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 this proceeding, respondent Warren B. Mulhollan has been licensed as an osteopathic physician in Florida. His license number is OS 0000896. At some time in the recent past, respondent was placed on probation. One of the terms of his probation was that he acquire continuing education credits. The Order of probation was not offered into evidence. In April of 1985, respondent was working in a Chinese acupuncture clinic approximately two days a week performing physical examinations and preparing patient histories. He was not writing prescriptions. At the time of the hearing, he was not practicing osteopathic medicine and does not now desire to do so, though he does wish to maintain his license. The respondent is 77 years of age. The respondent did suffer a stroke and has had several transient ischemic attacks over the past few years. For a period of time, he was unable to concentrate and his attention span was limited. He communicated this fact to the Department and requested that he be excused from compliance with the continuing education requirements of the Board. Apparently, the Board never excused the respondent from such requirements. Respondent was examined by two psychiatric physicians in the latter months of 1985 and in April of 1986. It was their understanding from discussions with respondent that he did not desire to have the ability to maintain a practice in the traditional setting. Both physicians were of the opinion that if respondent is unable to pursue continuing education and stay current in his field, he should not practice osteopathic medicine. According to the respondent, his former lack of concentration was due to eye strain. He states that after getting a new pair of glasses, he has no trouble concentrating. He does not wish to maintain a practice of osteopathic medicine in a traditional setting. However, he does desire to retain his license because he takes pride in his past accomplishments in the community, and he enjoys lunching and associating with other doctors and attending lectures and seminars at the Suncoast Hospital. He is willing to maintain a probationary- type practice, file monthly affidavits with the Board and comply with continuing education requirements.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent be placed on probation for a period of five (5) years, and that the conditions of probation include the requirements that he attend continuing education courses, that any type of practice in which he engages be performed in a supervised, clinical-type setting with other physicians in the immediate area and that he submit to the Board of Osteopathic Medical Examiners verified, monthly reports setting forth any hours of osteopathic practice engaged in by him, as well as the names of patients and treatment rendered. DONE and ORDERED this 17th day of August, 1987, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1987. COPIES FURNISHED: David E. Bryant, Esquire Alpert, Josey, Grilli & Paris, P.A. Ashley Tower, Suite 2000 100 South Ashley Drive Tampa, Florida 33602 Warren B. Mulhollan, D.O. 2458 Enterprise Road, Apt. 6 Clearwater, Florida 33515 Rod Presnell, Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue Whether Petitioner's license as an Osteopathic Physician in the state of Florida should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary adduced at the hearing, the following relevant facts are found: Respondent is, and has been at all times material hereto, a licensed osteopathic physician in the State of Florida, having been issued license number OS 0003822. Respondent's last known address is 1804 Nelson Street, No. 15, Ormond Beach, Florida 32074. From on or about July 17, 1985, until on or about April 28, 1987, Respondent diagnosed patient L.K. as suffering from, and rendered medical care and treatment for, juvenile fibromatosis or fibromatosis colli. Juvenile fibromatosis and fibromatosis colli are conditions characterized by the occurrence of multiple fibromas. Fribromas are benign (non- malignant) neoplasms. On or about July 17, 1985, Respondent executed a letter which was sent to the Exceptional Student Education Services section of the School Board of Volusia County (School Board) wherein Respondent represents that the patient L.K. "is being treated for a malignancy of the neck, etiology undermined." On or about August 22, 1986, Respondent executed a letter intended to allow the patient L.K. to avoid required immunization wherein Respondent represents that patient L.K. "...has a malignancy which was not identified by multiple biopsy." The representations made to the School Board in his letters of July 17, 1985, and August 22, 1986, were made in Respondent's practice of Osteopathic Medicine. Only one biopsy of the patient's neck mass was performed prior to Respondent's letter of August 22, 1986, to the School Board. This biopsy was performed during March of 1980 by Gary Horndeski, M.D. The pathology report concerning this biopsy was not received by Respondent until March 18, 1987. The patient's neck mass had not been subjected to multiple biopsy as represented by the Respondent on August 22, 1986. The Respondent's representations in the August 22, 1986 letter were deceptive, untrue, and fraudulent. The medical records of Respondent fail to document that Respondent performed multiple biopsies on the mass. Respondent has failed to keep written medical records justifying the course of treatment of the patient, including but not limited patient histories, examination results, and test results. Respondent prescribed, dispensed or recommended BHI Regeneration, Polyzyme 022 and Vitamin C 500 mg tablets to patient L.K. On or about November 21, 1986, Respondent executed three separate forms authorizing the administration of BHI Regeneration, Polyzyme 022 and Vitamin C to patient L.K. by school personnel of Volusia County, indicating that he had ordered the administration of these substances as a "part of scheduled med program." BHI Regeneration and Polyzyme 022 are "drugs" as defined by Section 499.003(8), Florida Statutes. Respondent failed to note in patient L.K.'s medical records his prescribing, dispensing or recommendation of BHI Regeneration and Polyzyme 022. Respondent's written medical records fail to document "informed consent" to the drug therapy initiated including medically acceptable alternative procedures or treatments. The preferred course of treatment for a mass of the size and location as existing on patient L.K. would be surgical intervention. Respondent's written medical records fail to adequately document the reason for not following the preferred course of treatment (surgery), that surgery was discussed with the patient's parents, or that the parents declined surgery. Respondent's entry for March 10, 1987, in the medical record of patient L.K. indicates "recommend to get physiotherapy in lieu of surgery." Respondent's medical records fail to justify the course of treatment of the patient, including but not limited to patient histories, examination results, and test results. A reasonably prudent similar physician under similar conditions and circumstances would have referred patient L.K. to a specialist or obtained a consultation with a specialist. Respondent failed to do so. A reasonably prudent similar physician under similar conditions and circumstances would not have recommended that patient L.K. not receive standard immunizations nor would such a physician have executed a school form allowing patient L.K. to be exempted from required immunizations. A reasonably prudent similar physician would have obtained and reviewed prior biopsy report or conducted a biopsy on patient L.K. soon after undertaking the care of the patient. Respondent has failed to practice osteopathic medicine with that level of care, skill and treatment which is recognized by a reasonably osteopathic physician as being acceptable under similar conditions and circumstances. On or about April 7, 1987, the Board of Osteopathic Medical Examiners issued a Subpoena Duces Tecum commanding Respondent produce for copying and inspection any and all medical records of patient L.K. On or about May 8, 1987, the aforementioned subpoena was served on Respondent to produce copies of any and all medical records of patient, L.K., on May 10, 1987, at 6501 Arlington Expressway, Jacksonville, Florida. Respondent did not file a challenge or object in any fashion to the subpoena. As a result of the Petitioner filing a petition for enforcement of the subpoena, Respondent furnished to Petitioner what was purported to be the medical records of patient L.K., and did not in any way advise Petitioner that there were certain records pertaining to L.K. that he did not consider medical records. The medical records of patient L.K. submitted by Respondent in response to the subpoena were incomplete. Respondent's license to practice osteopathic medicine in the state of Florida was disciplined by the Board of Osteopathic Medical Examiners (Board) by its final order issued on April 19, 1988, wherein Respondent's license was suspended for one year; to be followed by a three year period of probation.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Board enter a Final Order finding Respondent guilty of violating Section 459.015(1)(n), (p), (y) (cc), Florida Statutes (1989), as set forth in Counts I, III, IV and V of the Second Amended Administrative Complaint, as amended, and for such violation, considering the guidelines for imposing penalties set forth in Rule 2IR-19, Florida Administrative Code, and the aggravating or mitigating circumstances allowing the Board to deviate from those guidelines set forth in Rule 2IR-19, Florida Administrative Code, it is RECOMMENDED that Respondent's license to practice osteopathic medicine in the State of Florida be suspended for one year subject to the terms and conditions the Board deems appropriate for reinstatement. It is further RECOMMENDED that Count II be DISMISSED. Respectfully submitted and entered this 27th day of October, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 Administrative Hearings this 27th day of October, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-0308 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 1-26. Adopted in Findings of Fact 1-26, respectively. Specific Rulings on Proposed Findings of Fact Submitted by Respondent Respondent filed a one page, two paragraph Proposed Findings of Fact and Proposed Conclusion of Law that was an argument consisting of facts and law. To the extent that there are facts contained in his argument, they are either not material or not relevant. COPIES FURNISHED: Bruce D. Lamb, Esquire Chief Trial Counsel 730 S. Sterling Street Suite 201 Tampa, Florida 32609 David L. Sturdivant, Sr. 1804 Nelson Street, #I15 Ormond Beach, Florida 32704 Rod Presnell Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Prior to and during part of 1983 Dr. Sturdivant practiced as an osteopathic physician. Dr. Sturdivant operated an office in Bradenton, Florida. Sometime during 1983 Dr. Sturdivant met and discussed employment with Dr. Daniel Clark. Dr. Clark operated the Total Health Care Clinic Center (hereinafter referred to as the "Center"), in Ormond Beach, Volusia County, Florida. Dr. Clark had been licensed as a physician in Florida. Dr. Clark's license to practice medicine in Florida was revoked, however, on April 21, 1983. As a result of his discussions with Dr. Clark, Dr. Sturdivant practiced medicine at the Center four days a week during most of 1983. One day a week Dr. Sturdivant continued to work out of his office in Bradenton. Sometime during 1984 Dr. Sturdivant left the Center. He did not return to the Center until 1985. During the early part of 1985 Dr. Sturdivant returned to the Center where he worked full time as the Center's Medical Director. Dr. Sturdivant worked at the Center from at least March 27, 1985 to at least June 22, 