The Issue The issue in this case is whether Respondent is guilty of being convicted or found guilty of a crime directly relating to the ability to practice pharmacy or the practice of pharmacy and, if so, what penalty should be imposed.
Findings Of Fact Respondent received his license to practice pharmacy in Pennsylvania in 1962. He has been continuously licensed in Florida since December 31, 1973, through March 28, 1995, when his Florida license was suspended by emergency order of the Board of Pharmacy for the reasons set forth below. His Florida license number was PS0013841. Respondent has not previously been disciplined. Respondent has been employed for many years with a large pharmacy chain. Over the years, he was promoted into positions of increasing managerial responsibility. At one point, he was in charge of the operations of over 25 stores. Sometime prior to the incidents described below, Respondent's responsibilities were reduced, evidently due to corporate restructuring. At the same time, his wife of 15 years had an affair. Respondent suffered other stresses, including a homicide involving someone in a close relationship. Respondent was ill-equipped to deal with these setbacks. He was a hard- working, intense person with no emotional outlets. Two prior marriages had failed in part due to Respondent's lack of emotional insight. Respondent has long defined his role in relationships almost entirely in terms of his income- earning ability. Unable to deal with the stress, Respondent one night picked up a streetwalker in Bradenton and paid her to have sex with him. Respondent identified himself to her. A sexual relationship ensued. The woman had a child, and they lived in squalor. Respondent' initial sexual impulse toward the woman yielded to an impulse by Respondent to rescue the mother and child and serve as their savior or hero. The woman made increasing demands of Respondent. Several times, Respondent tried to end the relationship, but the woman threatened to disclose the relationship to Respondent's wife and employer. Respondent informed her that he had no more money to give her, but she continued her demands. Eventually, Respondent began to steal from the pharmacy store at which he worked. At first, he stole boxes of cigarettes. Later, he stole prescription drugs, including various Schedule III and IV controlled substances. The drugs contained codeine, and Respondent knew that the woman was selling the drugs on the street. At least one of the drugs was popular among drug abusers. About a year after meeting the woman, Respondent was caught in the act of stealing drugs in the early-morning hours at the store. He immediately made a full confession and was prosecuted by federal authorities for the controlled substances and by state authorities for the cigarettes and other miscellaneous merchandise. In Count I of the federal indictment, Respondent was charged with a violation of 21 U.S.C. 846 by knowingly and intentionally combining, conspiring, confederating, and agreeing with the woman and other persons to possess with intent to distribute acetaminophen with codeine and hydrocodone bitartrate, which are Schedule III controlled substances, and diazepam and alprazolam, which are Schedule IV controlled substances. A Schedule III controlled substance has a potential for abuse less than substances contained in Schedules I and II and has a currently accepted medical use in treatment in the United States. Abuse of a Schedule III controlled substance may lead to moderate or low physical dependence or high psychological dependence. A Schedule IV controlled substance has a potential for abuse less than substances contained in Schedules I, II, and III and has a currently accepted medical use in treatment in the United States. Abuse of a Schedule IV controlled substance may lead to limited physical or psychological dependence. Respondent pleaded guilty to Count I, which carried a maximum sentence of five years, fine of $250,000, and probation of three years, as well as restitution. The United States noted Respondent's acceptance of responsibility as a factor in mitigation. In the plea agreement, Respondent acknowledged that he began diverting controlled substances, once or twice a week, in September 1993. He had been caught and arrested in April 1994. On February 24, 1995, The United States District Court entered a judgment adjudicating Respondent guilty of Count I, placing him on six months' house arrest, placing him on five years' probation, and ordering restitution to the pharmacy chain of $10,574.84 for the diverted controlled substances. The judge stated her desire that Respondent continue to work as a pharmacist in order to pay for what he had stolen. Respondent's conviction directly relates to his ability to practice pharmacy or to the practice of pharmacy. At the time of Respondent's arrest, the pharmacy chain had