Findings Of Fact The following facts are established in the parties' prehearing stipulation, filed on June 26, 1992, and confirmed at the hearing on June 30, 1992: The Respondent is the State agency charged with regulating the practice of dentistry pursuant to Section 20.30, Chapter 455, and Chapter 466, F.S. The Petitioner is a licensed dentist having been issued license number DN-0005106. The Petitioner maintains a professional dental practice and principal place of residence in the State of Florida having a principal business address of 2000 Weber Street; Sarasota, Florida 34239 and has maintained a professional dental practice and principal place of residence within the State of Florida since at least 1984 except for a six (6) weeks period of time in 1987 when the Petitioner practiced outside of the State. The Petitioner has a net worth of less than two million dollars including both personal and business investments and has never had a net worth of more than two million dollars. The Petitioner employs less than twenty-five full-time employees and has never employed more than twenty-five full-time employees. The attorneys' fees and costs sought by the Petitioner in this proceeding are reasonable in relation to the hourly rate charged and the time spent in preparation, review, and litigation of the underlying proceeding, appeal, and for this proceeding. On November 3, 1988 and December 21, 1988, Respondent initiated disciplinary action against Petitioner's license, through the filing of three Administrative Complaints. The Administrative Complaint in DPR Case number 0089897 (later DOAH Case number 89-0646) alleges that Respondent provided dental services to patient, J.R., from March 27, 1984 to April 23, 1985. Count I of the Complaint alleges that Respondent allowed his dental assistants to provide a series of dental services on patient J.R. in violation of Section 466.028(1)(aa), F.S. (1983). Count II of the complaint alleges Respondent incompetently performed root canal therapy and bridge work on patient J.R., in violation of Section 466.028(1)(y), F.S. (1985)[sic]. The Administrative Complaint in DPR Case number 0056166 (later DOAH number 89-0647), alleges that Respondent examined patient R.B. on December 3, 1984 and accomplished crown preparation work on patient R.B. on January 19, 1985. The complaint alleges that Respondent failed to diagnose pulp necrosis and failed to remove dental caries prior to crown preparation in violation of Section 466.028(1)(y), F.S. (1985)[sic]. The Administrative Complaint in DPR Case number 0066548 (later DOAH number 89-3313) alleges that Respondent, as dentist of record, treated patient P.F. on July 18, 1984. The complaint alleges that Joan Chen, D.D.S. at the direction of Respondent began crown preparation on four of patient P.F.'s teeth, and that the treatment by Respondent consisted of root canal therapy and placement of crowns. The complaint alleges that Respondent violated Section 466.028(1)(y) F.S. (1984) by failing to complete endodontic treatment, placing a permanent crown over a fractured tooth and perforating one tooth. Investigation and Probable Cause in DPR Case number 0089897 (DOAH number 89-0646) On Thursday, October 20, 1988, the probable cause panel of the Board of Dentistry met to consider among other matters, the complaint by patient J.R. against Dr. Delk. The panel was comprised of two members, William Robinson, D.D.S. and Thomas Kraemer, C.P.A. At the meeting the panel members had available the draft Administrative Complaint and an investigative packet, comprised of investigative reports, several pages of the patient's handwritten account of her treatment, and a written report by consultant, P. Anthony Pirkle, D.D.S., who had examined the records as well as the patient herself and concluded that Dr. Delk did not meet the acceptable standard of care in his examination, diagnosis and treatment. Dr. Pirkle's written report also recounted the patient's statement that a large amount of the dental care was rendered by dental assistants exclusively. The packet included copies of Dr. Delk's office notes for the patient, and documents related to a civil action by the patient, including a report by another dentist, consultant to the patient's lawyer. That consultant, like Dr. Pirkle, expressed concern about the patient's cooperation and prior home care, but still concluded, like Dr. Pirkle, that the work attempted by Dr. Delk was below the standard of care. After confirming that they had received and reviewed the supporting materials and documentation, the two panel members voted unanimously to find probable cause based on the draft Administrative Complaint, citing Sections 466.028(1)(aa) and 466.028(1)(y). Investigation and Probable Cause in DPR Case number 0056166 (DOAH number 89-0647) The Administrative Complaint in this case identifies the patient as "R.B."; the investigative packet, however, indicates throughout that the patient was R. [name deleted] J. W. [name deleted]. This case was initially presented to a probable cause panel on January 4, 1987, with two members present: Maxine Sindledecker, D.D.S. and W. Edward Gonzalez, Jr. D.M.D. The panel referred the case back to the department for a supplemental investigation, and in particular, the obtaining of original X-rays. Another panel was convened on June 7, 1988 on this, and multiple other cases. The panel members included Edward F. Baines, D.D.S., Thomas C. Kraemer, and William F. Robinson, D.D.S. Because he had submitted a consultant's opinion in this case that Dr. Delk violated Section 466.028(1)(y), F.S., Dr. Robinson recused himself from the consideration of probable cause. After discussion of the materials and information provided by DPR the remaining members of the panel considered probable cause, but then voted to require another supplementary investigation. The requested x-rays were still not available and one of three consultants' opinions was inconsistent. This case was next presented to the probable cause panel on October 20, 1988. This was the same panel that considered DPR case number 008987, as discussed in paragraph 9 above. This time, Dr. Robinson did not recuse himself, but voted with Mr. Kraemer to find probable cause based on violations of Section 466.028(1)(y). The transcript of the probable cause panel proceeding reveals that Dr. Robinson did not have all of his information packet. It was found, and the panel took a five-minute break for him to review it. The investigative packet included a February 18, 1988 letter from P. Anthony Pirkle, D.D.S., recommending no action against Dr. Delk in this case because Dr. Delk was not alerted to problems by the patient and he was not, therefore, given the opportunity to find the problems that did exist. This opinion was in contrast with Dr. Pirkle's earlier, June 4, 1987 letter concurring with another consultant's findings that Dr. Delk "failed to use necessary judgment". (Exhibit I) The written opinions of that consultant, Dr. Lewis Earle, is in the investigative packet, with Dr. Robinson's written opinion. Also included in the packet are notes from the investigator's interviews and office notes from Dr. Delk, a letter from Dr. Delk and notes from a subsequent treating dentist. After filing the Administrative Complaint, but before the formal hearing, DPR realized that Dr. Robinson should not have participated in the probable cause finding and the case was referred to a panel for reconsideration one last time. On August 21, 1989, the panel included: Robert T. Ferris, D.D.S.; Orrin Mitchell, D.D.S. and Thomas Kraemer. Dr. Ferris recused himself from consideration of the Delk cases because of his personal knowledge and a previous referral relationship. After discussing their concern with regard to conflicting opinions, the remaining two members voted to find probable cause. Investigation and Probable Cause in DPR Case number 0066548 (DOAH number 89-3313) A draft Administrative Complaint involving treatment of patient, P.F., was presented to the probable cause panel on December 12, 1988. The panel was composed of Edward Baines, D.D.S. and Tom Kraemer. The Board's counsel noted that the case had previously been before the panel but was sent out for additional information. There is no record of the previous panel's consideration. After confirming that they had received and reviewed the back up information, the two panel members voted for ". . . an Administrative Complaint based on Section 466.028(1)(y)" (Exhibit K, p.3). While the specific terms, "probable cause" were not used, the panel's intent to find probable cause is manifest in the context of the discussion. The back up packet included a complaint form by P.F. (then, P.A.) dated 4/17/85 and a letter from her subsequent treating dentist, Dr. Barnes, outlining an opinion that prior root canal work and crown placement was a deviation from acceptable minimal standards of care. The packet included investigator's notes of multiple interviews, including interviews with Dr. Delk, another dentist previously in his employ, several other employees of Dr. Delk, the patient's lawyer, and the agency's expert consultant, Wayne Bennett, D.M.D. The packet also included Dr. Delk's office records, with notes and x-rays, a copy of the civil complaint by P.F. against Dr. Delk and his employees, a written opinion by the consultant, Dr. Bennett, that failure to complete endodontic treatment prior to the permanent placement of crowns was below minimum standards. The Hearing, Final Order and Appeal After the Administrative Complaints were filed in each of the three cases and after Dr. Delk contested their allegations and requested formal administrative hearings, the cases were referred to the Division of Administrative Hearings (DOAH), where they were consolidated and eventually considered in a single proceeding conducted by Hearing Officer, Daniel M. Kilbride. The hearing was conducted in Orlando, Florida over a three-day period in March 1990, and a fourth day in May 1990. The hearing officer's recommended order dated September 26, 1990, found Dr. Delk violated Section 466.028(1)(aa) in case number 89-0646, violated 466.028(1)(y) in case number 89-0647, and violated "466.208(1)(y)"[sic] in case number 89-3313. The Board of Dentistry considered the consolidated cases on January 4, 1991, and its final order was filed on February 25, 1991. The final order substantially adopted the hearing officer's recommendations, with some non-material changes in the findings of fact and some "corrections" in the Conclusions of Law, to what the Board perceived were improper rule or statutory citations. The Board added a violation, Section 466.024(1)(a) F.S. (1985), found neither in the Administrative Complaint nor in the recommended order. The Board imposed fines in the total amount of $2,000.00; two-years' suspension, with 18 months stayed if the licensee completed a University of Florida dentistry course; and two years' probation after the suspension. Dr. Delk appealed the Board's order to the Fifth District Court of Appeal. In its initial opinion, filed January 24, 1992, the appellate court, per curiam, reversed the Board's final order, finding that Dr. Delk was charged with violations of statutes which were not in existence when the violations occurred. The opinion was