1985. During the period of time during 1985 that Dr. Sturdivant acted as the Medical Director of the Center, Dr. Clark's title was Administrator of the Center. During the period of time after April 21, 1983, that Dr. Sturdivant was employed at the Center Dr. Sturdivant knew or had reason to know that Dr. Clark's license to practice medicine in the State of Florida had been revoked. During the portion of 1985 that Dr. Sturdivant was employed as the Medical Director of the Center Dr. Sturdivant was aware that he was responsible for the medical care of patients seen at the Center. Ms. Judy Baxley was seen as a patient at the Center several times beginning in March, 1985, while Dr. Sturdivant was the Medical Director. Ms. Baxley was treated for asthma and a "yeast" infection. Ms. Baxley was seen by Dr. Clark on some of her visits. She received medical tests and treatments at the direction of Dr. Clark, as evidenced, at least in part, by progress notes signed by Dr. Clark. Ms. Shirley Van Gampler was seen as a patient at the Center on May 8, 1985, while Dr. Sturdivant was the Medical Director of the Center. Ms. Van Gampler was seen by Dr. Clark as a patient. Dr. Clark's treatment of Ms. Van Gampler included examination, testing and diagnosis, as evidenced, at least in part, by progress notes signed by Dr. Clark. Mr. Douglas Cutsail was seen as a patient at the Center in April, 1985, while Dr. Sturdivant was the Medical Director. Mr. Cutsail had a history of heart attacks and hypertension. He went to the Clinic in an effort to control his high blood pressure. Dr. Clark treated Mr. Cutsail as a patient, performing tests on Mr. Cutsail and directing chelation therapy treatments of Mr. Cutsail's medical problems. Dr. Clark signed the progress notes on Mr. Cutsail. Dr. Sturdivant also signed the progress notes but his signature was added at a later date after Dr. Clark had already treated Mr. Cutsail. Ms. Eileen Deasy was seen as a patient at the Center in April, 1985, while Dr. Sturdivant was the Medical Director of the Center. Dr. Clark treated Ms. Deasy as a patient, as evidenced by progress notes signed by Dr. Clark. Ms. Lonna Sloan was seen as a patient at the Center in April, 1985, while Dr. Sturdivant was the Medical Director of the Center. Ms. Sloan, who is now deceased, had breast cancer at the time she was seen by Dr. Clark. Ms. Sloan was treated as a patient by Dr. Clark. The treatment received by Ms. Sloan was substandard treatment. Dr. Sturdivant allowed Dr. Clark to exercise professional medical responsibilities during 1985 while Dr. Sturdivant was the Medical Director of the Center and with knowledge that Dr. Clark was not licensed to carry out those responsibilities.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED that Dr. Sturdivant's license to practice in the State of Florida be suspended for a period of one (1) year. It is further, RECOMMENDED that the recommended suspension of Dr. Sturdivant's license for one (1) year be stayed and set aside and that he be placed on probation for a period of three (3) years in lieu thereof. During the period that Dr. Sturdivant is on probation, he should be required to work under the supervision of an osteopathic physician. He should not work in any supervisory capacity. During the period of his probation, Dr. Sturdivant and his supervisor should submit quarterly written reports of Dr. Sturdivant's employment activities. DONE and ENTERED this 8th day of February, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 8th day of February, 1988. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact of Acceptance or Reason for Rejection 1 Stipulated to by the parties. 2 3. 2 and 4. 5 and 6. 5 6. 6 7. 7 8. 8 9. 9 10. 10 11. 11 12. 12-13 13. This is a conclusion of law. Lonna Sloan's deposition is hearsay. It has been accepted only to the extent that it corroborates the testimony of Dr. Smith and Petitioner's exhibit 3, the progress notes on Ms. Sloan. Summary of testimony. Cumulative and hearsay. The Respondent's Proposed Findings of Fact Not supported by the weight of the evidence and irrelevant. The evidence established that Dr. Sturdivant was aware that Dr. Clark's license to practice in Florida had been revoked. Whether Dr. Clark had a license to practice in Georgia is irrelevant. The evidence failed to prove this contention. The evidence did prove that some of the products sold by the Center were nutritional products available in health food stores. The evidence also proved that persons who received nutritional products were treated medically by Dr. Clark. The evidence failed to prove that these nutritional products were prescribed as only for nutritional purposes. COPIES FURNISHED: Susan Branson, Esquire William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 David L. Sturdivant, D.O. 800 South Nova Road Suite H Ormond Beach, Florida 32074 Mr. Rod Presnell Executive Director Department of Professional Regulation Osteopathic Medical Examiners 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue The issue to be resolved in this proceeding concerns whether the licensure examination taken by the Petitioner qualifies him under Section 459.007(3), Florida Statutes, for licensure as an osteopathic physician in the State of Florida.
Findings Of Fact The Petitioner, Lawrence Edward Suess, is an osteopathic physician licensed by the Boards of Medical Examiners in Texas, Alabama, and Kentucky. He seeks licensure in Florida, pursuant to Section 459.007(3), Florida Statutes. He is also licensed in Arizona and Texas as a registered nurse, holds BS and MS degrees in child development and nursing and a Ph.D. in nursing. The Respondent, the Board of Osteopathic Medicine (Board), is an agency of the State of Florida, charged with regulating the admission to practice and the practice and licensure standards of osteopathic physicians licensed or seeking to be licensed in the State of Florida. The Board issued an order, as corrected, on November 9, 1995, granting application of licensure to the Petitioner upon the condition that within one year, he successfully complete Part III of the NBOME examination for purposes of licensure in the State of Florida, and not for diplomate status. The Board found in that order that the Petitioner had not passed all three parts of the NBOME examination and had submitted certification of passage of only Parts I and II. The Board found that the “FLEX” examination was not a substantially-similar examination to the required NBOME examination since the FLEX examination did not contain an osteopathic medicine component. The Board also found that the completion by the Petitioner of a Board certification examination was not substantially similar to the NBOME examination because it tested only a single subject matter and not the broad principles contained in Part III of the NBOME examination. On November 13, 1995, a Petition for Formal Hearing was filed by the Petitioner disputing the decision of the Board which precluded him from obtaining licensure to practice medicine in the State of Florida because of failure to complete Part III of the NBOME examination. He contended that he was outside the time period in which he would be allowed to take Part III. He further contended that the FLEX examination was a substantially-similar examination to the NBOME examination. The Petitioner contends that taking the FLEX examination should be sufficient to justify licensure, although he also acknowledged that Part III of the NBOME examination tests osteopathic philosophy and principle; and he acknowledged that the FLEX examination does not, although he was attempting to testify and argue that the FLEX examination was substantially similar to the NBOME examination. He provided no testimony or evidence, however, to establish that the FLEX examination tests osteopathic philosophy and principle. The Respondent presented the testimony of Joseph Smoley, Ph.D. by deposition. Dr. Smoley holds a Ph.D. in educational measurement and has served for ten of the last eleven years as Executive Director of the NBOME. The NBOME is an organization that develops an examination that is independent of the osteopathic medical schools to evaluate osteopathic physicians who are either currently in undergraduate or in graduate medical programs. The NBOME’s main mission is to provide state licensing examinations with an independent assessment of the knowledge base of candidate osteopathic physicians. Dr. Smoley oversees NBOME policy and supervises educational measurement within the osteopathic profession. His oversight responsibilities include the examination section of the NBOME. He provides a constant review of the process of testing for the Board of Directors. The NBOME developed its examination by having questions drafted by faculty members and osteopathic physicians in independent practice. Faculty members may be D.O.’s or Ph.D.’s in the various basic sciences, and there is a multi-tiered process for preparing and reviewing questions. A copy of the bulletin of information concerning the NBOME examinations was attached to and made part of the deposition. Dr. Smoley testified that typically the candidates take Part I as a sophomore during medical school, Part II as a senior, and Part III as an intern in their first post-graduate year. He established that the purpose behind that examination is “the integration of osteopathic principles and practices as well as the philosophy of osteopathic medicine.” No allopathic physicians are involved in the grading process of that examination. Some allopathic physicians associated with osteopathic colleges may submit questions that, after the review process, may be used on the examination. The purpose of the NBOME examination, as shown by Dr. Smoley, is to make sure that each question integrates osteopathic principles and practices in some way and that the entire examination is reflective of the practice of osteopathic medicine. Dr. Smoley is also familiar with the FLEX examination, as well as the current licensure examination for allopathic physicians, the USMLE. The Federation of State Medical Boards (FSMB) does not prepare any complete examination or any additional components for its regular examination concerning manipulation or osteopathic practice and principles. According to Dr. Smoley, there has never been an official comparison or analysis between the NBOME examination and the FLEX examination. Based upon his experience and educational measurement, he has determined that if one examination, the NBOME, contains osteopathic principles and practice and the other examination, the FLEX, does not incorporate those principles and practices, then the two examinations could not be considered equivalent. The NBOME examination is more extensive because it integrates osteopathic principles and practice throughout its content. This osteopathic examination is not simply one that tests manipulation. Therefore, it is not asserted to be appropriate for chiropractors or M.D.’s who have been trained in manipulation but only for persons who have received an osteopathic medical education. The Respondent also presented the testimony by deposition of James R. Winn, M.D. He is Executive Vice President of the FSMB. The FSMB assists state medical boards in conducting their evaluation of physicians regarding their fitness to practice medicine. The FSMB developed examinations which are administered by state boards. Dr. Winn serves as the supervisor for the examination services section of the FSMB. Those examinations are developed in cooperation with the National Board of Medical Examiners. The current examination available from the FSMB is the United States Medical Licensing Examination (USMLE) used since 1992. Prior to that time, the FSMB administered the FLEX examination, which was for the evaluation of all physicians requesting licensure. The FLEX examination did not have a section on osteopathic practice, as shown by Dr. Winn. The FSMB allows all