The Issue The issues presented for decision herein are whether or not the Respondent's physician license number ME 0034228 should be disciplined based on allegations set forth hereinafter in detail, that he violated various provisions of Section 458.331, Florida Statutes, as set forth in the consolidated administrative complaints filed under DOAH Case Numbers 83-1819 and 84-3052, as amended.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. Respondent is a licensed physician and has been issued license number ME 0034228 in the State of Florida. Between December 31, 1981, and at least December 1982, Respondent's license to practice medicine was placed on inactive status because of nonpayment of licensing fees. (Petitioner's Exhibit 10 and TR page 31) During the above-referenced time periods, Respondent performed or aided in the performance of medical abortions in Miami, Florida, including ones relating to Janet Lee Miller, Myrtha Baptiste, and Yvonne Bruno. (TR pages 326- 347 and 350- 377) On dates that Respondent performed or assisted in the performance of medical abortions previously mentioned, Respondent did not have an active license to practice medicine in the State of Florida. Myrtha Baptiste died following an abortion. In conjunction with criminal investigations of the death of Myrtha Bactiste, Respondent was interviewed by Nelson Andreu, a homicide detective with the City of Miami Police Department and George Sanchez, who was then an investigator with the State Attorney's Office. During the course of those interviews, Respondent advised Andreu and Sanchez that he had personally mailed in the items required for renewal of his license and that, as far as he knew, his license was valid. Megaly Lorenzo, a secretary in the Santa Rosa Medical Center where Respondent worked in 1981 and 1982, testified that Respondent gave Lorenzo his renewal fees in cash for 1982. Lorenzo did not renew Respondent's license because she forgot to. She informed Respondent of that omission during 1983. (TR pages 309-312) When Megaly Lorenzo renewed a license, she received a wallet-sized license from the Board of Medical Examiners which was then placed in the mirror in the offices at the Santa Rosa Medical Center. Between approximately January 15, 1981 and December 1982, Respondent worked as a physician at the Women's Care Center located at 5601 Biscayne Boulevard, Miami, Florida. At times material hereto, Hipolito Barreiro was the owner and director of Women's Care Center. At all times material hereto, Hipolito Barreiro was not licensed to practice medicine in the State of Florida. (Petitioner's Exhibit 3 and testimony of Elaine Prater, TR page 268) Between approximately January 15, 1981, and December 1982, Barreiro was engaged in the practice of medicine at the Women's Care Center located at 5601 Biscayne Boulevard, Miami, Florida. During the relevant time period, Hipolito Barreiro performed various procedures which constitute the practice of medicine. As example, during February 1982, Barreiro inserted an intrauterine contraceptive device into Carmen Moses' cervix. In July 1982, Barreiro gave Patricia Humbert an injection and later performed an abortion on Humbert. In September 1982, Barreiro performed a gynecological examination on Etta Annette Brown to determine the status of her pregnancy. In December, 1982, Respondent performed a vaginal examination on Debra Plez confirming the fact that Plez was 6 1/2 months pregnant. Barreiro gave Plez a prescription, placed an IV in Plez's arm and finally performed an abortion on her (Plez). Elaine Prater, an employee at the Women's Care Center, observed Barreiro perform abortions on several occasions while Respondent was employed as a physician at the Women's Care Center. Respondent would sign patient charts as the physician performing the abortion when, in fact, the abortion was performed by Barreiro. These occurrences would usually take place in those instances where Respondent either arrived at work late or left work early. Additionally, it was noted that Respondent maintained a separate list of those patients on whom he performed an abortion and those patients for whom he had not operated or aborted. Ms. Prater acknowledged that Respondent was confronted on several occasions by her (Prater) and Trudy Ellis about his practice of signing charts for those patients whose abortions he had not performed. Finally, Respondent admitted to Roger Stefins that he knew that Barreiro was not licensed to practice medicine in Florida. Also, evidence reveals that Respondent confronted Barreiro on more than one occasion asking, "Haven't I told you not to examine girls before?" (TR page 80) As stated, Respondent maintained a separate list of patients on whom he had performed abortions for his own use. (See Petitioner's Exhibits 3 and 4) On several occasions, Respondent was presented "physician's reports of the termination," for abortions performed by Barreiro and was asked to sign the reports as a "physician" performing the termination. Respondent signed these reports even though he knew that the actual abortions had been performed by Barreiro. (TR pages 269-275) Respondent knew, or should have known, that the abortions had been performed by Barreiro as he was on duty, and because the patients would already be in the recovery room when he (Respondent) arrived for work. (TR page 278) During May 1982, Yvonne Bruno, a twenty-eight year old Haitian woman, went to the Women's Care Center for the purpose of having an abortion performed. Initially, Bruno went to the Women's Care Center on May 4, 1982, with $160. She was told to come back to the Center on the following Saturday, May 8, 1982, with $200. Bruno was not examined during that initial visit. On May 8, 1982, Ms. Bruno returned for the purpose of having an abortion. She only had $190. After arriving at the clinic, Bruno changed into a paper gown. Bruno signed several papers on May 8, 1982. One such paper was a sheet entitled, "Important Information Which Every Patient Should Know Concerning The Termination Of Pregnancy Procedure," which was a form maintained by the Women's Care Center. On the information sheet, Bruno's last menstrual period was listed as January 23, 1982. The appointment date for Bruno's abortion was listed on the information sheet as "5-9-82." In addition to the information sheet, Bruno also signed a form giving her consent for the Respondent to perform a pelvic examination. The consent form bore the date "5-8-82." Finally, Bruno signed a "Patient Information And Medical History" form which was dated May 9, 1982. (Petitioner's Exhibit 8) On May 8, 1982, Respondent performed an abortion on Bruno, using the dilation and aspiration method, followed by curretage. During the course of the abortion, Bruno's uterus was perforated. Respondent knew that Bruno's uterus was perforated almost immediately following perforation. (Petitioner's Exhibits 3, 4, 8, 9 and testimony of Pedro Ramos) On the physician's report of the termination, the term of Yvonne Bruno's pregnancy was listed as twelve (12) weeks. The form indicated that the termination was performed on May 9, 1982. Examination of the facts reveal that this was incorrect. The physician's report of the termination for Bruno indicated that the following complications occurred: "Complications: After aspirations with vacuum, the use of curette reveals perforation of uterus. We stop the operation and the patient is taken to the hospital." The physician's report of the termination for Bruno was signed by Respondent. (Petitioner's Exhibit 8) Ms. Bruno awoke after the abortion and was put in the recovery room. She was cold and experienced stomach pain more severe than she ever experienced before. The pain was persistent. Bruno informed the doctor who performed the abortion that she was having pains while she was still in the recovery room at the Women's Care Center. (TR pages 360-362) While Bruno was in the recovery room, the doctor who performed the abortion told Bruno that she has something in her uterus and that he (the doctor) had cleaned it out. He told Bruno that if she felt any more pain to call him, regardless of time. He also gave Bruno the telephone numbers for his house and the clinic. (TR pages 361, 362) Ms. Bruno remained at the Women's Care Center in the recovery room only long enough for a taxi to arrive. Immediately upon being taken to the recovery room, her friend, Amelia Ingrid Previle, called for a taxi. Bruno was in the recovery room less than an hour. While in the recovery room, Ms. Bruno's condition was not monitored. That is, no one took her blood pressure, respiration or pulse rates. (TR pages 363, 364 and 367-370) When the taxi arrived, Ms. Bruno left the Women's Care Center unable to walk because "her feet were so heavy." Therefore, the taxi driver and her friend, Previle, had to help Bruno to her friend's car. (TR pages 362, 363) It took Ms. Bruno approximately 15 minutes to get home from the Women's Care Center. When she arrived home, she felt intense pain which she credited to the fact that perhaps she had not eaten before she went to the Center. She drank tea and put some ice on her stomach. Bruno's pain intensified and her friend, Previle, started trying to contact Respondent in the late afternoon on May 8, 1982, by phone. Previle continued to try to contact the doctor until the early morning on May 9, 1982. When Previle finally contacted the doctor, Bruno was directed to come to the Women's Care Center. Bruno did so and, upon arrival at the Women's Care Center, she was given a pill. She was then taken to American Hospital in Miami, Florida. At approximately 6:30 a.m. on May 9, 1982, Hipolito Barreiro contacted Pedro M. Ramos, a physician specializing in gynecology and informed him that he had an abortion clinic. Barreiro also told Ramos that "they" thought that "they" had perforated a uterus during an abortion. Dr. Ramos agreed to meet the patient at the emergency room of American Hospital. (TR pages 326, 327) Once Dr. Ramos arrived at American Hospital, he attempted to obtain a patient history from Bruno; however, this was difficult because of Bruno's limited ability to speak English. With the help of Barreiro and Previle, Dr. Ramos was able to obtain some information. However, on the patient history, Dr. Ramos made the notation that "unable to verify (past illness) properly. Pt. speaks little english." (TR pages 329, 350-377 and Petitioner's Exhibit 9) When Dr. Ramos arrived at American Hospital, he was given the following patient history for Bruno: "25-year old black female complaining of abdominal pain of 4-6 hours onset with fever (? chills) with brownish discharge from vagina after an abortion performed on May, 1983 . . ." (Testimony of Pedro Ramos, M.D. and Petitioner's Exhibit 9) Based on the available information, Dr. Ramos diagnosed Bruno as suffering from a perforated uterus and possibly peritonitis. After performing the necessary laboratory tests, Bruno was taken to surgery for an exploratory laparotomy which revealed a perforated uterus. The uterus was perforated at the fundus on the right side. The perforation was more than 4 centimeters long. The exploratory laparotomy also revealed fetal parts in Bruno's abdomen. Dr. Ramos found at least the head and spine remaining in Bruno's abdomen. (TR page 329 and Petitioner's Exhibit 9) After the exploratory laparotomy, Dr. Ramos also determined that, in addition to the items noted above, an inflammation process had begun (peritonitis), affecting Bruno's ovaries. Dr. Ramos removed the fetal parts from Bruno's body, irrigated the area and performed a complete hysterectomy, removing both the ovaries and uterus which were beyond repair. The head of the fetus removed from Bruno's uterus measured four centimeters by two centimeters. Therefore, Dr. Ramos opined that the fetus would have been approximately 17 to 18 weeks of age. At this stage of development, fetal parts are very hard. When suction is applied to the uterus, the solid parts are moved around. The fetal parts are, at this stage, too large to go through the suction tube and remain in the uterus after suction. Following the use of suction, curretage follows. The manipulation of the curette in the uterus will then result in movement of the fetal parts. Usually, it is the spine or an arm which actually causes the perforation. By manipulating the fetal parts, the physician can cause the fetal part to perforate the uterine wall which is very soft at this stage. Bleeding can be ascertained through a monitoring of the patient's vital signs and by observation of the patient's general appearance. (TR page 224) In determining how long a patient should be monitored after an abortion has been performed, it is important to know the stage of pregnancy. With an early pregnancy, i.e., 10 - 12 weeks, the patient may be observed for a shorter period of time. Where there are no complications, the patient should be observed for between 1/2 to 1 hour. (TR pages 222 - 225) With an advanced pregnancy, i.e., one in the second trimester, the patient should be monitored for two hours after the abortion is completed. The patient might be monitored for a longer period of time if there are difficulties after the abortion is completed. Monitoring should include checking vital signs such as blood pressure, pulse and respiration rates and checking the patient for hemorrhaging and infection. Usually, with a perforated uterus, the patient experiences abdominal pain immediately following the abortion. A doctor who recognizes that he has perforated a uterus during an abortion should transfer the patient to the hospital for observation. If a patient complains of severe abdominal pain immediately upon completion of an abortion, the doctor should observe the patient until the pain disappears or until the cause of the pain is determined and dealt with. In this regard, Respondent admitted that he perforated Bruno's uterus during the performance of an abortion. (Petitioner's Exhibit 3, pages 20-23) Noteworthy is the fact that Respondent, when questioned by Investigator Stefins, an Assistant State Attorney, stated that punctures of the uterine wall should never be treated in the clinic and that on the occasions when he punctured a uterus, he would take that patient to the hospital. Perforation of a uterus is not, in and of itself, malpractice or negligence. It is below minimal standards of care, skill and treatment for a reasonably prudent physician to fail to carefully monitor a patient, by checking blood pressure, pulse and respiration rates, as well as checking the patient's general appearance after an abortion performed during the second trimester, for a sufficient period of time to determine the existence of complications. If the patient complains of persistent abdominal pain, it is below minimally acceptable standards of care, skill and treatment, as recognized by reasonably similar prudent physicians, under such conditions as are described above to release the patient without first carefully monitoring the patient until the pain disappears or until cause of the pain can be determined and dealt with. (Testimony of Doctors Ghali and McLeod)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Respondent's physician license number ME 0034228 shall be suspended for a period of two years and a civil penalty of $2000 shall be imposed. RECOMMENDED this 12th day of July, 1985, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1985.