fired him. Following the arrest but before the conviction, Respondent worked as a pharmacist for a corporation that supplies licensed replacement pharmacists on a short-term or indefinite basis. Primarily assigned to one client working with terminally ill patients, Respondent was valued as a pharmacist by the clients and his employer for the six months that he was so employed. Respondent's employment as a licensed pharmacist ended when the Board of Pharmacy issued an emergency order suspending his license on March 28, 1995. Respondent has since attempted to find employment, but he has found none. His ability to make restitution has been impeded, although he has made some payments. Respondent has received private psychological counselling since October 1994. The psychologist's diagnosis was that Respondent was suffering from an adjustment reaction with depressed mood. Helping Respondent to analyze his past mistakes and equip himself to deal with stress, the psychologist opines that it is very unlikely that Respondent would repeat this behavior and would not represent a threat to the public safety, health, or welfare if he were to continue practicing pharmacy. Respondent has participated in the PRN since August 1994. The impaired practitioner program typically serves licensees who are unable to practice due to mental illness, substance abuse, or physical disability. The program has determined that Respondent suffers from no chemical dependency, sexual disorder, or psychiatric illness. Rather, at the time of the criminal behaviors, Respondent was under extreme stress. However, the director of the program testified that Respondent is progressing very well, free of all illness, and gaining insight into his difficulties so that he can now express his feelings and handle his stresses. The director also opines that Respondent would not pose a threat to public safety, health, or welfare if he were to continue practicing pharmacy. Respondent has entered into a five-year contract with the PRN. The program monitors Respondent for a lifetime. If at anytime the director were to determine that Respondent is not progressing, such as by failing to renew a contract when asked to do so by the program, the director would file a complaint with Petitioner. It has been almost two years since Respondent began diverting controlled substances to the prostitute and almost a year and one-half since he was caught. This relatively recent behavior was not isolated, but lasted six months. Respondent was caught and did not turn himself in. Respondent's behavior harmed himself, his family and friends, and his employer, which spends considerable resources to develop public trust and employee morale, both of which were damaged by Respondent's actions. Respondent's behavior also harmed the woman, whose squalid circumstances were worsened by Respondent's "generosity." And his criminal behavior threatened the safety, health, and welfare of numerous persons who purchased the controlled substances that Respondent had stolen and given to the woman. On the other hand, Respondent poses no risk to the public. This is the opinion of two mental-health professionals working closely with Respondent. Also, Respondent did not steal controlled substances while working for six months as a temporary pharmacist and while under considerable stress from the criminal prosecutions. Although Respondent did not turn himself in, he did confess immediately and completely. As a practical matter, his ability to make restitution is dependent on his ability to practice pharmacy. Respondent and Petitioner each present numerous final orders of the Board of Pharmacy evidencing past penalties. Petitioner's final orders include Newman, Case No. 94- 20465 (five years' suspension and $2000 fine for state conviction for sale, purchase, or delivery of Schedule IV controlled substance; and Dunayer, Case No. 07300 (revocation for shortage of over 500,000 dosage units of many of the same codeine- containing drugs). Respondent's final orders include Feldman, Case No. 92- 07313 (three years' suspension, retroactive 14 months to when licensee was ordered by court to surrender license, three years' probation, and $3000 fine for federal conviction for distributing and dispensing outside course of professional practice of pharmacy--although some of the same codeine-containing drugs were involved, it appears that considerably greater quantities may have been involved); Swoy, Case No. 93-11716 (two years' suspension, of which 22 months were stayed and several years' probation for state conviction of delivery of one of the same codeine-containing drugs--quantity unclear); and Levine, Case No. 92-04729 (two years' suspension that was stayed and four years' probation for state conviction of impaired practitioner for theft from pharmacy of relatively small quantities of Schedule II controlled substances).