physicians seeking licensure in the United States to take that examination, including graduates of osteopathic medical schools and graduates of foreign medical schools. With the FLEX examination, unlike the NBOME examination, medical students are not eligible, only graduates of medical schools are eligible to take the examination. Dr. Winn is familiar with the examination of the NBOME and its purpose. He is not aware of any side-by-side comparison between the two examinations to determine equivalency. In his expert opinion, there would have to be such an evaluation in order to determine whether the examinations are equivalent. The testimony of Drs. Smoley and Winn was elaborated upon and corroborated by Dr. Morton Morris. Dr. Morris is a licensed osteopathic physician in the State of Florida and is board certified in osteopathic surgery by the American Osteopathic Board of Orthopedic Surgery. He is also certified by the American Board of Quality Medical Assurance and is a fellow of the American College of Legal Medicine. He is Vice-Chancellor for academic affairs in the health professions division at Nova Southeastern University, a Florida osteopathic medical school. Additionally, Dr. Morris is a licensed, practicing attorney in the State of Florida. He practices in the areas of medical malpractice, general health law and administrative law. Dr. Morris is familiar with the NBOME examination, having served as a test item writer for the NBOME. He recognizes Dr. Smoley as one who helps develop the philosophy of the examinations in question. The philosophy of the NBOME is that content concerning osteopathic practice and principles permeates the entire examination. Even when certain questions on their face are not osteopathically oriented, the evaluation and the grading of the responses is carried out from an osteopathic viewpoint and philosophy. The test item writers are directed to draft test questions which include osteopathic philosophy. In the past, the NBOME has agreed to allow a candidate to take only Part III or an equivalent examination and receive the score from the NBOME. In fact, Dr. Morris represented that person in his capacity as an attorney. He worked out the arrangements whereby that candidate could take and pass Part III of the NBOME examination in order to obtain a Florida osteopathic medical license, as the Petitioner seeks herein, even though, since he would not have taken Part III within the required seven years, he could not receive diplomate status with the NBOME. The Board’s order in this case specifically requires passage of Part III of that examination, but it does not require diplomate status. Such an arrangement would thus seem to provide a means to alleviate the Petitioner’s predicament in the instant situation. The Petitioner, in questioning Dr. Morris upon cross- examination, inquired about the possibility of a person taking all three parts of the NBOME examination, even if he had already taken Parts I and II. Dr. Morris stated that that was possible. Page 7 of the Bulletin of Information, in evidence in Respondent’s Exhibit 1, although stating that the candidate cannot take the examination “to attempt to improve his score”, states nothing to indicate preclusion of a candidate taking the entire examination for any other purpose. Dr. Morris stated that the Petitioner could take Part III of the examination and that the NBOME would make arrangements to allow him to do that, with the understanding that if he passed Part III, he would not be able to receive diplomate status from the NBOME (because of passage of time before taking Part III). In making comparisons between osteopathic medical education and allopathic medical education, Dr. Morris acknowledged that in some cases, osteopathic medical colleges use the same textbooks as used by allopathic medical schools. That does not, however, make them similar professions. Although anatomy and physiology may not be different, the philosophy of treating the whole patient is different. Responding to the Petitioner’s contention that having obtained board certification in his specialty area should count as equivalency to the entry level examination, Dr. Morris pointed out that all that the board certification accomplishes is to show that an osteopathic physician is recognized by his or her peers as competent to practice a specialty. It does not mean that the person is osteopathically oriented enough to be eligible for licensure and to be able to pass a minimum competency examination. The Petitioner contends that having passed Parts I and II of the NBOME examination, FLEX should quality him for osteopathic licensure in the State of Florida, in lieu of taking Part III of the NBOME examination, because anything of an osteopathic nature would have already been tested on Parts I and II. Dr. Morris established to the contrary, however, that Part III is the clinical testing, the testing of how the individual puts to use his clinical evaluation in treatment of patients. It is the ultimate test of whether an individual has developed and is able to apply a philosophy of practice sufficient to show that he is competent to be an osteopathic physician. Parts I and II of the NBOME examination do not test clinical skills. The FLEX does test clinical skills, but it does not test for osteopathic practices as to clinical skills. The NBOME requires that a person take Part III within seven years of having taken Part I, if that person wishes to be a diplomate of the NBOME. There is no apparent preclusion, however, in a person arranging to take only Part III, simply for purposes of state licensure. The record is not clear whether a person could take Parts I, II and III within the period of one year. It does seem apparent, however, that the Petitioner could take Part III within a one-year time period, which is all that is required in the Board’s order. Further, the statute requires that a person take all parts of the NBOME examination or a substantially-equivalent examination. What the Petitioner attempts to do is to take two parts of the NBOME examination and then substitute a different examination (FLEX) for Part III. This does not constitute a substantially-equivalent examination for the above reasons. A substantially-equivalent examination would have to be equivalent to all three parts of the NBOME examination. During discussion of the difference between osteopathic and allopathic schools of medicine, Dr. Morris pointed out that many osteopathic physicians use the same modalities that allopathic physicians use. It is just that they also use osteopathic modalities. He gave the example of a cardiac patient whom an osteopathic physician would treat just as a medical doctor would treat the basic condition with appropriate drugs but then would incorporate osteopathic philosophy, such as the “lymphatic pump”, meaning that the osteopathic physician would incorporate muscle techniques of stretching and passive manipulation in order to help the patient. The osteopathic physician would possibly use manipulative techniques on the lymphatic system and not just use drugs or other allopathic techniques. In the context of the NBOME examination, a question might reference a cardiac patient. Although the question would not mention the lymphatic pump, a proper answer might entail a clinical response that would consider that modality of treatment. In orthopedics, Dr. Morris’ specialty, an osteopathic physician can make significant use of manipulative techniques, as well as general surgery, casting and other modalities normally used by allopathic physicians. Use of the FLEX examination, rather than the NBOME examination, would not lower standards for osteopathic physicians. Rather, the FLEX examination simply embodies a different standard than the one used to test for competency in osteopathic principles and medicine. The Petitioner acknowledged that he could have taken Part III of the NBOME examination but chose not to because it was then more convenient for him to take the FLEX examination to continue his training in the State of Texas which required passage of the FLEX examination for osteopathic licensure. The Petitioner contended that if he applied for a Florida osteopathic medical faculty certificate (MFC), the FLEX examination would be acceptable and he would be eligible. That fact, he contends, by analogy, establishes that he is qualified to practice osteopathic medicine in the State of Florida. He has never applied for such a certificate nor has he been offered an osteopathic medical faculty position in the State of Florida. Thus, determination of that issue is not before this tribunal. Even if it were, there are significant differences between a full license to practice osteopathic medicine indefinitely and a medical faculty certificate. With the MFC, the Petitioner would not be allowed to be engaged in private practice of osteopathic medicine and the MFC would only allow him to practice in the academic realm for only two years. Finally, the statutory requirements for an MFC do not require the passage of any licensure examination. Accordingly, to the extent that the Petitioner’s argument and testimony implies some analogy or equivalency between eligibility for the MFC and eligibility for full licensure, such equivalency is not borne out by the greater weight of the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of the Petitioner, Lawrence Edward Suess, D.O., for licensure as an osteopathic physician, without conditions, is denied on the basis that the FLEX examination has not been shown to be substantially similar to the NBOME examination.DONE AND ENTERED this 28th day of February, 1997, in Tallahassee, Florida. P. MICHAEL RUFF 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 28th day of February, 1997. COPIES FURNISHED: Lawrence E. Suess, D.O., Ph.D. Owensboro Psychiatric Institute 1700 Frederica Street, Suite 106 Owensboro, Kentucky 42301 M. Catherine Lannon, Esquire Department of Legal Affairs The Capitol, Room PL-01 Tallahassee, Florida 32399-1050 William H. Buckhalt, Executive Director Board of Osteopathic Medicine Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0757 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309
The Issue The issue in this proceeding is whether the Respondent, Jules Jonas Dossick, D.O. violated statutes governing the practice of osteopathic medicine on the grounds alleged in the administrative complaint and if so, what disciplinary action is appropriate. Background and Procedural Matters This proceeding commenced when Petitioner filed its administrative complaint and Respondent timely requested a formal hearing. At the hearing Petitioner verbally amended its complaint by deleting all factual and legal allegations relating to sexual misconduct and violations of Section 459.015(1)(k) Florida Statutes. Petitioner presented evidence through three witnesses and four exhibits. Respondent testified on his own behalf and presented one exhibit. All exhibits were admitted without objection. Petitioner has submitted a proposed recommended order, which proposal has been considered and, in part, included in this order. A specific ruling on each proposed finding of fact is found in the appendix attached hereto. By pleadings dated May 23, 1986, Respondent has moved for a re- hearing and has objected to the Petitioner's proposed recommended order, both on the grounds that he has now retained counsel and should have the opportunity to have the case re-heard with the benefit of an attorney. Respondent had an attorney in an earlier part of this proceeding and discharged him by letter dated February 22, 1986. (see letter attached to motion to withdraw filed March 3, 1986). Approximately two months later the final hearing was held. Respondent had ample time to retain new counsel or ask for a continuance. He proceeded to hearing, aware of his rights and without protest. The record is void of any basis to consider such extraordinary relief.