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times relevant to the charges in this proceeding, respondent was employed as a registered nurse on the 11:00 P.M. to 7:30 A.M. shift aft the Putnam Community Hospital in Palatka, Florida. On or about October 28, 1978, the night supervisor at the Hospital, Ollie Craven, discovered an empty vial of Demerol (Meperidine) in the narcotic box, to which respondent had a key. Normally, the vial would be broken after use, but this vial was not broken. From this date until December 1, 1978, respondent was observed by the staff to exhibit symptoms of being under the influence of drugs. These symptoms included wide mood swings, lethargic behavior, minute-sized pupils and a very dry mouth, all consistent with one taking narcotics. When respondent came on duty on or about December 1, 1978, she appeared to be ill and did vomit. When observed later in the lounge, she was drowsy and lethargic. The night supervisor observed what appeared to be Demerol in her lab coat pocket. Feeling that respondent was not capable of carrying out her duties, Ms. Craven telephoned Ms. Wallace, the Director of Nurses, at about 3:00 A.M. and Ms. Wallace came to the Hospital. When questioned by Ms. Wallace, respondent denied having taken any drugs. Ms. Wallace palpitated the respondent's thighs and found the tissue to be hard and consistent with numerous injections. Respondent was asked to give a blood and a urine sample and did so. She was observed to have blood spots on her girdle. Ms. Wallace observed the respondent to be dull, with an extremely dry mouth and minute, pinpoint sized pupils. The blood and urine samples were positive for Meperidine, also known as Demerol, a controlled substance. By an Administrative Complaint dated December 3, 1978, the petitioner Board charged respondent with unprofessional conduct and a violation of F.S. Section 464.21(1)(b). On January 11, 1979, the respondent signed a form requesting an administrative hearing on the charges. In mid-February, the undersigned received a letter from the respondent reading as follows: Ms. Tremor: The hearing will have to be held without me. I am not now able to attend or will I be able in the next 60 to 90 days. Doctors orders. He states it will be to much tension because of the heart attack I have had. Sincerely yours Mary Pennington The attorney for the Board opposed a continuance without a letter from the respondent's physician. By notice of hearing dated May 3, 1979, the final hearing was noticed for June 4, 1979. The respondent Pennington did not appear at the hearing.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the respondent be found guilty of unprofessional conduct in violation of Section 464.21(1)(b), Florida Statutes, and that her registered nursing license be suspended for a period of six (6) months. Done and entered this 2nd day of July 1979, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Geraldine Johnson Coordinator of Investigation and Licensing State Board of Nursing 111 East Coastline Drive Suite 504 Jacksonville, Florida 32202 Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Mary Wood Pennington Route 2, Box 1480 Palatka, Florida 32077 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA STATE BOARD OF NURSING IN THE MATTER OF: Mary Wood Pennington As a Registered Nurse Case No. 78-764 Route 2, Box 1480 License Number 59864-2 Palatka, Florida 32077 /
The Issue The issue in this case is how the Board of Nursing (Board) should discipline the Respondent’s registered nurse license for: pleading guilty to two counts of larceny-grand theft of a controlled substance, which were third degree felonies under section 812.014(2)(c)13., Florida Statutes1/; pleading nolo contendere to possession or use of narcotic equipment, a first degree misdemeanor under section 893.147(1), Florida Statutes; pleading nolo contendere to larceny-petit theft, a second degree misdemeanor under section 812.014(3)(a), Florida Statutes; and failing to report the criminal violations to the Board within 30 days.
Findings Of Fact In April 2014, the Respondent became licensed to practice as a registered nurse in Florida. He holds license RN 9381249. He also has a certified nursing assistant license, which he has held since 2009. From November 2014 until January 2015, the Respondent was working as a registered nurse at Sarasota Memorial Hospital. While working there, he diverted controlled substances for his own use. Specifically, he was putting Percocet pills prescribed for, but not used by, patients in his pocket and taking them later himself for pain. The Respondent was found out, fired, arrested, and charged with criminal violations. In August 2015, the Respondent entered pleas of: guilty to two counts of larceny-grand theft of a controlled substance, third degree felonies in violation of section 812.014(2)(c)13.; nolo contendere to possession or use of narcotic equipment, a first degree misdemeanor in violation of section 893.147(1); and nolo contendere to larceny-petit theft, a second degree misdemeanor in violation of section 812.014(3)(a). The Respondent was sentenced to a 14 month-long drug court program (which included random drug sampling), probation, fees and costs, and was prohibited from practicing as a nurse while he was on probation. Adjudication was withheld. The Respondent did not report his pleas and convictions to the Board in writing. He testified that he thought the Board had sufficient notice because an unidentified representative of the Board was present at the plea hearing and asked the judge to have the Respondent repeat the pleas so they could be properly and clearly recorded for use in a license discipline proceeding, and because he telephoned the Board soon after the incident and was told to stop practicing nursing. The Respondent successfully completed the drug court program and probation, and fulfilled all other conditions of his pleas and sentences. The Respondent acknowledged that his diversion of controlled substances from his place of employment was wrong, a mistake, and showed poor judgement.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order: finding the Respondent guilty of violating sections 456.072(1)(x) and 464.018(1)(e); reprimanding him; fining him $500; requiring IPN evaluation and treatment, if necessary; and assessing the costs of investigation and prosecution. DONE AND ENTERED this 6th day of February, 2017, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 6th day of February, 2017.
Findings Of Fact Petitioner, Dr. Winifred Chambers received a master's degree in religion and art in 1957, a second master's degree in 1968 in philosophy with a specialization in ethics and social philosophy and a Ph.D. (with honors) in 1975 in the philosophy of science, all from the University of Chicago. While working on her dissertation, she studied at the Chicago Institute of Psychoanalysis. After working around hospitals and conducting classes and workshops on medical ethics for medical personnel, Petitioner decided to attend medical school. Because her educational training did not include extensive background in certain scientific areas, Petitioner was concerned with her ability to score well on the MCATS, which are the entrance examinations required by all medical schools in the United States. In addition, Petitioner's age (she was in her mid 40's at the time) was considered a negative factor by many medical schools in the United States. As a result, she inquired about attending certain foreign medical schools. She was limited in the schools that she could consider because she did not speak Spanish. Medical Education In 1979, Petitioner applied to the American University of the Caribbean (AUC). AUC taught its medical courses in English and Petitioner was only required to make up a few undergraduate science courses (including physics) in order to enroll in the medical school. Petitioner enrolled in classes at AUC in May of 1980. She actually started classes a few days after the semester began. She completed the first two semesters from May to December 1980 and then went home during the Christmas break. During the break, Petitioner learned that she had received an F in her course in neurosciences. Petitioner met with the professor from that course to discuss the failing grade she received and also met with the President of AUC. As a result of these meetings, it was her understanding that the grade was changed to a passing grade. In January of 1981, Petitioner visited CETEC (another Caribbean medical school located in the Dominican Republic,) and met with officials of the school to discuss transferring from AUC to CETEC. Petitioner applied to CETEC during her visit and, prior to leaving, was informed of her acceptance into medical school at CETEC. Petitioner returned to AUC and completed her third semester at the school. In May of 1981, she officially enrolled at CETEC by initiating clinical rotations at Sharp Hospital in San Diego, California. Even though Petitioner had only completed three semesters at AUC, she was granted status as a fifth semester medical student. She contends that she was granted this status based upon CETEC'S evaluation of her transcript and the number of hours she took at AUC. Prior to her enrollment at CETEC, Petitioner provided CETEC with a transcript indicating she had passed neurosciences at AUC and CETEC gave her credit for the course. From May 4, 1981 to June 6, 1982, Petitioner participated in clinical rotations at Sharp Memorial Hospital in San Diego, California as part of her medical education at CETEC. During this time period, Petitioner also participated in a clinical rotation at Children's Hospital in San Diego, California (from 12/28/81 to 2/20/82). Beginning in 1983, the media and some state licensing agencies began challenging the validity and/or authenticity of the credentials and training of some CETEC medical graduates. CETEC medical school was ultimately closed in 1984. The Dominican Republic government formed an agency to verify and certify the transcripts of CETEC graduates. This agency was called the "Counsel For Superior Education" also referred to by the acronym of CONES. CONES verified and certified the legitimacy of higher education credentials from all Dominican schools submitted to other countries. As part of her pending Florida Application, Petitioner has submitted a certification from CONES dated October 15, 1987 attesting to Petitioner's graduation from medical school at CETEC on June 12, 1982. Petitioner has also submitted a second certification from CONES dated July 8, 1988 confirming her graduation on June 12, 1982. Included as part of the documents submitted by Petitioner from CONES is a Certification of Clinical Rotations dated July 14, 1987 (the "CONES Report") and an academic transcript dated July 14, 1987 (the "CONES Transcript.") The "Education Commission For Foreign Medical Graduates" ("ECFMG") provides a certification of the education of applicants from foreign medical schools who seek licensure in the various United States and offers an examination required by some state licensing boards for licensure of applicants graduating from foreign medical schools. Petitioner passed the ECFMG examination and was certified by the ECFMG in 1982. However, after the CETEC scandal began in 1983, the ECFMG started an investigation of graduates of CETEC (including Petitioner) for the purpose of reverifying their medical training. The ECFMG required clearance from CONES of Petitioner's CETEC education before reverifying her ECFMG certificate. The ECFMG reinstated Petitioner's ECFMG certification on June 26, 1987. The earliest certification from CONES that has been submitted by Petitioner is dated July 14, 1987, approximately two and a half weeks after the ECMFG certification. It is not clear what the ECFMG relied upon in reissuing a certification to Petitioner. While Petitioner contends that CONES had originally certified her CETEC transcript shortly after her graduation in June of 1982, no competent evidence was presented to establish when or if an earlier CONES certification was issued. In any event, Petitioner currently holds a valid ECFMG certificate. In certifying Petitioner's medical degree from CETEC, CONES gave Petitioner credit for courses taken and work done at non-medical schools (i.e., the University of Chicago) prior to entering medical school. These credits are discussed in more detail in Findings of Fact 17. Although the ECFMG has apparently accepted CONES' certification of Petitioner's medical education at CETEC, there are several inconsistencies on the face of the CONES Report. The CONES Report states that during the period from May 4, 1981 to June 6, 1982, Petitioner completed fifty six (56) weeks of clinical rotations. However, in reaching this total the CONES Report provides one week of credit for a rotation (from 5/24/82 to 5/28/82) in obstetrics and gynecology which overlapped with another rotation (from 5/10/82 to 6/5/82) in obstetrics and gynecology. It it also provides double credit for a single two week clinical rotation (from 5/4/81 to 5/16/81) in obstetrics and gynecology. In addition, there are two periods of time (from 2/21/82 to 3/14/82 and from 4/25/82 to 5/9/82, which total approximately five (5) weeks), during which no clinical rotations were taken. Since