Recommendation Based on the foregoing, it is RECOMMENDED that the Board of Pharmacy enter a final order finding Respondent guilty of violating Section 465.016(1)(f), suspending his license for one year from the date of the emergency suspension, imposing a $3000 fine to be paid within 90 days after the end of the suspension, and placing Respondent on probation for a period of five years. ENTERED on August 8, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on August 8, 1995. COPIES FURNISHED: John Taylor, Executive Director Board of Pharmacy 1940 North Monroe Street Tallahassee, FL 32399-0792 Nancy M. Snurkowski Agency for Health Care Administration 1940 North Monroe St., Suite 60 Tallahassee, FL 32399-0792 Salvatore A. Carpino 8001 North Dale Mabry Hwy. Suite 301-A Tampa, FL 33614
The Issue The issue is whether the petitioner companies should be placed on the convicted vendor list.
Findings Of Fact As noted above in the Preliminary Statement, the parties have entered into an Agreed Settlement. Their Agreed Settlement includes the following: This Agreed Settlement provides a full and complete factual basis for determining whether Par should be placed on the convicted vendor list. In light of the facts and criteria set forth in Subsubparagraph 287.133(3)(e)3.a. through k., Florida Statutes, there are no disputed issues of material fact between the Department of Management Services and Par, Quad and PRI which would require a formal hearing. The parties have stipulated to facts that indicate prompt payment of damages, cooperation with investigations, termination of employment and other relationships with employees responsible for the public entity crime, self-policing by Par to prevent public entity crimes, reinstatement and clemency in various jurisdictions in relation to the public entity crime, compliance with the notification provisions of section 287.133, Florida Statutes, the needs of public entities for additional competition in the procurement of goods produced by Par, and demonstrations of good citizenship. Therefore, pursuant to subparagraph 287.133(3)(e)4., Florida Statutes, the parties have stipulated to facts which create a rebuttable presumption that it is not in the public interest to place Petitioners on the convicted vendor list. The parties agree that it is not in the public interest to place Par or its affiliates on the Florida Convicted Vendor List and recommend that pursuant to subsubparagraph 287.133(3)(e)2.f., Florida Statutes, the . . . [Administrative Law Judge] issue a Final Order which adopts this Agreed Settlement and does not place Par or its affiliates on the convicted vendor list. The parties’ Agreed Settlement constitutes an informal disposition of all issues in this proceeding.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the following relevant facts are found. Jimmy Franklin Pinion, L.P.N., holds License No. 42845-1, as a Licensed Practical Nurse. Respondent was employed as a private duty nurse caring for Elsie B. Allen, a ninety-three-year-old woman, during the period April, 1978, through September 11, 1978, when he was dismissed for alleged physical abuse of Mrs. Allen and for alleged possession of controlled substances, to-wit: Valium and marijuana, on or about August 15, 1978. The Complaint alleges that on or about September 9, 1978, Respondent slapped Mrs. Allen twice on her forehead, resulting in bruises to the forehead. Concluding the Complaint alleges that the Respondent is guilty of unprofessional conduct in violation of Florida Statutes Subsections 464.21(1)(b) and (d). Anna Marie Snyder, an L.P.N. in Florida since approximately 1971, testified and expressed her familiarity with the Respondent since his employment with Mrs. Allen. Snyder testified that Mrs. Allen employed three round the clock nurses, one of whom was the Respondent, Jimmy Franklin Pinion. Ms. Snyder testified that she occasionally stayed at Mrs. Allen's home and that while so doing, she used a back bedroom which the Respondent also used occasionally. She testified that a problem arose with respect to a suspicion that some brownies had been placed in the refrigerator which were laced with marijuana. According to Ms. Snyder, the Respondent made the brownies and brought them to Mrs. Allen's home. Ms. Snyder also testified that she discovered marijuana in the back bedroom and that she brought the matter of the marijuana-laced brownies to the attention of Mrs. Allen's two nephews. According to