02-002576PL Department Of Health, Board Of Medicine vs. Michael Felix Freshwater, M.D. Status: Closed Recommended Order on Tuesday, October 29, 2002.

Summary: Doctor guilty of making untrue representation related to the practice of medicine by knowingly making false statement on application for hospital privileges.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 02 - 2576PL

)

MICHAEL FELIX FRESHWATER, M.D., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case in

accordance with Section 120.57(1), Florida Statutes, on

August 29, 2002, in Miami, Florida, before Stuart M. Lerner, a

du ly - designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Kim M. Kluck, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Jay Cohen, Esquire

Grossman and Roth, P.A.

2665 South Bayshore Drive

Grand Bay Plaza, Penthouse One

Miami, Florida 33133

STATEMENT OF THE ISSUE

Whether Respondent committed the violation alleged in the

Amended Administrative Complaint, and, if s o, what disciplinary

action should be taken against him.

PRELIMINARY STATEMENT

On March 6, 2002, Petitioner filed an Amended

Administrative Complaint against Respondent, a Florida - licensed

medical doctor, alleging that Respondent violated Subsection

(1)( k) of Section 458.331, Florida Statutes, by "ma[king]

deceptive, untrue, or fraudulent representations in or related

to the practice of medicine [when he] indicate[ed] on his

Application for Reappointment to the Medical Staff of Miami

Children's Hospital t hat he had not previously relinquished

clinical privileges at any hospital" and that he "had never

relinquished hospital privileges." Petitioner indicated in the

Amended Administrative Complaint that it was "not seek[ing]

revocation or suspension of the R espondent's license," but

rather was pursuing "one or more of the following penalties:

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 reli ef that the Board

[of Medicine] deems appropriate, to include the assessment of

costs related to the investigation and prosecution of this case

as provided for in Section 456.072(4), Florida Statutes." The

matter was referred to the Division of Administra tive Hearings

(Division) on June 27, 2002, for the assignment of a Division

Administrative Law Judge to conduct the hearing Respondent had

requested.

As noted above, the final hearing was held on August 29,

2002. Three witnesses testified at the hearing: Lisa Velasco,

Elizabeth Menocal, and Respondent. In addition to the testimony

of these three witnesses, 17 exhibits (Petitioner's Exhibits 1

through 6, and Respondent's Exhibits 1 and 11) were offered and

received into evidence.

At the close of the evi dentiary portion of the hearing, the

undersigned established a deadline (20 days from the date of the

filing of the hearing transcript with the Division) for the

filing of proposed recommended orders.

A Transcript of the final hearing (consisting of one

vo lume) was filed with the Division on October 1, 2002.

Petitioner and Respondent filed their Proposed Recommended

Orders on October 21, 2002, and October 17, 2002, respectively.

These post - hearing submittals have been carefully considered by

the undersign ed.

FINDINGS OF FACT

Based upon the evidence adduced at the final hearing and

the record as a whole, the following findings of fact are made:

1. Respondent is now, and has been since 1977, a Florida -

licensed medical doctor specializing in surgery of the hand.

2. He is board - certified in plastic surgery and, in

addition, holds a "certificate of added qualifications" in hand

surgery issued by the American Board of Plastic Surgery.

3. Respondent's license (license number ME 0031502) has

never been suspe nded or revoked.

4. In or around December of 1992 or January of 1993,

Respondent was granted temporary clinical privileges at Deering

Hospital (Deering) 1/, which is located in Miami, Florida.

5. Pursuant to the Medical Staff Bylaws of Deering, being

gr anted these privileges did not provide Respondent "any form of

staff membership or any rights and privileges or membership

associated with the Medical Staff of the Hospital."

6. In or around January of 1993, Respondent also became "a

member of what was c alled the South Dade Health Partnership,

which was the business association that owned Deering Hospital

in conjunction with Columbia [Healthcare]."

7. On October 28, 1993, Respondent was granted provisional

staff membership at Deering. As a provisional m ember of the

medical staff, Respondent enjoyed clinical privileges (to

perform plastic surgery services) at Deering.