corrected and reissued on March 25, 1992, to provide that he was tried under statutes retroactively applied. (Exhibit A). The opinion provides, in pertinent part: . . . Although the dentist contested the alleged facts and denied that any of his conduct violated the statutes, the hearing officer found otherwise and recommended sanctions. It was brought to the attention of the Board of Dentistry reviewing the hearing officer's findings, conclusions and recommendations that the misconduct charged allegedly occurred in 1984 and 1985 but that the statutes the dentist was found to have violated were amended and enacted as amended effective October 1, 1986. [footnote deleted] Notwithstanding, the Board of Dentistry approved certain of the hearing officer's findings and conclusions and imposed sanctions. In this appeal the dentist argues that he cannot be found guilty of violating statutes effective in 1986 by virtue of conduct occurring in 1984 and 1985. The DPR argues that while the statutes in question were amended in 1985 and 1986 and while the defendant was tried under the 1986 statutes, nevertheless, the basic statutes were in effect in 1984 and that the 1985 and 1986 statutory amendments were not significant. The dentist argues that the statutory changes involve both form and substance and that the 1986 statutes he was found to have violated were substantially and materially different than the 1983 statutes. We have examined the statutes and the changes and cannot hold with certainty that the 1986 statutes were substantially the same as the 1983 version which were applicable to the dentist's alleged misconduct. Presumptively the Legislature intends to change a statute when it is amended and the statutes after the amendments appear to either prohibit conduct not prohibited by the 1983 statutes or to more clearly prohibit conduct which was not clearly prohibited by the 1983 statutes. . . . The dentist was never charged with, nor found guilty of, a violation of Section 466.024(1)(a), Florida Statutes, by the hearing officer and the Board of Dentistry found the dentist guilty of that charge because it considered that statute more applicable to the facts found by the hearing officer than the statute specified in the charges. Therefore, the determination of the violation of that statute must be reversed. The record shows that Sections 466.028(1)(aa) and 466.028(1)(y), Florida Statutes (1986) were not in existence a the time of the conduct alleged. The determination that the dentist violated those statutes must also be reversed because those statutes, as distinguished from their 1983 predecessor statutes, cannot be retroactively applied to the earlier misconduct charged. The final order of the Board is REVERSED. Delk v. Department of Professional Regulation, 595 So.2d 966, 967 (Fla. 5th DCA 1992). Summary Findings The appellate opinion establishes without question that Petitioner Delk is a prevailing party. The parties' stipulations establish that he is a small business party. The parties also have stipulated to the reasonableness of the fees and costs sought for the underlying proceeding, appeal and this fees case. As of the time of the stipulation those fees and costs totalled $67,698.90. In addition, Petitioner, through counsel has submitted a supplementary affidavit for the remaining hours and costs in preparation, hearing and posthearing work in the instant proceeding, for an additional total of $12,300.00 in fees and $632.00 in costs. That the probable cause panels had ample "reasonable basis in fact" to direct the initiation of the proceedings is evident in the packets before the panels, containing the patient's complaints and voluminous investigative reports and written opinions, with one minor inconsistency from professional consultants. In each case the record established that the probable cause panel members had been furnished and reviewed the materials. In some cases there was extensive discussion on the content of the materials, and particularly on the written opinions of the consultants and the subsequent treating dentists.
The Issue The issues in this case are whether Respondent committed a battery on another person and thus failed to maintain good moral character, as alleged in the Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact Petitioner is the state agency charged with certifying persons as correctional officers in Florida. § 943.12, Fla. Stat. (2009).3 Pursuant to section 943.1395, Petitioner is authorized to take disciplinary action against persons certified as correctional officers. At all times relevant to this proceeding, Respondent was certified by Petitioner as a correctional officer. She became certified in 2007, and currently is certified. She was not employed as a correctional officer at the time of the alleged battery that is the subject of this proceeding.4 On July 24, 2009, Corporal Jesus Alonso of the Collier County Sheriff’s Office, a uniformed patrol deputy in the Immokalee substation, was dispatched to a residence at 857 Cucumber Lane, Immokalee, to investigate a matter for which the Sheriff’s Office had received a call. At that time, Respondent’s mother lived at that address. There, Corporal Alonso made contact with Mr. Miguel Rua, who was waiting outside of the house. Respondent was inside the house when Corporal Alonso arrived. Mr. Rua is Respondent’s ex-boyfriend and the father of their two daughters. Their daughters were ages four and six years at the time of the alleged battery. Respondent and Mr. Rua previously had resided together as a family. Corporal Alonso testified that Mr. Rua told him he had gone to the residence with his sister-in-law,5 and that Respondent had become upset with him and hit him on the left side of his head with a phone. Corporal Alonso observed a reddish discoloration in the temple area on the left side of Mr. Rua’s head. He took three photographs of Mr. Rua, consisting of a full body photograph, a profile of the left side of Mr. Rua’s head, and a close up of Mr. Rua’s left temple showing an area of reddish discoloration. Corporal Alonso took Mr. Rua’s sworn statement regarding the alleged incident. Corporal Alonso arrested Respondent on the charge of battery. He concluded that Respondent had committed a battery on Mr. Rua, based on Mr. Rua’s sworn statement, his observation of the discolored area on Mr. Rua’s left temple, and his determination that Respondent was trying to avoid being detained because she was inside the house when he arrived. Corporal Alonso did not take Respondent’s sworn statement before arresting her. Corporal Alonso was not present at 857 Cucumber Lane at the time the alleged battery took place. He did not observe the alleged battery, and there is no evidence that he had personal knowledge of any events comprising or surrounding the alleged battery. He conceded that that he could not determine how the mark on Mr. Rua’s head was made.6 Mr. Rua also testified regarding the events of July 24, 2009. He arrived at 857 Cucumber Lane, Immokalee, with his sister-in-law, in his brother’s car. He saw his daughters outside of the house, so got out of the car to talk to them. He testified that Respondent came out of the house yelling at him, and they argued. Mr. Rua testified that he got back into the car, in the front passenger’s side, and that Respondent came up to the car window and tried to punch him through the window. He testified that she hit him on the left side of his forehead with a white wireless house phone, then went back into the house. He testified that the blow was painful and became swollen and red. He called the Collier County Sheriff’s Office. Respondent also testified regarding the events of July 24, 2009. According to Respondent, Mr. Rua arrived unannounced at 857 Cucumber Lane, Immokalee. An argument ensued between them, and profanity was used in front of their daughters. Respondent testified that she told Mr. Rua to leave, but he refused and said he was going to “call the cops.” Respondent testified that was fine with her, because she believed they would make him leave. She took her daughters back into the house and stayed inside with them, while Mr. Rua stayed outside. When the Collier County Sheriff’s Office law enforcement officer arrived, he went into the house and arrested her for the battery of Mr. Rua. Respondent testified that she tried to tell her side of the story but the officer did not take her sworn statement. Determination of Ultimate Facts Upon considering the credibility of each witness in conjunction with the photographs of Mr. Rua that were taken by Corporal Alonso on July 24, 2009, the undersigned determines that Petitioner has not sustained its burden to prove, by clear and convincing evidence, that Respondent committed a battery on Mr. Rua and thus failed to maintain good moral character. Respondent’s testimony regarding the events of July 24, 2009, was credible and persuasive. By contrast, Mr. Rua’s testimony was not convincing, and thus insufficiently persuasive, because it is inconsistent with the photographic and other evidence in the record. Specifically, the photographs taken by Corporal Alonso show a discolored mark on Mr. Rua’s left temple, and Mr. Rua and Corporal Alonso both testified that the mark was on Mr. Rua’s left temple. However, if, as Mr. Rua testified, he was seated in the front passenger’s side of his brother’s car when Respondent punched him through the window, then the right side of his head——not the left side——would have been facing the car window and thus been exposed to the blows. In any event, there is no evidence in the record to explain the apparent discrepancy between Mr. Rua’s testimony regarding his and Respondent’s relative locations during the alleged battery, and the location of the mark on the left side of his head. Corporal Alonso’s testimony does not buttress Mr. Rua’s testimony. He was not present at the time of, and has no personal knowledge of, the alleged battery. He conceded that he did not know how Mr. Rua sustained the mark on his left temple. Corporal Alonso’s testimony authenticated the photographs he took of Mr. Rua; however, because he lacked personal knowledge of Mr. Rua’s injury, his testimony is not persuasive with respect to whether Respondent caused that injury by committing a battery on Mr. Rua. Corporal Alonso’s testimony regarding his belief that Respondent went back into the house to avoid being detained is merely conjectural and not persuasive in determining whether Respondent committed a battery on Mr. Rua. Respondent’s testimony to the effect that she went back into the house following the argument to avoid further conflict with Mr. Rua provides a reasonable and credible explanation for why she was not outside the house when Corporal Alonso arrived, and hence has been accepted as truthful. Based on the greater weight of the evidence in the record, the undersigned determines, as a matter of ultimate fact, that Respondent did not commit a battery on Mr. Rua. Accordingly, the undersigned determines, as a matter of ultimate fact, that Respondent did not fail to maintain good moral character in violation of sections 943.1395(7) and 943.13(7).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 6th day of September, 2011, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 2011.
