98-004450 Board Of Medicine vs. Timothy Allen Alexander Status: Closed Recommended Order on Friday, March 12, 1999.

Summary: Licensee failed to comply with order of the Board by failing to complete continued medical education course in a timely manner.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 98-4450

)

TIMOTHY A. ALEXANDER, M.D., )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings,

by its duly designated Administrative Law Judge, William J.

Kendrick, held a formal hearing in the above-styled case on

January 21, 1999, by video teleconference.

APPEARANCES

For Petitioner: John E. Terrel, Esquire

Department of Health

Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Timothy A. Alexander, M.D., pro se

9000 Northeast 2nd Avenue

Miami, Florida 33138

STATEMENT OF THE ISSUES

At issue in this proceeding is whether Respondent committed

the offenses set forth in the Administrative Complaint and, if

so, what penalty should be imposed.

PRELIMINARY STATEMENT

By a one-count Administrative Complaint dated April 28,

1997, Petitioner charged that Respondent, a licensed physician,

violated the provisions of Subsection 458.331(1)(x), Florida

Statutes, by "violating . . . a lawful order of the board or

department previously entered in a disciplinary hearing." As the

predicate for such charge, the complaint alleged the following:

3. On or about June 30, 1995, the Board of

Medicine filed a Final Order against

Respondent in Case Number 92-11508 which

required Respondent to pay an administrative

fine of $1,500.00 within sixty (60) days of

the filing of the Final Order, required

Respondent to complete ten (10) hours of

Continuing Medical Education in Risk

Management, and required Respondent to

complete the course "Quality Medical Records

Keeping for Health Care Professionals"

sponsored by the Florida Medical Association

within one (1) year of the filing of the

Final Order. The Board determined that

Respondent had failed to practice medicine

within the acceptable level of care by

performing an adequate medical examination,

and for failing to maintain appropriate

medical records by failing to document the

basis for diagnosing a patient’s condition,

failing to document the basis for the plan of

treatment followed, and for failing to

document operative notes.

4. On or about March 27, 1997, the Board

of Medicine notified the Agency that

Respondent had failed to complete the course

sponsored by the Florida Medical Association,

and had failed to complete the required ten

(10) Continued Medical Education hours.

5. Respondent is guilty of violating an

order of the Board in that he failed to

comply with the Final Order issued in case

number 92-11508 by failing to complete the

requirements of the Final Order.

For such violation, Petitioner proposed one or

more of the following penalties be imposed:

. . . permanent revocation or suspension of

the Respondent's license, restriction of the

Respondent's practice, imposition of an

administrative fine, issuance of a reprimand,

placement of the Respondent on probation

. . . and/or any other relief that the Board 1

deems appropriate.

Respondent filed an election of rights which disputed the

factual allegations contained in the Administrative Complaint and

requested a formal hearing before an administrative law judge

appointed by the Division of Administrative Hearings.

Consequently, on October 7, 1998, Petitioner referred the matter

to the Division of Administrative Hearings for the assignment of

an administrative law judge to conduct a formal hearing pursuant

to Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes.

At hearing, Petitioner called Dinah Skrimich, Crystal A.

Griffin and Melissa Carter, as witnesses, and Petitioner's

Exhibits 1-9 were received into evidence. Respondent testified

on his own behalf, and Respondent's Exhibits 1-7 were received

into evidence.

The hearing transcript was filed February 8, 1999, and the

parties were initially accorded until February 18, 1999, to file

proposed recommended orders; however, at Petitioner's request,

and with Respondent's acquiescence, the time for filing was

extended to March 2, 1999. Consequently, the parties waived the

requirement that a recommended order be rendered within 30 days

after the transcript has been filed. Rule 28-106.216(2), Florida

Administrative Code. The parties elected to file such proposals

and they have been duly considered.

FINDINGS OF FACT

1. Respondent, Timothy A. Alexander, is now, and was at all

times material hereto, licensed as a physician by the State of

Florida, having been issued license number ME 0035285.

2. On June 29, 1995, the Board of Medicine entered a final

order which approved and adopted a consent agreement accepted by

Respondent in a prior disciplinary action (Case No. 92-11508).

