Office Box 14229 Tallahassee, Florida 32317-4229 Ernesto Sinda Colina, M.D. 4002 West Thonotosassa Road Plant City, Florida 33565-8593 Tanya Williams, Executive Director Board of Medicine Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0750 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast BIN A02 Tallahassee, Florida 32399-1701 William Large, General Counsel Department of Health 2020 Capital Circle, Southeast BIN A02 Tallahassee, Florida 32399-1701
The Issue The issue in this case is whether the challenged portions of the proposed amendments set forth in the Fourth Notice of Change for Rule 64B8-9.009, Florida Administrative Code (FAC), published in the Florida Administrative Weekly on February 18, 2000, constitute an invalid exercise of delegated legislative authority.
Findings Of Fact Background Rule 64B8-9.009, Florida Administrative Code, is the Board's Rule governing the standards of care for office surgery. The Rule was first adopted on February 1, 1994 as a Rule 61F6- 27.009, Florida Administrative Code. It was transferred to Rule 59R-0.009, Florida Administrative Code, and was amended on May 17, 1994; September 8, 1994; and November 15, 1994, and then was finally transferred to Rule 64B8-9.009, Florida Administrative Code. In February of 1998, the Board directed its Surgical Care Committee to evaluate Rule 64B8-9.009 and to make recommendations for any modifications or amendments to the Rule. The 1998 Florida Legislature also addressed the issue of office- based surgery and provided that the Board may "establish by rule standards of practice and standards of care for particular practice settings . . . " including office-surgery environments. As discussed below, hearings were conducted by the Board and its Surgical Care Committee to consider changes to the office surgery rule. The Parties R. Gregory Smith, M.D., Charles Graper, D.D.S., M.D. and Florida Academy of Cosmetic Surgery Petitioner R. Gregory Smith, M.D., is a licensed medical doctor practicing in Ponte Vedra Beach, Florida. Smith practices cosmetic surgery, plastic surgery, and oralmaxillofacial surgery in his office. Smith has a dental degree from Ohio State University College of Dentistry, a residency in oral and maxillofacial surgery and a degree in medicine. Approximately 30 percent of FACS members use general anesthesia (Level III) in their office surgery procedures. At least one representative of FACS has attended each public rulemaking hearing relating to proposed Rule 64B8-9.009, Florida Administrative Code. FACS actively participated in the rulemaking process, expressing concerns relating to transfer agreements, hospital privileges, and the requirement for an anesthesiologist in Level III surgery. FACS' purposes include addressing adverse outcomes in the field of cosmetic surgery and implementing recommended approaches to improve patient safety. Petitioner Charles E. Graper, D.D.S., M.D., is a Florida licensed medical doctor and dentist practicing in Gainesville, Florida. Graper received his doctorate in dental surgery from Emory University in 1971, his medical degree from Hahnemann University Medical School in 1983, and received one year of post-graduate training in general surgery at Orlando Regional Medical Center. Graper is Board-certified by the American Board of Oral and Maxillofacial Surgery, Board- certified in general cosmetic surgery, Board-eligible in general plastic surgery, and is a Fellow of the American College of Surgeons. Graper performs in his office cosmetic surgery, functional surgery, and surgery below the head and neck which would not be authorized by his dental license. Graper has been practicing cosmetic surgery for 20 years and has been teaching cosmetic surgery for 15 years. Graper has experience in performing Level III office surgery using general anesthesia. The Board of Medicine The Board of Medicine (Board) regulates the practice of medicine in Florida, and is the agency that adopted the rule at issue. The Florida Society of Plastic Surgeons, Inc., Florida Chapter, American College of Surgeons and Florida Society of Dermatologists The FSPS, FCACS, and the FSD are comprised of Florida physicians who practice in the areas of plastic surgery and dermatology. As licensed physicians (M.D.s), members of FSPS, FCACS, and FDS are subject to the regulations promulgated by the Board of Medicine. A substantial number of physician members of the FSPS, the FCACS, and the FSD perform office surgery and are affected by the proposed amendments to Rule 64B8-9.009, Florida Administrative Code. FSPS is a Florida not-for-profit corporation whose 270 members are board-certified plastic surgeons (of the approximately 375 such physicians statewide) licensed in the State of Florida pursuant to Chapter 458, Florida Statutes. FSPS was created and exists for the purposes of promoting plastic surgery as a science and profession. FSPS regularly participates in legislative efforts, rulemaking proceedings, and litigation on behalf of its members, and has participated throughout the rulemaking process with respect to Florida Administrative Code Rule 64B8-9.009. FCACS is a Florida not-for-profit corporation whose 1400 members are surgeons licensed in the State of Florida pursuant to Chapter 458, Florida Statutes. FCACS was created and exists for the purposes of promoting surgery as a science and profession. FCACS regularly participates in legislative efforts, rulemaking proceedings, and litigation on behalf of its members. Members of the Association, including Petitioner Graper, routinely perform office surgery. FSD is a Florida not-for-profit corporation whose 462 members are board-certified dermatologists licensed in the State of Florida pursuant to Chapter 458, Florida Statutes. FSD was created and exists for the purposes of promoting surgery as a science and profession. FSD regularly participates in legislative efforts, rulemaking proceedings, and litigation on behalf of its members. Members of the Association, including David Allyn, M.D., and Diane Calderone, M.D., routinely perform office surgery. The Florida Society of Anesthesiologists, Inc., Florida Hospital Association, Inc. and Association of Community Hospitals and Health systems The FSA is a not-for-profit professional membership organization representing approximately 2,000 anesthesiologists in Florida. FSA members practice in educational institutions, hospitals, ambulatory surgical centers, and physicians' offices. The purpose of the FSA is to provide its members information about anesthesiology and to inform the public about issues related to anesthesiology. The FHA and the ACHHS are nonprofit trade associations which represent over 200 hospitals and health systems. FHA and ACHHS represent member hospitals and health systems on common interests before the branches of government, particularly with respect to regulations that impact the members. The Florida Nurses Association (FNA) The Florida Nurses Association is a professional association of approximately 7,500 nurses licensed in the state of Florida, including approximately 1,700 advanced registered nurse practitioner (ARNP) members and a substantial number of CRNAs. Among its many purposes, the FNA represents the legal, legislative, and professional practice interests of the members. The Florida Association of Nurse Anesthetists Petitioner, Florida Association of Nurse Anesthetists (FANA), is a non-profit corporation and professional organization made up of more than 1,600 certified registered nurse anesthetists practicing