The Issue The issue in this case is whether Petitioner is entitled to an award of attorneys' fees and costs pursuant to Section 57.111, Florida Statutes, and Rule 60Q-2.035, Florida Administrative Code.
Findings Of Fact Based upon the oral and documentary evidence presented at the final hearing and the entire record in this proceeding, the following findings of fact are made. Respondent is the state agency charged with regulating the practice of dentistry pursuant to Section 20.30 (subsequently amended to Section 20.165) and Chapters 455 and 466, Florida Statutes (1987). At all times pertinent to this proceeding, Petitioner was a Florida licensed dentist having been issued license number DN-0004795. At all times pertinent to this proceeding, Petitioner maintained a professional dental practice in the State of Florida. At all times pertinent to this proceeding, Petitioner maintained his primary residence within the State of Florida. At all times pertinent to this proceeding, Petitioner employed no more than 25 full time employees. Petitioner has never employed more than 25 full time employees. Petitioner has a net worth of less than two million dollars, including both personal and business investments, and he has not had a new worth of more than two million dollars since the time the underlying action was initiated against his license to practice dentistry. Petitioner is the sole shareholder of a corporation known as IRN, Inc., d/b/a North Dade Dental Offices. At the time the Underlying Proceeding was initiated, Petitioner operated his incorporated business out of two separate locations. The corporation was not named as a Respondent in the Amended Administrative Complaint filed by Respondent. As noted in the Recommended Order entered in the Underlying Proceeding, there have been a number of disputes between Petitioner (then Respondent) and the Department and/or the Board relating to complaints with the Department filed regarding Respondent and investigations conducted by the Department. During the hearing in the Underlying Proceeding, Petitioner testified vociferously regarding what he believes has been selective prosecution by the Department. Petitioner contends that the Department and/or the Board have been deliberately harassing him because he is an "advertising dentist." Petitioner has filed a lawsuit in federal court naming as defendants most, if not all the Board members during the period from approximately 1980-1987 and several Department employees and attorneys based on these contentions. That lawsuit (the "Federal Lawsuit") was originally filed at some point prior to the initiation of the investigation in the Underlying Proceeding. While the developments in and status of the Federal Lawsuit are not clear, the case was apparently still pending at the time of the hearing in this matter. Respondent has submitted some exhibits in this case which set forth the complaints received by and investigations conducted by the Department regarding Petitioner. The merits of those other complaints and the results and reasons for the Department's investigations in those cases are beyond the scope of this proceeding. No persuasive evidence was presented in this case to establish that the Administrative Complaint or Amended Administrative Complaint filed in the Underlying Proceeding were initiated for improper purposes or as part of a conspiracy against Petitioner because he is an "advertising dentist." The Underlying Proceeding began on or about February 22, 1988, when E. B. (the "Patient") filed a written complaint with the Department regarding the care and treatment he had received from Dr. Rindley. There is no evidence that B.'s complaint was solicited or prompted in any way. In his written complaint, the Patient stated that: I went to Dr. Rindley to have teeth pulled and have a lower plate made. The teeth were pulled and the lower plate was made, however I am unable to wear the plate as it hurts and I can not eat with it. I have to wear my old plate. I went back to Dr. Rindley and was told I now needed my upper plate relined. I told him I can eat fine with my old plate and to remake a new plate. He refused. I must go to another dentist and have a new plate made . . . Also, He was to pull a broken tooth and fill the cavities in the one crown left for the anchor of the plate, which he has not done, when asked when he kept saying next time. The Patient also wrote a letter to MasterCard disputing his payment to Petitioner and advising MasterCard that he was filing a complaint with the Department. Petitioner argues that this action by the Patient demonstrates that the Patient and Petitioner were involved in a fee dispute over which the Department had no authority. However, the mere fact that a complaintant seeks a refund from a professional against whom he has filed a complaint does not preclude the Department from investigating the validity of the complaint. In response to the complaint, the Department began an investigation which was assigned DPR Case Number 00-95307. The Department's investigator interviewed the Patient on March 4, 1988. E. B. told the Department's investigator that he was dissatisfied with the treatment provided by the Petitioner. He gave no indication that he had refused any recommended treatment or diagnostic test. Petitioner was notified of the Patient's complaint during an interview conducted by the Department's investigator, Alison Lichtenstein, on March 10, 1988. Ms. Lichtenstein was accompanied by Jeffrey Matthews who sat in on the interview. During the interview, Petitioner provided the Department with the Patient's records and had his staff meet with the investigators. As part of its investigation, the Department sought to interview a dentist who the Patient had identified as providing subsequent treatment. That dentist had no record of having provided any treatment to E. B. On June 16, 1988, the Patient's records received from the Petitioner at the March 10, 1988 interview and the compiled investigative report were forwarded to Jerry Zimmerman, D.D.S., a Department consultant, for an expert opinion. Dr. Zimmerman met with the Patient and examined the Patient's old partial denture, the lower partial manufactured by the Petitioner and a new partial that was made by a subsequent dentist. Dr. Zimmerman asked the Patient if any x-rays had been taken before his teeth were extracted and the Patient said no. On August 5, 1988, Dr. Zimmerman wrote to the Department's attorney and noted that, in reviewing the file provided by Dr. Rindley, ". . . there [was] an unusual absence of portions of the dental records" and requested that the Department obtain a complete set of records from the Petitioner. On August 24, 1988, Dr. Zimmerman issued a written opinion based on his review of the compiled investigative report, the Patient's records provided by the Petitioner, and the results of his own examination and interview of the Patient. Dr. Zimmerman noted: Upon an interview, in my office, patient EB sought dental care from Dr. Steven Rindley of North Miami Beach. Three teeth were to be extracted, and a lower denture fabricated. Upon receipt of the immediate partial, the patient immediately complained that the teeth wobbled, and he could not eat. . . During the examination of the patient EB, it was revealed that a new partial denture had been fabricated, after the work done by Dr. Rindley. EB showed this dentist that the appliance did not rock, nor did the first partial that he wore before Dr. Rindley's work was initiated. This reviewer tried in the partial fabricated by the attending Dr. Rindley, and indeed the partial did rock from side to side upon applying downward pressure, on the occluding surfaces of the lower teeth of the partial. It was evident that the lower teeth as fabricated on the lower partial were not placed over the ridge. This condition establishes a tipping motion considering the bony ridge as the fulcrum. The action of this fabrication, or the absence of knowledge that this condition would constitute a rocking appliance, thus endangering the teeth and supporting alveolar structure constitutes negligence. This act is a violation of Rule 21-G, Chapter 466.028(1)(Y)(GG). 3/ Dr. Zimmerman's opinion noted that the records contained an ambiguous, unsigned medical history. In Dr. Zimmerman's opinion, Petitioner's extraction of teeth without the benefit of an x-ray "in conjunction with an unsigned medical record constitutes negligence and malpractice under . . .[Sections] 466.028(1)(I), (M), (Y), (GG), [Florida Statutes] . . ." On August 29, 1988, Petitioner's attorney submitted an affidavit executed by Petitioner for consideration by the Department's consultant and probable cause panel. That affidavit described E. B. as a very difficult patient who refused to follow the Petitioner's instructions and eventually walked out in the middle of his treatment. The letter was forwarded to Dr. Zimmerman. On September 29, 1988, the Department received a letter from Petitioner's attorney purporting to transmit ". . . all of the medical and corollary reports/documents/notes, relating [the case]." With the exception of a few recent entries regarding the investigation, the records provided were the same as those received from Petitioner at the March 10, 1988 interview. The records did not indicate any prior treatment by the Petitioner or indicate that the Petitioner had prior x-rays from which to determine a course of treatment for the Patient. Petitioner's records did reflect that the Patient complained of problems with the partial manufactured by Petitioner and that adjustments were performed as early as January 30, 1988. Petitioner's records also indicated that further adjustments were necessary on February 1 and 4, 1988. On February 9, 1988, Petitioner noted that the upper partial was too loose and needed a reline. The Department provided Dr. Zimmerman with all the information received from Petitioner, including the "complete" Patient records from Petitioner's attorney and the Petitioner's affidavit as well as correspondence received from Petitioner's attorney, and an internal memo issued to the investigator. In a letter dated October 11, 1988, Dr. Zimmerman indicted that he did not think it was appropriate for a consultant to consider anything other than the "dental records, radiographs, histories and testimony from the complainant." Dr. Zimmerman's letter reaffirmed his prior opinion and also noted that any problems encountered by Dr. Rindley should have been recorded in his patient records. No such problems were documented by Dr. Rindley. On October 13, 1988, E. B. forwarded the lower partial manufactured by the Petitioner to the Department. It appears that, by the time it reached the Department, the partial had been damaged. A Memorandum from a Department legal clerk to the investigator dated October 13, 1988, refers to Petitioner's Affidavit and states "Dr. Rindley is trying to establish a defense that the complainant