Findings Of Fact Respondent, Dr. Dossick, is now and at all times relevant has been licensed as an osteopathic physician in Florida under license number OS 0000874. He practices at his clinic, North Miami Medical Center, located at 4805 East 4th Avenue in Hialeah, Florida. (T-10,11). The clinic is comprised of a reception room, a kitchen that is also used as an office, a bathroom near the reception area, a supply room, two examining rooms, and two additional rooms with a bathroom and shower at the rear of the clinic. Dr. Dossick lives at the clinic and keeps the additional rooms for his bedroom, for storage and for personal use. One of the additional rooms was used several years ago as a third examining room. (T-43, 44, 114-116). In January 1985, two investigators from the Department of Professional Regulation went to Respondent's Clinic for an inspection. They took pictures and spoke to Dr. Dossick. Three other individuals were at the clinic the day of the inspection: a man and woman in one examining room, and a woman in what the inspectors thought was an examining room, but was identified by Dr. Dossick as his personal use and storage room. (T-41, 49, 57, 64, 116). The investigators found the clinic in varying stages of filth and disarray. The reception room was old and worn, unclean, but with little sign of current use. The kitchen had dirty dishes and exposed garbage. The examining rooms were fairly neat but the medications on the countertops were old, dirty and, in some cases, expired. There was no garbage in the two examining rooms, but they did not appear clean. The third room, the former examining room (now used for storage and Dr. Dossick's personal living quarters) was a mess: clothing, mail and fast food containers were strewn about, cotton swabs were exposed and piled on a counter; syringes and medications were also exposed on the countertops. In this room the narcotics supply was stored in a locked cabinet. Two dogs were present in the clinic, one of which had patches of hair missing as if diseased. (T-46, 49, Petitioner's Exhibits #3 and #4) There was no evidence that patients had access to the kitchen, supply room or Dr. Dossick's bedroom. Patients occasionally go to the former examining room and wait there prior to seeing the doctor. Dr. Dossick keeps his own dog at the clinic and, even though he does not encourage them, his patients sometimes bring their animals to the clinic with them. Dr. Dossick admitted that he had trouble for a while keeping the place clean. The woman who worked for him injured her knee in a karate tournament and had surgery. While the admission of problems was candid, the excuse regarding the former cleaning worker was confused: the handwritten statement Dr. Dossick presented from Barbara O'Rourke suggested that her accident and subsequent surgery occurred in April and July 1 85, respectively; that is, several months after the DPR inspectors' visit. (T-64, 87-89, 105-106, 112-113). Linda Joyce Godfrey is a patient of Dr. Dossick. She is thirty-nine years old, was born with cerebral palsy, and around 1981 was diagnosed with multiple-sclerosis. She is crippled and walks unaided with considerable difficulty. She has undergone several operations and lengthy periods of hospitalization. She has been under the care of various physicians, including an orthopedist, several neurosurgeons, and another osteopathic physician. (T-66, 69) Ms. Godfrey began seeing Dr. Dossick after an extended hospitalization period. She picked him at random and asked for percodan, a controlled narcotic substance, generally prescribed for pain relief. He refused to give her the percodan and prescribed a non-narcotic medication instead. She continued seeing him and later he prescribed placidyl, percocet and percodan at various times to help her sleep and for the severe pain in her muscles and bones. He did not give her these medications until he obtained her hospital reports and talked with her regular physicians. (T-66,69,81) Ms. Godfrey admits that she was an addict. She claims that Dr. Dossick was initially unaware of this but later helped her get off the habit. On one occasion she went to his office in the state of apparent overdose. He called Hialeah Fire and Rescue and got her out of there. He told her not to come around anymore because he didn't go for drugs. She later went back and asked for help. The evidence is inconclusive as to whether Ms. Godfrey's episode was an overdose or a grand mal seizure. (T-69, 73-76, 80, 90-91). According to Ms. Godfrey, Dr. Dossick injected her with Demerol on only one occasion, around six weeks prior to the hearing, after her apartment was broken into and she was raped. (T-71, 72). The practice of osteopathic medicine encompasses all aspects of medicine commonly referred to as allopathic medicine, but also includes physiotherapy, manipulative therapy, nutrition: a holistic approach. (T-13,14). This characterization of the distinction between the professions is borne out in the statutory definitions of "practice of medicine" and "practice of osteopathic medicine": "Practice of osteopathic medicine" means the diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical or mental condition, which practice is based in part upon educational standards and requirements which emphasize the importance of the musculoskeletal structure and manipulative therapy in the maintenance and restoration of health. 1l. Except for the underlined verbiage the two definitions are the same. See Section 458.305(3) Florida Statutes, and Section 459.003(3) Florida Statutes. One of the rudiments of osteopathic medicine values the "laying of hands" as part of caring for a patient in a very kind and personal manner. Cleanliness of the person and the physical area surrounding the practitioner is essential to avoid transferring disease from one patient to another. (T-18,19) Animals should not be present in the clinic because of the potential for communicating disease to humans through fleas, flies or the animals. (T-18) Old, dirty drugs and syringes should be disposed of in such a manner as to avoid access and use. (T-19,20) The above standards were described in the competent, uncontroverted testimony of Petitioner's expert, Ralph Birzon, D.O. Those standards were violated by Dr. Dossick when he allowed dogs in the clinic, when he failed to properly dispose of old drugs and syringes, and when he failed to keep his clinic clean. Dr. Dossick does, however, treat his patients in a very kind and personal manner. Ms. Godfrey was called as Petitioner's witness. Her testimony was credible and touchingly candid, as also was Dr. Dossick's. Ms. Godfrey said Dr. Dossick helped her; he took pity on her; he is good to his patients and is a good man. She does not have the money to pay for his treatment or the prescriptions, so she sometimes files and answers the phone at the clinic. Dr. Dossick is the oldest physician in the area; he spends a lot of time with his patients and they depend on him. He regularly treats his patients without charge, or for a token fee. He also loans them money for prescriptions. He has treated some patients for 25-30 years. (T-81, 83, 93, 95-96, 103) Dr. Dossick has previously been suspended by the Board of Osteopathic Medical Examiners for six months because of allegations that he prescribed medication without performing an examination. He volunteered this fact. (T-97, 107-109) The violations occurred approximately ten years ago. See Board of Osteopathic Medical Examiners v Dossick DOAH #76-1814; Dossick v Florida State Board of Osteopathic Medical Examiners, 359 So. 2d 12 (Fla. 3rd DCA 1978). The clinic has been cleaned up since the investigators' visit and the dirty and outdated drugs have been discarded. (T- 88,104)