Pertinent to this case, the final order imposed an administrative

fine in the amount of $1,500.00, against Respondent, which was to

be paid within 60 days following the filing of the final order

(June 30, 1995). The final order also required that Responden t

attend 10 hours of Category I Continuing Medical Education in

risk management within one year of the filing of the order.

Finally, the order required that Respondent complete the course

"Quality Medical Records Keeping for Health Care Professionals,"

sponsored by the Florida Medical Association, or a Board-approved

equivalent, within one year of the filing of the final order. 2

3. Here, there is no dispute or reason to doubt that

Respondent timely paid the administrative fine imposed by the

final order and that he likewise timely completed the 10 hours of

Category I Continuing Medical Education in risk management

required by the terms of the final order. 3 Consequently, the

only viable issue to resolve is whether Respondent timely

completed the course "Quality Medical Records Keeping for Health

Care Professionals," sponsored by the Florida Medical

Association, or a Board-approved equivalent.

4. The course "Quality Medical Records Keeping for Health

Care Professionals," sponsored by the Florida Medical Association

(the "Course"), is a course designed to help physicians improve

their medical record-keeping skills and is divided into two

phases. Phase I includes a one-hour credit for preparatory

reading and a four-hour credit for on-site instruction in

Jacksonville, Florida. The on-site instruction includes one hour

of didactic lecture, a two-hour audit practicum, and a one-hour

critique of the practitioner's existing records. Phase II is a

follow-up critique, designed to be performed at three months

following completion of the on-site instruction. At this phase,

the practitioner is required to submit another six sets of

records for evaluation (the second set), which presumably reflect

the benefits of the on-site instruction. The second set of

records is evaluated by the same individual who examined the

first set and if deemed acceptable the evaluator would

immediately notify the Florida Medical Association (FMA), which

would issue a certificate reflecting completion of the course.

If the practitioner's record-keeping was not acceptable, he would

be accorded another three-month period to implement the

recommendations, following which he would submit additional

records for evaluation. Successful completion of Phase I and

Phase II was required for course completion.

5. Here, the proof demonstrates that in or about May 1996,

Respondent registered to attend the Course on June 8, 1996, at

Jacksonville, Florida, and that on May 9, 1996, the FMA forwarded

to him the required preparatory reading material. Respondent

attended and completed the June 8, 1996, on-site instruction

(Phase I).

6. By letter of August 12, 1996, two months following the

on-site instruction, the FMA reminded Respondent that, at three

months, he needed to complete Phase II. That letter provided, as

follows:

The letter is to remind you that it is time

for Phase II of the FMA Clinical Excellence

Program, "Quality Medical Records Keeping for

Health Care Professionals". You completed

Phase I on June 8, 1996.

The second phase of the course will consist

of a self-audit of approximately 10-20 of

your own office records utilizing the same

audit criteria which were provided in Phase

I. To ensure that the objectives of the

course have been accomplished, this audit is

performed three months after you have

completed Phase I. The three month delay is

to allow sufficient time for implementation

of the new record-keeping practices in your

own medical record keeping system.

The same faculty member who critiqued your

office medical records during Phase I will

provide the critique of your Phase II self-

audit. You need not return to Jacksonville

to complete the self-audit. At the end of

three months, September 8, 1996, six (6) sets

of medical records should be mailed to the

Florida Medical Association, attention

Suzanne Brunette, CME Projects Manager.

Please take appropriate measures to preserve

patient confidentiality. Your mentor will

evaluate the records and report the findings

to you.

Upon successful completion of Phase II, you

will receive a certificate indicating that

you have completed the course. No

certificate of credit can be issued until

Phase II (follow-up evaluation) has been

successfully completed.

7. In late October or early November, 1996, Respondent

submitted the required medical records for evaluation, they were

successfully critiqued, and on November 6, 1996, Respondent was

certified by the FMA as having successfully completed the course.

8. Given the proof, it cannot be subject to serious debate

that Respondent did not complete the Course, and could not have

completed the Course (given the date he elected to take Phase I

of the Course and the minimum three-month delay required between

the completion of Phase I and the completion of Phase II), within

one year after the Board's order was filed. He did, however,

timely complete the on-site portion of the Course (Phase I) and

successfully completed the follow-up critique (Phase II), with

nominal delay. That Phase II and, consequently, completion of

the Course occurred outside the one-year period prescribed by the

final order was not, apart from the untimeliness itself, shown to

be significant.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has jurisdiction

over the parties to, and the subject matter of these proceedings.

Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes.

10. Where, as here, the Department proposes to take

punitive action against a licensee, it must establish grounds for

disciplinary action by clear and convincing evidence. Section

120.57(1)(h), Florida Statutes (1997), and Department of Banking

and Finance v. Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996).

"The evidence must be of such weight that it produces in the mind

of the trier of fact a firm belief or conviction, without

hesitancy, as to the truth of the allegations sought to be

established." Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla.

4th DCA 1983). Moreover, the disciplinary action taken may be

based only upon the offenses specifically alleged in the

administrative complaint. Cottrill v. Department of Insurance ,

685 So. 2d 1371, 1372 (Fla. 1st DCA 1996) ("Predicating

disciplinary action against a licensee on conduct never alleged

in the administrative complaint or some comparable pleading

violates the Administrative Procedures Act.") See also Kinney v.

Department of State , 501 So. 2d 129 (Fla. 5th DCA 1987);

Sternberg v. Department of Professional Regulation, Board of

Medical Examiners , 465 So. 2d 1324 (Fla. 1st DCA 1985); and

Hunter v. Department of Professional Regulation ; 458 So. 2d 844

(Fla. 2d DCA 1984). Finally, in determining whether Respondent

violated the provisions of Section 458.331(1), as alleged in the

Administrative Complaint, one "must bear in mind that it is, in

effect, a penal statute. . . . This being true, the statute must

be strictly construed and no conduct is to be regarded as

included within it that is not reasonably proscribed by it."

Lester v. Department of Professional and Occupational

Regulations , 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

11. Pertinent to this case, Section 458.331(1), Florida

Statutes, provides that the Board of Medicine may discipline a

licensee, if it has been shown that the licensee is guilty of:

(x) Violating . . . a lawful order of the

board . . . previously entered in a

disciplinary hearing. . . .

12. Here, Petitioner demonstrated with the requisite degree

of certainty, that Respondent violated the provisions of

Subsection 458.331(1)(x), Florida Statutes, by having failed to

timely complete the Course, as alleged in the Administrative

Complaint. Having reached such conclusion, it remains to resolve

the appropriate penalty that should be imposed.

13. Pertinent to the penalty phase, Rule 64B8-30.015,

Florida Administrative Code, establishes the penalty guidelines,

as well as aggravating and mitigating circumstances, to be

considered by the Board of Medicine when it elects to take

disciplinary action against a practitioner. For a violation of

Subsection 458.331(1)(x), Florida Statutes, Rule 64B8-30.015(2),

Florida Administrative Code, provides for a penalty "[f]rom a

reprimand to revocation . . . and an administrative fine from

$50.00 to $1,000.00." Aggravating and mitigating factors to be

considered are set forth in subparagraph (3) of the rule, as

follows:

(3) Aggravating and Mitigating

Circumstances. Based upon consideration of

aggravating and mitigating factors present in

an individual case, the Board may deviate

from the penalties recommended above. The

Board shall consider as aggravating or

mitigating factors the following:

(a) Exposure of patients or public to

injury or potential injury, physical or

otherwise; none, slight, sever, or death;

(b) Legal status at the time of the

offense; no restraints, or legal constraints;

(c) The number of counts or separate

offenses established;

(d) The number of times the same offense

or offenses have previously been committed by

the licensee or applicant;

(e) The disciplinary history of the

applicant or licensee in any jurisdiction and

the length of practice;

(f) Pecuniary benefit or self-gain inuring

to the applicant or licensee;

(g) Any other relevant mitigating factors.

14. With regard to the aggravating and mitigating factors,

it is observed that there was (a) no exposure of patients or

public to injury or potential injury, (b) there was no apparent

restraint on Respondent's practice at the time, (c) only a

nominal violation of the charges was shown (failure to complete

Phase II of the Course within one year of the final order),

although Respondent timely completed all other requirements

placed upon him by the final order, (d) Respondent was not shown

to have ever committed a similar offense, (e) apart from the

disciplinary action which precipitated the final order at issue

in this case, no other disciplinary history was shown, and (f) no

pecuniary benefit or self-gain was shown to inure to Respondent.