prevented the completion of the treatment with his uncooperative behavior." The memo further requests the investigator to conduct a supplemental report accounting for "facts as remembered by the employees who were present at the dental office, patients who were scheduled for treatment at the time and the complainant himself and any witnesses who may have accompanied him to his dental appointments." It is not clear whether a supplemental investigation was undertaken. The investigative file does not contain any additional information from the Patient. On October 14, 1988, the Department's legal clerk wrote to Dr. Zimmerman stating: Furthermore, you were requested not to conduct any interviews with the witnesses as requested by the subject. These witnesses will be interviewed by the investigator. Should further probing be necessary, Ms. Snurkowski will make the decision if and when probable cause is found. On November 10, 1988, a memo was generated by a Department employee reflecting the status of the investigation. It noted that Dr. Zimmerman's opinion had not changed as a result of the information provided by Petitioner's attorney and that Dr. Zimmerman felt Petitioner had violated the Dental Practice Act with respect to the Patient as a result of his extraction of teeth without radiographs and because of the fabrication of an inadequate a lower partial. The memo further noted that Dr. Zimmerman believed there was "probable cause for further investigation and action." Ms. Snurkowski, the prosecuting attorney for the Department, prepared a draft administrative complaint on or about November 17, 1988. The draft administrative complaint did not charge Petitioner with any deficiency in his records for E. B. On December 12, 1988, the Probable Cause Panel for the Board of Dentistry met to consider the Department's compiled investigative report, including the Patient records, Dr. Zimmerman's opinion, the Department's recommendations, and Petitioner's response to the complaint. The Panel was composed of Edward F. Baines, D.D.S., and Thomas C. Kraemer. Like virtually all the other Board of Dentistry members since 1980, both of these individuals were named in the amended complaint filed in the Federal Lawsuit in June of 1988. The exact status of the Federal Lawsuit at the time of the Probable Cause Panel Meeting is not clear. The Probable Cause Panel transcript does not reflect any discussion of the Federal Lawsuit and there is no evidence that the existence of the lawsuit impacted upon the Probable Cause Panel's evaluation of the case against Petitioner. There is no evidence that these Panel members were even aware of the Federal Lawsuit. There is also no evidence that Dr. Baines or Mr. Kraemer were aware of or involved in any prior disciplinary matters regarding Petitioner and/or that they knew Dr. Rindley was an "advertising dentist." Petitioner argues that there is no competent evidence of the materials provided to the Panel. However, it was established that the usual and customary practice of the prosecuting attorney, Ms. Snurkowski, was to provide the Panel members with copies of the Department's entire file and its recommendation in advance of the Probable Cause Panel meeting. There is no evidence to indicate that she failed to conform to her usual and customary practice in this case. At the outset of the Probable Cause Panel meeting, the Panel members indicated on the record that they had received copies of the Department's materials, and that they had an opportunity to review the materials and to familiarize themselves with the materials. The Department's investigative file was attached to the transcript of the proceeding to reflect the materials reviewed by the Panel in accordance with the Department's standard procedure. Dr. Baines testified that it was customary for him to receive materials related to cases to be considered by the Probable Cause Panel at least thirty days in advance of the meeting and that those materials always included the patient records, witness interviews, consultant's reports, and the Department's investigative file. By the time of the December 12, 1988 Probable Cause meeting, Dr. Baines had made an independent evaluation of the case after reviewing all the material presented to him. At the Probable Cause Panel meeting, Ms. Snurkowski had in her possession the Department's original file in case the members had any questions or problems with the materials previously provided to them. No problems with the materials were noted by the members. During the meeting, Dr. Baines briefly described the case and noted that the factual allegations underlying the one count violation alleged in the draft administrative complaint were very serious, particularly the failure to take an x-ray. Dr. Baines asked if there was any additional discussion. When no questions were raised, he entertained a motion for a determination of probable cause of a violation of Section 466.028(1)(y), Florida Statutes, as alleged in the draft administrative complaint. The Panel determined that there was probable cause of a violation and directed the Department to file an Administrative Complaint against the Petitioner's license. The Department filed an Administrative Complaint against the Petitioner on December 23, 1988, alleging that Petitioner had violated Section 466.028(1)(y), Florida Statutes. Paragraph 5 of the Administrative Complaint stated: 5. The treatment rendered by [Dr. Rindley] to failed to meet the minimum standards of diagnosis and treatment as evidenced by, but not limited to, the following: failure to take radiographs; the partial denture rocked from side to side upon applying downward pressure; the lower teeth, as fabricated, were not placed over the ridge; the rocking partial endangered the teeth and the supporting alveolar structure. extracting teeth without the benefit of a radiographic examination. The Administrative Complaint did not include any allegations of a record-keeping violation by Dr. Rindley. No allegation of such a violation was contained in the draft administrative complaint or discussed by the Probable Cause Panel. In his response to the Administrative Complaint, Petitioner's counsel made specific reference to Petitioner's pending lawsuit against the Board and the Department's previous efforts to discipline Petitioner as well as purported investigations by the Federal Trade Commission on the allegations made by Petitioner in the Federal Lawsuit. The Department retained a private law firm on a contract basis to handle the prosecution of the case. On June 7, 1989, the contract attorney for the Department wrote to Nancy Snurkowski about a conversation he had with Dr. Zimmerman and noted that: [Zimmerman] did not think this case was particularly strong. However, Zimmerman stated that he was able to find probable cause for DPR based on the fact that Rindley did not take x-rays before surgery. Zimmerman further stated that: because this case involved only a partial plate, he is afraid the hearing office [sic] might throw it out because it is so small. Zimmerman stated that the hearing officer might not rule in our favor because the patient could have gone back to Rindley for additional treatment in order to have his partial plate fitted correctly. However, Zimmerman will still testify that x-rays were not taken before surgery, which he feels is in violation of Florida Statutes. After he learned that the Administrative Complaint filed against Petitioner did not include a count charging Petitioner with failing to properly document his treatment plan for the Patient, Dr. Zimmerman wrote to Nancy Snurkowski on July 5, 1989 stating that he was withdrawing from the case and would not testify because the prosecution had "been so poorly executed" and that he felt "most strongly that my efforts have been totally ignored, . . ." Dr. Zimmerman testified in the hearing in this case that, while he was disturbed by the way the prosecution was being handled, he felt at the time and still feels that, based on the evidence he reviewed, there was probable cause to find that Petitioner violated the provisions of law set forth in his August 24, 1988 letter. The contract attorney wrote to Ms. Snurkowski on July 11, 1989, regarding Dr. Zimmerman's concerns. That letter provided as follows: As we discussed in our telephone conversation on July 7, 1989, we are having some problems with our expert, Dr. Jerry Zimmerman. Dr. Zimmerman apparently is of the opinion that this case involves poor record keeping, rather than negligence or incompetence. In fact, he has gone so far as to say that unless we amend our Administrative Complaint to reflect a charge for poor record keeping, he will no longer be our expert in this case. . . . You and I both agree that Dr. Zimmerman has 'missed the boat' on his opinion because this is a case of negligence or incompetence, and not poor record keeping. Dr. Zimmerman believes that the Respondent's failure to take x-rays is evidence of poor record keeping. You and I agree that it would have only been poor record keeping if he had taken the x-rays and then discarded or lost them. [Dr. Rindley's] failure to take the x-rays at all is evidence of incompetence or gross negligence. I also advised you that Dr. Zimmerman felt that our case was weak anyway. The parties proceeded with discovery and preparations for a formal hearing. In a letter dated September 18, 1989, the contract attorney advised the Department that a good argument could be made in defense of the Administrative Complaint that the Patient did not give the Petitioner "ample opportunity to adjust the lower plate to fit properly or permit the [Petitioner] to make a new upper plate." Counsel also expressed his opinion that the Patient was a "terrible witness" who was easily roused to anger and emotional outbursts." The attorney pointed out that the Patient had obtained a new upper and lower plate from a subsequent dentist. These factors led the contract attorney to conclude that chances of success at formal hearing were remote. With the consent of both parties, the hearing in the Underlying Proceeding was continued at least twice. On January 30, 1990, the contract attorney wrote to Ms. Snurkowski confirming a discussion they had regarding the weakness of the case "based upon the nature of our complainant's testimony and demeanor combined with the problems we have with our expert witness, Dr. Jerry Zimmerman." The letter also confirms that Ms. Snurkowski authorized the contract attorney to propose a settlement pursuant to which Respondent would dismiss the Administrative Complaint filed in the Underlying Proceeding in exchange for Petitioner's agreement to waive any rights to seek fees or costs against Respondent and "not to endeavor to utilize this particular prosecution in connection with any unrelated allegations [Dr. Rindley] has or will be bringing against the DPR." This reference to the unrelated allegations was apparently an allusion to Petitioner's