Findings Of Fact Upon consideration of the oral and documentary evidence presented at the hearing, the following facts are found: At all times pertinent to this case, Respondent was licensed to practice osteopathic medicine in the State of Florida under license numbered 0003783. On April 1, 1981, the Florida Board of Osteopathic Medical Examiners (Board), through the Department of Professional Regulation (DPR), filed an Administrative Complaint against Respondent alleging several violations of Florida Statutes governing the practice of osteopathic medicine. In an effort to forestall an emergency suspension of her license as a result of these allegations, Respondent entered into a Stipulation with the Board whereby she agreed to cancel her certificate to prescribe Schedule II and III, Chapter 893, drugs; to remain enrolled in and comply with all terms of the Impaired Physicians Program; to submit blood and urine samples for drug screening upon request of DPR; and to obey all federal and state laws and regulations pertaining to the practice of osteopathic medicine. On June 10, 1982, the Board, after an informal hearing, entered an order finding that Respondent had violated the various provisions of the statutes as alleged and suspended her license for a period of six months. However, the Board considered and incorporated into its order the aforementioned Stipulation and stayed the suspension, placing Respondent on probation for three years. Sometime in January, 1983, the Secretary of DPR, being made aware of alleged violations of the terms of the probation, entered an order of emergency suspension of Respondent's license, alleging as reasons therefor: That on November 29, 1982, Respondent prescribed Demerol, a Schedule II controlled drug, for a patient, Ernestine Franklin; That on November 10, 1982, Respondent was found in an unconscious state at home. Taken to the hospital, when she regained consciousness, she was disoriented and incoherent; her speech was garbled, and she demonstrated erratic and violent behavior; That on or about December 7, 1982, Respondent prescribed Demerol for Maureen Lyewfong, the cost of which was charged to the Respondent; On December 17, 1982, an unidentified male brought Respondent to the hospital indicating she had snorted cocaine. She would not allow herself to be examined; That on December 24, 1982, Respondent was admitted to North Shore Hospital, Miami, claiming she had suffered an epileptic seizure. During the course of her workup, she indicated she was allergic to Demerol; and That by letter dated December 30, 1982, Dr. Morgan, head of the Impaired Physicians Program, informed DPR that Respondent had diverted for own use Demerol prescribed for her patients and that she had failed to keep appointments for treatment under the program. On January 18, 1983, sometime after the emergency suspension went into effect, the Board through the Department of Professional Regulation filed a seven-count Amended Administrative Complaint seeking to suspend, revoke, or otherwise discipline Respondent's license, listing as grounds for this action basically the same allegations as found in the emergency suspension order. On November 30, 1982, Respondent treated Ernestine Franklin for removal of a pilonidal cyst. Prior to the surgery, Respondent administered an injection of Demerol to the patient from a bottle for which she had written a prescription the previous day. This prescription had been filled at a pharmacy by Nurse Susan Dukes and charged to Respondent's account. When she brought the Demerol back to the office, Dukes placed it in the locked medicine cabinet and told Respondent where she had put it. When she went to set up for Ms. Franklin's surgery, the bottle of Demerol was not there. Dr. Krantz prepared the Demerol injection for the patient herself. The injection did not use up the entire amount on the prescription, and the unused portion was neither given to the patient nor seen in the office again. On December 7, 1982, Respondent wrote a prescription for Demerol for Maureen Lyewfong, the cost for which was charged to Dr. Krantz. Demerol is another name for meperidine hydrochloride, which is a Schedule II substance, as defined in Section 893.03(2)(b), Florida Statutes (1981). Respondent first entered the Impaired Physicians Program (IPP) under the supervision of Dr. Dolores Morgan in March, 1981,,because of her abuse of Demerol, Quaaludes, and cocaine. After a month in the hospital, she was released to an outpatient program which, because of her failure to progress properly, resulted in her going to the inpatient facility at Ridgeview, Georgia, where she spent several months. According to the terms of the IPP for Respondent, when she was discharged from the Ridgeview inpatient treatment center, she was to be in the program for two years. Since the IPP main office is in Miami and Respondent practices in West Palm Beach, she was placed under the supervision of a doctor in her area. From June, 1982, the date of the Stipulation, to December, 1982, Dr. Morgan heard nothing to indicate Respondent was not living up to the terms of the agreement. However, in December, 1982, Dr. Morgan was contacted by Dr. Joan Barice, local chairman of the IPP, who informed her that Dr. Krantz was missing required meetings of Narcotics Anonymous, as well as by the administrator of a local hospital, Mr. Steven Southerland, to the effect that Dr. Krantz was not performing properly. As a result, Dr. Morgan set up an appointment with Respondent for an interview on December 23, 1982, which Respondent did not keep. Another appointment was set up to discuss the matter, but before the date scheduled for the meeting, Dr. Morgan was advised Respondent was admitted to a hospital in Miami for drug detoxification. At this point, Dr. Morgan reported the latter to DPR. As will be seen in the succeeding paragraphs, this admission was not for drug detoxification, but for epileptic seizures. On December 17, 1982, at approximately 5:15 p.m., Respondent was taken by paramedics to the emergency room at Jupiter Hospital, Jupiter, Florida. At the time she was first seen by the paramedics, an empty vial of Demerol was found in her possession. When found, at her office, she was unconscious for five to ten minutes and, upon regaining consciousness, appeared drowsy. However, by the time she was seen by the emergency room nurse, Mr. Pollack, she appeared to be coherent. She indicated to him she was allergic to Demerol and had had a seizure earlier in the day because the level of Dilantin, a drug used to control epileptic seizures, in her blood was not high enough. In fact, on December 23, 1982, Respondent contacted Dr. Jack Kammerman, an internal medicine specialist on the staff at North Shore Hospital in Miami. She explained her symptoms, and Dr. Kammerman, who knew of Respondent's background through her mother, who had worked for him, suggested she immediately be hospitalized for tests. Dr. Krantz agreed, and the initial tests taken failed to reflect a reason for her seizures. A second CAT scan ruled out a tumor, so a neurologist was called in for consultation. This expert's initial and final diagnoses were "ideopathic epilepsy," the term "ideopathic" meaning "of unknown cause." At the time of admission, blood and urine samples were taken for use in tests. The first blood screen result showed traces of meperedine hydrochloride (Demerol) and Darvon, a pain reliever. A second screening of more blood taken from the same sample, but run later, reflected minute amounts of Demerol, which could indicate that the patient had taken the substance within the prior 72 hours. It was the pathologist's opinion that Demerol had been taken by Respondent. On the other hand, a false positive test result for Demerol in the blood is possible because many external factors, such as infection or the menstrual period (which Respondent was experiencing at the time), could affect it. I find, however, that based on the findings of the pathologist, an expert in his field, the substance in Respondent's blood was in fact Demerol. Respondent's seizures are now completely controlled through the use of the drugs Dilantin and phenobarbital. Dr. Kammerman is of the opinion that an osteopathic physician who suffers from controlled seizures can safely practice within the disciplines of family practice and internal medicine. Classically, seizure patients can predict the onset of a seizure due to the symptoms they experience before the seizure. Once the patient experiences the preseizure symptoms, he or she may prevent the seizure from occurring depending upon how fast the medicine can be gotten into the bloodstream in amounts sufficient to prevent it. Though Dr. Kammerman has never seen the Respondent go through a seizure and therefore does not know how she would react, he knows it is not uncommon for a patient who has just come out of the unconscious state of a seizure to be disoriented, confused, aggressive, and talkative, even to the extent of refusing help. Mr. Steven L. Southerland, Executive Director of Community Hospital of Palm Beach and one of the individuals who contacted Dr. Morgan regarding Respondent's aberrant behavior, knew her when she was on staff in the Department of Family Practice of that hospital. In the course of his official duties, information was brought to his attention that a patient admitted to the hospital by the Respondent was not seen by her afterwards for several days. This type of conduct was confirmed by Respondent's nurse, Ms. Dukes, who noticed a decided deterioration in Respondent evidenced by days of forgetfulness and confusion. On the other hand, two qualified osteopathic physicians who worked with Dr. Krantz on staff at Community Hospital and who have observed her in the practice of osteopathic medicine off and on for six or more years are satisfied that she is an extremely competent physician. She has assisted one, Dr. Michael A. Longo, in surgery, and he found her work to be excellent. He is aware of her epileptic-based seizures, and this does not change his high opinion of her competence. The other, Dr. Kirsch, who has also collaborated with her on the treatment of several patients, has never had the slightest problem with her, nor has he ever seen her in any way incapacitated.