the period between May 4, 1981 and June 6, 1982 consisted of approximately fifty seven (57) weeks, it does not appear that Petitioner actually completed fifty six (56) weeks of rotations as listed. Deleting the double credit received for the 5/4/81 to 5/16/81 clinical rotation, the CONES Report only appears to certify completion of fifty four (54 weeks) of clinical rotations. Moreover, those fifty four (54) weeks of rotations include one week of credit for five (5) days in obstetrics and gynecology (from 5/24/82 to 5/28/82) which directly overlapped a separately listed clinical rotation in obstetrics and gynecology, and one (1) week of credit for six (6) days in obstetrics and gynecology from 6/1/82 to 6/6/82. Thus, on the face of the CONES Report it appears that Petitioner actually completed only fifty three (53) weeks of rotations at most. This conclusion is bolstered by the fact that, according to the CONES Report, there were approximately five (5) weeks of the fifty-seven (57) week period during which no clinical rotations were taken. Petitioner contends that the CONES Report fails to take into account a five (5) week clerkship in family medicine which she completed at Sharp Hospital and which was accepted by the ECFMG when Petitioner applied for licensure in California. This clerkship is reflected in the CETEC Transcript even though it is not reflected in the CONES Report. It is not clear why this rotation was not included in the CONES Report However, the evidence did establish that Petitioner completed the rotation. One of the five weeks of this family medicine rotation overlaps with an OB/GYN rotation (from 5/4/82 -5/8/82). The time frame of the family medicine rotation roughly coincides with the period of time during which no rotations are reflected in the CONES Report. Thus, this rotation would only add four more weeks to the clerkship total listed on the CONES Report. Even if this four week rotation is added to the fifty three (53) weeks certified in the CONES Report, the Report would still only indicate that Petitioner completed a total of fifty seven (57) weeks of clinical rotations. According to the boiler-plate language on the CONES Report, sixty (60) to seventy-two (72) total weeks of clinical rotations had to be completed by CETEC students who took their clinical rotations outside of the Dominican Republic. Thus, the CONES Report does not reflect completion of the required weeks of clinical rotations even though CONES has issued a certification that purports to certify successful completion of the degree requirements. This discrepancy has not been adequately explained. The CONES Report does not reflect any clinical rotations by Petitioner in psychiatry. However, the CETEC Transcript does indicate that Petitioner was granted eight hours credit for her graduate studies at the University of Chicago from 1971-1973. Petitioner contends she is entitled to at least four hours of clerkship in psychiatry for those studies. However, it appears from the CONES Transcript that the credit she received was applied towards classes in Human Conduct which were a part of the curriculum during the first two years of medical school. There is no evidence to indicate that CETEC or CONES granted or should have granted Petitioner credit for clinical rotations in psychiatry based upon her graduate studies at the University of Chicago. During a three week period (between her second and third semesters at AUC) from December 20, 1980 to January 10, 1981, Petitioner participated in an OB/GYN clinical rotation at Sharp Memorial Hospital in San Diego, California (hereinafter this rotation will be referred to as the "Unsanctioned Rotation.") This rotation is usually not done until after a student completes the third semester of medical school. Petitioner's participation in this Unsanctioned Rotation was not authorized by any medical school and was not a part of any medical school program. Petitioner contends that she satisfied the required sixty (60) clerkship weeks if the Unsanctioned Rotation at Sharp Hospital from December 20, 1980 to January 10, 1981 is added to the undisputed clinical rotations and the family medicine rotation discussed in Findings of Fact 15. However, the Unsanctioned Clerkship was not accepted by CONES and Petitioner has not provided sufficient evidence to establish that it should be counted towards her required clinical rotations. Although CETEC had previously granted Petitioner credit for the neurosciences course at AUC, CONES was not able to verify that Petitioner passed the course and CONES required Petitioner to retake the course in order to obtain the 1987 certification from CONES. Petitioner attended Northwestern University during the spring quarter of 1987 and completed a four credit hour course (based on a quarter system) in neurosciences. This neurosciences course was apparently given five hours ex post facto credit by CONES to fulfill the neurosciences requirement for Petitioner's 1982 CETEC medical diploma. From December, 1987 to March, 1988, Petitioner attended Xochicalco Medical School in Ensenada, Mexico in order to take additional coursework in partial fulfillment of a requirement by the California licensing board in a stipulated agreement for additional medical training before licensure. (Petitioner's stipulation with the State of California is discussed in more detail in Findings of Fact 47-50.) The courses taken at Xochicalco were approved by the California licensing agency and included clinical pathology, pharmacology (two courses) and physiology (two courses). Petitioner successfully passed all of the courses. However, no evidence was presented as to the accreditation status of this school. Petitioner completed a five week rotation in emergency medicine at Cruze Roja Hospital in Mexico in 1988 while she was completing the remedial science classes required by the California Licensing Board. Post-Graduate Training Petitioner completed one year of post graduate training from July 1, 1982 to June 30, 1983 in the family medicine residency program at Holston Valley Community Hospital through East Tennessee State University's Quillen-Dishner College of Medicine. Petitioner has presented a certificate verifying succcessful completion of her first post graduate year of training in this program. Petitioner performed her residency at two hospitals which are part of the East Tennessee State University Quillen-Dishner College of Medicine: Kingsport Family Practice Center and Holston Valley Community Hospital. She saw patients at the Kingsport Family Practice Center for 7 months, one afternoon each week under the supervision of various physicians. The rest of Petitioner's residency was performed at the Holston Valley Community Hospital. Dr. Lee S. Hyde was the program director of the Kingsport Family Medicine Center. Petitioner's contact with Dr. Hyde was limited, but she did have several consultations with him about patients. In an evaluation submitted to the Florida Board of Medicine in connection with Petitioner's application for licensure, Dr. Hyde evaluated Petitioner's diagnostic ability and relationships with patients as poor. He also stated that Petitioner came to the program with a "poor fund of knowledge, clinical habits, and basic medical education". Although he felt Petitioner made progress during the residency program, he did not think it was sufficient. However, his overall evaluation was to recommend with reservations. Dr. Hyde's evaluation of Petitioner to the Board was received by the Board on July 18, 1983. Dr. Hyde noted on the back of the evaluation form that Petitioner was not ready to begin a second year of unsupervised practice. Petitioner was not and would not have been offered a contract for a second year in the residency program. Dr. Hyde also commented that Petitioner demonstrated poor judgment by once going "AWOL" from the program. While Petitioner did take a three (3) day leave over a weekend while assigned to a particular rotation with another physician contrary to the rules of the program, she did so with the permission of her supervisor at the time. Prior to the negative evaluation submitted by Dr. Hyde in July of 1983, Dr. Hyde had previously written a letter dated March 24, 1983 to the Florida Board of Medicine recommending Dr. Chambers for licensure stating that she was in good standing with the program and of reasonable professional competence and excellent moral character. Leslie P. Reynolds, Jr., M.D., was a professor of Family Medicine, assistant Dean, and Director of Medical Education at the Holston Valley Hospital during Petitioner's year of residency. In a June 29, 1983 evaluation form submitted to the Florida Board, Dr. Reynolds, gave an evaluation of Petitioner's performance during the family medicine residency and recommended her as an outstanding applicant. Dr. Reynolds subsequently submitted an affidavit to the Florida Board of Medicine dated October 21, 1987 attesting that Petitioner earned the respect of both her instructors and fellow residents and that the hospital's records suggest that she performed well on all her services and that she was very helpful to other residents. Several other physicians who served as clinical supervisors during Petitioner's residency at Holston Valley have submitted letters of recommendation and virtually all other evaluations of her work were positive. Aside from the letter from Dr. Hyde, (Dr. Hyde did not testify and his letter is hearsay,) no other evidence was presented to demonstrate that Petitioner is incapable of practicing medicine with reasonable skill and safety. The weight of the evidence established that Petitioner is capable of practicing with reasonable skill and safety. Numerous letters from the physicians who have worked with Petitioner over the last several years corroborate to her ability to practice medicine with reasonable skill and safety. Petitioner was employed as a house physician at Jackson Memorial Hospital in Miami from July 11, 1983 to October 31, 1983. Her position was under the supervision of the Department of Family Medicine in the Ambulatory Care Unit of the Emergency Room Department and the Family Medicine Clinical Faculty from the University of Miami. However, the position was not an advanced residency program and the nature of the supervision and training that Petitioner received has not been fully explained. Furthermore, the evidence did not establish the exact nature of her duties and functions. From October 1984 to March 1985, Petitioner participated in a series of clinical rotations at the Wesley Medical Center which is affiliated with the University of Kansas. The exact nature of Petitioner's position is not clear. The position at the Wesley Medical Center was a non-paying position during which Petitioner completed an eight week rotation in Internal Medicine, twelve weeks in General Surgery and four weeks in psychiatry functioning in each rotation at the level of a first-year resident. Petitioner was not officially enrolled as a resident in this program. However, she did receive evaluations from the attending physicians and her evaluations by the supervising physicians in that program were acceptable. In 1988, Petitioner completed an eight month internship at Universal Medical Center in Plantation, Florida Universal Medical Center is an osteopathic teaching institution. This internship was undertaken to satisfy a requirement of the California licensing authority for eight months of "remedial" clinical work. See, Findings of Fact 50. Petitioner was evaluated as performing in a competent and professional manner in this program. At the Universal Medical Center, Petitioner completed thirty three (33) weeks of clinical rotations. The program extended from March 21, 1988 through November 3, 1988. Her duties and responsibilities were similar to other interns in the program. In sum, Petitioner has successfully completed several additional science courses and completed at least thirty eight (38) additional weeks of clinical training beyond her medical school rotations and first post-graduate year residency. Those weeks of training include thirty three (33) weeks at Universal Medical Center which is an approved osteopathic medical training program that was accepted by the California Licensing Agency for purposes of Petitioner's remedial clinical work. Licensure Applications Petitioner passed the FLEX exam in June, 1982 with a score of 78. She also passed the ECFMG exam in January, of 1982 with a score of 76. In addition, she passed an oral examination administered by the California State Licensing Board in 1988. After graduating from CETEC in June 1982, Petitioner initiated efforts to obtain licensure in several states. In her initial attempts at licensure, Petitioner submitted several misleading applications which have backfired into a morass of complications and confusion. In 1982, Petitioner knowingly submitted a fraudulent application to the State of Oregon. Petitioner filed the application with the Oregon licensing authority in order to take the Federal Licensing Examination known as the FLEX. Oregon was one of the few states which allowed applicants to take the FLEX examination prior to graduation and also granted applicants some choice in the location of the exam. Petitioner took the FLEX in the Virgin Islands in June of 1982. This was the nearest location to the Dominican Republic where she was attending graduation ceremonies at CETEC around the same time. On the application to take the FLEX exam filed with Oregon, Petitioner falsely stated that she attended AUC from May, 1979 to April, 1981. She actually attended AUC from May, 1980 through April, 1981. In the early part of 1983, Petitioner submitted applications for licensure to South Carolina, California, Georgia, New Mexico, and Florida. South Carolina determined that Petitioner was not eligible for licensure in that state because she had not completed the required post-graduate training. Her application for licensure in that state was returned without action. In her applications to Georgia, California and Florida in 1983, Petitioner misrepresented her attendance at CETEC as having commenced in May, 1979 rather than reporting attendance at AUC starting in May, 1980 and ending in May, 1981 when she transferred to CETEC. Petitioner admits that she falsely stated that she began her medical education in May, 1979 on the