Federal Lawsuit. The letter indicates that Petitioner's counsel refused the settlement offer unless two other pending disciplinary cases against Petitioner were included. The contract attorney stated that if an agreement could not be reached along the lines proposed by Petitioner's attorney, it would be necessary to either dismiss the case unilaterally or "immediately retain a new expert witness, in hopes that his opinion, as in the case of our prior expert, is a favorable one." The Department's contract attorney sought input from two additional expert consultants. He obtained the opinion of John Jordan, Jr., D.M.D., on April 9, 1990, and the opinion of Peter A. Keller, D.D.S., on March 5, 1990. Both Dr. Jordan and Dr. Keller felt that the failure to take an x-ray before extracting teeth was below community standards. Dr. Jordan was unable to comment on the lower partial manufactured by Petitioner and Dr. Keller found that, under the circumstances of the case and as revealed by the evidence, Petitioner's manufacture of the partial was not below community standards. On May 31, 1990, the deposition of the Patient, E. B., was taken. At some point during that day, the Patient spoke off the record with the attorneys. As a result of those discussions, the Patient signed a written statement dated May 31, 1990, which was drafted with the assistance of Petitioner's counsel. That statement provided as follows: To whom it may concern: . . . as I have stated now on numerous occasions to various people associated with the Department of Professional Regulations and the various attorneys assigned to this matter, I do not want to prosecute or pursue this matter. As was stated both throughout my prior deposition and at several conversations after the deposition . . . I wanted only certain work performed and he indicated [sic] needed only what I requested, but other work. I was only going to be in town for a short period of time and I wanted what I wanted done quickly. Dr. Rindley had, in the past, done work for me in a timely and satisfactory manner and I got angry with him and he got angry with me. I left his office without allowing him to complete and/or adjust the work done. It is not clear from the evidence presented in this case whether Petitioner refunded the Patient's money or otherwise made any accommodation to him in return for the Patient's execution of this statement. Because (a) Dr. Zimmerman had withdrawn from the case, (b) the Patient no longer wanted to cooperate and (c) the lower partial made by Petitioner had apparently been damaged, there was very little evidence to support paragraphs 5(b), 5(c), and 5(d) of the original Administrative Complaint regarding the alleged improper fabrication of the partial. After seeking and obtaining the necessary approval from the Hearing Officer, an Amended Administrative Complaint was filed by the Department on July 6, 1990. The Amended Administrative Complaint dropped the charges regarding the fabrication of the partial denture and narrowed the issues in the case to whether Petitioner's alleged failure to obtain x-rays violated Section 466.028(1)(y), Florida Statutes. At the time, after probable cause had been found, the Department could only close a file by taking the case back to a Probable Cause Panel or to the entire Board. On July 27, 1990, the Department's attorney took the case back to the Probable Cause Panel with a recommendation to terminate the prosecution because of what she felt was a lack of clear and convincing evidence of a violation This second Probable Cause Panel was composed of Robert T. Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson. Dr. Ferris and Dr. Cadle were named defendants in Petitioner's Federal Lawsuit. Mr. Hudson was apparently not named as a defendant. The transcript reflects that both Drs. Ferris and Cadle were aware during the Probable Cause Panel hearing that they were defendants in the federal case. Ms. Snurkowski advised the panel that: The second [reason for dropping the case], in all candor, references Dr. Rindley and his past disciplinary history with the Department and his federal action and whatnot. . . . I just felt that it was not worth getting into additional potential federal litigation or potentially try to go to hearing and lose the case, and then looking at attorney's fees and costs imposed upon the Board . . . It wasn't worth at that point trying to litigate the case, albeit a remaining issue is still viable. As noted above, it was Ms. Snurkowski's usual and customary procedure to provide the panel members with a complete copy of the Department's investigative file in advance of the Probable Cause Panel meeting. When a case was re-presented to the Probable Cause Panel after it had been in litigation, the Probable Cause Panel would not necessarily receive the entire litigation file. Petitioner argues that there were extensive depositions taken during discovery in the Underlying Proceeding which were not provided to the Second Probable Cause Panel for consideration. Many of those depositions had not been transcribed. In any event, Petitioner has not shown that there was any information that was known to the Department at the time that was not presented to the Second Probable Cause Panel and would likely have changed the conclusions reached by the Second Probable Cause Panel. The transcript of the Second Probable Cause Panel hearing does not include any attachments to confirm what information the Panel considered. Each of the panel members indicated on the record that they had received the Department's investigative report and had reviewed it prior to the meeting. Ms. Snurkowski admittedly had only a "bare bones file" with her at the time of the Second Probable Cause Panel. The opinions of the two experts retained in anticipation of the formal hearing by the contract attorney were only provided to the Second Probable Cause Panel in summary or verbal form. At the Second Probable Cause Panel meeting on July 27, 1990, Ms. Snurkowski recommended against pursuing the Amended Administrative Complaint. At least one member of the Panel recognized that Petitioner claimed the Patient refused to have x-rays taken. After considering the investigative report, Dr. Zimmerman's opinion, the response of the Petitioner, the Patient records, and the feelings of the Department regarding the credibility of the witnesses and the strength of the case, the Second Probable Cause Panel directed that prosecution of the case should continue with the proviso that the Department should review Dr. Keller's opinion regarding paragraphs 5(b), 5(c), and 5(d) of the original Administrative Complaint and proceed only on paragraphs 5(a) and 5(e) if Dr. Keller's opinion supported that decision. The evidence did not establish that the decision of the second Probable Cause Panel was motivated by the Federal Lawsuit or any prejudice against Petitioner because he was an "advertising dentist." Instead, the more persuasive evidence established that the members of that panel, like Drs. Zimmerman, Keller and Jordan, were very concerned about Petitioner's extraction of teeth without the benefits of x-rays. A formal hearing was conducted on April 16, 1991, on the Amended Administrative Complaint. At that hearing, the Department presented no live witnesses and only submitted the deposition testimony of Dr. Jordan and Dr. Keller. Neither of these depositions addressed the community standards expected of a dentist when a patient refuses x-rays. E. B.'s patient records were not introduced into evidence. Petitioner testified on his own behalf and presented deposition testimony from two experts in the field of dentistry. During the hearing, Petitioner testified that the Patient refused to let him take x-rays during the treatment rendered in 1987 and 1988. Petitioner contended that he utilized x-rays taken of the Patient during treatment rendered in 1981 to assist him in his diagnosis and treatment in 1987-1988. Although those radiographs were outdated, Petitioner contends that they provided some useful information regarding tooth morphology and other matters. Based upon this information and his clinical observations that the teeth that were being extracted were extremely distressed, the Petitioner proceeded with the extractions without new x-rays. Petitioner's experts testified that, under the circumstances, Petitioner's care of the Patient did not fall below community standards. This testimony of Petitioner and his experts at the April 16, 1991 hearing was not successfully rebutted or impeached. The deposition testimony of the Department's witnesses did not address the unique circumstances asserted by Petitioner at the April 16, 1991 hearing. In his prior statements to the Department's investigators and in the correspondence received from his attorney, Petitioner had never previously conveyed to the Department that he had used x-rays from his previous treatment of the Patient. Moreover, based upon this information and his clinical observations that the teeth that were being extracted were extremely distressed, the Petitioner proceeded with the extractions without new x-rays. The Patient's records provided by Petitioner to the Department did not contain the x-rays purportedly used by Petitioner in treating the Patient nor did the records contain any notation regarding the allegedly extremely distressed condition of the teeth and the Patient's refusal to permit new x-rays. Consequently, these issues were not addressed in the depositions submitted by Respondent. A Recommended Order was entered on July 18, 1991 recommending that the Amended Administrative Complaint be dismissed. Because the Amended Administrative Complaint did not include a count charging Respondent with failure to keep appropriate records, the Recommended Order did not address the adequacy of the Petitioner's records with respect to his course of treatment for the Patient. The Board of Dentistry adopted the Recommended Order and dismissed the Amended Administrative Complaint by Final Order issued December 12, 1991. It is clear that the professional members of both the first and second Probable Cause Panels felt strongly that the extraction of teeth without the benefit of x-rays was a very serious matter. While the Board of Dentistry has not adopted any rules specifically requiring x-rays before extracting teeth, the evidence presented in the Underlying Proceeding and in this case established that it is below community standards to extract teeth without current x-rays except, possibly, in very unique circumstances. No such circumstances were evident from Petitioner's records. If the Department had anticipated the defense advanced by Petitioner during the hearing in the Underlying Proceeding, it is likely that a charge for deficient record keeping would have been included in the Amended Administrative Complaint. Indeed, such a charge had been recommended by the Department's expert from the time he first received the case.