Ms. Snyder, Respondent stressed the fact that Mrs. Allen had to be taken care of "firmly." On cross- examination, Ms. Snyder testified that the Respondent admitted that the brownies which were in a bag in the back bedroom belonged to him and that Respondent admitted that he had struck Mrs. Allen with a cane. Ms. Snyder's testimony is that bags of marijuana were found in a closed used by the Respondent, wherein crocheting and other personal items belonging to Respondent were located. She testified that vials of other drugs were confiscated by Mrs. Allen's attorney on or about September 11, 1978. Lorraine Clark Ruskin, an L.P.N. licensed for more than twenty-eight years, was also employed by Mrs. Allen as a private duty nurse. Ms. Ruskin testified that on August 15, 1978, she, along with Ms. Snyder, visited Respondent's rear bedroom where Respondent showed her marijuana in the rear bedroom. Approximately April 28, 1978, Ms. Ruskin had some photos taken which were introduced into evidence over the objections of Respondent's counsel. (Petitioner's Exhibits 1 through 5.) According to Ms. Ruskin, Respondent and a friend of his allegedly hit Mrs. Allen on her forehead, causing bruises, on or about September 9, 1978. Attorneys Carl Hiassen and G. Ware Cornell, Jr., visited the Allen's home on the morning of September 11, 1978, and dismissed the Respondent from Mrs. Allen's employ for alleged patient abuse and possession of drugs. Ms. Ruskin testified that she took Mrs. Allen to a psychiatrist who diagnosed Mrs. Allen as being incompetent to handle her own affairs due to an organic brain syndrome caused by generalized arterioscleriotic cardiovascular disease. (Respondent's Exhibit 2.) She testified that Mrs. Allen had a history of falling and that the subject incident, which gave rise to the bruises, occurred approximately September 10, 1978. She testified that the Respondent was terminated on September 11, 1978, when bruises were found on Mrs. Allen's forehead. G. Ware Cornell, Jr., an associate of Attorney Carl Hiassen, visited Mrs. Allen's home on September 11, 1978, for the purpose of terminating the Respondent. The reasons given for the termination were "unsatisfactory performance and suggestion of drug possession." Attorney Cornell testified that he visited the back bedroom where the Respondent stayed while at Mrs. Allen's home and discovered what appeared to be Valium, marijuana and other drugs. Attorney Cornell testified that when the Respondent was terminated, he was told to return all keys to the Allen's home that were in his possession. Carl A. Hiassen, Esquire, has been representing Mrs. Allen since World War II and visited the Allen's residence on September 11, 1978, for the express purpose of preparing a termination notice for the Respondent. He testified that he discovered drugs in a bedroom which he was told was being occupied by the Respondent. He testified that he made a list of the substances which he considered to be drugs and gave it to Mrs. Markowitz, Petitioner's representative in the Fort Lauderdale area. Attorney Hiassen testified that he retained custody of the drugs until approximately January of 1979, at which time there were given to Mrs. Markowitz. Mrs. Markowitz later turned the substances over to the Broward County Sheriff's office for chemical analysis. According to Mrs. Markowitz, the substances were analyzed by John T. Pennie, a forensic chemist for the Broward County Sheriff's office Crime Laboratory. Neither the substances nor the person performing the analysis appeared at the hearing to testify with respect to the identify of the substances. Respondent appeared at the hearing and testified that he had a prescription for Valium and, to the best of his recollection, he only had one or two tablets remaining from a prescription which he had filled sometime ago. Respondent denied having in his possession marijuana or any other controlled substance prescribed by Chapter 893, Florida Statutes. Respondent testified that Mrs. Allen had a problem signing blank checks for a Mrs. Carr who had taken approximately $40,000 from Mrs. Allen. Additionally, Respondent testified that Mrs. Allen never called him by his name. He testified that he contacted Mr. Hiassen's office to report the fact that Mrs. Allen was signing blank checks and the funds were diverted for the purposes for which they were intended by Mrs. Allen. Mrs. Allen did not testify at the hearing allegedly due to her physical condition.