throughout Florida, many of whom currently provide anesthesia for surgery performed in physicians' offices. As a part of its mission, FANA advocates its members' interests in legal, legislative, and professional practice issues. Rule Challenges by FSA and the Hospitals On July 8, 1999, the FSA filed a Petition for Administrative Determination of Invalidity of Proposed Rule challenging portions of the proposed amendments to Rule 64B- 8.9009 as set forth in the Second Notice of Change. The FSA's Rule challenge was assigned DOAH Case No. 99-2974RP. Also on July 8, 1999, the Hospitals filed a petition for Administrative Determination of the Invalidity of Proposed Rules challenging portions of the proposed amendments to Rule 64B8-9.009 as set forth in the Second Notice of Change. The Hospitals' Rule challenge was assigned DOAH Case No. 99-2975RP. The Board conducted a third public hearing on the proposed Rule amendments on August 7, 1999. The Board published a Third Notice of Change to the proposed Rule amendments in the August 20, 1999, issue of the Florida Administrative Weekly. None of the changes in the Third Notice of Change related to provisions that were in litigation. On January 12, 2000, the Board, the FSA, and the FSPS filed a Joint Stipulation on provisions of Rule 64B8-9.009, Florida Administrative Code (Joint Stipulation) in DOAH Case No. 99-2974RP. The Joint Stipulation released from FSA's Rule challenge, Case No. 99-2974RP, the majority of the proposed amendments to Rule 64B8-9.009 and reserved only the proposed amendments to Subsections (1)(e) and (6)(b)1.a. of Rule 64B8- 9.009 for challenge. On January 26, 2000, the Hospitals filed a Notice of Partial Voluntary Dismissal in DOAH Case No. 99-2975RP, dismissing their challenge to all proposed amendments to Rule 64B8-9.009, except with respect to Subsections (2)(e), (2)(f), (2)(i), (4)(b)1. and 2. and (6)(b)1.a. and b. In light of the filing of the Joint Stipulation in DOAH Case No. 99-2974RP, and the filing of the Notice of Partial Voluntary Dismissal in DOAH Case No. 99-2975RP, the proposed amendments to Rule 64B8-9.009 were no longer subject to challenge, with the exception of the proposed changes to Subsections (1)(e), (2)(e), (2)(f), (2)(I), (4)(b)1., (4)(b)2., (6)(b)1.a. and (6)(b)1.b. Accordingly, on January 28, 2000, the Board filed the proposed amendments to Rule 64B8-9.009 that were no longer subject to challenge with the Department of State for Adoption. The Board subsequently conducted an additional public meeting and published a fourth notice of change relating to the proposed amendments to Rule 64B8-9.009 still subject to challenge by the FSA and the Hospitals. These changes included the withdrawal of the proposed amendments to Subsection (4)(b)1. which would have changed "transfer agreement" to "transfer protocol." During this public meeting, the Board was informed that those parts of the Rule no longer being challenged had been filed with the Department of State. On January 28, 2000, the Board filed all of its proposed amendments to Rule 64B8-0.009, with the exception of the amendments to Subsections (1)(e), (2)(e), (2)(f), (2)(i), (4)(b)1. and 2., and (6)(b)1.a-b, for adoption with the Florida Secretary of State. The proposed amendments filed for adoption on January 28, 2000, became effective February 17, 2000. The Board voted to modify some of the proposed amendments to Rule 64B8-9.009 still subject to challenge at its public meeting on February 5, 2000. The FSA filed a Notice of Voluntary Dismissal of its Rule challenge in DOAH Case No. 99-2974RP on February 7, 2000. DOAH case No. 99-2974RP was closed on February 8, 2000. The Hospitals filed a Notice of Voluntary Dismissal of their Rule challenge in DOAH Case No. 99-2975RP on March 9, 2000, and the case was closed on March 10, 2000. The Fourth Notice of Change was published in the February 18, 2000, issue of the Florida Administrative Weekly noticing the changes to proposed amendments to Rule 64B8-9.009 voted on by the Board at its February 5, 2000, meeting. On February 25, 2000, the FACS, Graper, and Smith filed a Petition for an Administrative Determination of the Invalidity of a Proposed Rule challenging the Board's proposed changes to Subsection (6)(b)1.a. of Rule 64B8-9.009 as published in the Fourth Notice of Change. This petition was assigned DOAH Case No. 00-0951RP. On March 8, 2000, the FACS, Graper, and Smith filed an Amended Petition for an Administrative Determination of the Invalidity of a Proposed Rule in DOAH Case No. 00-0951RP challenging the Board's proposed withdrawal of the proposed changes to Subsection (4)(b)1. of Rule 64B8-9.009 and the proposed changes to Subsection (6)(b)1.a. of Rule 64B8-9.009 as published in the Fourth Notice of Change. The Board held a public hearing on April 8, 2000, in Orlando, Florida, and received testimony concerning the Fourth Notice of Change. At the conclusion of the hearing, the Board voted to adjourn without making any changes in the Fourth Notice of Change. On April 17, 2000, the FANA filed its petition challenging the Board's Fourth Notice of Change. The FANA's petition was assigned DOAH Case No. 00-1622RP. DOAH Case Nos. 00-0951RP and 00-1622RP were consolidated by Order of the Administrative Law Judge issued May 4, 2000. The Fourth Notice of Change states that "[t]he proposed changes to Subsection (4)(b)1., shall be withdrawn." With respect to Subsection (6)(b)1.a. of Rule 64B8- 9.009, the Fourth Notice of Change states: Proposed Subsection (6)(b)1.a. shall be changed to read, (b) Standards for Level III Office Surgery. In addition to the standards for Level II Office Surgery, the surgeon must comply with the following: Training Required. a. The surgeon must have staff privileges at a licensed hospital to perform the same procedure in that hospital as that being performed in the office setting or must be able to document satisfactory completion of training such as Board certification or Board qualification by a Board approved by the American Board of Medical Specialties or any other board approved by the Board of Medicine or must be able to demonstrate to the accrediting organization or to the Department comparable background, training and experience. In addition, the surgeon must have knowledge of the principles of general anesthesia. If the anesthesia provider is not an anesthesiologist, there must be a licensed M.D., or D.O., anesthesiologist, other than the surgeon, to provide direct supervision of the administration and maintenance of the anesthesia. Petitioners have challenged the Fourth Notice of Change on the following grounds: (1) the requirement that an anesthesiologist be present for all Level III surgeries in physicians' offices will increase the cost and limit surgical procedures and practice opportunities of Petitioners resulting in a substantial adverse financial impact on Petitioners and patients; (2) the Fourth Notice of Change exceeds the Board of Medicine's rulemaking authority by attempting to regulate nurse anesthetists; (3) the Fourth Notice of Change conflicts with existing statutes governing the practice of nurse anesthetists; (4) the rule is arbitrary and capricious and is not supported by competent evidence and is inconsistent with the law and policies of the federal government and of 49 states; (5) the Fourth Notice of Change is not supported by competent substantial evidence and would not have any measurable effect on patient safety; (6) the Rule was improperly adopted; and (7) that the Fourth Notice of Change conflicted