Findings Of Fact The Department of Management Services ("Department") and United Technologies Corporation ("UTC"), on behalf of itself and its divisions, subsidiaries and affiliates, hereby enter this Joint Stipulation, through counsel, and stipulate to the following facts: On August 28, 1992, UTC pleaded guilty to a four count criminal information. A copy of the plea agreement and related documents are attached as Exhibit A. The plea was entered in the United State District Court, Eastern District of Virginia, and resulted in the criminal judgment attached as Exhibit This judgment, under the definitions of subsection 287.133(1)(g), Florida Statutes, was a public entity crime. UTC's conviction arose from an investigation of defense procurement improprieties, focusing on consultants, known commonly as the "Ill Wind" investigation. On August 28, 1992, UTC notified the Department by telephone and in writing of the anticipated judgement. A copy of UTC's written notification is attached as Exhibit C. On September 3, 1992, UTC provided the Department with a copy of the plea agreement, the criminal information, and the prosecutor's statement of facts. A copy of the transmittal letter accompanying these documents is attached as Exhibit D. On August 10, 1994, the Department issued a notice of intent pursuant to subparagraph 287.133(3)(e)1., Florida Statutes. UTC received the notice, a copy of which is attached as Exhibit E, on September 6, 1994. On September 23, 1994, pursuant to subparagraph 287.133(3)(e)2., Florida Statutes, UTC timely filed a petition for formal administrative hearing in accordance with subsection 120.57(1), Florida Statutes, alleging that it would not be in the public interest to place UTC or any of its divisions, subsidiaries or affiliates on the State of Florida Convicted Vendor List. Section 287.133(3)(e)3., Florida Statutes, establishes factors which, if applicable, will mitigate against placement on the Convicted Vendor List. Section 287.133(3)(e)3.d., Florida Statutes, establishes "[p]rompt or voluntary payment of any damages or penalty as a result of the conviction" as a mitigating factor. UTC paid promptly all fines ($2 million), assessments ($800), civil claims ($2.5 million), and the government's costs of investigation ($1.5 million for Department of Justice and $10,000 for Department of Defense). An affidavit attesting to these payments is attached as Exhibit F. The Department does not contest any of the facts set forth in the affidavit. Section 287.133(3)(e)3.e., Florida Statutes, establishes "[c]ooperation with a state or federal investigation or prosecution of any public entity crime" as a mitigating factor. UTC cooperated fully in the grand jury investigation conducted by the United States Attorney. As part of the plea agreement, the United States Attorney agreed to advise the Department of Defense that UTC "cooperated fully" with its investigation. A copy of this stipulation is attached as Exhibit G. UTC also cooperated fully with the Florida Department of Management Services in its investigation pursuant to Section 287.133(3)(e)1., Florida Statutes. Section 287.133(3)(e)3.f., Florida Statutes, establishes "[d]isassociation from any other person or affiliate convicted of the public entity crime" as a mitigating factor. UTC has disassociated itself from all individuals convicted of the wrongdoing which gave rise to UTC's conviction. Relationships with convicted consultants and employees have been terminated. A more detailed description of these terminations is contained in the affidavits and documents attached as Exhibit H. The Department does not contest any of the facts set forth in Exhibit H. Section 287.133(3)(e)3.g., Florida Statutes, establishes "[p]rior or future self-policing by the person or affiliate to prevent public entity crimes" as a mitigating factor. UTC has comprehensive ethics and government contract compliance programs. These programs are outlined in Annex I to an AGREEMENT BETWEEN THE DEPARTMENT OF DEFENSE AND UNITED TECHNOLOGIES CORPORATION, effective as of September 29, 1992, attached as Exhibit I. UTC's programs are centered on a Code of Ethics and a Policy Statement on government contracting, copies of which are attached as Exhibit J. Section 287.133(3)(e)3.h., Florida Statutes, establishes "[r]einstatement or clemency in any jurisdiction in relation to the public entity crime at issue in the proceeding" as a mitigating factor. The Department of the Navy, acting on behalf of the Department of Defense, entered an administrative agreement with UTC, the sole purpose of which was to evidence that UTC is presently responsible to contract with the federal government notwithstanding UTC's conviction in Ill Wind. The AGREEMENT BETWEEN THE DEPARTMENT OF DEFENSE AND UNITED TECHNOLOGIES CORPORATION, effective as of September 29, 1992, provides -- paragraph 2: "UTC may use the fact of this Agreement as evidence of the Navy's favorable review of the UTC compliance program." paragraph 14: "In recognition of the actions by and covenants of UTC set forth herein, the Department of Defense will not suspend or debar UTC or any of its divisions or affiliates" based upon UTC's Ill Wind conviction. (A copy of the full agreement is attached as Exhibit K). Section 287.133(3)(e)3.i., Florida Statutes, establishes compliance with the notification provisions of section 287.133(3)(a) or (b) as a mitigating factor. UTC promptly complied with these provisions. Section 287.133(3)(e)3.k, Florida Statutes, establishes "any demonstration of good citizenship" as a mitigating factor. UTC has demonstrated good citizenship through its community affairs programs. This includes both financial contributions and employee volunteers in supporting UTC-sponsored programs. More than 10,000 employees volunteer their time in support of education and other community needs. More detailed information demonstrating UTC's good citizenship is attached as Exhibit L. The Department does not contest any of the facts set forth in Exhibit L. The Department is aware of no aggravating facts concerning the conviction of UTC. The UTC divisions and subsidiaries which conduct or currently plan to conduct business in or with the Sate of Florida and/or which are registered to do business in Florida are listed in Exhibit M. This joint stipulation provides a full and complete factual basis for determining whether UTC should be place don the Convicted Vendor List. In light of the facts and the criteria set forth in section 287.133(3)(e)3.a. through k., Florida Statutes, and the presumptions created by section 287.133(3)(e)4., Florida Statutes, there are no disputed issues of material fact between the Department and UTC which would require a formal hearing.
The Issue The issues in this case are whether Respondent violated Section 458.331(1)(t), Florida Statutes (1997), by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances (the standard of care); and, if so, what penalty, if any, should be imposed against Respondent's license to practice medicine. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated).