Conclusions Due to the hearsay nature of the identity of the substances analyzed by the Crime Laboratory, the undersigned is unable to conclude that the Respondent had possession of drugs or other prescribed substances in violation of Chapter 893, Florida Statutes, as alleged. Among other things, there were problems with the chain of custody from the Allen's residence to the Crime Laboratory and the fact that at least one other nurse shared the same room in which it is alleged that the Respondent allegedly stored Valium and marijuana. Finally, the Respondent emphatically denied that he struck Mrs. Allen and the only testimony to refute this denial was heresay and thus falls within the proscriptions of Section 120.58, Florida Statutes. In view thereof, I shall recommend that the Administrative Complaint filed herein be dismissed in its entirety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Administrative Complaint filed herein be DISMISSED. RECOMMENDED this 9th day of October, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Geraldine B. Johnson, R.N. Department of Professional Regulation Board of Nursing Suite 504, Richard P. Daniel State Office Building 111 East Coast Line Drive Jacksonville, Florida 32202 Julius Finegold, Esq. 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Roger D. Haagenson, Esq. Suite 601, Cumberland Building 800 East Broward Boulevard Fort Lauderdale, Florida 33301
Findings Of Fact On June 5, 1985, the Department filed an administrative complaint against the Petitioner. That complaint alleged Petitioner had violated seven subsections of Section 458.331, Florida Statutes. The matter was not referred to the Division of Administrative Hearings for formal proceedings until July 10, 1987. The record does not explain the time delay which elapsed between the time of filing the administrative complaint and the time the matter was referred for hearing. On September 7, 1988, a formal hearing was conducted in connection with the matter. On November 16, 1988, a recommended order was entered which recommended the dismissal of all counts of the complaint. The basis for the recommendation was the Department's failure to prove by clear and convincing evidence the facts constituting the alleged violations. A ruling on a preliminary motion had determined that the Department was not entitled to compel the licensee to testify or provide evidence against himself. On February 18, 1989, the Board of Medicine (Board) entered a Final Order, DOAH Case No. 87-2896, which approved and adopted the recommended order, both as to the findings of fact and conclusions of law. The Board rejected all exceptions which had been filed by the Department. Petitioner is a "prevailing small business party" and is entitled to seek attorneys fees pursuant to Section 57.111, Florida Statutes. Petitioner has not sought fees on another basis. Petitioner filed his petition for fees within 60 days of becoming a prevailing party and has, therefore, timely asserted his claim for fees. The attorney fees and costs which Petitioner seeks are reasonable for the fees and costs incurred for all preparations in these proceedings (prehearing stipulation). The amount claimed to be due Petitioner exceeds $15,000. There are no special circumstances which would make the award of attorney's fees and costs unjust (prehearing stipulation). The administrative complaint which is the subject of this case was filed following a probable cause panel meeting which occurred on May 23, 1985. Present at that meeting were panel members Bass and Feinstein. Information presented to the members included an investigative report. Both members acknowledged that they had thoroughly reviewed the materials related to the allegations against Petitioner. After reviewing the materials, the probable cause panel recommended the filing of the administrative complaint. Included with the investigative report were the following documents: a uniform complaint form, dated October 8, 1984, based upon a letter, dated October 2, 1984, received from the Food and Drug Administration; a copy of a letter dated October 23, 1984, addressed to Petitioner from the investigator informing Petitioner of the pending investigation; a copy of a letter from an attorney on behalf of Petitioner (which letter referenced the Fountain of Life Medical Centers and suggested Petitioner had valid patient/doctor relationships with persons being treated); another letter from the attorney for Petitioner referring to procaine and identifying Petitioner as the staff physician for the clinic under investigation; and an affidavit from an investigator who had attempted to make an appointment to see a doctor at the clinic. The information noted in the investigative report contained alleged admissions made by Petitioner to the investigator. The purported admissions connected Petitioner to the Fountain of Life Medical Centers and the dispensing of the substance, procaine. The investigative file did not contain information as to whether procaine is a legend drug, the identity of any person who had allegedly received the substance from the Petitioner, copies of any medical records related to the dispensing of the substance, or any confirmation that the dispensing of the substance in the manner alleged, if true, would fall below the prevailing standard of practice observed by the medical community. The investigation conducted in this case was inadequate to fully clarify the factual issues prior to the probable cause hearing. The materials submitted to the probable cause panel did, however, create a reasonable basis for the panel's determination for reasons hereinafter discussed in the Conclusion of Law. Counsel for the Department was not present at the probable cause meeting during the discussion of the Petitioner's case. Legal opinions regarding the sufficiency of the factual materials or admissibility of the evidence related to the claims were not sought by the panel nor rendered unsolicited by the counsel for the Board (who was present).
