02-000145 Aaron B. Roush, M.D. vs. Department Of Health, Board Of Medicine Status: Closed Recommended Order on Thursday, May 23, 2002.

Summary: Licensed physician who satisfies minimum standards for competency and is not a danger to public should receive unconditional license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AARON B. ROUSH, M.D., )

)

Petitioner, )

)

vs. ) Case No. 02 - 0145

)

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

administrative hearing of this case on March 20, 2002, in Winter

Haven, Florida, on behalf of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: J. Davis Connor, Esqui re

Peterson & Myers, P.A.

Post Office Drawer 7608

Winter Haven, Florida 33883 - 7608

For Respondent: Lee Ann Gustafson, Esquire

Office of the Attorney General

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUE

The issue in the case is whether the conditions that

Respondent imposed on Petitioner's license as a physician

violate Sections 458.301 , 458.311(5) and (8), and 458.331(1)(c),

(s), and (2), Florida Statutes (2001). (All section references

are to Florida Statutes (2001) unless otherwise stated.)

PRELIMINARY STATEMENT

On December 18, 2001, the Department of Health, Board of

Medicine ("the Board"), issued its Order licensing Petitioner to

practice medicine in the state. However, the Board imposed

certain conditions on the license that require Petitioner to

undergo psychiatric monitoring, counseling, and treatment for

two years pursuant to a mandatory Physician's Recovery Network

(PRN) contract. Petitioner timely requested an administrative

hearing to challenge the imposition of conditions on his

license.

At the hearing, Petitioner presented the testimony of eight

witnesses and submitted o ne exhibit for admission into evidence.

Respondent presented the testimony of one witness and submitted

one joint composite exhibit with Petitioner for admission into

evidence. The identity of the witnesses and exhibits, and any

attendant rulings, are se t forth in the Transcript of the

hearing filed on April 4, 2002.

On April 2, 2002, Petitioner filed and served his request

for official recognition of certain excerpts of the Florida

Administrative Weekly relating to noticed meetings of the Board.

The r equest for official recognition is granted.

By Order dated April 15, 2002, the ALJ granted an Agreed

Motion for Extension of Time to File Proposed Recommended Orders

by May 1, 2002. Petitioner timely filed his Proposed

Recommended Order (PRO) on April 1 7, 2002. Respondent timely

filed its PRO on May 1, 2002.

FINDINGS OF FACT

1. Petitioner is a licensed physician in Florida. The

Board licensed Petitioner on December 20, 2001.

2. The Board imposed several conditions on Petitioner's

license pursuant to a mandatory PRN contract. In relevant part,

the conditions require Petitioner to undergo psychiatric

monitoring, counseling, urinalysis, and treatment for two years.

3. The Board must exercise any specific statutory

authority to impose conditions on P etitioner's license in a

manner that implements the legislative purpose and intent for

the act expressed in Section 458.301. Section 458.301 provides,

in relevant part:

The Legislature recognizes that the practice

of medicine is potentially dangerous to t he

public if conducted by unsafe and

incompetent practitioners. . . . The

primary legislative purpose in enacting this

chapter is to ensure that every physician

practicing in this state meets minimum

requirements for safe practice. It is the

legislative intent that physicians who fall

below minimum competency or who otherwise

present a danger to the public shall be

prohibited from practicing in this state.

4. Section 458.301 essentially prescribes two purposes for

the imposition of conditions on Petitio ner's license. The

conditions must address either the minimum requirements for

competency or some danger to the public.

5. Respondent does not contend that Petitioner is

incompetent or falls below the minimum competency required to

practice medicine i n the state. Respondent stipulates that

Petitioner meets the minimum competency requirements for

licensure.

6. The conditions imposed by the Board on Petitioner's

license must implement the remaining legislative purpose in

Section 458.301. The condition s must ensure that Petitioner is

not a danger to the public.