Oregon FLEX application, as well as the California, Georgia and 1983 Florida applications. In an attempt to justify these false statements, Petitioner points out that the Dean from CETEC had issued a letter to these licensing agencies stating that Petitioner had completed eight (8) semesters at CETEC from 1979 to 1982. Petitioner claims she completed the misleading applications because she wanted her statements to be consistent with the CETEC Dean's certification of attendance. It would appear that an additional motivation for falsifying the applications was to avoid having to explain that she had received medical education credit for some of her non-medical course work at the University of Chicago approximately ten years earlier. It is unclear why the Dean's certification letters were not accurate. While no evidence was presented to directly link Petitioner to the issuance of these incorrect Dean's letters, the shady circumstances surrounding her involvement with Pedro de Mesones around this same time period (discussed in Findings of Fact 87-95 below) leads to an inference that Petitioner was at least indirectly responsible for these misleading letters. In her February 1983 application to New Mexico, Petitioner accurately stated the dates and locations of her medical school education. No adequate explanation was given as to why the correct dates were listed on this 1983 application but not the other applications filed around the same time in Georgia, Florida and California. Petitioner listed the correct dates of attendance at AUC and CETEC on her 1984 Florida application and the 1988 filing which are discussed in more detail in Findings of Fact 69-72 below. Georgia and New Mexico granted Petitioner licensure based upon the 1983 applications. California initially denied her licensure. However, as described in Findings of Fact 47-51 below, Petitioner challenged that decision. Florida permitted Petitioner to withdraw her 1983 Application rather than go to hearing on the Board's intent to deny licensure. See Findings of Fact 67-68. Petitioner's application for licensure in California was filed in the Spring of 1983. Petitioner received a letter in April of 1983 returning her application without action. Petitioner requested reconsideration of her application which, eventually, resulted in a proposed order of denial dated June 9, 1986. Petitioner requested a hearing on that proposed denial. The proposed denial was resolved without hearing by a stipulation between Petitioner and the California licensing agency in an order dated November 5, 1987 (the "California Stipulation"). The stipulated findings of fact in the November 5, 1987 California Stipulation recognize that the application filed by Petitioner in March, 1983 remained pending without action until the 1987 California Stipulation was entered. The California Stipulation notes that the proposed denial of her application in 1986 was based on the grounds that: (a) Petitioner had not listed on her application her attendance at AUC; (b) she had falsely stated under oath that she began her medical education at CETEC beginning in May, 1979; and (c) her medical education did not conform to California requirements. The California Stipulation provides that it supersedes the reasons set forth in the 1986 proposed denial so long as Dr. Chambers abides by the terms of the Stipulation. The California Stipulation makes no findings of fact or conclusions of law regarding wrongdoing on the part of the Petitioner. The California Stipulation provides that Petitioner would be issued a license to practice medicine in California upon completion of remedial medical education specified in the Stipulation, completion of an additional academic year of clinical training before September, 1990, satisfactory proof of certification by CONES, and passage of an oral examination. The California Stipulation also provides that Petitioner shall take forty (40) hours of continuing medical education within the first two (2) years of licensure in addition to the continuing education classes statutorily required for licensure in California. Petitioner was issued her license to practice medicine in California on November 11, 1988 demonstrating that she satisfied the requirements of the November 1987 California Stipulation. In her application to the State of Georgia in June of 1983, the Petitioner specifically represented that she attended CETEC from May of 1979 to April 1980, attended AUC from April, 1980 to May, 1981 and CETEC again from April 1981 through June, 1982. The Dean of CETEC certified to the Georgia licensing agency that Petitioner enrolled in the school of medicine in May, 1979 and attended eight semesters of 4.2 months each. As discussed in Findings of Fact 43, the basis for this certification by the Dean is unclear. Petitioner obtained a license to practice medicine in Georgia based on her 1983 application and did in fact practice medicine in that state from January, 1984 to August, 1984. On August 17, 1984 the Georgia State Board of Medical Examiners issued a Notice of Hearing to Petitioner setting forth charges against her including failure to meet the standards for licensure and/or intentionally making false statements in obtaining a license to practice medicine. The charges also included an allegation that Petitioner "was denied a license by the Board of Medical Quality Assurance of the State of California based on evidence of making false statements on a sworn application and submitting false and/or inaccurate certificates of education to obtain a license to practice in that state." In fact, in 1984 the California licensing authority had not formally denied Petitioner's application for licensure. The proposed denial of Petitioner's California application was pending, but not acted upon. Indeed, a formal denial of her California application was never finalized. Instead, the issues were resolved by the California Stipulation in November, 1987. On September 22, 1984, Petitioner executed a "Voluntary Surrender" which was approved by the Georgia State Board of Medical Examiners and served as the final order of that agency with respect to the Notice of Hearing discussed in Findings of Fact 54. By voluntarily surrendering her license to practice medicine in Georgia, Petitioner waived her right to a hearing on the charges contained in the Notice of Hearing. The first paragraph of the "Voluntary Surrender" states: "I hereby acknowledge that this surrender shall have the same effect as revocation of my license, and I knowingly forfeit and relinquish all right, title and privilege of practicing medicine in the State of Georgia, unless and until such time as my license may be reinstated, in the sole discretion of the Board." Notwithstanding this language, Petitioner contends the "Voluntary Surrender" should be distinguished from a revocation because she did not admit to any wrongdoing and because she was allowed to seek reinstatement upon application and demonstration of the ability to safely practice medicine. The Voluntary Surrender of the Georgia license contains no specific findings of fact or conclusions of law that establish any wrongdoing on the part of the Petitioner. The "Voluntary Surrender" states that Petitioner did not admit to any wrongdoing and it allows Petitioner to seek reinstatement. The Executive Director of the Composite State Board of Medical Examiners of Georgia certified to the Florida Board of Medicine on August 2, 1988, that Petitioner's Georgia license had been issued in 8/83, surrendered in 9/84 and that license had not been "suspended or revoked." Thus, while disciplinary action was clearly initiated against Respondent in Georgia, her license was not revoked. Petitioner was licensed to practice medicine in the State of New Mexico in November, 1983. On January 10, 1985, the New Mexico Board of Medical Examiners served on Petitioner a Notice of Contemplated Action notifying her of charges including having made misrepresentations in applying for and procuring a license to practice medicine in New Mexico and having her license in Georgia revoked. The New Mexico case was referred to a hearing officer who considered argument and briefs by the parties regarding the nature and effect of Petitioner's surrender of her Georgia license. By an order of the New Mexico State Board of Medical Examiners, Petitioner's New Mexico medical license was revoked in January, 1986. The New Mexico order of revocation treated Petitioner's voluntary surrender of her Georgia medical license as the functional equivalent of a revocation for purposes of the New Mexico licensing statute. In reaching this determination, the New Mexico Board relied upon the wording of the Voluntary Surrender and the Georgia Statutes which both indicate that a voluntary surrender shall have the same effect as revocation. No other specific grounds were cited by the New Mexico Board in its Findings of Fact and Conclusions of Law, Decision and Order. As indicated above, Petitioner's initial application to the Florida Board of Medicine (the "Board") for licensure was filed March, 1983. When the Board proposed denial, Petitioner requested a formal hearing. Prior to hearing, the Board obtained leave from the hearing officer to amend the basis for denial to include grounds relating to information presented to the Board by U.S. Postal Service investigators regarding Petitioner's truthfulness on her application form and the validity of certain documents she utilized in her attempt to obtain a Florida medical license. The Board was granted leave to amend as requested by order dated February 20, 1984. Shortly thereafter, Petitioner filed with the hearing officer a motion to withdraw her application because of the new information presented from the "federal investigation." The Board granted the request to withdraw the 1983 Application in an order rendered May 29, 1984. The Board's proposed denial of Petitioner's 1983 Application was on the basis that the Board had reason to believe that Petitioner, "as a graduate of CETEC, was not capable of safely engaging in the practice of medicine as a result of a report of the California Board of Medical Quality Assurance which indicated gross irregularities in the degree granting process of CETEC University and which raised serious doubts about the adequacy of medical education certified by CETEC." Petitioner filed with the Board a second application for licensure in Florida in December of 1984 (hereinafter referred to as the 1984 Application.) In response to a request for additional information from the Board regarding this second application, Petitioner executed a waiver of the requirement that the Board act upon the application within 90 days. As a result, the 1984 Application was left pending. The 1984 Application was for licensure by endorsement based upon Petitioner's license in New Mexico. As discussed in Findings of Fact 62-66, action was initiated against that New Mexico license in January, 1985 ultimately leading to the revocation of the license in January, 1986. After her New Mexico license was revoked, Petitioner did not hold a valid license to practice medicine in any other state until California issued her a license in November, 1988. On August 1, 1988, Petitioner filed another application with the Board as an update to the 1984 Application. (This August 1988 application is referred to as the "1988 Filing.") In her 1988 Filing, Petitioner included a recertification from ECFMG. At the time she filed her 1984 Florida application, Petitioner's original ECFMG certification had been placed on hold because of the CETEC scandal. Petitioner was required to provide a revalidation of her medical education by ECFMG in order to obtain consideration of her application in Florida. This revalidation was not provided until the 1988 Filing. On September 12, 1988, Petitioner filed a supplement to the 1988 Filing. On November 2, 1988 the Board requested additional information relating to the application. On December 12, 1988 Petitioner filed a response to this request. The Board issued an Order of Intent to Deny on March 3, 1989 stating as grounds for denial in Paragraph 2: You have had licenses in Georgia, New Mexico and California acted against by the licensing bodies of those states. See, Subsections 458.331(1)(b) and 458.311(1)(d), Florida Statutes (1988). The only year of training you received was in 1982-1983 at Holston Valley Community Hospital and the Kingsport Family Practice Center through the auspices of East Tennessee State University Quillen-Dishner College of Medicine. You were recommended less than favorably by both hospitals and you were not permitted to return for a second year of residency training by the College of Medicine. Your poor performance in your only year of medical training evidences your inability to practice medicine with reasonable skill and safety. See, Sections 458.301 and 458.331(4), Florida Statutes (1988). There are material discrepancies between answers and information provided in your 3 different applications and supporting documents submitted to the Board; and you have provided fraudulent information and misrepresented or concealed information regarding your medical education. See Subsections 458.311(1)(c) and 458.331(1)(a) and (hh), Florida Statutes (1988). Inconsistencies in the Application There are several discrepancies between Petitioner's 1983 Florida Application, her 1984 Application, and her 1988 Filing. On the 1984 Application, Petitioner reported her participation in the Unsanctioned Rotation at Sharp Memorial Hospital from December 20, 1980 to January 10, 1981 as part of her clinical clerkships. The Unsanctioned Rotation is not listed on the 1988 Filing. Petitioner contends that it was not until after submission of the 1984 Application that she found out that CONES refused to recognize the clerkships taken in 1980 because Petitioner was not enrolled as a student at CETEC at the time. Therefore, Petitioner deleted those unapproved clerkship weeks from the 1988 Filing. However, while specific reference to the clerkship was deleted in 1988, Petitioner admitted at the hearing that she counted the Unsanctioned Rotation as part of sixty (60) weeks of clerkships claimed in the 1988 Filing. The 1988 Filing states Petitioner completed sixty (60) weeks of clinical clerkships as part of her medical education at CETEC. However, as discussed in Findings