8. Provisional membership status was one of seven

categories of staff membership status at Deering. The other six

categories were: act ive, associate, courtesy, consultant,

honorary, and adjunct.

9. Provisional staff membership status was addressed in

Article VI, Section 7, of the Medical Staff Bylaws of Deering,

which provided as follows:

PROVISIONAL STATUS

All initial appointments to or re -

assignments to any category of the Medical

Staff, except Honorary Staff, shall be

provisional for at least twelve (12) months

and may be extended for up to one additional

year. Provisional Members are required to

have an average of at least ten (10) Patient

Encounters during each calendar [sic].

Provisional Staff Members who fail to

satisfy applicable Patient Encounter

requirements during an appointment period

may request of the Executive Committee at

the time of reappointment an extension of

one ye ar to satisfy the Patient Encounter

requirement applicable to their existing

Staff category. Failure of the Provisional

Staff Member to request such extension, or

failure to satisfy the applicable Patient

Encounter requirement during the one year

period o f extension shall result in the

Member being removed from the Medical Staff.

10. Provisional staff members who desired to remain on the

staff at Deering following the expiration of their provisional

staff membership had to "go through a reappointment pro cess."

Article IV, Section 5, of the Medical Staff Bylaws of Deering

discussed the "reappointment process." It provided, in

pertinent part, as follows:

REAPPOINTMENT PROCESS

A. No Member shall be automatically

entitled to or have a vested right of

ren ewal of membership and Privileges.

B. Each Member of the Medical Staff in all

categories shall be subject to reappointment

one (1) year from the date of initial

appointment and thereafter, every two (2)

years, except in case of any extension of

Provision al status.

* * *

E. Ninety (90) days prior to expiration,

the Chief Executive Officer, or his/her

designee will provide each Staff Member with

a Reappointment application form. The Staff

Member desiring reappointment will comp lete

the re - appointment application a[n]d submit

it to the Chief Executive Officer sixty (60)

days prior to expiration of his/her

reappointment. Failure, without good cause,

to file the application for reappointment

shall result in automatic termination o f

membership at the end of the current term.

The Chief Executive Officer shall collect

and verify the information regarding the

Member's professional activities,

performance and conduct in the Hospital.

When the information has been collected and

verifie d, the Chief Executive Officer shall

transmit the application and supporting

materials to the Chairman of each Department

in which the staff member requests

privileges.

F. Upon receiving a Member's application

for reappointment, each Department

Chairpers on shall review and evaluate the

Member's Staff membership activity and

Clinical Privileges for reappointment. (The

Chairperson shall provide information

concerning the Member's professional

performance, judgment, technical skill,

ability to work with and cooperate with

Hospital staff and personnel, current

competence and ability, current health

status and his/her opinion of the Staff

member's physical and mental status as it

relates to ability to practice and exercise

Hospital and Clinical Privileges in

c ompliance with these Bylaws.[)] The

Chairperson shall submit a recommendation to

the Credentials Committee.

G. The Credentials Committee shall review

the Department Chairperson's recommendation

and the application, and shall submit its

recommendation in writing to the Executive

Committee.

H. Within sixty (60) days of the Chief

Executive Officer's initial receipt of the

application, the Executive Committee shall

review the recommendation made by the

Credentials Committee, and shall submit its

recommenda tion through the Chief Executive

Officers to the Governing Body.

* * *

L. If the review is not completed due to

the Member's failure to provide the

requested information, the practitioner will

be sent a certified letter stating that

failure to provide the information within 30

days will be deemed a voluntary withdrawal

of the application for reappointment and a

voluntary resignation from the Medical

Staff. If the review is not completed due

to circumstances totally within the

H ospital's control, the Member shall be

referred to the Credentials Committee.

11. Article IV, Section 4, of the Medical Staff Bylaws of

Deering further provided that "[n]o applicant shall be deemed to

have been accepted for Medical Staff membership excep t upon

application made and fully acted upon according to these

Bylaws."