7. If Petitioner were a person "who otherwise present[s] a

danger to the public," irrespective of the conditions on his

license, Section 458.301 does not state that the legislature

intends for the Board to impose conditions on Petitioner's

license. Rather, Section 458.301 provides that Petitioner

" shall be prohibited from practicing in this state." (emphasis

supplied) Therefore, the conditions imposed on Petitioner's

license must be reasonab ly necessary to ensure that Petitioner

is not a danger to the public.

8. Petitioner may prevail in this case through two

alternative courses. Petitioner may show that he is not a

danger to the public and that the conditions imposed on his

license do not implement any relevant legislative purpose in

Section 458.301. If Petitioner were unable to show that he is

not a danger to the public in the absence of a conditional

license, Petitioner may prevail by showing that the specific

conditions imposed on his l icense are not rationally related to

the potential danger and, therefore, do not implement any

relevant legislative purpose in Section 458.301.

9. Respondent relies on Sections 458.311(5) and 458.331(2)

as the specific statutory authority to impose condi tions on

Petitioner's license. For reasons stated in the Conclusions of

Law, Section 458.311(5) is the relevant legal authority for the

conditions at issue in this case.

10. Respondent relies on the last sentence of Section

458.311(5) and Section 458.3 11(8) to impose conditions on

Petitioner's license. The last sentence in Section 458.311(5)

states:

When the board finds that an individual has

committed an act or offense in any

jurisdiction which would constitute the

basis for disciplining a physician p ursuant

to s. 458.331, then the board may enter an

order imposing one or more of the terms set

forth in subsection (8).

Section 458.311(8)(c), in relevant part, authorizes the Board to

impose:

. . . such conditions as the board may

specify, including, bu t not limited to,

requiring the physician to submit to

treatment . . . .

11. Respondent alleges that Petitioner committed an act or

offense that constitutes a basis for disciplining Petitioner

pursuant to Section 458.331(1)(c) and (s). Section 458.331(1 )

provides, in relevant part, that the following acts constitute

grounds for disciplinary action:

(c) Being convicted or found guilty of, or

entering a plea of nolo contendere to,

regardless of adjudication, a crime in any

jurisdiction which directly rela tes to the

practice of medicine or to the ability to

practice medicine.

* * *

(s) Being unable to practice medicine with

reasonable skill and safety to patients by

reason of illness or use of alcohol . . . or

as a result of any mental . . . condition .

12. On June 1, 1997, a law enforcement officer arrested

Petitioner in the Ybor City district of Tampa, Florida, for

driving under the influence of alcohol (DUI). On November 23,

1997, law enforcement personnel charged Petitioner with

misdemeanor assa ult in Hillsborough County. The Hillsborough

County State Attorney dismissed the DUI charge, and the court

found Petitioner guilty of assault.

13. Neither the DUI charge nor the assault conviction are

directly related to either the practice of medicin e or the

ability to practice medicine within the meaning of Section

458.331(1)(c). Neither incident has adversely affected

Petitioner's treatment of his patients.

14. Petitioner entered the residency program in general

surgery at the University of Sou th Florida College of Medicine

(USF) on July 1, 1996, and completed the program on June 30,

2001. The DUI charge and assault conviction occurred

approximately 12 and 17 months, respectively, after Petitioner

entered the residency program. After the last incident on

November 23, 1997, Petitioner successfully completed the

remaining 43 months of the five - year residency program at USF.

Of the six medical graduates who entered the residency program

on July 1, 1996, Petitioner was the only entrant to successf ully

complete the program. During the residency program, Petitioner

worked between 100 and 164 hours a week and safely completed

approximately 1,336 operative procedures without endangering any

of his patients. After successfully completing the residency

program and obtaining his license to practice, Petitioner has

worked at the Gessler Clinic in Winter Haven, Florida.

Petitioner has safely completed an average of 100 surgeries a

week without endangering any of his patients.

15. The DUI charge and assa ult conviction are isolated

incidents. The surrounding facts and circumstances do not show

that either incident is directly related to either the practice

of medicine or the ability to practice medicine.