of Fact 13 through 18, Petitioner's submitted a CONES verification of clinical rotations that only details fifty six (56) weeks (including duplicate and overlapping credit) of clinical clerkships. In the 1988 Filing, Petitioner did report the actions taken against her medical licenses in Georgia and New Mexico and mentioned her problems obtaining licensure in California. On the 1984 Application, Petitioner responded to the question "Have you ever been notified to appear before any licensing agency for a hearing on a complaint of any nature, including, but not limited to, a charge or violation of the medical practice act, unprofessional or unethical conduct?" by stating "after my voluntary surrender, notice of hearing in Georgia, [sic] charging denial and Flafalse documents re licensure (both false)." Both the Notice of Hearing and the Voluntary Surrender in Georgia were issued prior to the completion of Petitioner's 1984 Florida Application. Thus, while Petitioner did disclose the voluntary surrender, she only provided a brief and somewhat misleading explaination. The 1984 Application does not mention Petitioner's application in South Carolina (which was returned without action) nor does it discuss Petitioner's licensure difficulties in California other than to say she had been denied a license because of "informal deficiencies." The 1984 Application also omits Petitioner's licensure problems in New Mexico which is understandable since the Notice of Contemplated Action in that case was not filed until January, 1985. The application form requires the applicant to list all universities or colleges where the applicant "took classes/received training." Petitioner listed her training at the University of Kansas, Wesley Medical Center under the medical education section of her 1984 Application. In the 1984 application, she refers to it as a "externship". That position is also listed in the medical education section of the 1988 Filing with an explanation indicating that she was not actually a resident. As discussed in Findings of Fact 30, her position at the Wesley Medical Center is not easily described due to the unusual circumstances that led to her participating in the program. She was repeating clerkships in certain areas in accordance with the stipulation reached with the California licensing agency. Although Petitioner was not officially enrolled in classes or a residency program in that position, she considers it as part of her medical education and training and, therefore, listed it as such. In her 1984 Application, Petitioner listed time spent at Jackson Memorial Hospital (University of Miami) and Wesley Medical Center (Unversity of Kansas) on a sheet entitled graduate and post-graduate education. On her 1988 Filing, she listed both positions as post-graduate training. Both of these positions were actually house staff positions rather than part of the training programs of the affiliated medical schools. In the 1984 Application, Petitioner listed her dates of training at the Wesley Medical Center as October, 1984 to April 1985 (which was her projected completion date.) The 1984 Application was filled out and filed with the Board in December 1984, four months prior to the projected completion date of the Wesley position. In the 1988 Filing, Petitioner listed her actual completion date of March, 1985, which was approximately two weeks earlier than the projected completion date referred to in the 1984 Application. From January 1984 to August 1984, Petitioner worked for Spectrum Emergency Care in emergency rooms and free-standing clinics in Georgia. Petitioner listed different dates of service with Spectrum on the 1984 Application and the 1988 Filing. Petitioner contends the differences are due in part because the 1988 Filing included employment at Spectrum in New Mexico in December 1984 and January 1985 after submission of the 1984 Application. However, the 1988 Filing states that Petitioner was continuously employed by Spectrum from January 1984 - January 1985. In fact, she was not employed during the months of August, September, October and November, 1984. Moreover, her employment with Spectrum in New Mexico in December, 1984 and January, 1985 overlaps with her "externship" at the Wesley Medical Center/University of Kansas which took place from October, 1984 through March, 1985. Apparently, this overlap was possible because her work for Spectrum in December, 1984 consisted of one weekend and a holiday and in January, 1985 consisted of one weekend. In sum, the 1988 Filing significantly overstates her actual experience with Spectrum. The 1988 Filing contains several inconsistent statements regarding Petitioner's employment as a ship's physician. Under the practice/employment section of that Filing, she states she was a ship's physician for SeaEscape from April, 1985 to September, 1985 and a ship's physician for Commodore Cruise Lines from February, 1986 to September, 1986. Later in the application, under postgraduate medical training and work experience, she states she was a Chief Medical Officer for cruise ships from April, 1985, through September, 1986. However, according to the previously cited information, for at least a four month period during that time frame, she was not employed. In another portion of her application, Petitioner lists under clinical medicine that she worked on the two ships from April, 1985 through September, 1987. Even assuming that there is a typographical error and Petitioner meant September, 1986 as indicated in the other listings, by deleting any reference to the four months that she was not employed, an impression is created that Petitioner has more clinical experience than was actually true. There is a conflict between the AUC transcript that Petitioner submitted with the 1988 Filing and earlier versions of the transcript that appear in her records. The course titles are consistent in the transcripts, but the numbers of some of the courses are different. Only the last digit of the course numbers are different. Whether a course is listed in the 100 series, 200 series and 300 series is consistent in all of the transcripts. The series numbers reflect first semester, second semester and third semester courses respectively. The AUC transcript submitted with the 1988 Filing was the most recent one obtained by Petitioner from AUC. That transcript was prepared in June, 1986 and reflects a failing grade in the neurosciences course. However, as discussed in Finding of Fact 4, that grade was changed to a passing grade as reflected in a 1981 transcript from AUC which was submitted to CETEC when Petitioner transferred to that school. No adequate explanation has been given to explain why the 1986 AUC transcript is not consistent with the earlier one. Postal Investigation The confusing circumstances surrounding Petitioner's medical education are further complicated by her involvement with Pedro de Mesones. The circumstances surrounding her involvement with Pedro de Mesones have not been fully explained. While Pedro de Mesones' exact status or position is unclear, Petitioner believed him to be a representative of CETEC. He has subsequently been convicted of mail fraud in connection with selling medical diplomas and has been sentenced to a federal prison term. Between July, 1981 and January, 1982, while Petitioner was conducting her clinical rotations in San Diego, she attempted to get information and documentation from CETEC, but she had trouble getting responses to her repeated telephone calls, letters and telegrams. Petitioner sought the help of Pedro de Mesones in getting cooperation and/or responses from CETEC regarding transcripts and other documents necessary for the loan applications and residency applications which she had to file prior to her anticipated medical school graduation date of June, 1982. Another reason Petitioner hired Pedro de Mesones was to get confirmation that CETEC would give her credit towards her medical degree for her prior work on her Ph.D. at the University of Chicago. These credits were necessary for Petitioner to graduate in June of 1982 as she anticiapted. Petitioner was advised by others familiar with the school that Pedro de Mesones could help her in her dealings with CETEC. She first contacted Pedro de Mesones by telephone in February, 1982. She agreed to pay him a total of more than $8,000 for his services. Petitioner explains her payments to Pedro de Mesones as a $3000 fee, plus the next two (2) semester's tuition payments totaling an additional $5000.00 plus a $100.00 graduation fee. Pedro de Mesones advised Petitioner that she had to pay CETEC's tuition totalling $5,000 for two (2) additional semesters even though she did not have to take any classes at CETEC because she was given credit for her work at the University of Chicago. At one point during her dealings with Pedro de Mesones, Petitioner signed a false transcript from a Mexican medical school at Pedro de Mesones' request. This transcript reflected work which Petitioner never completed. No adequate explanation was given as to why these false transcripts were ever prepared. While Petitioner contends that she asked Pedro de Mesones not to use the false Mexican transcript for any purpose, it appears that these transcripts were prepared in the event that Petitioner could not secure two semesters credit from CETEC for her Ph.D. work at the University of Chicago. Ultimately, CETEC decided to give her credit for some of the Ph.D. course work she completed at the University of Chicago. As a result, Petitioner was able to graduate in June of 1982 from CETEC without having to use the false Mexican transcripts. It does not appear that the fraudulent Mexican transcript were ever used by Petitioner in any of her applications. Petitioner provided Pedro de Mesones with two false transcripts regarding her AUC medical education. It is clear that she intended for him to use those transcripts, if necessary, to get a dean's certification from CETEC. One of the false AUC transcripts she prepared made its way into the records of CETEC. It is not clear how CETEC obtained that transcript. Because Petitioner was given credit for her graduate work at the University of Chicago, she did not need the extra credits reflected on the false AUC transcripts. Petitioner subsequently wrote the Dean of CETEC requesting removal of the false AUC transcript after she saw it in her CETEC records during a visit to CETEC to obtain a letter from the Dean showing her to be in good standing. Petitioner asked Pedro de Mesones to provide her with letters signed by the CETEC Dean showing her to be in good standing and on track for graduation in June, 1982. She intended to use these letters in applying for licensure for residency programs. Petitioner felt that she was on track to graduate and indicated to Pedro de Mesones that because of time pressures, she felt it would be acceptable for him to forge the signature of the Dean on the letters required by the various state licensing agencies. However, there is no indication that he did so. While none of the false transcripts prepared by Petitioner were directly submitted by her in any of the applications for licensure filed with any state licensing authorities, it is clear the Dean's certification letters included in Petitioner's 1983 Applications in some of the states were false. See Findings of Fact 39-44. No direct connection has been drawn between the false Dean's certification letters submitted with Petitioner's applications in Georgia and California and Pedro de Mesones. However, the circumstances surrounding Petitioner's dealings with Pedro de Mesones raise a question as to how the certifications were obtained. More importantly, it is clear that Petitioner was aware that the representations contained in the Dean's certifications and the dates of attendance at medical school listed on her 1983 Applications were false. Nevertheless, she still submitted the applications. Petitioner's dealings with Pedro de Mesones ended on June 14, 1982, two days after her graduation ceremonies at CETEC. Practice Experience Petitioner has at various times practiced medicine in Georgia and New Mexico prior to surrendering or losing her license in those states. She has also worked on cruise ships as a ship's doctor for several months. She is currently licensed and practicing in California. She has been licensed in that state since November, 1988. She has practiced emergency medicine at various hospitals and has been practicing as a primary care physician for Castle Air Force Base in California since December 1988. There is no indication that she has been deficient in carrying our her professional duties in any of these positions.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Medical Examiners enter a Final Order granting Petitioner's application for licensure as a physician in the State of Florida subject to a probationary period of two years upon such terms and conditions as the Board deems appropriate. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 2nd day of July, 1990. J. STEPHEN MENTON 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 2nd day of July, 1990. APPENDIX Both parties have submitted Proposed Recommended Orders. To the extent that the proposed findings of fact can be isolated, they are addressed below. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. 1. Adopted in substance in Findings of Fact 37, 46-50 and 67. 2. Aubored in substance in Findings of Fact 67 and 68. 3. Adopted in substance in Findings of Fact 69. 4. Adopted in substance in Findings of Fact 70. 5. Adopted in substance in Findings of Fact 71. 