with the existing requirement to provide a choice of anesthesia providers. Each of these arguments is addressed below. Final Order in DOAH Case No. 00-1058RX The Final Order in DOAH Case No. 00-1058RX invalidated certain existing Rule requirements related to transfer agreements and hospital staff privileges as a precondition for certain office surgeries. Specifically, that Final Order invalidated Subsection (4)(b) of Rule 64B8-9.009, which required a transfer agreement for any physician performing Level II office surgery who did not have staff privileges to perform the same procedure at a licensed hospital. In addition, the Final Order invalidated Subsection (6)(b) of Rule 64B8-9.009 which required a physician performing Level III office surgery to have hospital staff privileges for the procedure performed in an out-patient setting. As grounds for invalidating the staff privileges requirement, the Administrative Law Judge determined that the Board lacked specific statutory authority to mandate hospital privileges, thereby exceeding its grant of rulemaking authority. The Final Order further determined that the requirement for hospital privileges was arbitrary, deferred credentialing to individual hospitals, and was not supported by competent substantial evidence. During the prior hearing, the parties did not present specific argument related to, nor did the Final Order consider the proposed changes to the staff privileges requirement set forth in the Fourth Notice of Change due to the separate Rule challenge proceedings. The Proposed Rule Regarding Competency Demonstration Notwithstanding, Subsection 4 of the Fourth Notice of Change proposes to change Subsection (6)(b)1.a. of Rule 64B8- 9.009 to include alternatives to hospital staff privileges as a manner of demonstrating sufficient education, training and competency to perform Level III surgery in an office setting. The proposed change provides that a surgeon who seeks to provide Level III surgery in an office setting can demonstrate training as follows: The surgeon must have staff privileges at a licensed hospital to perform the same procedure in that hospital as that being performed in the office setting or must be able to document satisfactory completion of training such as Board certification or Board qualification by a Board approved by the American Board of Medical Specialties or any other Board approved by the Board of Medicine or must be able to demonstrate to the accrediting organization or to the Department comparable background, training, and experience. (emphasis added) The proposed Rule at issue in this proceeding continues to provide for the same mechanism of hospital privileges, previously invalidated. The provision remains invalid for the reasons articulated in the previous Final Order. However, the proposed Rule also provides office surgeons with two alternative methods for objectively demonstrating sufficient training and competency through certification by a recognized medical specialty board or through direct demonstration to the Board of Medicine. That provision of the proposed Rule, provides significant flexibility and meaningful options to physicians seeking to perform office surgery. The Board demonstrated that the options are an appropriate approach for the Board to utilize in exercising its delegated regulatory authority and responsibility to adopt education and training standards for the office setting. The Petitioners adequately challenged the provisions and the Board proved the validity of the proposed alternatives by a preponderance of the evidence. Increased Costs Petitioners contend that the anesthesiologist requirement in the Fourth Notice of Change violates Section 120.52(8)(g), Florida Statutes, by imposing regulatory costs on the regulated person which could be reduced by the adoption of less costly alternatives that substantially accomplish the statutory objectives. Petitioners offered credible evidence indicating that the hourly rates charged by anesthesiologists range from 50 to 100 percent higher than the hourly rates charged by CRNAs for similar procedures. Respondent and Intervenor, FSA, on the other hand, demonstrated that hourly rates varied from market to market within Florida and in a few cases, rates for anesthesiologists were approximately the same as for CRNAs. The evidence is clear, however, that the charges for an anesthesiologist are significantly higher than those for CRNAs for similar procedures. Anesthesiologists possess broader expertise, education, and training. As a result, requiring an anesthesiologist for Level III office surgeries will increase the total cost of a typical in-office plastic or cosmetic surgery procedure between five and ten percent. Furthermore, the evidence demonstrated that although some surgeons periodically use anesthesiologists during Level III office surgery for a variety of reasons, including availability, complexity of procedure, current health of patient and contractual agreements, most surgeons utilize CRNAs due to the considerable cost savings. Petitioners also claimed that the Rule would create a monopoly in the provision of in-office anesthesia for anesthesiologists and would force hundreds of CRNAs out of office practice. The Fourth Notice of Change applies to Level III surgeries, so it is reasonable to conclude that the need for CRNAs to participate in the performance of Level III surgeries under the supervision of an anesthesiologist will be obviated. Their assistance is unnecessary and cost prohibitive. And although nurse anesthetists would still be permitted to provide Level II anesthesia in the office setting under the supervision of the operating surgeon, the proposed Rule imposes a significant increase in the cost of Level III surgeries and severely decreases competition. Rulemaking Authority and Conflicting Law Petitioners mistakenly contend that the proposed anesthesiologists requirement exceeds the scope of the Board of Medicine's rulemaking authority and conflicts with existing law. The authority for the Fourth Notice of Change is contained in part in Section 458.33(1)(v), Florida Statutes, which states in pertinent part: The Board may establish by rule standards of practice and standards of care for particular practice settings, including but not limited to, education and training, equipment and supplies, medications including anesthetics, assistance of and delegation to other personnel, transfer agreements, sterilization, records, performance of complex or multiple procedures, informed consent, and policy and procedure manual in order to establish grounds for disciplining doctors. Specifically, Petitioners allege that the Fourth Notice of Change constitutes an impermissible attempt by the Board of Medicine to regulate nurse anesthetists and conflicts with Chapter 464, Florida Statutes, which permits nurse anesthetists to practice under the supervision of any physician, osteopath, or dentist. The parties have stipulated that Florida-certified registered nurse anesthetists are licensed only by the Florida Board of Nursing and are subject to discipline only by the Florida Board of Nursing. In mandating that office surgeons use an anesthesiologist during in-office Level III surgery, the proposed Rule does not directly regulate any nurse or certified registered nurse anesthetist and does not subject the CRNA to any discipline by the Board of Medicine or by the Board of Nursing. Thus, the Rule on its face does not conflict with the delegated legislative authority to the Board of