16. The arresting officer in the DUI charge failed to

procure any sample of either breath or blood to indicate

Petitioner's blood alcohol level. Petitioner requested law

enforcement personnel to test his blood alcohol level.

The Hillsborough County State Attorney's office dismissed the

case by Nolle Pr osequi .

17. Respondent stipulates that Petitioner is not a

substance abuser. The requirement in the PRN for urinalysis is

not rationally related to any potential danger to the public

from substance abuse and therefore exceeds the scope of

legislative i ntent in Section 458.301.

18. On November 23, 1997, law enforcement personnel

charged Petitioner with misdemeanor assault in Hillsborough

County. The charge arose out of a verbal altercation between

Petitioner and another motorist in Tampa, Florida, ap proximately

six months earlier in May, 1997. The motorist "cut - off"

Petitioner on his motorcycle while Petitioner was on a date with

his girlfriend. At the next intersection, Petitioner and the

motorist exchanged loud verbal insults. No physical violenc e

was involved, and the participants were separated at all times

by a lane of traffic.

19. Petitioner appeared for trial of the assault charge on

March 4, 1998, without a lawyer. Petitioner failed to call his

principal witness, lost the case, and was con victed of

misdemeanor assault. The court placed Petitioner on probation

for a period of three months. Petitioner successfully completed

the probation on June 1, 1998.

20. Neither the DUI charge nor the assault conviction

evince a potential danger to the public from the practice of

medicine within the meaning of Section 458.301. Any condition

on Petitioner's license based on the DUI charge and assault

conviction exceed the scope of legislative intent in

Section 458.301.

21. Neither the DUI charge nor the assault conviction is

an act or offense which would constitute the basis for

disciplining Petitioner within the meaning of Section

458.311(5). Neither incident is directly related to the

practice of medicine or the ability to practice medicine within

the meaning of Section 458.331(1)(c).

22. Respondent alleges that Petitioner is unable to

practice medicine with reasonable skill and safety to patients

within the meaning of Section 458.331(1)(s). Respondent

stipulates that Petitioner is not an alcoh ol or substance

abuser, but claims that Petitioner has a mental condition that

renders him unable to practice medicine with reasonable skill

and safety to patients.

23. Petitioner does not have a mental condition that

renders him unable to practice medici ne with reasonable skill

and safety to patients within the meaning of Section

458.331(1)(s). As previously found, Petitioner was the only one

of six entrants to successfully complete the USF residency

program. During that time, Petitioner safely complete d

approximately 1,336 operative procedures and, in private

practice, now safely completes approximately 100 operative

procedures each week.

24. As part of the PRN contract, Dr. James Edgar performed

a psychiatric evaluation of Petitioner and issued a wri tten

report to Dr. Raymond Pomm, M.D., Director of the PRN program,

on October 15, 2001. Petitioner is "capable of practicing with

reasonable skill and safety from a psychiatric perspective."

Petitioner "shows no evidence of an Axis I psychiatric disorde r,

no cognitive impairment and no gross problem with reality

testing, no sense of delusional thinking, excessive self -

absorption, etc."

25. The most striking findings of the clinical examination

and psychological testing by Dr. Edgar are rather strong

n arcissistic and histrionic traits. Although these traits

exhibit psychological dysfunction of a mild to moderate

severity, the traits do not reach the level of a narcissistic or

histrionic personality disorder. There is no adequate basis to

recommend psy chotherapy for Petitioner.

26. The PRN contract requires Petitioner to attend regular

sessions of psychotherapy with Dr. Kevin Kindelan, a

professional psychologist. Dr. Kindelan testified at the

administrative hearing. There is no reason for the

psyc hotherapy that Dr. Kindelan provides. Petitioner has no

psychological problems.

27. Dr. Pomm is the Director of the PRN program. He is

responsible for its successful implementation. Dr. Pomm

testified at the administrative hearing.

28. Dr. Pomm conclu ded that Petitioner is a "disruptive

physician." The PRN contract that is a condition of

Petitioner's license is a "disruptive physician" contract.