6. Adopted in substance in Findings of Fact 72. Adopted in substance in the preliminary statement. Adopted in substance in Findings of Fact 73. Adopted in substance in Findings of Fact 73. Adopted in substance in Findings of Fact 1. Subordinate to Findings of Fact 2-4 and 6. Adopted in substance in Findings of Fact 5. Subordinate to Findings of Fact 6. Suborindate to Findings of Fact 6 and 8. Adopted in substance in Findings of Fact 20. Adopted in substance in Findings of Fact 96. Adopted in substance in Findings of Fact 9. Subordinate to Findings of Fact 9. Adopted in substance in Findings of Fact 10. Adopted in substance in Findings of Fact 11 and 33. Subordinate to Findings of Fact 87. Subordinate to Findings of Fact 87 and 88. Subordinate to Findings of Fact 88. Subordinate to Findings of Fact 89. Subordinate to Findings of Fact 90-94. The first sentence is rejected as constituting argument. The second sentence is subordinate to Findings of Fact 94. Adopted in substance in Findings of Fact 95. Subordinate to Findings of Fact 35. Subordinate to Findings of Fact 35. Subordinate to Findings of Fact 35. Adopted in substance in Findings of Fact 36. Subordinate to Findings of Fact 36 and 39- 42. Adopted in substance in Findings of Fact 45. The first sentence is adopted in Findings of Fact 87. The remainder is rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Adopted in substance in Findings of Fact 73. Subordinate to Findings of Fact 47-66. Adopted in substance in Findings of Fact 47. Adopted in substance in Findings of Fact 48. Adopted in substance in Findings of Fact 50. Adopted in substance in Findings of Fact 51. Adopted in substance in Findings of Fact 49. Subordinate to Findings of Fact 54. Adopted in substance in Findings of Fact 55. Subordinate to Findings of Fact 57, 59-60. Subordinate to Findings of Fact 58. Suborindate to Findings of Fact 61. Adopted in substance in Findings of Fact 59. Subordinate to Findings of Fact 62-66. Subordinate to Findings of Fact 66. Subordinate to Findings of Fact 66. Adopted in substance in Findings of Fact 73. Adopted in substance in Findings of Fact 73. Subordinate to Findings of Fact 20-30. Adopted in substance in Findings of Fact 73. Adopted in substance in Findings of Fact 22 and 27. Adopted in substance in Findings of Fact 23. Subordinate to Findings of Fact 24. Adopted in substance in Findings of Fact 23. Subordinate to Findings of Fact 25-26. Adopted in substance in Findings of Fact 27. Subordinate to Findings of Fact 24 and 25. Adopted in substance in Findings of Fact 73. Subordinate to Findings of Fact 27. Adopted in substance in Findings of Fact 73. Subordinate to Findings of Fact 74. See proposed findings 26-30 above. Subordinate to Findings of Fact 79-80. Subordinate to Findings of Fact 81. Subordinate to Findings of Fact 82-83. Subordinate to Findings of Fact 38. Subordinate to Findings of Fact 78. Subordinate to Findings of Fact 83. Subordinate to Findings of Fact 77. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Subordinate to Findings of Fact 78. Subordinate to Findings of Fact 84. Addressed in Findings of Fact 12-18. Rejected as irrelevant. Subordinate to Findings of Fact 12-19. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 1. Subordinate to Findings of Fact 2. Subordinate to Findings of Fact 3. Subordinate to Findings of Fact 4. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 6. Adopted in substance in Findings of Fact 7. Subordinate to Findings of Fact 9 and 13. Subordinate to Findings of Fact 13 and 14. Subordinate to Findings of Fact 16. Subordinate to Findings of Fact 18. Subordinate to indings of Fact 35. Adopted in substance in Findings of Fact 37. Adopted in substance in Findings of Fact 48. Adopted in substance in Findings of Fact 39. Adopted in substance in Findings of Fact 44. Subordinate to Fndings of Fact 46-52 and 67- 68. Adopted in substance in Findings of Fact 69. Subordinate to Findings of Fact 78. Subordinate to Findings of 78. Subordinate to Findings of Fact 76. Adopted in substance in Findings of Fact 70. Subordinate to Findings of Fact 76, 77 and 78. Adopted in substance in Findings of Fact 71. Adopted in substance in Findings of 72. 26. Adopted in substance in the preliminary statement. 27. Adopted in substance in Findings of Fact 73. 28. Adopted in substance in Findings of Fact 73. 29. Adopted in substance in Findings of Fact 54. 30. Adopted in substance in Findings of Fact 56. 31. Adopted in substance in Findings of Fact 78. 32. Adopted in substance in Findings of Fact 63. 33. Adopted in substance in Findings of Fact 65. Subordinate to Findings of Fact 47-51. Adopted in substance in Findings of Fact 22. Subordinate to Findings of Fact 24-26. Adopted in substance in Findings of Fact 27. Adopted in substance in Findings of Fact 25. Subordinate to Findings of Fact 31 and 79- 81. Subordinate to Findings of Fact 29. Adopted in substance in Findings of Fact 12 and 17. Adopted in substance in Findings of Fact 19. Subordinate to Findings of Fact 87-95. Adopted in substance in Findings of Fact 20. Adopted in substance in Findings of Fact 97. Subordinate to Findings of Fact 87-95. Rejected as not supported by competent substantial evidence. Adopted in substance in Findings of Fact 40. Rejected as not supported by competent substantial evidence. Subordinate to Findings of Fact 47-68. Rejected as constituting argument. Rejected as constituting argument. Copies furnished: Paul Watson Lambert, Esquire Attorney at Law 1355 Mahan Drive P. O. Box 31 Tallahassee, Florida 32308 Allen R. Grossman, Esquire Assistant Attorney General Suite 1602 - The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue is whether the medical license of Ted G. Avner, M.D., should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact At all times material to his action, Dr. Avner has been licensed in the State of Florida, holding license ME 0014896. Dr. Avner was licensed to practice medicine in Colorado in 1974. The Colorado State Board of Medical Examiners is the licensing authority for the State of Colorado. On December 9, 1985, the Colorado Board of Medical Examiners summarily suspended Dr. Avner's license to practice medicine due to substance abuse involving his personal ingestion of cocaine. On February 14, 1986, the Colorado Board of Medical Examiners, by Stipulation and Order, granted a reinstatement of Dr. Avner's license to practice medicine with certain terms of probation, including the prohibition of his use of substances of abuse. Subsequently, Dr. Avner relapsed by again using cocaine. After testing positive for cocaine on a random urine test, Dr. Avner reported that fact to the Colorado Board. On January 23, 1987, he entered into an agreement with the Colorado Board of Medical Examiners that he would refrain from the practice of medicine until permitted to do so by order of the board. Thereafter he entered and completed an addiction treatment program and then moved to Virginia, a state in which he was not licensed to practice medicine. Effective March 11, 1988, the Colorado State Board of Medical Examiners accepted Dr. Avner's voluntary relinquishment of his medical license. The Stipulation which Dr. Avner signed clearly states that the relinquishment was permanent, but it also provides for the reinstatement of Dr. Avner's license to practice medicine if he submits "evidence satisfactory to the Board that he qualifies under all subsections of the Colorado Medical Practice Act." The terms of the Stipulation and Order of the Board make it clear that the relinquishment was called "permanent," but was in fact subject to reinstatement. After moving to Virginia, Dr. Avner contacted David G. Fluharty, M.D. Dr. Fluharty is the founder and present Chairman of the Physicians' Health and Effectiveness Committee of the Medical Society of Virginia. The purpose and function of that Committee in Virginia is the same as that of the Florida Physician's Recovery Network administered by Roger Goetz, M.D. Dr. Fluharty referred Dr. Avner to the Talbott Recovery Center in Atlanta, Georgia. Dr. Avner completed the addiction treatment program there and returned to Virginia in March, 1989. Since March 29, 1989, Dr. Avner has continued to reside in Virginia, has remained active in the recovery program of the Physicians' Health and Effectiveness Committee of the Medical Society of Virginia, and has complied with all the requirements of that program, including random drug testing, maintaining sobriety, and participating in required meetings. Between March 29, 1989, and July 25, 1991, Dr. Avner's urine has been tested numerous times and all tests have been negative. Dr. Avner is currently under contract with the Physicians' Health and Effectiveness Committee of the Medical Society of Virginia which is very similar to and consistent with the kind of contract used by the Physician's Recovery Network in Florida for chemically dependent physicians. While residing in Virginia, Dr. Avner has worked regularly as a volunteer as a counselor and facilitator of the aftercare group, Caduceus. He also regularly attends other aftercare groups such as A.A. and N.A. Beginning in October, 1989, Dr. Avner worked once or twice a week as a volunteer at the Bradley Free Clinic, first as a nurse assistant and later assuming more responsibilities consistent with his licensure status. Dr. Avner has abstained from the use of cocaine since January 25, 1987, and from alcohol since August 19, 1989. He applied for a medical license in Virginia and was denied by Order dated April 11, 1988. In 1989, Dr. Avner applied for his medical license in Colorado and was initially denied. On his request for reconsideration, the Colorado Board granted licensure. By Order dated January 18, 1991, the Colorado Board of Medical Examiners approved a Stipulation and Order granting Dr. Avner an "unrestricted license" to practice medicine in Colorado, subject to the terms of probation set forth in the Order. On Dr. Avner's return to Colorado he can commence the practice of medicine under the terms and conditions of a monitored three-year probation which require that he maintain sobriety and abstain from all addictive, habit forming drugs or controlled substances not prescribed by his personal physician or dentist; that his practice and sobriety be monitored by a physician approved by the Board; that he and his monitor provide quarterly reports to the Board regarding the status of his practice and sobriety; that he participate in a Board approved drug abuse treatment program; that he provide urine tests on a random basis; and that he obtain and provide periodic psychological reports. Dr. Avner again applied for a medical license in Virginia and was denied by Order dated April 5, 1990. He again applied and was finally granted an unrestricted license by Order of the Virginia Board dated February 13, 1991. The Virginia license contains no term of probation or other restriction. In July, 1991, Dr. Avner began a one-year surgical fellowship in pediatric otolaryngology at the University of Virginia Medical School.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Medicine, enter a Final Order and therein: Reprimand Dr. Avner for violation of Section 458.331(1)(b). Restrict Dr. Avner's Florida license by requiring that Dr. Avner continue to remain in good standing in both Colorado and Virginia and that he comply with his contract in Virginia for its entire term. The Virginia Physicians' Health and Effectiveness Committee is to be asked to immediately notify the Florida Board of Medicine if Dr. Avner fails to remain in full compliance with that contract. Fine Dr. Avner in the amount of $1000.00. DONE and ENTERED this 8th day of October, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1991. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-5275 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation, Board of Medicine Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1) and 3(3). Proposed finding of fact 2 is subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Ted G. Avner, M.D. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-9(1-8); 10-15(10-15); 17-22(17- 21); and 23(22). Proposed finding of fact 24 is subordinate to the facts actually found in this Recommended Order Proposed finding of fact 16 is unsupported by the competent, substantial evidence. Dr. Falkinburg is not accepted as an expert qualified to render such an opinion, Dr. Fluharty's statements are hearsay and cannot support a finding of fact, and Dr. Goetz' testimony is entitled to little weight because it is based essentially on hearsay information. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0750 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Wilson Jerry Foster Attorney at Law 227 East Virginia Street Tallahassee, FL 32301-1263 Francesca Small Plendl Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether Respondent failed to timely file its application for the renewal of its abortion clinic license, as alleged in the Administrative Complaint. If so, may the Agency for Health Care Administration (Agency) fine Respondent for failing to timely file its renewal application. If the Agency is authorized to impose such a fine, should it exercise such authority. If so, what is the amount of the fine it should impose.
Findings Of Fact The Agency issued an administrative complaint on June 3, 1996, stating an intent to impose an administrative fine in the amount of One Thousand ($1,000.00) Dollars against A Doctor's Office for Women North, Inc., d/b/a A Doctor's Office for Women North (hereinafter referred to as "Respondent"), charging violations of Chapter 390, Florida Statutes, and Rule 59A-9, Florida Administrative Code, as grounds for the imposition of the administrative fine and advising the Respondent of its right to request an administrative hearing. Respondent was served a copy of the administrative complaint on June 4, 1996, by U.S. Certified Mail, Return Receipt Requested, but failed to respond or request a hearing within twenty one (21) days of receipt of notice of the action of the Agency as required pursuant to Section 120.57, Florida Statutes, and Rule 10-2.36, Florida Administrative Code. Respondent is licensed to operate at 1100 N.E. 125th Street, North Miami, Florida 33161, as an abortion clinic in compliance with Chapter 390, Florida Statutes, and Chapter 59A-9, Florida Administrative Code. Respondent has operated such that: (a) The Respondent has violated the provisions of Chapter 390, Florida Statutes, in that License Number 685 was issued to the Respondent for the period of 2/28/95 through 2/27/96. Respondent's application for renewal was due to be received by the Agency on 12/29/95, sixty days prior to expiration; however, it was received on 02/26/96, which was (54) days late. This is in violation of Section 390.016(1), Florida Statutes. Notice was provided in writing to the Respondent of the violations set forth above in paragraph 4(a).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency issue a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 9th day of October, 1997, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 9th day of October, 1997.