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of medicine in Florida pursuant to Section 20.43, Chapter 458, and Chapter 456, Florida Statutes (2001). Respondent is licensed as a physician in the state pursuant to license number ME 0043324. The Administrative Complaint involves one male patient who underwent emergency surgery in 1997 at Tampa General Hospital (TGH). The record identifies the patient as D.Y. in order to preserve the patient's confidentiality. The Administrative Complaint, in relevant part, alleges that Respondent failed to keep written medical records justifying the course of treatment of D.Y. in violation of Section 458.331(1)(m) and departed from the standard of care in violation of Section 458.331(1)(t). At the administrative hearing, however, Petitioner voluntarily dismissed the charge that Respondent failed to keep adequate medical records in violation of Section 458.331(1)(m). The only remaining issue in the Administrative Complaint is whether Respondent deviated from the standard of care by failing to ensure that the attending residents performed surgery on the correct side of D.Y.'s head, i.e., "at the correct site." Respondent is Board certified in Neurology and Neurological Surgery and is a professor and Chairman of the Department of Neurosurgery at the University of South Florida College of Medicine (USF). Respondent is the founder of the residency program in neurological surgery at USF. Respondent performs approximately 300 to 400 neurosurgical procedures each year and has done so for more than 15 years. In 1997, Respondent was the Director of the USF residency program in Neurological Surgery. The residency program required residents to complete six to seven post- doctoral years. The record refers to post-doctoral years alternatively as post graduate years or as PGY-1 through PGY-7. TGH was the primary teaching hospital for USF in 1997 and operates in that capacity today. In March 1997, two resident physicians in the USF neurology program performed surgery on D.Y. at TGH. The record identifies the resident physicians as Drs. Etebar and Makoui. Drs. Etebar and Makoui were authorized and qualified to perform the task each performed during the surgery on D.Y. Respondent was the attending physician of record for D.Y., but TGH protocol did not require Respondent to be present in the operating room during the surgery. Although Respondent was present in the operating room at some point during the surgery, Respondent did not participate in the surgery. On March 25, 1997, D.Y. was 44 years old and involved in an automobile accident. Airmed Flight Service (Airmed), a helicopter flight service, transported D.Y. to TGH. The Airmed Flight Service record indicates that D.Y. had a history of progressive lethargy and suffered a right side subdural hemorrhage. TGH admitted D.Y. under the care of Respondent. The admitting nurse conducted an initial evaluation of D.Y. that included a neurological assessment. D.Y. was extremely lethargic, obeyed only simple commands, and was non-verbal. Dr. Makoui conducted a physical examination of D.Y. D.Y. responded to stimulus but was unable to follow commands and was dysphasic. A magnetic resonance image (MRI) revealed a large subdural hematoma on the left side of D.Y.'s head. A subdural hematoma is a blood clot between the surface of the brain and the dural membrane that covers the brain. While D.Y. was in the MRI suite, the patient herniated and became comatose. He developed seizure activity, and his heart rate dropped below 30 from a normal rate of 75 to 125. Herniation in a patient suffering from a subdural hematoma indicates that a portion of the patient's brain has shifted over a fixed membrane inside the skull and is pressing on the brain stem. It is a life-threatening event because the upper brain stem malfunctions and impacts vital functions, including respiration. Surgical intervention was critical or D.Y. would have died. Respondent ordered D.Y. to be transported to the operating room for evacuation of the subdural hematoma. One means of removing a subdural hematoma is by a surgical procedure known as a burr hole evacuation. In the operating room, the medical team prepared D.Y. for a "burr hole evacuation of hematoma and placement of intracranial pressure monitor." The operating record listed Respondent as the attending surgeon, Dr. Etebar as the surgeon, and Dr. Makoui as an assistant. However, Respondent did not participate in the surgery. Respondent did not enter the operating room until after D.Y. was in the operating room. Drs. Makoui and Etebar were in the operating room with D.Y. when Respondent entered the operating room. The operating room record indicates that Respondent approved the positioning of the patient in the "supine" position, i.e., facing straight up. However, the nurse who made the entry in the operating record customarily lists the name of the attending physician of record as the person who approves the position of the patient. Dr. Makoui shaved D.Y.'s scalp in preparation for the surgery. Dr. Etebar then made two one-inch-long scalp incisions in the frontal and parietal areas on the right side of D.Y.'s head. Respondent did not make any incision in D.Y., including the incorrect incision on the right side of D.Y.'s head. At an undetermined point in the surgery, the surgical team became aware that the incisions made by Dr. Etebar on the right side of D.Y.'s head were incorrect. Respondent was present in the surgical suite when it was first noted that the initial incisions had been made on the incorrect side of D.Y.'s head. Dr. Etebar closed the incisions on the right side of D.Y.'s head and repositioned D.Y. with the left side of the patient's head facing up. Dr. Etebar then made burr hole incisions on the left side of D.Y.'s head and evacuated a large amount of liquid clot. Dr. Etebar placed two drains subdurally on the left side of D.Y.'s head and closed the wounds. Dr. Etebar placed drains in the left side of the brain to prevent any reoccurrence of hematoma. The surgical team repositioned D.Y. neutrally. Dr. Etebar then placed a burr hole and a ventriculostomy catheter on the right side of D.Y.'s head to monitor intracranial pressure. It was medically necessary to monitor intracranial pressure with a pressure monitor because the patient was comatose and could not be monitored clinically for the development of pressure. Respondent and the surgeons at TGH routinely place intracranial pressure monitors in a patient who is suffering from a subdural hematoma and who is comatose preoperatively. Postoperatively, the surgical team transported D.Y. to the neurosurgical intensive care unit where he remained for several days while recovering. On March 31, 1997, TGH discharged D.Y. in stable condition with instructions to follow up with Respondent in two weeks. D.Y. suffered no complication or permanent injury as a result of the incisions by Dr. Etebar in the right side of D.Y.'s head. Respondent did not cause any harm to the patient. Respondent did not personally commit any act or omission that deviated from the standard of care. Nor did Respondent improperly delegate responsibility to Drs. Etebar or Makoui. Four experts, in addition to Respondent, reviewed Respondent's care of D.Y., rendered opinions, and testified in this case. Two of the experts are Drs. Lohse and Rydell. Drs. Lohse and Rydell are experts within the meaning of Section 90.702. Dr. Lohse is Board-certified in neurological surgery and treats subdural hematomas. Dr. Rydell is Board-certified in neurological surgery and provides treatment for subdural hematomas including burr hole evacuations. Dr. Daniel P. Robertson is Petitioner's expert witness. Dr. Robert Snow is Respondent's expert witness. All four experts agree. In providing medical care to D.Y., Respondent did not engage in a direct act or omission that violated the standard of care. Nor did Respondent improperly delegate responsibility to the residents who performed the surgery on D.Y. A burr hole evacuation of a subdural hematoma is the simplest operation performed by neurosurgeons. Dr. Etebar and Dr. Makoui were each competent in 1997 to perform the evacuation of the subdural hematoma using the burr hole procedure. Dr. Makoui was a PGY-2 in his second post graduate year. Dr. Etebar was a fellow in his 7th post-doctorate year of training and was classified as a PGY-7. A fellow in USF neurological surgery has completed the residency program, is at least a PGY-7, is Board-eligible in neurosurgery, and wishes to complete additional training. Dr. Etebar was a Board-eligible neurosurgeon who had completed the residency program and could have easily performed burr hole surgery in any community hospital in the country. Dr. Makoui was in his second year of the residency program and competent to perform the tasks he performed during the surgery. The burr hole procedure performed on D.Y. was a very basic procedure that was performed by a Fellow. A PGY-2 physician in training was also present. Under the terms of the TGH "Scope of Practice" protocol for neurological surgery, a PGY-2 or above could perform the procedure in question without the presence of an attending physician. Although the TGH "Scope of Practice" protocol did not require the presence of Respondent in the operating room, Respondent's normal practice was to walk into the surgical suite to make sure things were going well. Dr. Robertson is Petitioner's expert witness in this case. Dr. Robertson provided an expert opinion letter to Petitioner and testified during two different depositions taken by Respondent. Dr. Robertson could not identify anything that Respondent did personally that deviated from the standard of care. An excerpt from one of Dr. Robertson's depositions is illustrative. Q. . . . is there anything that Dr. Cahill did or failed to do, that you can identify, that constituted a deviation from acceptable standards as opposed to just being responsible for the residents? A. Other than being responsible for the resident's action, no. Petitioner's Exhibit 2 (P-2), at page 41. See also P-3 at 10-11. Dr. Robertson concluded that Respondent did not commit any act or omission that deviated from the standard of care but that Respondent was responsible for the acts or omissions of Drs. Etebar and Makoui. The issue of whether a member of the faculty at a teaching hospital may be liable for the acts or omissions of resident physicians is a legal issue that is beyond the scope of the expertise of the witness. It is not a factual issue of whether the faculty member committed an act or omission that deviated from the standard of care. Even if the issue of Respondent's liability for the acts or omissions of Drs. Etebar and Makoui were a factual issue within the scope of Dr. Robertson's expertise, Dr. Robertson's opinion is based on facts not in evidence. Dr. Robertson assumed that Respondent supervised Drs. Etebar and Makoui and instructed each resident on what to do to D.Y. During Dr. Roberson's testimony, he testified: Q. What is the basis of your opinion that [Respondent] is responsible for the actions of the residents? A. . . . when a surgery is done under a mentor's supervision, then the mentor is ultimately responsible for what occurs in the operating room. * * * . . . what do you mean by "responsible?" A. That the resident is doing what the supervising surgeon is instructing him to do. P-2, at 39-40. Respondent did not supervise and instruct Drs. Etebar and Makoui during the surgical procedure performed on D.Y. Hospital protocol did not require Respondent to be present in the operating room. Although Respondent was present in the operating room at some juncture, Respondent did not participate in the surgery. During the administrative hearing, Respondent submitted the written opinions of Drs. Lohse and Rydell and their deposition