29. The term "disruptive physician" is not defined by

statute or any rule that the Board has adopted in ac cordance

with the rulemaking procedures prescribed in Section 120.54.

However, the Board's use of the term as a basis for imposing

conditions on physician licenses satisfies the statutory

definition of a rule in Section 120.52(15).

30. The Board's use of the term "disruptive physician" as

a ground for imposing conditions on physician licenses is an

agency statement. The substance of the statement is that

disruptive physicians have a mental condition, within the

meaning of Section 458.331(1)(s), that re nders them unable to

practice medicine with reasonable skill and safety to patients

and requires the imposition of conditions on their license

authorized in Section 458.311(5) and (8).

31. The agency statement satisfies the statutory

requirement in Sectio n 120.52(15) for general applicability.

Since 1998, the Board has consistently applied the agency

statement in approximately 200 cases, with the force and effect

of law, as the sole basis for placing physicians under PRN

contracts as "disruptive physician s." The Board has applied the

agency statement concerning "disruptive physicians" in every

case in which the physician has no chemical dependency or Axis I

diagnosis but exhibits behavior that others have found

problematic. In each case when a PRN contra ct has been

required, the PRN program has obtained an evaluation from a

competent evaluator such as Dr. Edgar.

32. The agency statement concerning "disruptive

physicians" implements, interprets, or prescribes the law

enacted by the legislature in Section 458.331(1)(s). The Board

interprets and implements the term "mental condition" in Section

458.331(1)(s) to mean "disruptive physician." The agency

statement does not satisfy the requirements for any of the

exceptions to the definition of a rule in Sectio n 120.52(15)

(a) - (c).

33. The Board has not adopted its "disruptive physician"

rule in accordance with the rulemaking procedures prescribed in

Section 120.54. Agency action based on an unadopted rule

concerning "disruptive physicians" determines the su bstantial

interests of Petitioner.

34. Any agency action that relies on an unadopted rule to

determine the substantial interests of a party must satisfy the

requirements of Section 120.57(1)(e)2. In relevant part, the

agency must demonstrate that the una dopted rule:

c. Is not vague, establishes adequate

standards for agency decisions, or does not

vest unbridled discretion in the agency;

[and]

f. Is supported by competent and

substantial evidence.

35. The unadopted rule is vague and fails to establish

adequate standards for agency decisions within the meaning of

Section 120.57(1)(e)2c. The Board has never defined the term

"disruptive physician." Nor can the Board list any criteria to

determine who is a "disruptive physician."

36. There is no psychi atric or psychological definition of

the term "disruptive physician." Dr. Pomm actually coined the

term. Dr. Pomm defines a "disruptive physician" as:

One whose behavior has been such to

interfere with a healthcare team's ability

to safely afford medic al care to patients.

The definition effectively equates behavior with the "mental

condition" in Section 458.331(1)(s). Dr. Pomm has related this

definition to the Board, and the Board concurs with it.

37. No written criteria exist for determining who f alls

under the Board's definition of "disruptive physician." Rather,

the term describes a "general cadre of repetitive behaviors" or

"behavior patterns." The Board cannot provide a complete list

of behaviors. Moreover, it is not possible to state to wha t

degree a certain behavior, i.e., yelling or arguing, must be

demonstrated to satisfy the definition of a "disruptive

physician." While "narcissistic personality traits" are

associated with "disruptive physicians," those traits are not a

sufficient indic ator because they can also be associated with

proper behaviors.

38. The lack of objective criteria and the resulting

uncertainty surrounding the determination of who is, or is not,

a "disruptive physician" leaves the ultimate determination

largely to the discretion of Dr. Pomm as the Director of the PRN

program. Dr. Pomm admitted that there is substantial

imprecision and lack of specificity in defining the term

"disruptive physician."

39. The agency statement that Petitioner is a "disruptive

physician" is not supported by competent and substantial

evidence within the meaning of Section 120.57(1)(e)2f. Even if

it were determined that the agency statement is not a rule,

within the meaning of Section 120.52(15), but is emerging agency

policy, Respondent f ailed to explicate the emerging policy with

competent and substantial evidence.