The Issue By a three Count Administrative Complaint filed August 22, 1987, Petitioner sought to discipline Respondent's medical license. Counts II and III were voluntarily dismissed ore tenus at the commencement of formal hearing and they are therefore dismissed as a matter of law. The remaining Count I alleges violations of Section 458.327(1)(c), Florida Statutes, attempting to obtain or obtaining a license to practice by a knowing misrepresentation and of Section 458.331(1)(a), Florida Statutes, by attempting to obtain, obtaining or renewing a license to practice medicine by bribery, fraudulent misrepresentations or through an error of the Board of Medicine. BACKGROUND AND PROCEDURE Petitioner presented the oral testimony of Respondent as an adverse witness and introduced deposition testimony of 5 other witnesses. Petitioner had 5 exhibits (including depositions) admitted in evidence. Respondent testified on his own behalf and presented the oral testimony of 4 other witnesses, John C. McCloskey, Dr. John K. Robinson, Dr. William M. Straight, and Hilda Bengochea and the deposition testimony of 1 other witness. Respondent had 5 exhibits (including one deposition) admitted in evidence. The Joint Prehearing Stipulation was admitted as Hearing Officer Exhibit A. The transcript in this cause was duly filed and the parties timely filed their respective proposed findings of fact and conclusions of law, the findings of fact of which have been ruled on in the Appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 458, Florida Statutes. Respondent is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued license number 0040981. Respondent's last known address is 555 Biltmore Way, Suite 201, Coral Gables, Florida 33134. On or about May 11, 1982, Respondent submitted an application to the Florida Board of Medical Examiners for licensure to practice medicine in the State of Florida. Based on the application, Respondent was granted licensure by endorsement and was issued Florida Medical License ME 0040981 from the Board of Medicine in September, 1982. On the above-mentioned application Respondent represented that he had attended Universidad Nacional Pedro Henriguez Urena (UNPHU) from January 1975 to January 1979 and that he had attended Universidad Centro de Estudios Technicos Medical School (CETEC) between January 1979 and December 1980. Respondent further failed to include his attendance at Instituto Technologico de Santo Domingo Medical School (INTEC) between approximately October 1979 and June 1980 (approximately 8 or 9 months). Respondent's actual attendance at UNPHU was from January 1975 to June 1979. From June 1979 to October 1979 Respondent was to all intents and purposes on summer vacation. He was in attendance at INTEC from October 1979 to June 1980 and at CETEC from June 1980 to December 1980. All of these medical schools are physically located in the Dominican Republic. In September, 1979 Respondent had applied for a transfer from UNPHU to INTEC. He was accepted in September, 1979 and began his course of study at INTEC in 0ctober, 1979. INTEC required that, in order for Respondent to graduate from that institution, he must repeat a number of courses that he had previously taken and passed at UNPHU. As a consequence, Respondent took approximately six courses (during two academic quarters) at INTEC, which courses he had previously taken and passed at UNPHU. Under the auspices of INTEC, after completing two quarters, Respondent was required for three months, until June, 1980, to do field medical work to assist those in the Dominican Republic countryside who needed medical assistance as a result of hurricanes Frederick and David. Respondent also did clinical rotations at one or two local hospitals in the city of Santo Domingo. He did well at INTEC and was not asked to leave that university. In June 1980, Respondent applied and was accepted at CETEC. CETEC's school of medicine first began its admission process in December 1979 but CETEC did not start its first classes until January, 1980. Respondent was admitted into the M.D. program in June 1980. Respondent never lived on any campus in the Dominican Republic but lived independently in town. He does not recall if he switched residences between institutions. CETEC gave Respondent credit ("convalidated") for the courses he had taken at both UNPHU and INTEC. Petitioner has pointed to no evidence that his convalidation was inappropriate under the circumstances. Respondent's motivation when he transferred to CETEC was that CETEC allowed him to participate in a rare opportunity--an externship program at the University of Miami School of Medicine at Jackson Memorial Hospital in Miami, Florida. Respondent changed his Santo Domingo residence to one in his hometown of Miami when he moved there. He completed his rotations in the United States under the auspices of CETEC. The evaluations from the University of Miami School of Medicine indicated that Respondent did extremely well during these rotations. Respondent graduated from CETEC and was granted a diploma in December, 1980. Subsequently, Respondent applied for, and was accepted and worked in a residency training program in Pensacola, Florida, for three years. The evaluations from his residency indicate that Respondent's performance was well above average and he was appointed as chief resident in his last year of this residency. The application for Florida licensure containing the inaccuracies stated in Finding of Fact 5, supra, was filed during Respondent's year of internship, when he was on call every other night. The application form requested him to list his medical education and to "be specific" and "account for each year". He did not have his records with him in his physical location in Pensacola at the time he discovered that the Florida Board only accepted applications once a year and he had little time in which to meet the time limit for his only possible application for 1982. The inaccuracies of Respondent amount to a wrong date for departure from UNPHU; a wrong date (18 months early) for beginning at CETEC, which date predates CETEC's first medical school class, and complete omission of his INTEC experience. In addition to the speed and stress of the application period and the absence of accurate backup records, Respondent explains the application's inaccuracies by pointing to his contemporaneous belief that he was being accurate and his incorrect perception at that time, based on prior experience, that the question was only seeking the name of the medical school from which he graduated and his date of graduation. He also never considered his INTEC attendance as part of his medical education since it was short term and largely repetitive of previous course work he had successfully completed. Apparently recognizing that the question was ambiguous or at least could be better worded, the Board has since revised its application form to specifically require listing of all schools, clerkships, etc. by date. Dr. John Robinson, M.D., Associate Dean for Student Affairs at the University of Miami Medical School for twenty-one years testified on Respondent's behalf. As part of his duties at the medical school, Dr. Robinson acts as the Registrar who keeps students records and certifies their education. It is common within Dr. Robinson's education, training, and experience that students and physicians alike frequently but unintentionally mistake the dates and places they attend medical school. Based on his personal good opinion of Respondent's past medical background and practice and Respondent's reputation for truth and veracity, it was Dr. Robinson's opinion that the application inaccuracies represented human error of Respondent and common error within Respondent' s experience. Respondent presented testimony of other prominent physicians and lay witnesses in the community who attested to his good character, reputation for truth and veracity, excellent patient care, and community service through his medical practice. Generally, Petitioner did not affirmatively demonstrate any improper motive or establish that Respondent had any intent to conceal or misrepresent his medical education on his application. Nor did Petitioner establish that Respondent had anything to gain by the inaccurate information on his application. The dates given by Respondent were correct to the extent that they indicate the date he began his medical education, the date he ended his medical education, and the medical school (CETEC) from which he graduated and which gave him credit for his work at the two previous schools (UNPHU and INTEC). Dorothy Faircloth, Medical Board Executive Director, confirmed that in 1982 the Board's process was to verify the education of an applicant only from the school which issued his medical degree. Specifically, it was not affirmatively demonstrated that Respondent would not have been licensed had he disclosed his attendance at INTEC and noted the correct dates of his interim medical education. At the time of Respondent's application, the Board had no rule or policy relating to the number of schools an applicant had attended and nothing in the transcripts and official documents of any of the three universities attended by Respondent reflect unfavorably on Respondent. The Board has licensed a number of medical physicians who graduated from CETEC but who previously attended one or more medical schools prior to attending CETEC. Respondent was a bona fide student in attendance at CETEC and graduated in good standing. Except for alleging misrepresentation and fraud in the application, Petitioner has not attacked the thoroughness, efficiency, or efficacy of Respondent's actual education, nor his ability to practice medicine safely. Respondent is presently in private practice with two other medical physicians in Coral Gables, Florida. He has staff privileges at six area hospitals, he has never been charged or accused of malpractice, and he has not, until this case, been investigated by the Board of Medicine or had any action taken against his license. He is also currently licensed in Georgia.