Medicine for rulemaking in Section 458.331(1)(v). Federal Law, Scientific Evidence, Arbitrary and Capricious, Competent Substantial Evidence Petitioners contend that the Fourth Notice of Change requiring an anesthesiologist be present during Level III surgery is inconsistent with the laws and policies of the federal government and 49 states, contrary to the overwhelming weight of scientific evidence, arbitrary and capricious, and not supported by competent substantial evidence. There is no evidence that the Fourth Notice of Change is inconsistent with the laws and policies of the federal government. There is no federal law or rule which prohibits any state from establishing its own rules governing the rights of various practitioners to administer or supervise the administration of anesthesia in any particular setting. Federal government regulations defer to state law on this subject unless a state establishes a lower standard of care. While it is insignificant whether any other state currently requires an anesthesiologist to be present for the administration or supervision of general anesthesia in an office setting, some states have considered such requirements, including Pennsylvania and New Jersey. With respect to the scientific evidence presented by the parties, it is clear that there is a lack of competent and substantial evidence to demonstrate an increased level of safety for general anesthesia patients who undergo surgery under the care of an anesthesiologist as opposed to a CRNA. CRNAs are advanced registered nurse practitioners. In addition to their nursing training, CRNAs must have at least one year of experience in a critical care setting (such as working in a hospital intensive care unit) prior to beginning their two- to-three year master's level anesthesia training. Nurse anesthetists typically are trained side by side with physician anesthesia residents, use the same textbooks, and are taught by the same instructors. Unlike physician anesthesiologists who receive a general medical-surgical license that may not require any level of training or expertise in the administration of anesthesia, CRNAs must pass a national certifying examination in anesthesia as a condition of state licensure. In addition, CRNAs must complete 40 hours of continuing anesthesia education every two years, and must be recertified every two years to retain their state license. The evidence suggests that the safety of office surgery is comparable to that of hospitals and ambulatory surgery centers. Moreover, under the existing Rule, the office surgeon and patient determine the most appropriate anesthesia provider and setting based on the individual patient's needs. The direct testimony and scientific evidence indicate no significant difference in patient outcomes based on whether anesthesia is administered by an anesthesiologist or CRNA. Hence, Florida law and the existing standard of care in Florida permits a surgeon to supervise a CRNA in the office setting. Nearly forty percent of the 1600 CRNA members of FANA provide anesthesia in physicians' offices. Furthermore, the evidence indicates that anesthesiologist supervision of CRNAs in hospitals is extremely inconsistent. "Supervision" as defined by various hospitals requires the anesthesiologists to be within five to thirty minutes of the hospital. Anesthesiologists are often absent for extended periods and typically "supervise" several operating rooms simultaneously. In fact, Federal Medicare regulations permit an anesthesiologist to receive payment for the "medical direction" of as many as four CRNAs at the same time. Moreover, several smaller and often rural hospitals and ambulatory surgical centers in Florida do not have anesthesiologists on staff. CRNAs provide the anesthesia services in those venues. Dr. David Mackey, an anesthesiologist, testified that he had reviewed information on 28 deaths related to office surgery which occurred between 1987 and 1999. Dr. Mackey concluded that there have been nine deaths resulting from office surgery in the past 12 years in which anesthesia was a cause of death. However, Dr. Mackey was able to confirm that a CRNA provided the anesthesia in only two of the nine cases. Office surgeons and related professional societies agree that an office-based surgeon may safely supervise a CRNA. Currently, there are three national accrediting organizations that may accredit office surgery facilities: Joint Commission on Accreditation for Ambulatory Healthcare Organizations; American Association for Accreditation of Ambulatory Surgery Facilities; and Accreditation Association for Ambulatory Health Care. Rule 64B8-9.0091, Florida Administrative Code. None of these accrediting organizations requires that CRNAs be supervised by an anesthesiologist. No other state currently requires anesthesiologist supervision of CRNAs in an office setting. In fact, Florida's Joint Committee of the Boards of Nursing and Medicine identify specific medical acts that may be performed by ARNPs, and the level of physician supervision required for such acts. Section 464.003(a)(c), Florida Statutes. The Joint Committee does not require anesthesiologist supervision of CRNAs in any setting. The U.S. Armed Forces do not require anesthesiologist supervision of CRNAs in any practice setting. And the American Society of Anesthesiologists' has published its own "Recommended Scope of Practice for Nurse Anesthetists" which provides for CRNAs to administer anesthesia under the supervision of the operating surgeon. Studies of Anesthesia Outcomes and Medical Error Michael B. Pine, M.D., a Board-certified cardiologist, former chief of cardiology at Cincinnati Medical school, and a former professor of medicine at Harvard Medical School and two other medical schools, testified as an expert in healthcare quality assessment and improvement. Dr. Pine has served as a healthcare quality assessment and improvement consultant to the JCAHO, the Health Care Financing Administration (HCFA), the American Medical Association (AMA), the American Osteopathic Association, the Hospital Research and Educational Trust of the American Hospital Association, the American Association of Oral and Maxillofacial Surgeons, the American Association of Nurse Anesthetists, Blue Cross/Blue Shield, and Anthem, among others. Dr. Pine characterized his career transition from clinician to consultant as moving from "dealing with diseased individuals to dealing with diseased organizations to help them assess their problems in delivering health care and help them improve and get better." Dr. Pine assisted in the development of clinical indicators for JCAHO, including indicators in anesthesia care. He has worked with the federal Health Care Financing Administration (HCFA) to measure hospital mortality and adjust for patient severity as an indicator of hospital quality. Dr. Pine's consulting experience includes evaluating outcome data for individual practitioners, groups of providers, and whole systems. Dr. Pine testified that the classic study in anesthesia mortality was a 1950's study by Beecher and Todd of 600,000 anesthetic administrations which were followed by about 8,000 deaths, 325 of which were ultimately determined to be anesthetic related. The study reflects an anesthesia mortality rate of about 1:2,500. In the Beecher and Todd study, nurse anesthetists performed twice as many cases as anesthesiologists, but the number of deaths involving nurse anesthetists was virtually the same as the number of deaths involving anesthesiologists. Beecher