40. Dr. Pomm did not examine or evaluate Petitioner.

Rather, Dr. Pomm relied on excerpts of the written report by

Dr. Edgar, the DUI and assault incidents, and evaluations of

Petitioner by the chief residents and attending physicians in

the residency program at USF. However, Dr. Pomm testified that

the DUI and assault incidents alone were inadequate to support a

determination that Petitioner is a "disruptive physician."

41. As previously found, Petitioner has no psychiatric or

psychological disorder that renders him unable to practice

medicine with reasonable skill and safety to patients. However,

Dr. Edgar stated in his written report to Dr. Pomm:

The closest I can come to placing him in a

category that PRN deals with regularly is

possible "disruptive physician."

42. Dr. Pomm considered adverse evaluations from

Petitioner's supervising physicians during the residency program

at USF. Testimony at the hearing identified th e physicians as:

Drs. Back, Beaver, Carey, Cox, Fabri, Flint, Grossbard, Johnson,

Mendez, Novitsky, Rodriquez, Rosemurgy, and Wright. Although

Petitioner successfully completed the residency program,

Dr. Pomm considered the adverse evaluations as evidence that

Petitioner's behavior interfered with the ability of the medical

teams to safely afford medical care to patients.

43. On May 19, 1997, Petitioner rotated in the cardiac

service and worked over 100 hours a week. Petitioner had a

disagreement with t wo attending physicians as to the

advisability of their patient orders. There was no violent or

improper conduct associated with these disagreements, and the

physicians did not complain about the disagreements.

44. Petitioner's advisor met with him in Ma y 1997 to

discuss poor evaluations of Petitioner on the cardiac service

due to a "dustup" with two attending physicians. Petitioner's

advisor explained that the perception by the attending

physicians was that Petitioner was less than enthusiastic when

he was on a service that he did not enjoy and that he needed to

be more attentive to his responsibilities. On May 15, 1998,

Dr. Wright noted that Petitioner needed to "work on his

interpersonal skills."

45. On February 3, 1999, Dr. Fabri, Chief of Surgery a t

the Tampa V.A. Hospital, advised Petitioner that, due to his

failure to dictate two operative reports, Dr. Fabri would

suspend Petitioner's operative privileges until Petitioner

dictated the reports. However, the threatened suspension never

occurred. R ather, Dr. Fabri routinely used such notices to

residents as a means of getting past - due operative reports

dictated.

46. On April 2, 1999, Dr. Mendez observed that Petitioner

needed to "learn to be more of a team player." Dr. Beaver

observed that Petit ioner was "[v]ery irreverent; actions

unprofessional." Dr. Novitsky stated that Petitioner needed a

lot of improvement "mainly in the attending - resident

relationship." Dr. Novitsky gave as an example Petitioner

leaving the OR during a heart surgery witho ut the approval of

the attending physician. However, no evidence showed that

Petitioner's departure from the operating room interfered with

the ability of the health team to safely afford medical care to

a patient.

47. In July 1999, Petitioner's supervis ing physician

advised him to meet with his advisors every four to six weeks.

The directions constituted official policy. However, Petitioner

failed to meet with his advisors for months.

48. The failure of Petitioner to meet with his advisors

was not a volitional choice by Petitioner. Rather, the busy

schedules followed by Petitioner and his advisors at several

hospitals in the Tampa area prevented them from meeting with

each other regularly. During the five - year residency program,

Petitioner performe d approximately 1,336 surgical procedures; or

approximately one surgical procedure every 1.3 days. During the

same period, the chief residents that supervised Petitioner

maintained a caseload of approximately 1,800 to 2,500 patients.

The caseloads were s pread between several area hospitals.

Petitioner chose the residency program at USF based on his

belief that the program provides the most extensive clinical and

surgical experience available in a residency program.