testimony for admission into evidence. Petitioner objected to the admissibility of the evidence on the grounds that it is hearsay, irrelevant, and cumulative, and that the witnesses are not qualified as experts. The ALJ stated on the record, as a preliminary observation, that a cursory review suggested the evidence was relevant and not cumulative and that the written expert opinions of Drs. Lohse and Rydell were admissions within the meaning of Section 90.803(18). However, the ALJ reserved final ruling in order to study the evidence more thoroughly and allowed both parties to submit argument and supporting legal authority in their respective PROs. Petitioner's PRO raises a new objection that Petitioner did not raise during the administrative hearing. Petitioner objects to the admissibility of the written opinions of Drs. Lohse and Rydell and to the admissibility of their deposition testimony on the grounds that the evidence constitutes work product that is protected from discovery by Rule 1.280(b)(4)(B). The ALJ deemed the assertion of the work product doctrine in Petitioner's PRO to be an objection to the admissibility of evidence based on the lawyer-client privilege in Section 90.502. The parties filed a joint stipulation of facts and submitted legal memoranda on the evidentiary issues. The written opinions of Drs. Lohse and Rydell are not work product. Petitioner did not obtain the opinion letters in anticipation of litigation within the meaning of Rule 1.280(b)(4)(B). Rather, Petitioner obtained the opinion letters on September 3, 1998, and June 28, 2000, in connection with the investigation of this matter and prior to a determination of probable cause within the meaning of Section 456.073(10), Florida Statutes (2001)(hereinafter, Section 456.073(10)). Section 456.073(10) requires Petitioner to produce the opinion letters of experts obtained in connection with the investigation of the case. In relevant part, Section 456.073(10) provides: . . . Upon completion of the investigation and a recommendation by the department to find probable cause, and pursuant to a written request by the subject or the subject's attorney, the department shall provide the subject an opportunity to inspect the investigative file or, at the subject's expense, forward to the subject a copy of the investigative file. Notwithstanding s. 456.07, the subject may inspect or receive a copy of any expert witness report or patient record connected with the investigation. (emphasis supplied) The written expert opinions rendered by Drs. Lohse and Rydell are contained in Petitioner's complaint investigation file. Petitioner obtained the written expert opinions of Drs. Lohse and Rydell on September 3, 1998, and June 28, 2000, respectively; long before the determination of probable cause that was required before Petitioner could file the Administrative Complaint on December 12, 2001. The opinion letters are not part of Petitioner's theories, mental impressions, or conclusions produced in anticipation of litigation. Assuming arguendo that the written opinions of Drs. Lohse and Rydell are work product, Petitioner argues that the statutory mandate in Section 456.073(10) to disclose the expert opinions to Respondent deprives Petitioner of the volition required to voluntarily waive the work product doctrine within the meaning of Section 90.507. Findings regarding the voluntary nature of the disclosure mandated by Section 456.073(10) are unnecessary because there is no statutory mandate for Petitioner to allow Respondent to take the depositions of Drs. Lohse and Rydell. Petitioner consented to the depositions of Drs. Lohse and Rydell. Petitioner did not oppose the depositions, did not file a motion for protective order, and did not object during the deposition to questions designed to disclose the expert opinions. The consensual deposition testimony of Drs. Lohse and Rydell disclosed their respective opinions and thereby waived the protection that Petitioner claims under the work product doctrine within the meaning of Section 90.507. The written opinions of Drs. Lohse and Rydell are admissions within the meaning of Section 90.803(18)(d). The written opinions are statements by Petitioner's agent or servant concerning a matter within the scope of the agency or employment that is made during the existence of the relationship. In 1998, Petitioner, through its agent, Medimetrics Corporation, Inc. (Medimetrics), solicited an opinion from Dr. Lohse in regard to the care provided by Respondent to D.Y. Dr. Lohse issued a written expert opinion by letter dated September 3, 1998. Sometime prior to June 28, 2000, Petitioner, through Medimetrics, contacted Dr. Rydell and requested that he provide an expert opinion in this matter. On June 28, 2000, Dr. Rydell provided a written expert opinion letter to Medimetrics. Both opinion letters state that Respondent met the standard of care in the treatment, care, and diagnosis of D.Y. Respondent submitted both opinion letters into evidence against the interest of Petitioner. The expert opinions of Drs. Lohse and Rydell are not cumulative of the opinion of Respondent's expert witness, Dr. Snow. Only the opinions of Drs. Lohse and Rydell constitute exculpatory evidence developed by a prosecuting agency during the investigative phase of an administrative proceeding that is penal in nature. The expert opinions of Drs. Lohse and Rydell are not cumulative of each other. Each shows that the other is not an anomaly and that Petitioner had evidence of Respondent's innocence from two different sources that were separated by time and community.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED, that Petitioner enter a Final Order finding Respondent not guilty of the allegations in the Administrative Complaint and dismissing the Complaint. DONE AND ENTERED this 14th day of August, 2002, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 2002. COPIES FURNISHED: William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, BIN A02 Tallahassee, Florida 32399-1701 Kim Kluck, Esquire Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Bruce D. Lamb, Esquire Ruden, McClosky, Smith, Schuster & Russell, P.A. 401 East Jackson Street, 27th Floor Tampa, Florida 33602 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, BIN A02 Tallahassee, Florida 32399-1701 S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, BIN A02 Tallahassee, Florida 32399-1701
The Issue The issue in this case is whether the Petition for Relief, charging the Respondent with illegal discrimination on the basis of a perceived handicap (a history of back surgery and mild hypertension), should be granted.
Findings Of Fact On or about April 30, 1991, the Petitioner, Malcolm L. Deane, II, applied for a job as a tanker driver with the Respondent, Fleet Transport Company, Inc., at its Tampa, Florida, terminal. Tankers transport gasoline, which is classified as a hazardous material. The Respondent hired the Petitioner, who had extensive tanker experience, conditioned on passing the physical and written examinations required by the Florida Department of Transportation (the DOT). He passed the written examination. The Respondent's physician examined the Petitioner and determined that the Petitioner had mild hypertension, which the Petitioner believes was caused by stress in his personal life at the time. Under DOT guidelines, a systolic blood pressure reading of between 161 and 180, or a diastolic blood pressure reading of between 91 and 104, is considered mild hypertension. The Petitioner's blood pressure was 140/104. In accordance with DOT regulations, the physician qualified the Petitioner to drive a tanker for three months, during which time the Petitioner would be required to reduce his blood pressure to 160/90, or better, in order to continue to be qualified, physically, to drive a tanker. The Respondent's physician also prepared a medical report of his examination of the Petitioner. In it, he not only reported the Petitioner's mild hypertension, he also reported that the Petitioner had back surgery January 3, 1991, which was "O.K. now," and made the comment: "I advise Mr. Malcolm [sic] to refrain from doing heavy lifting due to his recent back surgery." After the Petitioner's back surgery, the Petitioner successfully attended an eight-week back school and was released by his physician on or about March 6, 1991, to return to work driving a truck full-time with no restrictions. Once the Petitioner received his three-month Medical Examiner's Certificate, the Respondent hired him. He started training, with another driver, on May 1, 1991. Training continued on May 2, 3 and 4, 1991. After a day off, the Petitioner began working solo. He worked May 6, was off the next day, worked May 8 and 9, was off the weekend of May 10-12, and worked May 13 through 21, at which point he was "out of hours" for the month under DOT regulations and was required to take off. Throughout his work with the Respondent, the Petitioner's work was satisfactory and merited commendations and exhortations to keep up the good work. Neither his mild hypertension nor his back hampered his ability to perform the work in any way. At the end of the work day on May 21, 1991, the Respondent's terminal manager approached the Petitioner to tell him that the Respondent was terminating his employment. The manager conceded that the Petitioner's work had been excellent but that the company considered him a medical risk the company could not afford to take, due to the mild hypertension and the prior back surgery. The Petitioner was able to confirm through others in the company what the terminal manager had told him. The Respondent pays its drivers between $500 and $550 a week. The Petitioner was unemployed for four weeks after the Respondent terminated him. (He did not collect unemployment compensation.) He then got a job as a heavy equipment operator for a landfill, making $330 a week. Under the circumstances of his discharge, he does not seek to be rehired by the Respondent. He believes that his discharge by the Respondent has made it impossible for him to be hired by any other company as a tanker driver. On or about August 30, 1991, the Respondent (and other related companies) filed a petition for relief under Chapter 11 of the federal Bankruptcy Code and became a protected debtor in possession. Creditors were given notice of commencement of the proceeding and notice of the possible operation of Section 362 of the Bankruptcy Code (which prohibits some creditors from taking certain actions against a debtor in possession).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order granting the Petition for Relief filed in this case, prohibiting the Respondent from the practice of discriminating against the Petitioner on the basis of a perceived handicap, and requiring the Respondent to pay the Petitioner $2,000. RECOMMENDED this 26th day of March, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1993. COPIES FURNISHED: Malcolm L. Deane, II 727 Brook Street Largo, Florida 34640 Norman Block, Esquire Spengler Carlson Gubar Brodsky & Frischling 520 Madison Avenue New York, New York 10022 Ronald M. McElrath Executive Director Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
Recommendation Upon consideration, it is RECOMMENDED: That a final order be entered which denies the license renewal for Morris Manor to operate as an Assisted Living Facility. DONE AND ENTERED this 19th day of May, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1999. COPIES FURNISHED: Thomas W. Caufman, Esquire Agency for Health Care Administration 6800 North Dale Mabry Highway 220 Tampa, Florida 33614 Wilhelmena Morris, Administrator Morris Manor Post Office box 309 Ocklawaha, Florida 32179 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Paul J. Martin, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