and Todd initially hypothesized that the greater mortality rate for anesthesiologists could be explained by the severity of illness of the patients seen by anesthesiologists rather than nurse anesthetists, but after correcting for the difference in severity of illness, they discovered the nurse anesthetists had actually treated patients who were slightly more sick. Beecher and Todd were unable to explain why physician anesthesiologists, who anesthetized only half as many patients as nurse anesthetists, were involved in an equal number of deaths. Dr. Pine testified that a later study, the Bechtoldt, measured outcomes associated with two million anesthetics in North Carolina between 1969 and 1976. The mortality rate was approximately 1:24,000; a mortality rate ten times better than the rate reflected in the Beecher and Todd study 20 years earlier. The Bechtoldt study compared the outcomes of anesthesiologists working alone, nurse anesthetists working alone, and CRNAs and anesthesiologists working together, the surgeon or dentist administering anesthesia him/herself, and deaths in which no provider could be identified. Bechtoldt concluded that: When we calculated the incidence of anesthetic related deaths for each group which administered the anesthetic, we found that the incidence among the three major groups - the CRNA, the anesthesiologist, and the combination of both - to be rather similar. Although the CRNA working alone accounted for about half the anesthesia- related deaths, the CRNA working alone also accounted for about half the anesthetics administered. A 1980 study by Forrest of 17 hospitals and about 10,0000 patents was one of the first studies to make a formal adjustment for the sickness severity of the patients. Using conservative statistical methods, Forrest concluded that "there were no significant differences in outcomes" between the hospitals that predominately used anesthesiologists and the hospitals that predominately used nurse anesthetists. Anesthesia safety continued to improve as indicated by a British study in the early 1980's, that used a procedure similar to that used by Beecher and Todd in the 1950's. The British study looked at 485,000 surgeries in which anesthesia was provided. There were 4000 deaths, only 3 of which were determined to be anesthetic related, reflecting an anesthesia mortality rate of 1:185,000. The Institute of Medicine report entitled "To Err is Human," published in 1999, reflects an even better anesthesia mortality rate of 1:200,000 to 1:300,000 cases. The Institute of Medicine report states: The gains in anesthesia are very impressive and were accomplished through a variety of mechanisms including improved monitoring techniques, the development and widespread adoption of practice guidelines and other systemic approaches to improving errors . . . . the success of anesthesia, was accomplished through a combination of technological changes, new monitoring equipment, standardization of existing equipment, information-based strategies including the development and adoption of guidelines and standards, application of human factors to improve performance such as the use of simulators for training, formation of the Anesthesia Patient Safety Foundation to bring together stakeholders form different disciplines, physicians, nurses, manufacturers, to create a focus for action and having a leader who would serve as a champion for the cause. Dr. Pine also addressed the recent study regarding anesthesia by Silber published in June 2000. This study examined 7,665 deaths following 217,000 hospital procedures for which medical bills were submitted to HCFA for Medicare reimbursement. The study attempted to characterize the type of anesthesia provider based on whether an anesthesiologist submitted a bill for providing anesthesia or supervising the anesthesia. The study assumed that a CRNA administered the anesthesia if either the CRNA billed for it, or if no bill was located. Moreover, instead of reviewing deaths that occurred within 48 hours after the surgery, the study counted all deaths which occurred within 30 days following surgery, and ignored any non-anesthesia related complications and deaths which were included in the 7,665 death toll. Conversely, the 7,665 deaths in 217,000 procedures produce a mortality rate of 1:28, nearly 100 times greater than the mortality rate in the 1950 Beecher and Todd study, and nearly 10,000 times what the 1999 Institute of Medicine study reflected as the anesthetic mortality rate. The greatly inflated and inconsistent death rate is highly questionable and provides little scientific support for the Board's proposed rule. With respect to Petitioners' argument relating to arbitrary and capricious mandate, the proposed Rule would not permit office-based surgeons to provide a choice of anesthesia provider for Level III office surgeries, since only one anesthesia provider is necessary or justified for Level III office surgery, and the proposed rule mandates the participation of an anesthesiologist. It is unreasonable and not economically feasible for the surgeon or the patient to pay for an anesthesiologist and a CRNA for the same procedure. Based on the current Rule's "choice of anesthesia provider" requirement in subsection (2)(b) of the existing Rule, the proposed anesthesiologist mandate for Level III surgery is inconsistent, confusing and illogical to the reasonable person.
The Issue The issues in this case are whether Respondent, whose license to practice medicine was revoked in Maryland on a malpractice charge, is guilty in Florida of the offense of being disciplined in another jurisdiction; and if so, whether Petitioner should impose discipline on Respondent's medical license within the applicable penalty guidelines or take some other action. RELIMINARY STATEMENT On November 18, 2011, Petitioner Department of Health issued an Administrative Complaint against Respondent Oscar Ramirez, M.D. The Department alleged that Dr. Ramirez's license to practice medicine in Maryland had been revoked by that state's licensing authority, the bare fact of which makes Dr. Ramirez's Florida license subject to secondary discipline. Dr. Ramirez timely requested a formal hearing, and on January 23, 2012, the Department filed the pleadings with the Division of Administrative Hearings ("DOAH"), where an Administrative Law Judge was assigned to preside in the matter. The final hearing took place as scheduled on March 27, 2012, with both parties present. The parties having previously stipulated to the facts alleged in the Administrative Complaint, the Department offered Petitioner's Exhibits 1 though 4, which were received in evidence without objection, and rested its case. Dr. Ramirez testified on his own behalf and presented four additional witnesses: Luis Vasconez, M.D., Vice Chairman of the Department of Surgery and professor of plastic surgery at the University of Alabama in Birmingham; Carl L. Hussling, a medical doctor and patient of Dr. Ramirez; Hilton Becker, M.D., plastic and reconstructive surgeon; and Lawrence Z. Arborella, a patient of Dr. Ramirez. Respondent's Exhibits 1 through 3 were admitted without objection. The one-volume final hearing transcript was filed on April 17, 2012, and Proposed Recommended Orders were due on May 8, 2012. The parties' respective submissions were carefully reviewed and fully considered. Citations to the Florida Statutes and Florida Administrative Code refer to the provisions in effect at the time of the operative event under discussion.