Recommendation Based upon the Findings of Fact and Conclusions of Law rendered herein, it is RECOMMENDED THAT: The Respondent be found subject to disciplinary action for a violation of Subsections 459.015(1)(1), (q), (r), (s), and (t), Florida Statutes; The license of the Respondent, Dr. Barbara Anne Krantz, to practice osteopathic medicine in the State of Florida be revoked; The revocation be suspended for a period of three years and that she be limited to practice while under the supervision of a licensed osteopathic physician; and, with the further provision, The restrictions and limitations continue for such time and under such terms and conditions as the Board of Osteopathic Medical Examiners determines necessary to ensure protection of Respondent's patients and her ability to practice osteopathic medicine with reasonable skill and safety. RECOMMENDED this 2nd day of May, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 1983. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 William H. Pruitt, Esquire Pruitt & Pruitt 501 South Flagler Drive Suite 501 West Palm Beach, Florida 33401 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Ms. Dorothy Faircloth Executive Director Board of Osteopathic Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings: At all times material hereto, Respondent was an osteopathic physician licensed by the State of Florida having been issued License Number OS 0016000. In August, 1984, one Jacob Kantor was a regular patient of both Respondent and Dr. Barry Goldberg, a chiropractor employed by Respondent. Kantor periodically came to the office for chiropractic therapy with Dr. Goldberg and for medical examination and treatment by Respondent. Kantor often showed up at Respondent's office without an appointment. On August 13, 1984, Jacob Kantor came to Respondent's medical office and discussed with Dr. Goldberg whether he could obtain reimbursement for a bill Kantor had paid to another chiropractor. Goldberg advised Kantor that, as an HMO patient, procedurally he should have first sought a referral to another chiropractor before obtaining services from a chiropractor, not affiliated with Respondent's practice, when he wished to be reimbursed by Respondent. Goldberg suggested that he talk with Respondent who perhaps would make an exception to the usual procedure in this instance. Kantor did not ask for medical treatment from Respondent on that visit although he did speak with Respondent about getting reimbursed for the fees he paid to an unaffiliated chiropractor. Respondent explained to Kantor that he was not entitled to reimbursement for chiropractic treatment received from chiropractors not associated with his office without his prior approval. Respondent then terminated the conversation with Kantor and proceeded to an examination room to treat a female patient. Kantor followed Respondent into the examination room and insisted upon continuing the conversation concerning the reimbursement. Respondent escorted Kantor out of the room and closed the door. Kantor persisted and re-entered the room, again interrupting Respondent's intended examination of the female patient and was, for a second time, escorted by Respondent out of the examining room. Debbie Lombardo, a medical assistant whose employment was terminated by Respondent five days after the alleged incident, recalled Kantor's repeated interruption of Respondent's attempt to examine the female patient. Respondent touched or pushed Kantor which resulted in his (Kantor) losing his balance and falling backwards inside the doorway of an adjoining room. Lombardo assisted Goldberg in picking up Kantor from the doorway that he fell into in losing his balance. Dr. Goldberg did not see what caused Kantor to lose his balance but he did observe Kantor back-pedalling out of an examination room, through the hallway, into an adjoining room and ultimately landing against the back wall of that room. Goldberg assisted Kantor in getting up from the floor. Lombardo was in another room assisting with a patient at that time. Kantor, who did not testify at the Final Hearing, alleged in his initial written complaints to the Petitioner that he did not fall but instead fell into the arms of Dr. Goldberg. To the contrary, both Goldberg and Lombardo denied that Goldberg prevented Kantor from falling after he lost his balance. In his statement to Investigator O'Connell during 1984, Kantor again stated that when he lost his balance, he was caught by Goldberg who prevented him from falling. Respondent denied pushing or otherwise attempting to strike or threaten Kantor. Archie Page, a former patient of Respondent, witnessed the incident in August, 1984. Page observed that Kantor appeared mad and taunted Respondent while Respondent was trying to restrain and calm him down. Page observed Goldberg coming out of his office, putting his arms around Kantor and taking him toward the waiting room following the incident, all in an effort to put him at ease. Page denied that Respondent pushed Kantor or that Kantor was ever on the floor. 1/ Resolution of the issue, concerning an alleged battery, although not charged in the complaint, requires a credibility choice between Respondent, his former patient Archie Page and Respondent's two previous employees, Debbie Lombardo and Barry Goldberg. The testimony of former patient Archie Page appears more credible as he has no personal interest in the outcome of the proceedings, his testimony was direct and he appeared most credible during the hearing. Three months after the subject incident, investigator O'Connell went to the offices of Respondent to investigate the incident and interviewed Respondent and Goldberg. During that interview, Goldberg, who was not under oath, stated that Jacob Kantor needed a lot of help as he had a bad psychological problem. Referring to the alleged incident of August 13, 1984, Goldberg stated that, "its possible that I may have seen (Kantor) that day but I don't recall it, and I'd certainly remember seeing him if I was supposed to have seen Dr. Shore strike him. Nothing of this sort ever took place to my knowledge." (T-page 121, lines 14 through page 122, line 17.) Goldberg testified under oath at a deposition in a related civil case that he did not have to lie to the DPR agent because the subject did not come up. Goldberg further testified at final hearing herein that he told the truth when questioned during the course of that deposition. Goldberg again testified under oath at the trial of the related civil case that he did not lie to the DPR agent and that he did not even discuss the incident with the agent. Goldberg, under oath at final hearing herein, again initially testified that he did not discuss the incident with the DPR agent. Finally, Goldberg claimed that he lied by means of withholding information from the DPR agent and that he did so because Respondent threatened to hurt him if he did not lie to DPR's agent. 2/ Respondent did not strike, threaten to, or attempt to strike Kantor at anytime on August 13, 1984. Kantor, as testified by all witnesses, was a demanding and overbearing patient who would show up at Respondent's office, without an appointment and would demand treatment whenever he showed up. Within one week after the subject incident, Kantor came back to Respondent's office seeking treatment for an abrasion and a cyst and wanted a referral to a proctologist. Respondent made the referral and had no further contact with Kantor. Such actions by Kantor is not indicative of a patient who was the subject of an assault and battery at the hands of Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order dismissing the Administrative Complaint filed herein in its entirety. DONE and ORDERED this 28th day of October, 1988, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1988.
The Issue The issue posed herein is whether or not the Respondent's Osteopathic Physician License should be suspended, revoked or otherwise disciplined based on conduct, which will he set forth herein in detail, as set forth and defined in the administrative complaint filed herein on September 30, 1980.
Findings Of Fact Respondent, during times material, has been an Osteopathic Physician who has been issued License No. 0003850. On or about April 17, 1978, Respondent, Joel Z. Spike, entered into a Consent Agreement with the Board of Osteopathic Medical Examiners, hereinafter referred to as the "Board", the terms of which provided that if the Respondent complied with certain conditions precedent and subsequent to the issuance of a license, that the Board would issue to Respondent a one-year probationary license to practice osteopathic medicine within the State of Florida. Under the terms of the Consent Agreement, Respondent's failure to satisfy any of the conditions subsequent to the issuance of the probationary license would result in an automatic suspension of such license. The Consent Agreement was entered as a final order of the Board. (Petitioner's Exhibit 1). Respondent satisfied the conditions precedent and the Board issued the Respondent a probationary license on April 27, 1978. 2/ On March 28, 1979, it is alleged that Respondent failed to satisfy one of the conditions subsequent to the Consent Agreement of April 17, 1978 by his (Respondent's) failure to make a required annual appearance before the Board to demonstrate his physical and mental condition and ability to practice osteopathic medicine with reasonable skill and certainty. It is thus alleged that pursuant to the terms of the Consent Agreement and order of April 17, 1978, Respondent's license was automatically suspended. 3/ On March 28, 1979, Respondent and the Board entered into a second Consent Agreement under the terms of which Respondent agreed to cease and desist from the practice of osteopathic medicine in this State until such time as the Respondent could make a personal appearance before the Board, such appearance being an unsatisfied condition subsequent or required by the first Consent Agreement entered by and between the parties dated April 17, 1978. Respondent signed the second Consent Agreement which was entered as a final order from the Board and became effective April 24, 1979. On July 18, 1979, August 1, 1979, September 19, 1979, September 25, 1979, July 24, 1979, October 8, 1979, November 5, 1979, October 31, 1979, and October 22, 1979, Respondent wrote prescriptions for Percodan tablets to one Eliot Schuler. Petitioner alleges that such conduct constituted the practice of osteopathic medicine as to Eliot Schuler, without an active license, and while Respondent's license was suspended in violation of Section 459.013(1)(a) and (b) Florida Statutes (1979), and the provisions of Section 459.015(1)(x), Florida Statutes (1979). 4/ Respondent disputes the allegations that he wrote prescriptions for Percodan tablets to Eliot Schuler without an active license to practice osteopathic medicine. On April 9, 1980, in the Circuit Court for the 11th Judicial Circuit, Respondent pled nolo contendere to all counts of an eight-count information alleging two counts of the unlawful practice of medicine and six counts of sale or delivery of a controlled substance. Respecting this plea, the court withheld adjudication and Respondent was placed on probation initially for a period of eighteen (18) months. Petitioner thus alleges that Respondent thereby violated Section 459.015(1)(c), Florida Statutes (1979). Respondent defends the complaint allegations on the basis that the Board did not automatically suspend his license since he provided the Board with ample notice and a justifiable reason for his failure to attend the required annual appearance as set forth in the April, 1978 Consent Agreement. (Petitioner's Exhibits 1 and 2). In this regard, it is undisputed that the Respondent entered a plea of nolo contendere to two counts of the unlawful practice of medicine and six counts of the sale or delivery of a controlled substance in violation of Chapters 458.327, 459.013 and 893.13, Florida Statutes. Respondent was initially placed on probation for an eighteen month period and an order of modification was subsequently entered which changed his probation from reporting to non-reporting. (Petitioner's composite Exhibit 3). It is also undisputed that the Respondent was advised by Petitioner's Executive Director of the reporting requirements (annually) which was entered by Petitioner and Respondent on April 17, 1978. (Petitioner's Exhibit 4). In this regard, Respondent's prior counsel, Phillip J. Mandina, requested a continuance of the Board's annual meeting to consider Respondent's probationary licensing due to his confinement in a hospital in Miami, Florida. (Petitioner's Exhibit 5). Documentary evidence introduced and received herein reveals that Respondent was a patient at the emergency room at Biscayne Medical Center on January 26, 1979 with a diagnosis of multiple trauma as a result of an automobile accident. Emergency room record notations reveal that Respondent had taken 150 milligrams of Demerol earlier on the 26th of January, 1979 and he had in his possession one empty thirty cc vial of Demerol 50 milligrams/cc and one 20cc vial of Demerol 100 milligrams/cc of which there were approximately 9cc's remaining. A consulting psychologist and an orthopedic surgeon who attended Respondent during his visit at Biscayne Medical Center concluded that Respondent suffered from severe chronic drug addiction and should receive proper treatment for this disease prior to any resumption of treating of patients. (Petitioner's composite Exhibit 6). Respondent submitted a renewal fee of $85.00 for the renewal of his osteopathic medical examiner's license. By letter dated August 28, 1980, the Board's Executive Director, Dorothy Faircloth, notified the Administrator for the Office and Records Administration, Charles R. Beck, that Respondent should not have been allowed to renew his license under the terms of the subject Consent Orders and requested that Respondent return the license issued. It was also indicated that a $85.00 refund would be processed and forwarded to Respondent within approximately four weeks. (Petitioner's Exhibit 7). Finally, Respondent contends that even though he was of the opinion that he possessed an active license, he would not actively engage in the practice of medicine. Respondent is presently involved in a marriage counseling practice and his ultimate goal is that of teaching and conducting therapy sessions. To support his position that he still possessed a license to practice medicine, Respondent pointed out that when he submitted his renewal fee, his license was issued and no action was taken by the Board to retrieve his license until approximately September 12, 1980. Respondent avers that that was his first notice that the Board considered his license suspended due to his failure to appear before the Board annually as per the April 17, 1978 Consent Agreement. Respondent urges that he felt that the request from his former counsel for an abatement of the annual review proceedings of his probationary status had been received and granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That Respondent's license to practice osteopathic medicine be suspended for a period of two (2) years from the date that the Board takes final agency action. RECOMMENDED this 12th day of March, 1981 in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1981.