The Issue The Issue for consideration is this matter is whether the Respondent, Kinnett Dairies, Inc., should be placed on the State of Florida's convicted vendors list because of its conviction on January 9, 1990 for "making false statements to a federal agency."
Findings Of Fact The Department of General Services is the state agency required, pursuant to Section 287.133(3)(d), Florida Statutes, to maintain a list of the names and addresses of those persons who have been disqualified from the public contracting and purchasing process under that section. On May 16, 1991, Kinnett, pursuant to a plea agreement with the State of Georgia, entered a plea of nolo contendere to a one count felony charge brought under Section 16-10-22, Official Code of Georgia for conspiracy in restraint of trade. On July 31, 1991, Kinnett was convicted in federal court of a one count felony charge brought under Section 1 of the Sherman Antitrust Act, for a combination and conspiracy to suppress and eliminate competition by rigging bids. Pursuant to the requirements of the Florida statute in issue here, Kinnett made timely notification of those convictions to the Florida Department of General Services. Thereafter, based on those convictions, the Department concluded it was in the public interest to place Kinnett on the convicted vendors list. The parties have stipulated that concurrently with and as a part of the agreement for the entry of the plea of nolo contendere to the state charge, Kinnett entered into an agreement with the State of Georgia whereby it paid a fine of $10,000.00 and costs of an additional $10,000.00. It also cooperated fully with the investigation of the Attorney General of the State of Georgia which led up to the charge. On the same date, May 16, 1991, Kinnett also entered into an agreement with the United States Department of Justice whereby it plead guilt to one felony count, as alleged in the information, and agreed to pay criminal penalties of $300,000.00 over a four year period and $25,000.00 in civil damages to the United States. On July 19, 1989, Kinnett entered into a settlement agreement with the State of Florida regarding possible bid rigging of school requirements contracts in Florida by various dairies and paid settlement sums of $150,000.00. All penalties and civil liabilities due to the federal and state governments have been paid. Kinnett fully cooperated with both Florida and Georgia in connection with their investigations into its activities. It also cooperated with the federal Grand Jury investigating its activities, a matter which was confirmed in an October 8, 1991 letter from the federal prosecutor to the Department. No Kinnett employees were indicted as a result of the investigations by the federal and state governments as noted. No member of Kinnett's top management had knowledge of the alleged conduct of the four employees who were implicated in the misconduct involved herein. None of those four employees are still associated with Kinnett. Kinnett has implemented an active antitrust and ethics compliance program developed with the advice and assistance of experienced antitrust counsel. Inherent in this program is the adoption of a Code of Ethics and Standards of Conduct regarding antitrust matters; establishment of an ethics committee to monitor compliance; establishment of a reporting "hotline"; adoption of new bidding procedures bringing upper management into the pricing process; implementation of a training program for all personnel; and adoption of a policy and procedure review program to oversee both internal and external review of company ethics, policies and procedures. Going beyond the minimal requirements, Kinnett has arranged for outside accountants to perform a yearly, in-depth audit of all company books and accounting and pricing practices and has retained an expert in ethics to review existing policies and procedures and make recommendations for improvement. Kinnett has maintained its long-standing involvement in both civic and charitable activities in and around the Columbus, Georgia area and employs disabled veterans and military retirees, who currently make up 38% of its workers, when possible. It was recognized by the Georgia Department of Labor for its efforts in this area. Kinnett was one of the first companies in the Columbus, Georgia area to test both employees and job applicants for drug use, and has endorsed the Mayor's Task Force for Drug Free Columbus and consistent therewith has been instrumental in assisting other companies to establish programs to address substance abuse. Its officers are active as leaders in various civic organizations and it has given generously to numerous public, civic and charitable organizations. No matters in aggravation, other than the existence of the pleas, the convictions, and the penalties involved herein was presented by the Department. No evidence was presented relating to a conviction in January, 1990.