49. An evaluation on August 16, 1999, includes the comment

from Dr. Cox that Petitioner was, "[p]leasant, assertive, but

sometimes misdirected. Asking questions before engaging in

decisions would be well advised." An evaluation dated

January 3, 2000, included comments by Dr. Back that Petiti oner

was "[u]nreliable, avoids responsibility, poor work effort . . .

[Petitioner] should not be promoted further in this program."

Dr. Mendez found that "[Petitioner] needs to work on

organization, communication and accountability." Dr. Rodriquez

noted t hat "[Petitioner] lacks judgment and common sense and is

below part [sic] in fund of knowledge."

50. An evaluation dated October 2, 2000, contains several

adverse comments. Dr. Fabri states that Petitioner, "Can be

very good when he wants to be." Dr. Gr ossbard states, "I wish

there were a way to redirect his energy into surgery which is

clearly in second place." Dr. Mendez states, "[Petitioner]

. . . is lacking in organizational skills and does not seem to

take ownership of the service." Dr. Rodriquez states,

"[Petitioner] has shown some improvement but still has a long

way to go." Dr. Back states, "Not present for most operative

cases and not involved in details of patient care. He is not

fulfilling duties of chief resident." Dr. Johnson states,

"Sh ould not be allowed to perform vascular surgery when he

graduates."

51. On November 12, 2000, Petitioner's assessment of a

patient with bowel obstruction was questioned by Dr. Flint, the

attending physician. Dr. Flint accused Petitioner of

misrepresenti ng an assessment. In response, Petitioner had his

assessment verified by another attending physician. Dr. Flint

became abusive of Petitioner and, during the incident,

Petitioner yelled at the attending nurse.

52. In correspondence dated November 14, 2 000, Dr. Flint

reported that Petitioner had been angry and insubordinate.

Dr. Flint also reported that Petitioner had been abusive to a

nurse. Petitioner admits that he was insubordinate to Dr. Flint

and yelled at the nurse. However, the actions were i ntegral to

the provision of safe medical care to a patient during exigent

circumstances.

53. On November 21, 2000, Petitioner's advisor met with

him to discuss his poor performance on the trauma service.

Dr. Rosemurgy advised Petitioner he was "held i n low regard by

many." Dr. Rosemurgy noted in his report that Petitioner did

not appear to realize how others perceived him, and appeared to

choose not to see the shortcomings perceived by others. In a

handwritten addendum, Dr. Rosemurgy expressed concer n that

Petitioner did not "hear" him and doubted that he would improve.

54. In an evaluation dated March 5, 2001, Drs. Fabri,

Flint, Grossbard, Johnson, and Wright, rated Petitioner's

communication skills as "below expectations." Drs. Back, Fabri,

Fl int, Grossbard, and Johnson rated Petitioner's interactions

with staff as "below expectations." Drs. Back, Fabri, Flint,

Grossbard, and Wright rated Petitioner's dependability as "below

expectations."

55. On March 5, 2001, attending physicians made se veral

negative comments in their evaluations. Dr. Flint stated

Petitioner, "essentially abdicated the Chief resident function,

misses rounds, avoid[s] the OR and does not teach." Dr. Back

stated that Petitioner, "refuses to accept responsibility for

pati ent care and management that is expected for residents at

his level." Dr. Johnson stated that Petitioner, "should not

practice Vascular surgery without supervision when he leaves

this program." Dr. Fabri stated, "unfortunately, his personal

interactions often get in the way."

56. The incidents underlying the evaluations of Petitioner

during his residency program are competent and substantial

evidence that Petitioner has narcissistic personality traits.

Narcissistic personality traits include: self - ab sorption;

haughtiness; arrogance; lack of empathy; lack of understanding

actions towards others; and demanding and disrespectful behavior

regardless of the impact on others.

57. The incidents underlying the evaluations of Petitioner

during his residency program are not competent and substantial

evidence that Petitioner satisfied Dr. Pomm's definition of a

"disruptive physician." No evidence shows that Petitioner's

behavior actually interfered with a healthcare team's ability to

safely afford medical car e to patients.