Findings Of Fact Petitioner, Peter P. McKeown, is a graduate of the University of Queensland Medical School in Brisbane, Australia. He holds the degrees of Bachelor of Medicine and Bachelor of Surgery. Doctorates of Medicine, under the British system, are reserved for specialists. Nonetheless, the medical training Petitioner received equates to that leading up to the award of the degree of Doctor of Medicine in the United States, and he is a physician and licensed as such in several states. He has completed residencies in general and thoracic surgery in Australia and the United States and has taken advanced training in cardiovascular and thoracic surgery at Emory University. Immediately before coming to the University of South Florida, (USF), Dr. McKeown was an Assistant Professor of Surgery at the University of Washington. In mid to late 1988, Dr. McKeown responded to an advertisement USF had placed in the Journal of the American Medical Association seeking applicants qualified for appointment at the Associate Professor level "... to join the Department of Surgery at the University of South Florida College of Medicine as the Chief of Cardiothoracic Surgery." He was selected for the position and joined the faculty effective May 1, 1989. All the correspondence leading up to Petitioner's joining the University faculty referred not only to his appointment as Associate Professor but also his assignment as Chief of the Cardiothoracic Surgery Division. Only the actual state employment contract described his employment exclusively as Associate Professor and made no mention of the Chief position. Under these circumstances, Petitioner did not gain any proprietory interest in the position of Chief of the Cardiothoracic Surgery Division. Dr. McKeown held the position of Chief of the Cardiothoracic Surgery Division until April, 1994, when, as a result of a decision made by the Chairman of the school's Department of Surgery, he was replaced as Chief and that position was filled, on a temporary basis, by the Department Chair. Petitioner claims that when he arrived at USF to assume the directorship, an administrative position, he saw an opportunity to develop the position into something significant. He contends he would not have come to USF unless he was to be the Chief of the Division as there was no appeal to him in a position as a general faculty member. He wanted an opportunity to budget, hire people, and develop plans and programs, and in order to advance in academic medicine, one must, at some point, hold an administrative position. Apparently the Department of Surgery had experienced a rapid turnover in faculty. It is not clear whether this caused or was the result of a dispute with administrators and medical staff at Tampa General Hospital, (TGH), where much of the clinical medical school activity is carried on. However, the program was recognized as being weak in cardiothoracic surgery, and this condition offered Petitioner the challenge he wanted. In his five years as Chief, Petitioner increased both the number and quality of personnel and revenues considerably. He developed affiliations with several foreign universities and recruited qualified people, built up the laboratory, secured more grants, developed a program of continuing medical education and raised the examination scores of the school's graduates. He opened new clinical programs and built up both billings and collections to the point where the program revenues were increased at least 2 to 5 times. By 1992- 1993, the Division was making money and generating a surplus and still used clinic funds to support research. During his tenure as Chief of the Division, Petitioner served under two Department of Surgery chairmen. The first was Dr. Connar, the individual who recruited him; and the incumbent is Dr. Carey, the individual who removed him. Petitioner asserts that at no time during his tenure in the position of Chief of the Cardiothoracic Surgery Division was he ever told, by either Department Chairman, that his performance was unsatisfactory. All Division heads within the Department were, from time to time, counseled about personnel costs, and Petitioner admits he had some differences with Dr. Carey about that subject and some other financial aspects of the job, but nothing different than anywhere else in academia. Petitioner was removed by Dr. Carey based in part upon his alleged inability to get along with people. Though he claims this is not true, he admits to three areas of conflict. The first related to his objection to transplants being accomplished by unqualified surgeons which, he alleges, Dr. Carey permitted to further his own ends. The second related to the pediatric heart transplant program for which Petitioner supported one candidate as chair and Dr. Carey supported another. The third related to Petitioner's reluctance to hire a physician whom Dr. Carey wanted to hire but to whom Petitioner purportedly objected. Of the three areas of dispute, only the first two came before his removal, but he contends at no time was he advised his position was a problem for the Department. By the same token, none of Petitioner's annual performance ratings reflected any University dissatisfaction with his performance. At no time was he ever rated unsatisfactory in any performance area; and prior to his removal, he had no indication his position as Chief of the Division was in jeopardy. Dr. Carey indicates he did counsel with Petitioner often regarding his attitude but did not rate him down because he hoped the situation would improve. Dr. McKeown was called to meet with Dr. Carey in his office on April 12, 1994. At that meeting, Dr. Carey was very agitated. He brought up the "Norman" incident and indicated he was going to remove Petitioner as Chief of the Division. Dr. McKeown admits to having made an inappropriate comment regarding Dr. Norman, another physician, to a resident in the operating room while performing an operation. He also admits that it was wrong to do this and apologized to Dr. Norman both orally and in writing shortly thereafter. Dr. Norman accepted his apology and Petitioner asserts that after his removal, Dr. Norman called him and assured him he, Norman, had not prompted the removal action. Dr. Norman did not testify at the hearing. Dr. Carey removed Petitioner from his position as Chief because of the comments he had made regarding Dr. Norman. Almost immediately after the meeting was concluded, Dr. Carey announced in writing his assumption of the Chief's position, in which position he remained until he hired Dr. Robinson as Chief in April, 1995. Petitioner found out that Carey's threat to remove him had been carried out the following day when his nurse told him his removal had been announced at the Moffett Cancer Center. He thereafter heard other reports of his removal from other sources, and based on what had happened, concluded his removal was intended to be and constituted a disciplinary action for his comment regarding Dr. Norman. He was not advised in advance of Carey's intention to impose discipline nor given an opportunity to defend himself before the action was taken. He claims he was not given any reason for his removal before or at the time of his dismissal. It is found, however, that the removal was not disciplinary action but an administrative change in Division leadership. Dr. McKeown at first did nothing about his removal, believing it would blow over. However, after he heard his removal had been publicized, he called several University officials, including a Vice-President, the General Counsel and the Provost, to see how the matter could be handled. He claims he either got no response to his inquiries or was told it was a Medical College problem. He then met with the Dean of the College of Medicine who indicated he could do nothing. After he was removed as Division Chief, Petitioner's salary remained the same as did his supplement from his practice. He claims, however, his removal has had an adverse effect on his reputation in the medical and academic communities. It is his belief that people now feel something is wrong with him. Dr. Carey's blunt announcement of his assumption of the Chief's position, without any reasons being given for that move or credit being given to Petitioner for his past accomplishments has had an impact on his ability to work effectively. After his removal, he received calls from all over the world from people wanting to know what had happened. The removal has, he claims, also made it more difficult for him to get grants and has, thereby, adversely impacted his ability to do productive research. In addition, his removal made it difficult for him to carry out his academic duties. His specialty is still presented in student rotations, only in a different place in the medical curriculum. Dr. McKeown has sought reinstatement to the administrative position of Chief of the Division. He is of the opinion that Dr. Carey's action in removing him from his position as Division Chief was capricious and damaging to the University as well as to his career. Petitioner admits he could have been less confrontational in the performance of his duties as Division Chief, but he knows of no complaints about him from TGH, All Children's Hospital or the VA Hospital. There are, however, letters in the files of the Department Chairman which indicate some dissatisfaction with Petitioner's relationships in some quarters and, as seen below, there were signs of dissatisfaction from both TGH and All Children's Hospitals. Petitioner admits he may have been somewhat overbearing or abrasive, but neither his alleged inability to properly steward finances nor his alleged inability to get along with people were mentioned to him at the time of dismissal or before. After Dr. Carey assumed the Chairmanship of the Department of Surgery in July, 1990, he saw Dr. McKeown frequently on an official basis at first. A Chief, as Petitioner was, has many and varied functions such as