Findings Of Fact Introduction At all times relevant to this case, Respondent Oscar Ramirez, M.D., was licensed to practice medicine in the state of Florida, having been issued license number ME 76398. Dr. Ramirez is certified in Plastic Surgery by the American Board of Plastic Surgery. Petitioner Department of Health (the "Department") has regulatory jurisdiction over licensed physicians such as Dr. Ramirez. In particular, the Department is authorized to file and prosecute an administrative complaint against a physician, as it has done in this instance, when a panel of the Board of Medicine has found that probable cause exists to suspect that the physician has committed a disciplinable offense. Here, the Department alleges that Dr. Ramirez committed one such offense——namely, having disciplinary action taken against a license to practice medicine in a jurisdiction other than Florida, the mere fact of which constitutes a disciplinable offense in this state pursuant to section 458.331(1)(b), Florida Statutes. In other words, under section 458.331(1)(b), the Florida Board of Medicine is authorized to take penal action against a Florida medical license based not on the licensee's having committed a "substantive violation" in this state, but rather on his having been punished in a remote jurisdiction for violating that jurisdiction's law (the "Original Violation"). Because section 458.331(1)(b) involves no independent misconduct, the Florida offense being necessarily dependent on the Original Violation for which the remote sanction was imposed, the "wrongdoing" at issue here will be referred to as the "Derivative Violation." Dr. Ramirez's Distinguished Medical Career Dr. Ramirez, a physician and surgeon for more than 25 years, has been licensed in Florida since 1998. Prior to the revocation of his medical license in 2011 by the Maryland State Board of Physicians ("MD Board"), Dr. Ramirez had never been disciplined by any licensing authority, and he has not been disciplined since. Dr. Ramirez has worked as an instructor in plastic surgery and is an Assistant Professor of Plastic and Reconstructive Surgery at Johns Hopkins University. He has served as an assistant professor in plastic surgery at the University of Maryland's medical school, and, in a voluntary capacity, on the faculty of the Cleveland Clinic Florida. In addition, Dr. Ramirez has worked as a visiting professor at more than twenty universities around the country and around the world, teaching plastic surgery techniques to medical residents. Dr. Ramirez has made approximately 500 professional presentations worldwide. These have included presentations for the American Society of Plastic Surgery, the American Society of Aesthetic Plastic Surgery, the International Society of Aesthetic Plastic Surgery, the American College of Surgeons, and the Johns Hopkins Medical and Surgical Association. Dr. Ramirez shares his skills with other practitioners and surgeons, allowing them to attend his surgeries and observe from the gallery in live surgery demonstrations. He has hosted educational workshops around the world, where he has tutored more than 4,000 surgeons in plastic surgery techniques by working hands-on with cadavers. For those physicians unable personally to attend his workshops, or those who prefer to review techniques in a different setting, Dr. Ramirez has made numerous DVDs demonstrating surgical procedures and techniques. Dr. Ramirez has written extensively on the procedures and techniques he has devised. A textbook written by Dr. Ramirez, Endoscopic Plastic Surgery, is used in many plastic surgery residencies at universities nationally and internationally. This book explains how to apply minimally invasive surgical techniques to plastic surgery, a field which Dr. Ramirez helped create and in which he remains a pioneer. Dr. Ramirez has authored chapters of textbooks, anatomy manuals, and scientific research papers——more than 150 publications in total. Twice, Dr. Ramirez has been nominated for the prestigious James Barrett Brown Award for the best scientific publications in plastic surgery. Dr. Ramirez has invented or designed surgical instruments, primarily for the minimally invasive surgery techniques he has pioneered, which are used throughout the world. He has, as well, designed surgical implants, primarily for facial reconstructions. Dr. Ramirez is responsible for developing numerous innovative surgical techniques. Among the most important are: Dr. Ramirez's innovation of sliding the gluteus maximus flap to repair wounds to the anus (often caused by cancer), which allows for the repair of the wound without causing other disabilities. Before, muscles would be transferred from the thigh or the upper chest to repair the wound, often resulting in physical impairment to the regions from which the muscles were transferred. Dr. Ramirez's technique avoids this. According to Dr. Luis Vasconez, Dr. Ramirez's sliding gluteus maximus technique has reduced significantly the suffering of patients who have undergone treatment for cancer of the anus. A technique to reattach the intestines of patients who have undergone colon cancer treatment, which improved upon earlier techniques and made the procedure safer. A surgical technique called Component Separation, used to close large abdominal defects that occur during trauma, often following complications from abdominal surgery. This technique improves patient quality of life and reduces the mortality rate. According to Dr. Vasconez, Dr. Ramirez's compartment method of repair of incisional hernias is a technique that has helped reduce the recurrence rate for large hernias (those larger than 5 centimeters) from 65 percent to 20 percent or less. This technique is used in general surgery as well as in plastic surgery. The application of minimally invasive surgical techniques in the field of plastic and reconstructive surgery, which Dr. Ramirez spearheaded. These techniques are used primarily for surgery performed on the face, breasts, and abdomen. With regard to the first area, Dr. Ramirez pioneered the suborbicularis oculi fat pad (SOOF) lift, a mid-face lift that reduces the 20 percent complication rate that was experienced using older techniques; the tridimensional functional cheek lift; and techniques to correct ear defects and twisted noses. With regard to breast surgeries, Dr. Ramirez has innovated techniques for breast reductions and nipple reconstructions. He has also developed techniques to improve tummy tucks. According to Dr. Vasconez, these minimally invasive surgery techniques, particularly endoscopy in procedures around the face, are among the most important of Dr. Ramirez's contributions to the field. Dr. Ramirez's surgical innovations are used nationally and internationally, according to Dr. Vasconez, and they have become "part of the core knowledge of plastic surgery to the point that in any training program" Dr. Ramirez's techniques are "being taught to all trainees." According to Dr. Hilton Becker, who is a board-certified plastic surgeon licensed in the state of Florida, Dr. Ramirez is an "[i]ncredible innovator," an "incredible teacher," and "a recognized expert worldwide in this field [plastic surgery]." Besides testifying to Dr. Ramirez's numerous professional contributions and international reputation for medical excellence, Drs. Vasconez and Becker testified credibly and convincingly about Dr. Ramirez's good character. Dr. Vasconez testified that in the 30 years he has known him, he has found Dr. Ramirez "highly ethical" and a "good loyal friend, and more than anything highly honest in his presentations of scientific subjects." Dr. Becker testified that Dr. Ramirez is "very well respected in the community of plastic surgery." In sum, the evidence establishes that Dr. Ramirez is a highly distinguished, world renowned plastic surgeon, prolific teacher, lecturer, and author in his field, inventor of numerous medical devices, and innovator of myriad important surgical techniques. As a practitioner and academic, Dr. Ramirez has made significant contributions to the lives of his patients and to the field of plastic and reconstructive surgery as well as to the field of general surgery. The Maryland Proceeding Against Dr. Ramirez The MD Board is the licensing authority responsible for regulating the practice of medicine in the state of Maryland. On July 15, 2011, the MD Board issued a Final Decision and Order ("Final Decision") revoking Dr. Ramirez's Maryland license to practice medicine. Employing a preponderance of the evidence standard——as opposed to the more stringent clear and convincing evidence standard required in Florida——the MD Board found that Dr. Ramirez had violated a state statute requiring doctors "to meet appropriate standards as determined by appropriate peer review for the delivery of quality medical and surgical care." The Maryland decision will be examined at length in the legal analysis below. In a nutshell, the MD Board revoked Dr. Ramirez's license based upon the determination that he had violated the standard of care on two separate occasions by performing a combination of plastic surgery procedures in a single operation in an office-based surgical setting instead of in a hospital or ambulatory surgical center. Dr. Ramirez's Current Practice Currently, Dr. Ramirez performs minor procedures under local anesthesia as an independent contractor at Elite Surgery Center in Weston, Florida. Dr. Ramirez has applied for hospital privileges in Florida, but has not yet received them. While he does not have hospital privileges himself, Dr. Ramirez now operates only with a co-surgeon who does hold hospital staff privileges. Moreover, the clinic where Dr. Ramirez works has a transfer agreement in place, and Dr. Ramirez performs surgery only with a co-surgeon who has a written transfer agreement. After the Maryland discipline, Dr. Ramirez changed his approach to surgery. Dr. Ramirez now keeps surgeries as short as possible, always following the most conservative approach. He stages multiple procedures into two or three surgical sessions or refers cases to hospital-based physicians, in full recognition of the safety advantages provided by a hospital as compared to a surgical clinic. While before the Maryland discipline he tried to keep surgeries from lasting more than eight hours, now Dr. Ramirez never exceeds six hours for a single operative session. Outside of his Florida practice, Dr. Ramirez continues his longstanding commitment to voluntary service, primarily consisting of performing pro bono reconstructive surgeries on underprivileged children in this country (providing services to uninsured children) and in Central and South America (repairing cleft lips and cleft palates). Ultimate Factual Determination Dr. Ramirez is guilty of having his license to practice medicine revoked in another jurisdiction, which is a disciplinable offense pursuant to section 458.331(1)(b), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Dr. Ramirez guilty of the charge set forth in the Administrative Complaint and imposing as discipline a reprimand and a fine in the amount of $1,000. DONE AND ENTERED this 10th day of July, 2012, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 2012.