58. Dr. Pomm's definition of a "disruptive physician" does

not identify a single behavior, in isolation, that interferes

with the safe delivery of medical care. Rather, the continuum

of behavior, or repetitive behavior is the safety issue.

Therefore, in determining whether a physician's behavior impacts

the safe delivery of medical care, it is important to view the

individual's behavior over time. Over time and during stressful

situations, narcissistic personality traits may manifest a ca dre

of behaviors that collectively interfere with the ability of a

health care team to safely provide medical care to a patient.

59. When viewed over time, Petitioner's behavior has not

interfered with the safe delivery of medical care to patients.

Th e residency program at USF is one of the most stressful and

difficult residency programs available. During the five - year

residency program, Petitioner safely afforded medical care to

patients in approximately 1,336 operative procedures. His

behavior did not interfere with the ability of the chief

residents in the program and attending physicians to maintain an

average caseload of 1,800 to 2,500 patients and to safely

deliver medical care to those patients. After leaving the

residency program at USF, Peti tioner has, over time, safely

afforded medical care to patients in approximately 100 operative

procedures each week.

60. There is competent and substantial evidence that the

incidents underlying the adverse evaluations of Petitioner

during the residency program represent either honest

disagreement relating to patient care or ordinary academic

discipline. While they may evince narcissistic personality

traits by Petitioner, they do not evince behavior that

interferes with the ability of health care teams to provide safe

medical care to patients.

61. Several physicians who completed the residency program

at USF testified at the hearing. The incidents underlying the

adverse evaluations of Petitioner during the residency program

arose from difficulties in herent in the residency program itself

and the conduct of chief residents and attending physicians

toward residents. For example, Dr. Flint and certain other

staff physicians in the residency program were generally

disrespectful and abusive toward residen ts and other hospital

staff.

62. Petitioner has been practicing general surgery in

Winter Haven, Florida, with the Gessler Clinic. Petitioner's

colleagues who practice regularly with him in surgery testified

at the administrative hearing. Petitioner is not disruptive in

his current practice. He does not engage in behavior that

interferes with the ability of a health care team to safely

afford medical care to patients.

63. The Board did not place any conditions on Petitioner's

license as a result of the application submitted by Petitioner.

However, Respondent's PRO raises certain issues surrounding the

application that should be addressed in the interest of

preserving a complete evidentiary record.

64. As Petitioner neared the successful completio n of his

residency, Petitioner filed his application for medical license

with the Board on April 4, 2001. The Board made numerous

requests for additional information. Petitioner answered all of

those requests.

65. One of the questions answered by P etitioner during the

application process was whether Petitioner had been placed on

probation during any medical training program. Petitioner

answered "No" to this question. Prior to providing the answer,

Petitioner checked with administrators in the resi dency program

who told Petitioner that the records did not disclose probation

at any time during the residency program at USF. Personnel in

the residency program confirmed to the Board that Petitioner had

never been on probation. However, the information provided to

both Petitioner and the Board was an administrative error.

Petitioner was briefly on "academic probation" during the

residency program.

66. Based on the misdemeanor assault conviction and the

erroneous information provided by Petitioner conc erning academic

probation, the Board ordered Petitioner to: (a) file a corrected

application; (b) pay a new application fee; (c) pay an

administrative fine of $1000; and (d) submit to evaluation by

PRN. Petitioner complied with all of these conditions,

in cluding a psychiatric evaluation through PRN which was

conducted on October 15, 2001. Respondent stipulated at the

administrative hearing that the Board does not contend that it

imposed any condition on Petitioner's license as a result of any

misrepresent ations of fact on Petitioner's application for a

license to practice medicine.

67. There are certain procedural issues for which findings

of fact may be appropriate. Based in part upon Dr. Edgar's

report, Dr. Pomm rendered his written report to the Board on

October 22, 2001. Dr. Pomm adopted Dr. Edgar's conclusion that

Petitioner is capable of practicing with "reasonable skill and

safety." However, Dr. Pomm recommended that the Board place

Petitioner on a "disruptive physician contract" with PRN.