15. Considering the Board's penalty guidelines, as well as

its aggravating and mitigating circumstances, it must be

concluded that, at most, Respondent's nominal failure to comply

with the Board's final order warrants a reprimand and the

imposition of an administrative fine in the amount of Fifty

Dollars ($50.00). 4

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered which finds

Respondent guilty of violating Section 458.331(1)(x), Florida

Statutes, by having failed to timely complete the course "Quality

Medical Records Keeping for Health Care Professionals," sponsored

by the Florida Medical Association, as alleged in the

Administrative Complaint, and that for such violation, Respondent

receive a reprimand and an administrative fine in the amount of

Fifty Dollars ($50.00).

It is further RECOMMENDED that in all other respects,

Respondent was not shown to have committed any offense alleged in

the Administrative Complaint and that the Administrative

Complaint should otherwise be dismissed.

DONE AND ENTERED this 12th day of March, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah .state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of March, 1999.

ENDNOTES

1/ The complaint also sought an award of costs as provided for by

Section 455.227(3), Florida Statutes; however, the Department

offered no proof, at hearing, regarding what costs, if any, it

incurred. Consequently, there is no record basis on which to

address such an award.

2/ In its Proposed Recommended Order, Petitioner has referenced

two other provisions of the final order which it suggests

Respondent violated and which warrant the assessment of a penalty.

First, with regard to the requirement that Respondent attend 10

hours of Category I Continuing Medical Education in risk

management, the order further provided:

. . . Respondent shall submit a written plan

to the Chairman of the Probationer's

Committee for approval prior to the

completion of said continuing education

hours. . .

Second, with regard to the requirement that Respondent complete

the course "Quality Medical Records Keeping for Health Care

Professionals," sponsored by the Florida Medical Association, or

Board-approved equivalent, the order further provided.

. . . In addition, Respondent shall submit

documentation in the form of certified copies

of the receipts, vouchers, certificates, or

other papers, such as physician's recognition

awards. . .

It is Respondent's perceived failure to comply with the additional

requirements that Petitioner contends warrant further disciplinary

action. There is, however, no rational basis to support

Petitioner's contention. In so concluding, it is observed that

the matters were not shown to be substantive, as opposed to

procedural in nature. Indeed, the provisions provide little more

than assurance Respondent successfully completed course(s)

acceptable to the Board. Here, there is no dispute that

Respondent successfully completed the courses and that the courses

were acceptable to the Board. Consequently, Respondent's failure

to comply with the provisions is of little or no consequence.

More fundamentally, Respondent's failure to comply with such

requirements was not alleged in the Administrative Complaint as a

predicate for disciplinary action and, consequently, cannot

support a finding of misconduct. Cottrill v. Department of

Insurance , 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996) (Disciplinary

action against a licensee may be predicated solely on the

violations both pled in the Administrative Complaint and proven at

hearing).

3/ Respondent completed a 9-hour course of Category I Continuing

Medical Education on November 30, 1995, and a 1-hour course of

Category I Continuing Medical Education on December 18, 1995.

4/ In its proposed recommended order, Petitioner proposes, as a

penalty, the imposition of an administrative fine in the sum of

$5,000.00. Petitioner did not, however, disclose how it had

derived such penalty, and it most likely included a consideration

of matters, as discussed in endnote 2, which are not properly at

issue. In any event, the penalty proposed by Petitioner bears no

rational relationship to the offense committed by Respondent.

COPIES FURNISHED:

John E. Terrel, Esquire

Department of Health

Post Office Box 14229

Tallahassee, Florida 32317-4229

Timothy A. Alexander, M.D.

9000 Northeast 2nd Avenue

Miami, Florida 33138

Tanya Williams, Executive Director

Board of Medicine

Department of Health

1940 North Monroe Street

Tallahassee, Florida 32399-0750

Pete Peterson, General Counsel

Department of Health

Bin A02

2020 Capital Circle Southeast

Tallahassee, Florida 32399-1701

Angela T. Hall, Agency Clerk

Department of Health

Bin A02

2020 Capital Circle Southeast

Tallahassee, Florida 32399-1703

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.