The Issue The central issue in this case is whether Richard Koenig, D.P.M., should be licensed as a podiatrist in the State of Florida. More specifically, this case must determine these issues: whether Richard Koenig, D.P.M., has practiced podiatry in the past at an acceptable standard of care as required by Section 461.013(1)(s), Florida Statutes; whether he fraudulently misrepresented material facts on his application for licensure as a podiatrist in violation of Section 461.013(1)(a), Florida Statutes; and whether his application to become licensed as a podiatrist is barred on grounds of administrative res judicata because of the Board of Podiatry's denial of his application in 1994-1995.
Findings Of Fact Dr. Koenig is an applicant for licensure as a podiatrist in the State of Florida. He is presently licensed to practice podiatry in the State of Missouri and was previously licensed in Illinois and Florida. Both of the latter licenses have expired. Dr. Koenig meets all criteria for licensure in Florida other than the grounds for denial cited by the Board in its Notice of Intent to Deny and described in the Statement of the Issues, above. The Board is responsible for certifying individuals who are qualified to become licensed as podiatrists and the Department of Health is responsible for issuing the licenses after the Board's certification. Dr. Koenig permitted his Florida license to lapse while he practiced in Missouri. He initially sought to be licensed again in this state in 1994. At that time, his application to sit for the examination, and thereafter to be licensed, was denied by the Board. Dr. Koenig requested a hearing on the denial before the Division of Administrative Hearings (DOAH) and a case was opened as DOAH Case No. 95-0570. Dr. Koenig later dismissed his petition and the DOAH file was closed. The earlier denial thus became final. Dr. Koenig reapplied for licensure in 1997. It is this application which is the subject of the instant proceeding. Dr. Koenig has already taken and passed the national podiatric licensure examination in Louisiana in 1997, thus meeting the examination requirement. Dr. Koenig was involved in approximately eleven podiatric malpractice cases during his practice in Missouri in the 1980's and early 1990's. Eight of the cases were settled by his insurance carrier. Three additional cases were pending at the time of Dr. Koenig's initial application in 1994. Of these three, Dr. Koenig prevailed at trial in two cases. The third case has been voluntarily dismissed by the plaintiff and has not been refiled. Dr. Koenig has not been engaged in the practice of podiatry as his primary professional activity since 1993-1994. He occasionally provides podiatric services as part of his commitment to the U.S. Navy, but he has primarily been engaged in developing and marketing two devices for use in podiatric and related services and has been teaching. Dr. Koenig received and reviewed the 1994 Board Notice of Intent to Deny Application for Examination and Licensure prior to filing his 1997 licensure application. In addition, he was aware that he had dismissed his petition to review that decision and the Board's decision was thus final. Nevertheless when called upon to state in the 1997 application whether he had ever been denied licensure as a podiatrist, Dr. Koenig answered "No." (Petitioner's Exhibit No. 1) This answer was false. Question five of the application for podiatry licensure reads: "Has any podiatry license held by you ever been acted upon, suspended or revoked, or have you ever been denied licensure?" Dr. Koenig's explanation concerning his negative answer to this question was that he thought he was being denied the right to take the examination, which was a condition required before he could be licensed. His understanding is supported by a reading of the minutes of the Board meeting at which the decision was made: "Dr. Simmonds moved to deny Dr. Koenig from taking the examination based on not having the ability to practice Podiatric Medicine at a level of care and safety." (Petitioner's Exhibit No. 1) However, the Board sent, and Dr. Koenig received, a Notice of Intent to Deny Application for Examination and Licensure. While that document plainly states that he was both being denied the right to take the examination and the right to be licensed, he did not focus on the second point--the right to be licensed. Dr. Koenig offered his explanation to the Board at its meeting on July 25, 1997, and when asked about the application question, he stated, "Because it is a misunderstanding. I make a differentiation between being denied a license and being denied the opportunity to sit for a license, and I may be wrong, and I stand corrected if I am, but that's what my intention was." (Petitioner's Exhibit No. 1, Transcript pp. 21-22). He understood that the Board was denying him the right to take the examination, an essential element of his application process. Dr. Koenig's explanation has been consistent throughout this proceeding, both before the Board and in the formal hearing. Although Dr. Koenig did answer the question incorrectly, his explanation that he did so without any fraudulent intent is entirely credible. Had there been an intent to defraud the Board regarding his application, Dr. Koenig might have avoided disclosing the malpractice suits which resulted in the Board's earlier decision to deny him licensure. Those malpractice suits are no longer an appropriate basis to deny licensure. Dr. Koenig is a Board-certified podiatrist and is a Fellow of the American College of Foot and Ankle Surgeons. One becomes Board-certified by taking an examination, by meeting practice requirements, and by submitting a number of medical cases to the Board for evaluation. Only about 10 percent of all podiatrists are Board-certified. Dr. Koenig's specialty is foot surgery and he has operated more often than a podiatrist in standard practice. Dr. Koenig has written several articles in peer- reviewed journals, and has spoken widely in the United States and elsewhere at various continuing medical education seminars. A frequent topic of his speeches involves the use of an implant which he developed to replace the big toe joint. This implant is patented, approved as a safe device by the FDA, and is covered by Medicare and Medicaid. Dr. Koenig has developed and marketed a special shoe for patients who have had foot surgery. There have been no Medicare or Medicaid complaints brought against Dr. Koenig and he maintains Medicare and Medicaid provided numbers. The two lawsuits which went to a jury verdict were decided in his favor and there are no lawsuits pending now. The multiple claims of malpractice occurred when he was actively engaged in foot surgery practice in Missouri. His insurance carrier, without consulting him, settled those claims. After he changed carriers and contested the claims, he has prevailed. The Board in this proceeding presented no evidence that Dr. Koenig has practiced below the standard of care. Nor did it refute his credible testimony.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: that a Final Order be entered granting Dr. Koenig's license to practice podiatry in the State of Florida. DONE AND ENTERED this 24th day of April, 1998, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 1998. COPIES FURNISHED: John J. Rimes, III Office of Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Eric B. Tilton Gustafson, Tilton, Henning & Metzger, P.A. Suite 200 204 South Monroe Street Tallahassee, Florida 32301 Angela T. Hall, Agency Clerk Department of Health Building 6 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Eric G. Walker, Executive Director Board of Podiatry Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Should Petitioner discipline Respondent for violating its order entered May 4, 1995, prohibiting Respondent from performing obstetric or gynecological surgical procedures without appearing before the Board of Medicine (Board) and demonstrating his ability to perform OB/GYN surgery with requisite skill and safety to patients? Section 458.331(1)(x), Florida Statutes.