68. In his written report to the Board, Dr. Pomm related

Dr. Edgar's conclusion that Petitioner has "narcissistic

personality traits." However, Dr. Pomm failed to include in his

report the remainder of Dr. Edgar's statement that Petitioner

did not have any i dentifiable Narcissistic Personality Disorder.

Nor did Dr. Pomm include the conclusion by Dr. Edgar that

Dr. Edgar did not recommend any form of psychotherapy for the

Petitioner.

CONCLUSIONS OF LAW

69. DOAH has jurisdiction over the parties and subjec t

matter of this proceeding. Section 120.57(1). The parties

received adequate notice of the administrative hearing.

70. The parties stipulated at the outset of the

administrative hearing to several matters. First, the only

issue for resolution in this proceeding is whether the Board is

authorized by Sections 458.301, 458.311(5) and (8), and Sections

458.331(1)(c) and (s) to impose conditions on Petitioner's

license. Second, Petitioner has otherwise fulfilled each of the

other requirements for receiving a medical license found in

Section 458.311. Finally, the Board does not contend that the

challenged condition on Petitioner's license was imposed due to

any misrepresentations of fact on Petitioner's license

application.

71. Petitioner has the burden of proof in this proceeding.

Astral Liquors, Inc. v. State, Department of Business

Regulation, Division of Alcoholic Beverages and Tobacco , 432 So.

2d 93, 95 (Fla. 3d DCA 1983); Florida Department of

Transportation v. J.W.C. Co., Inc. , 396 So. 2d 778, 787 (F la.

1st DCA 1981); Balino v. Department of Health and Rehabilitative

Services , 348 So. 2d 349 - 351 (Fla. 1st DCA 1977). Petitioner

must show by a preponderance of the evidence that he is entitled

to an unconditional license. Department of Banking and Fina nce,

Division of Securities and Investor Protection v. Osborne Stern

and Co. , 670 So. 2d 932, 934 (Fla. 1996); Espinoza v. Department

of Business and Professional Regulation , 739 So. 2d 1250, 1251

(Fla. 3d DCA 1999).

72. Petitioner satisfied his burden of proof. The

preponderance of evidence shows that Petitioner did not commit

an act or offense which would constitute the basis for

disciplining a physician pursuant to Section 458.331(1)(c) or

(s). The DUI offense and assault conviction do not directly

re late to either the practice of medicine or the ability to

practice medicine within the meaning of Section 458.331(1)(c).

Similarly, the preponderance of evidence shows that Petitioner

does not have a mental condition that renders Petitioner unable

to prac tice medicine with reasonable skill and safety to

patients within the meaning of Section 458.331(1)(s).

73. In the absence of an offense or violation under

Section 458.331(1)(c) and (s), the Board has no statutory

authority in Section 458.311(5) to impo se conditions on

Petitioner's license. In the absence of evidence that

Petitioner is a potential danger to the public, the conditions

imposed on Petitioner's license exceed the scope of legislative

intent in Section 458.301.

RECOMMENDATION

Based on the f oregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Health, Board of

Medicine, enter a final order granting Petitioner's application

for licensure to practice medicine without condition.

DONE AND ENTERED this 23rd day of May, 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 - 967 5 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of May, 2002.

COPIES FURNISHED :

J. Davis Connor, Esquire

Peterson & Myers, P.A.

Post Office Drawer 7608

Win ter Haven, Florida 33883 - 7608

Lee Ann Gustafson, Esquire

Office of the Attorney General

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Jon M. Pellett, Esquire

Barr, Murman, Tonelli,

Slother and Sleet, P.A.

201 East Kennedy Boulevard

Suite 1750

Tampa, Florida 33602

Tanya Williams, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

M. Catherine Lannon, Esquire

Office of the Attorney General

The C apitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exc eptions 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.