Recommendation Upon consideration of the foregoing, it is, RECOMMENDED that the Board of Medicine enter a Final Order dismissing Count I against Respondent. DONE and RECOMMENDED this 28th day of January, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Divisionf Administrative Hearings this 28th day of January, 1988. APPENDIX TO RECOMMENDED ORDER DOAH Case No. 87-0401 The parties' proposed findings of fact (PFOF) are ruled on pursuant to Section 120.59(2), Florida Statutes, as follows: Petitioner's PFOF A. 1. Covered in FOF 1. 2. Covered in FOF 2. 3. Covered in FOF 3. 4. Covered in FOF 4. 5-6. Covered in FOF 5. 7-8. Covered in FOF 11. B. 1-2. Covered in FOF 5. 3-4. Covered in FOF 19. 5. Covered in FOF 9. 6-8. Covered in FOF 10. 9. Rejected as not supported by the record, taken in context. SeeTR 35-36. 10-11. Accepted but unnecessary. Accepted but out of context and not dispositive of any issue at bar. Accepted but unnecessary and not dispositive of any issue at bar. Unnecessary. Unnecessary and not dispositive of any issue at bar. Rejected as stated because it is misleading as to the competent substantial record evidence as a whole and it is not an ultimate FOF. See FOF 19 and 22. Covered in FOF 4. Respondent's PFOF 1. Covered in Substance in FOF 2. 2-3. Covered in FOF 23. 4. Covered in FOF 3-4. 5-6. Covered in FOF 6. Covered in FOF 6-7. Covered in FOF 6-8. Covered in FOF 9. Subordinate, and also not clear from the record. The Respondent could just as easily mean that several different professors and not a single professor taught him at INTEC. 11-12. Covered in FOF 10. Covered in FOF 11. Covered in FOF 13. Covered in FOF 14. Covered in FOF 15. Covered in FOF 16. 18. Covered in FOF 17. 19. Covered in FOF 18. 22-23. Covered in FOF 19. 24. Covered in substance in FOF 19. 25-27. Cumulative. 28-29. Covered in FOF 19. 30. Covered in Substance in FOF 19. 31. Except as cumulative or subordinate, covered in FOF 19. 32. Covered as a conclusion of law. 33. Covered in FOF 19. 34. Unnecessary and not dispositive of the single count of the Administrative Complaint remaining at issue. 35. Rejected as argument of counsel. 36-39. Covered in FOF 20. 40. Covered in substance in FOF 20. 41-46. Except as subordinate, covered in FOF 21. 47-49. Unnecessary, but see FOF 21. 50-51. Except as subordinate, covered in FOF 21. 52. Unnecessary. 53-56. Covered in FOF 22. 57-58. Unnecessary and subordinate. 59 . Covered in FOF 22. 60. Covered in substance in FOF 19. 61-69. Unnecessary. COPIES FURNISHED: Dorothy Faircloth, Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Peter S. Fleitman, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Robert S. Turk, Esquire Suite 3400, One Biscayne Tower 2 South Biscayne Boulevard Miami, Florida 33131 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact At all times relevant hereto, Respondent was licensed as a medical doctor by the Florida Board of Medicine. He holds License No. ME 0019700. Respondent received his medical degree overseas and did his residence in obstetrics and gynecology at Bayfront Medical Center in St. Petersburg, Florida. He is neither board certified nor board eligible. For the past eight plus years Respondent's practice has been limited to terminating pregnancies at All Women's Health Clinic at Tampa, Florida. He has performed in excess of 15,000 abortions. One reason given by Respondent for so limiting his practice is the cost of medical malpractice insurance. Since he has no private practice, Respondent gave up admitting privileges at hospitals in the area. Without malpractice insurance, he would not be given staff privileges. On August 23, 1986, A. L., a pregnant 16 year old, entered All Women's Health Center, Tampa, to have her pregnancy terminated. A. L. had noted on her history statement that her last menstrual period started some eight weeks ago. Respondent first saw A. L. when he entered the procedures room at All Women's Health Center and commenced his examination prior to instituting abortion procedures. With respect to the examination the testimony varied widely. Diane Roberts, LPN, who was performing the duties of physician's assistant during the procedure, initially told the investigators that the examination lasted only a couple of seconds and consisted of a vaginal examination with two fingers of the right hand in the vagina while the abdomen was palpated with the left hand. At the hearing, Roberts testified that she wasn't paying much attention to the patient during the examination, didn't recall telling investigator the examination only took a couple of seconds, and recalled Respondent telling A. L. several times to relax. Respondent testified he performed a normal vaginal examination. The examination was longer than usual because A. L. wasn't relaxed and tensed her stomach muscles which made the uterus more difficult to palpate; and that following his examination he determined the gestational age of the fetus to be 12 weeks. Respondent testified he also checked the patient's heart and lungs before commencing the pelvic examination. A. L. testified that Respondent palpated her abdomen with two hands, but did not check heart and lungs or do a pelvic examination. A. L. had an earlier pregnancy terminated the previous year when the doctor did a pelvic examination with two fingers in the vagina while the abdomen was palpated with his other hand. The patient was ultimately determined to be 28 to 30 weeks pregnant. Largely because of the large error in gestational age, it is concluded that Respondent performed only a perfunctory examination on A. L. Had he conducted the proper examination, it is inconceivable that he, an experienced gynecologist, could underestimate the gestational age of the fetus by some four months. The magnitude of this error is illustrated by Respondent's testimony that a 12 week fetus is approximately 3 inches long and weighs 30 grams, while a 28 week fetus is approximately 14 inches long and weighs 1100 grams. Respondent started the procedure thinking he was aborting a 12 week fetus with the patient on the table and feet in the stirrups. After the instruments were inserted and the procedure started, Respondent concluded the fetus was 16 weeks, obtained a larger curette, then determined the fetus was more likely 20 weeks, again changed curette, and after removing fluid and part of an arm Respondent concluded that the gestational age of the fetus was some 28 weeks and required hospitalization to complete the procedure. Mistakes in determining gestational age can be made by a prudent physician if: (1) the patient is obese; (2) if the uterus is very soft and the extremities difficult to locate; (3) if the baby has a low fluid volume; (4) if the patient is very tense; or, (5) if the head of the fetus is felt and not the uterus. Here A. L. was more thin than obese which should have greatly facilitated palpation of the abdomen to determine the size of the uterus. Accepting the testimony that she was tense during the examination, and the earlier pregnancy would cause the uterus to be soft, no experienced gynecologist should conduct an examination of a patient such as A. L. and err on the magnitude here involved. Further, if the examination was difficult, the procedure should not have commenced until Respondent was reasonably positive of the gestational age of the fetus. One indication Respondent received that the fetus was older than 12 weeks was the quantity of fluid drawn. Further, no experienced gynecologist should mistake the head of the fetus as the extremity of the uterus on a patient such as A. L. Once Respondent determined the fetus was more than 16 weeks along, he called Dr. Barile, a gynecologist with admitting privileges at Humana Women's Hospital, Tampa, to request he remain available in case Respondent needed to send A. L. to a hospital. When Respondent determined the gestational age of the fetus' was more than 26 weeks, he again called Barile who suggested it would be better to refer the patient to an obstetrician. Respondent then telephoned his backup obstetrician and found she was on vacation, and a doctor with whom Respondent was not acquainted was taking her calls. Since A. L. was stable and in no apparent distress, Respondent called Dr. Klein, a pediatrician with admitting privileges at Bayfront Memorial Hospital in St. Petersburg. Dr. Klein agreed to take care of the patient by having his associate, who had the duty that day, meet the patient at Bayfront. A. L. had been brought to the clinic by her brother, and Respondent concluded A. L. could be safely transported to Bayfront by automobile and suggested her brother drive her. The brother demurred on the ground that his car overheated and might not make the 40-odd mile trip to Bayfront safely, but another brother had a more reliable car. The other brother was called and agreed to take his sister to Bayfront and stated that he would be at the clinic in about 10 minutes. Approximately 1 hour and 15 minutes later this brother arrived, and A. L. was started to the brother's car. At this time she appeared unsteady, and Respondent concluded she should go to Bayfront by ambulance. When a Hillsborough ambulance service was called, they told Respondent of the policy whereby they could not transport a patient out of Hillsborough County and that he should contact a Pinellas County ambulance service to perform the desired transportation. Respondent then called a Pinellas County ambulance service who arrived about an hour later to take A. L. to Bayfront where she was met by Dr. Yeshnick, the associate of Dr. Klein, who admitted the patient. Between the time Respondent determined the abortion could not be performed at the clinic until A. L.'s arrival at Bayfront Hospital, some 6 hours had elapsed. Of the approximately 15,000 abortions that Respondent has performed, less than 5 became emergencies that required removal from the clinic to a hospital. Respondent's backup procedures for emergencies were adequate. On August 23, 1986, A. L. was in the third trimester of her pregnancy, and the abortion was not necessary to save the life or preserve the health of A. L.
The Issue The issues in this cause concern whether disciplinary action should be taken against the Respondent's license to practice medicine, based upon alleged violations of Section 458.331(1)(b), Florida Statutes. Specifically, the disputed issue concerns whether his license to practice medicine was revoked, suspended or otherwise acted against by the licensing authority of another state.
Findings Of Fact The Respondent is and at all times material hereto, has been licensed as a physician in the State of Florida. He holds licensed number ME0028248 issued by the State of Florida, Board of Medical Examiners. Respondent is also licensed in the State of New York as a medical doctor. The Petitioner is an agency of the State of Florida charged with enforcing the medical practice standards contained in Chapter 458, Florida Statutes and related rules. Pertinent provisions of that chapter and Chapter 455, Florida statutes authorize the Petitioner to make investigations of physician's licenses in the State of Florida and, if probable cause exists to indicate that a physician has engaged in conduct proscribed by Chapter 458, to commence formal proceedings seeking disciplinary action against such physicians. The New York State Department of Education and its Board of Regents is the licensing authority for medical doctors for the State of New York, (Petitioner's Exhibit 3 is evidence.) On August 14, 1986, the Commissioner of Education of the State of New York, on behalf of the State Education Department and its Board of Regents entered an order wherein the Respondent'S license to practice medicine in the State of New York was suspended for one year. That suspension was stayed and the Respondent's license to practice medicine was placed in probationary status with the probation being subject to certain conditions. See Petitioner's Exhibit 3 in evidence. In that order, the Respondent, had been found guilty of professional misconduct by being convicted of committing crimes under the state law of New, York. Specifically, he was convicted of four counts of violations of Public Health Law 12.B(2), by being registered as a medicaid provider and leasing space for the practice of medicine at a dental office, a "shared health facility", the rental fee for which was calculated and paid as a percentage of the defendant's earnings for medical services rendered on the premises. The Respondent was also found guilty of falsely representing that he was certified by the American Board of Internal Medicine when in fact he was not so certified, and by the willful making and filing of a false report, which also constitutes unprofessional conduct within the meaning of the law of the State of New York, specifically 8NYCRR 29.1(b)(6), (1984), cited in Petitioner's Exhibit 3 in evidence.
Recommendation Accordingly, it is therefore RECOMMENDED that a Final Order be entered by the State of Florida, Board of Medical Examiners suspending the Respondent's license for one full year or until such time as the Respondent appears before the Board of Medicine and demonstrates that he is capable of practicing medicine with care, skill and safety to patients including a demonstration that his license to practice medicine in New York is reinstated and is unrestricted, whichever time period is less. DONE AND ENTERED this 3rd day of July, 1989, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF, 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 3rd day of July, 1989. COPIES FURNISHED: Jonathan King, Esquire Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0729 Vijay Sakhuja, M.D. 120 Secor Drive Port Washington, New York 11050 Vijay Sakhuja, M.D. 90-10 Sutphin Boulevard Jamaica, New York 11435 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0729 Kenneth Easley, General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0729 ================================================================= DISTRICT COURT OPINION ================================================================= IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA VIJAY SAKHUJA, M.D., NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND Appellant, DISPOSITION THEREOF IF FILED. vs. CASE NO. 89-2296 DOAH CASE NO. 88-4658 DEPARTMENT OF PROFESSIONAL REGULATION, Appellee. / Opinion filed October 10, 1990. Appeal from an Order of the Department of Professional Regulation Walter D. Forehand, of Myers & Forehand, Tallahassee, for appellant. Lisa S. Nelson, Department of Professional Regulation, for appellee. WENTWORTH, J. Appellant seeks review of an administrative order by which appellee Department of Professional Regulation, through its Board of Medicine, suspended appellant's medical license. The duration of this suspension exceeds the penalty which the hearing officer had recommended. Although we find no error with regard to appellant's other contentions, we do find that the Board did not fully and adequately delineate the basis for increasing the recommended penalty. We therefore reverse the order appealed. Appellant was licensed to practice medicine in both Florida and New York, and the current proceeding ensued after disciplinary action was taken by the licensing authority in New York for violations which had occurred in that state. The New York licensing authority acted upon appellant's conviction for violating a public health law which prohibits calculating medical office rental fees on a percentage of earnings, and upon appellant's false reporting and false representation of a medical certification. The proceeding in Florida was based upon this New York action, as appellant was charged with violating section 458.331(1)(b), Florida Statutes, which specifies that disciplinary action may be taken in this state when a license has been "acted against" by the licensing authority of another jurisdiction. After an administrative hearing on this charge the hearing officer recommended that appellant's Florida license be suspended for one year or until such time as he satisfies certain conditions including the reinstatement of his New York license. The Board of Medicine adopted the hearing officer's recommended findings, but increased the penalty so as to suspend appellant's license in Florida for one year and until such time as the various other conditions are satisfied. The order increasing the recommended penalty recites that: Rule 21M-20.001(1)(b), F.A.C., provides for discipline for action taken in another jurisdiction to be the discipline which would have been imposed if the substantive violation had occurred in Florida. Although this explanation identifies a permissible basis for the Board's action, and it does not appear that the hearing officer considered the applicability of the cited rule, the order does not specify the asserted substantive Florida violation had appellant's conduct occurred in this state. While appellant's conduct in New York, as indicated by the substantive violations in that state, might be such as would also constitute substantive violations in Florida, the Board's failure to delineate a particular substantive Florida violation does not fully satisfy the Board's obligation, as mandated by section 120.57(1)(b)10, Florida Statutes, to provide a particularize statement of the reason for increasing the recommended penalty. Appellee concedes that the Board's order is deficient, but contends that it should be afforded the opportunity to enter a more thorough and explicit order on remand. Because the order now being appealed reflects a legally permissible basis for the challenged action, on remand the Board may address the matter with greater particularity should it again decide to increase the recommended penalty. See Van Ore v. Board of Medical Examiners, 489 So.2d 883 (Fla. 5th DCA 1986); see also, Pages v. Department of Professional Regulation, 542 So.2d 456 (Fla. 3d DCA 1989). The order appealed is reversed and the cause remanded. MINER and WOLF, JJ., CONCUR.