administration, teaching, fiscal, research, clinic administration and the like. People skills are important because of the necessary interface with colleagues, faculty, administrators and the public. When Dr. Carey came to USF, Dr. McKeown had not been in place very long, and the Division of Cardiothoracic Surgery was not doing well financially. There were contract negotiations going on with the VA Hospital which were not going well, at least partly because, Dr. Carey asserts, Dr. McKeown had made some major unacceptable demands. As a result, Dr. Carey stepped in, along with Dr. Benke, who was very effective in dealing with the VA, and as a result, an agreement was reached which resulted in somewhere between $275,000 and $300,000 per year coming in which put the Division in the black. Dr. Carey recalls other instances indicating Dr. McKeown's inability to get along with others. One related to the relationship with TGH previously mentioned. TGH had made a decision to use a particular physician as head of its transplant program because, allegedly, Dr. McKeown had so angered private heart patients they would not let him be appointed even though Dr. McKeown was Dr. Carey's choice. As it turned out, Dr. Carey convinced the TGH Director and another physician to agree to a plan whereby Dr. McKeown would be head of the program 50 percent of the time. This would have been good for the University, but Dr. McKeown refused indicating that if he could not be in charge all of the time, he would not be in charge at all. Another incident relates to All Children's Hospital. That institution wanted to initiate a pediatric heart transplant program and a meeting was set up to which Dr. McKeown was invited. Petitioner so infuriated the community surgeons attending that meeting they would not work with him, and without his, Carey's, efforts, Dr. Carey claims the program was doomed to failure. As a result, Carey asked Dr. Nevitsky to help get the program started. This gave the USF an opportunity to participate in the program, but when Nevitsky left, they lost it. Still another example, according to Dr. Carey, is the fact that some surgeons on staff have called to complain about Dr. McKeown's attitude and unwillingness to compromise and negotiate and about his demands for service and staff, all of which creates friction among the hospital staff. A few days before Dr. Carey removed Petitioner as Chief, he spoke with the Dean of the College of Medicine, a Vice-president of the University, and others who would be impacted, about his concern regarding the Cardiothoracic Surgery Division and, in fact, he had had discussions with other officials even before that time. Long before making his decision to remove Petitioner, Carey spoke of his consideration of possibly shifting the emphasis within the Division to non-cardiac thoracic surgery in place of the cardiac program which Dr. Carey felt was not very successful. He believed the program did not do enough procedures to support the medical school affiliation. Dr. Carey chose to dismiss Dr. McKeown as Chief of the Division on April 12, 1994, after learning of McKeown's destructive attack on another surgeon before a junior physician in a public place, an operating room, (the Norman incident). He notes that over the years there was a building concern regarding Dr. McKeown's abilities as an administrator, and this incident with Dr. Norman was the last straw. Dr. Carey had received complaints about Petitioner from other physicians, all of which he discussed with Dr. McKeown. Finally, with the Norman incident, it became abundantly clear that Dr. McKeown's capabilities as a leader had diminished to the point where a change was necessary. Before he dismissed Petitioner, and during the investigation which led up to the dismissal, Dr. Carey admits, he did not give Dr. McKeown any opportunity to give any input to the decision. By the time Carey met with McKeown on April 12, 1994, his mind was made up. The Norman incident was demonstrative of what Carey perceived as McKeown's lack of supervisory ability, and it was that factor which led Carey to the ultimate decision to remove McKeown. He felt it necessary to act then and not leave Dr. McKeown in place during the search for a replacement. Petitioner cites alleged comments made by Carey to others that he would have relieved anyone for doing what Petitioner did in the Norman incident. Dr. Carey cannot recall having made such a statement. He claims he considered disciplinary action against Petitioner for the Norman comments but decided against it. However, it was the last in a series of incidents which caused him to question the propriety of McKeown's placement in the Chief's position, and which ultimately cemented his decision to replace him. Dr. Carey met with Dr. McKeown several times before the dismissal and counseled him about administrative deficiencies in his performance, but he never told Dr. McKeown that unless he improved, he would be dismissed. This is consistent with Petitioner's testimony that he was not warned of his shortcomings or of the administration's dissatisfaction with his performance. Disagreements in conversations between superior and subordinate, meant by the former to be corrective in nature, are not always taken as such by the latter. Dr. Carey did not document any of this in Dr. McKeown's personnel files but put some of the information he received by way of communications from others in the files. These are the letters submitted by the University, pursuant to agreement of the parties, subsequent to the hearing. They contributed to Carey's increasing concern about Dr. McKeown's ability to lead the Division. At no time, however, though he questioned Dr. McKeown's leadership, did Dr. Carey ever question his good faith and sincerity, nor does he do so now. When he finally decided action was necessary, on April 12, 1994, Dr. Carey wrote a memorandum to the Medical College faculty concerning his assumption of the position as Chief of the Cardiothoracic Surgery Division. He also advised Dr. McKeown of his removal. Dr. Carey remained in the Chief's position, holding that title in an administrative capacity and not from a clinical standpoint, for approximately one year, intending to stay in the position only until he could find a fully qualified thoracic surgeon to take the job. After Carey removed Petitioner, he was contacted by the Medical College Dean who asked that he get with McKeown and try to work something out. He thereafter offered Dr. McKeown the position of Chief of the cardiac section of the Division but McKeown declined. Dr. Carey also, on April 26, 1994, wrote to TGH recommending that Dr. McKeown be allowed to have more impact on the hospital's transplant program, pointing out that the change in McKeown's position at the University was occasioned by a need for a change in leadership. According to Dr. Tennyson J. Wright, Associate Provost of the University, disciplinary action against nonunion faculty members is governed by Rule 6C4-10.009, F.A.C., and requires notice of proposed action be given before such disciplinary action is taken. The contract which Dr. McKeown holds and has held since the inception of his tenure at the University, is a standard USF/State University System contract. It reflects Petitioner was hired as an Associate Professor, which is one of the three types of personnel classifications used within the system. These are faculty, administration and support. Petitioner's contract does not refer to his holding the Division Chief position and it is not supposed to. Such a position is an administrative appointment within a Department and a working title used to define the holder's duties, and service in such a position is at the pleasure of the Department Chair. Appointment to or removal from a Chief position is an administrative assignment. The position of Department Chairperson, on the other hand is a separate position and subclassification within the University classification system and is different.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Peter P. McKeown's, grievance against the University of South Florida School of Medicine arising from his removal as Chief, Cardiothoracic Surgery Division in the Department of Surgery be denied. DONE AND ENTERED this 19th day of January, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 19th day of January, 1996. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-1832 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. - 7. Accepted and incorporated herein. Though the documents in question refer to appointment, in actuality the personnel action was an appointment to the faculty with an administrative assignment to the position of Director of the Division. & 10. Accepted. 11. & 12. Accepted and incorporated herein. 13. & 14. Accepted and incorporated herein. - 19. Accepted and incorporate herein. Accepted and incorporated herein. Accepted. Rejected as inconsistent with the better evidence of record. Accepted. Accepted and incorporated herein. Rejected as inconsistent with the better evidence of record. & 27. Accepted. & 29. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. 32. - 34. First sentence accepted. Second sentence rejected as inconsistent with the better evidence of record. 35. - 37. Accepted. 38. Rejected as argument. 39. Accepted. FOR THE RESPONDENT: - 9. Accepted and incorporated herein. Accepted. - 14. Accepted and incorporated herein. 15. & 16. Accepted and incorporated herein. COPIES FURNISHED: Benjamin H. Hill, III, Esquire William C. Guerrant, Jr., Esquire Danelle Dykes, Esquire Hill, Ward & Henderson, P.A. Post Office Box 2231 Tampa, Florida 33601 Thomas M. Gonzalez, Esquire Thompson, Sizemore & Gonzalez 109 North Brush Street, Suite 200 Post Office Box 639 Tampa, Florida 33601 Olga J. Joanow, Esquire University of South Florida 4202 East Fowler Avenue, ADM 250 Tampa, Florida 33620 Noreen Segrest, Esquire General Counsel University of South Florida 4202 East Fowler Avenue, ADM 250 Tampa, Florida 33620-6250