The Issue The issues in this case are whether Respondent Francisco Vazquez, M.D., committed a violation of Chapter 458, Florida Statutes (2003)(2004), as alleged in the Administrative Complaint filed by Petitioner, the Department of Health, on May 3, 2006, in DOH Case Number 2005-03579; and, if so, what disciplinary action should be taken against his license to practice medicine in the State of Florida.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. § 20.43 and Chs. 456 and 458, Fla. Stat. (2006). Respondent, Francisco Vazquez, M.D., is, and was at all times material to this matter, a physician licensed to practice medicine in Florida pursuant to Chapter 458, Florida Statutes, having been issued license number ME 68742 on July 6, 1995. Dr. Vazquez's address of record is 4595 Palm Beach Boulevard, Fort Myers, Florida 33905. The Court's Order. On September 5, 2003, Dr. Vazquez executed an Affidavit offering his expert medical opinion that 40 physicians and a hospital were negligent in the care of Patient C.L. The same day, the Affidavit was attached to Notices of Intent to Initiate Medical Negligence Litigation, as required before initiating medical malpractice litigation by Section 766.106(2)(a), Florida Statutes. Subsequently, litigation was initiated in the Circuit Court of the Sixth Judicial Circuit in and For Pinellas County, Florida, Case No. 04-875CI-7 (hereinafter referred to as the "Circuit Court Case"). On February 22, 2005, the presiding judge in the Circuit Court Case, the Honorable Bruce Boyer, entered an Order of Dismissal with Prejudice as to Drs. Hallgren and Schulman Based on Their Motion to Determine the Sufficiency of the Plaintiff's Presuit Investigation. The Order was entered after a February 2, 2005, hearing for which Dr. Vazquez received no notice and in which he did not participate. Among other things, Judge Boyer found in the February 22, 2005, Order the following: This cause came to be heard on February 2, 2005, on the motion of two of the defendants, Scott Hallgren, D.O. and Michael Schulman, [D.O.] to determine whether the plaintiff's claim rests on a reasonable basis and request for dismissal. Neither the pro se plaintiff nor her former attorneys appeared at the hearing. The Court reviewed the defendants' motion and supporting materials which show the following: . . . that the plaintiff's presuit expert is not a gastroenterologist and does not otherwise appear to be qualified to comment on the defendants' care; that the plaintiff's presuit expert does not appear to have made any reasonable effort to investigate and determine what role the defendants played in the decedent's care; that the plaintiffs' presuit expert submitted a scattergun presuit affidavit which charged forty doctors and one hospital with negligence apparently without investigating what role each health care provider played in the decedent's care; that former plaintiff's counsel served the notices of intent on Drs. Hallgren and Schulman based on an inadequate supporting affidavit and without an adequate presuit investigation; . . . . Judge Boyer then ordered that the complaint against Drs. Hallgren and Schulman be dismissed and indicated that "[t]he Court has forwarded a copy of this order to the Division of Quality Assurance of the Department of Health concerning the conduct of the presuit expert, Francisco M. Vazquez, M.D., in accordance with Fla. Stat. § 766.206(5)(a)(2003)." Based upon the foregoing findings, Judge Boyer "found" that Dr. Vazquez provided a corroborating written medical expert opinion for inclusion with a statutorily required notice of claim or intent without reasonable investigation. Dr. Vazquez became aware of Judge Boyer's February 22, 2005, Order when he was notified of the investigation of this matter. Jurisdiction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Medicine finding that Francisco Vazquez, M.D., has violated Section 458.331(1)(jj), Florida Statutes, as described in this Recommended Order; suspending his license to practice medicine in the State of Florida for two years; and imposing a fine in the amount of $1,000.00. DONE AND ENTERED this 18th day of June, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 18th day of June, 2007. COPIES FURNISHED: Michael P. Gennett, Esquire Shutts & Bowen, LLP 201 South Biscayne Boulevard, Suite 1500 Miami, Florida 33131 Patricia Nelson, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3250 Larry McPherson, Executive Director Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 Dr. Ana M. Viamonte Ros, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