Findings Of Fact Stipulated Facts Respondent is and has been at all times material hereto a licensed medical physician in the State of Florida, having been issued license number ME 0017399. Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.42, Florida Statutes. On or about May 4, 1995, the Board of Medicine issued a Final Order in Case No. 92-05546 imposing discipline on Respondent's license to practice medicine. This discipline was adopted by the Board of Medicine from a stipulated disposition ("consent agreement") voluntarily accepted by Respondent. Respondent does not now challenge the legality or validity of the May 4, 1995, consent agreement. The disciplinary terms of the May 4, 1995, consent agreement include, but are not limited to, the following restriction on Respondent's practice, in pertinent part: Respondent shall refrain from performing obstetric or gynecological surgical procedures until such time as he appears before the Board and Demonstrates that he may perform OB/GYN surgery with the requisite skill and safety to patients. For purposes of this Consent Agreement, OB/GYN surgery shall include, but not be limited to: abortion of a fetus, amniocentesis, dilation and curettage, delivery of a fetus, hysterectomy, PAP smear, cophorectomy, salpingectomy, tubal ligation, and any and all invasive procedures involving any portion of the reproductive organs of the human female, including the vulva, vagina, cervix, uterus, and adnexa of the uterus. Respondent did not appeal or otherwise legally challenge the May 4, 1995, Final Order of the Board of Medicine. At no time through July 1996 did Respondent physically appear before the Board of Medicine or petition the Board of Medicine with respect to the above stated restriction on his license and/or the demonstration [sic] to the Board that he could perform obstetric or gynecological surgical procedures as specified in the Final Order with the requisite skill and safety to patients. Between approximately January 1996 and July 1996, Respondent was employed as a physician at the Gulf County Health Department in Gulf County, Florida. During the period that Respondent was employed at the Gulf County Health Department, he performed PAP smears and gynecological cryosurgery. Irrespective of whether such violation was premeditated, intentional, or willful, Respondent violated the terms of the May 4, 1995, Final Order of the Board of Medicine by performing the gynecological procedures he performed during his practice at the Gulf County Health Department. At the time it was presented to the Board, Respondent received a copy of the Consent Agreement executed by him which formed the basis for the Board of Medicine Final Order. Respondent did not provide a copy of the Consent Agreement and/or the Board of Medicine Final Order to the Gulf County Health Department prior to or at the initiation of his employment there. Additional Facts At the time Petitioner imposed discipline against Respondent in Case No. 92-05546, Respondent appeared before Petitioner and an explanation was given concerning the circumstances involved with the discipline. Respondent signed the consent agreement leading to the discipline. The consent agreement included the statements of restrictions on Respondent's practice, the subject of the present case. Respondent had discussed entry into the consent agreement with counsel who represented his interests in Case No. 92-05546. While employed with the Gulf County Health Department in Gulf County, Florida, between January 26, 1996 and July 18, 1996, Respondent performed 21 PAP smears and two colposcopies/ biopsies in the Port St. Joe, Florida clinic. Respondent performed 29 PAP smears and one colposocopy/biopsy in the Wewahitchka, Florida clinic. In discussing the possibility that Respondent would be employed by the Gulf County Health Department, Respondent did not discuss with that agency the existence of the consent order which restricted his practice. Respondent mentioned a suit and the fact of his appearance before the Board of Medicine in the previous year, at the Board's behest, but not the consent order. Verna Mathes is the Community Health Nursing Director for the Gulf County Health Department. Ms. Mathes was involved with the efforts that lead to Respondent's employment with the Gulf County Health Department. Ms. Mathes spoke with someone at the State of Florida, Department of Business and Professional Regulation to ascertain whether Respondent's medical license was "in good standing," before Respondent was hired. That unnamed person replied that there were no disciplinary actions against Respondent's medical license. Subsequent to that conversation Respondent was hired. Before Respondent was hired by the Gulf County Health Department he telephoned the Board of Medicine and spoke to a secretary. His stated purpose for the call was to arrange to appear before the Board and "to know what steps I have to take in order to have any license up to date subject to the rules, whatever limitations had been posted." According to Respondent, the response by the secretary he spoke with was that the "register" does not show any limitation imposed upon Respondent's medical license. Assume that the communication from the person at the State of Florida, Department of Business and Professional Regulation was made to Ms. Mathes and that there was a communication from a secretary at the Board of Medicine made to Respondent. Assume the communications reflected the understanding which those persons had concerning Respondent's license status. This did not modify nor relieve Respondent of his obligation in Case No. 92-05546. That obligation was to abide by the restrictions on his practice in relation to the performance of OB/GYN surgery. Respondent could only engage in that surgical practice after appearing before the Board of Medicine and demonstrating the requisite skill and safety to patients in performing OB/GYN surgery. Any inquiry by Respondent and that by Ms. Mathes did not release Respondent from his obligation to appear. Once hired by the Gulf County Health Department, the OB/GYN surgeries that have been described were outside the expectations in the consent order related to Respondent's opportunities to practice medicine.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which finds Respondent in violation of Section 458.331(1)(x), Florida Statutes, imposes a $5,000.00 fine, and requires twenty (20) hours of Continuing Medical Education in Obstetrics and Gynecology. DONE AND ENTERED this 7th day of April, 2000, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings 7th day of April, 2000. COPIES FURNISHED: Eric C. Scott, Esquire Agency for Health Care Administration Office of General Counsel Post Office Box 14229 Tallahassee, Florida 32317-4229 Thomas S. Gibson, Esquire Rish, Gibson and Scholz, P.A. 206 East Fourth Street Port St. Joe, Florida 32457 Tanya Williams, Executive Director Board of Medicine Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0750 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701