12. Respondent was "up for reappointment" in October of

1995. 2/

13. Respondent submitted an Application for Reappointment

to the Medical Staff of Deering on or about February 24, 1995.

14. Sometime on or prior to July 3, 1995, "concerns" were

raised about the quality of care Respondent had provided two

patients (in the operating room) at Deering. 3/

15. Respondent was advised of these "concerns."

16. On or about July 3, 1 995, Respondent sent the

following letter to Deering's Chief Executive Officer, Anthony

Degina:

Please send me a copy of the medical staff

rules and regulations, a copy of the Fair

Hearing plan, and copies of all written

statements made by any witnesses co ncerning

any of the incidents that are the subject of

the hearing. The requested materials may be

hand delivered.

Thank you in advance for your anticipated

cooperation.

17. On or about July 5, 1995, Deering's Director of

Quality Management, Barbara Dah lfuss, R.N., sent a letter to

Respondent, which read as follows:

Tony Degina has asked me to inform you that

the Medical Executive Committee will meet on

Tuesday, July 18, 1995 to discuss the care

rendered to [patients I. H. and R. P.] It

has not been pos sible to schedule an earlier

meeting.

The meeting will take place in the Classroom

of the 9275 Building across the street from

the Emergency Room at 7:00 p.m.

18. On or about July 6, 1995, Mr. Degina sent Respondent

the following letter:

As you have re quested, enclosed are the

medical staff rules and regulations,

together with a copy of the medical staff

bylaws which contain the Fair Hearing Plan.

The meeting scheduled for July 18, 1995, is

a preliminary interview and does not

constitute a hearing. At this time, no

disciplinary action has been [sic] against

you. If a decision is made to recommend

disciplinary action, you will then be given

the opportunity to request a hearing in

accordance with the fair hearing plan and to

review further evidence.

If you have any questions, please call me.

19. "Disciplinary action" against members of Deering's

medical staff was addressed in Article VII, Section 1, of the

Medical Staff Bylaws of Deering. Subsection D through G of

Article VII, Section 1, provided as follows:

D. When the disciplinary action requested

may constitute a revocation, reduction or

suspension of membership or Clinical

Privileges, the Executive Committee may

conduct an investigation or promptly submit

such request to the Chairperson of the

De partment to which the Member has

Privileges. The affected Member shall be

notified if an investigation is initiated.

Upon receiving such a request, the

appropriate Chairperson shall immediately

conduct a detailed investigation of the

matter. A report of the findings and

recommendations of the Chairperson shall be

made to the Chairperson of the Executive

Committee within thirty (30) days after the

Department Chairperson's receipt of the

request. Before the Department Chairperson

makes his/her report, if the affected Member

requests, he/she shall be permitted to

appear before the Chairperson or his/her

designee(s), be informed of the general

nature of the complaint against him/her, and

be permitted to make a statement on his/her

behalf. This appearance sh all constitute an

interview and shall not be a hearing, shall

be preliminary in nature, and none of the

procedural rules provided in these Bylaws

with respect to hearings shall apply. A

record of such appearance shall be made by

the Chairperson of the Exe cutive Committee.

E. The Executive Committee shall consider

the report from the Department Chairperson

within thirty (30) days after receiving it.

If the report recommends suspension,

reduction or revocation of Membership or

Privileges on the Medical St aff, if the

Member requests, he/she shall be permitted

to appear before the Executive Committee

before it acts on such report. This

appearance shall not constitute a hearing,

shall be preliminary in nature, and none of

the procedural rules provided in the se

Bylaws with respect to hearing shall apply.

A record of such appearance shall be made by

the Executive Committee.

F. The Member upon receiving the notice of

a disciplinary action may waive all further

proceedings as outlined herein and request a

fina l hearing before the Governing Body.

Such a request shall be deemed a waiver of

any further rights to hearing procedures and

appeals according to these Bylaws. Such

waiver shall be in writing to the Chief

Executive Officer within 14 days after

receipt of such notice.

G. The action of the Executive Committee

may take the form of recommending a letter

of warning, admonition, or reprimand;

reduction, suspension, o[r] revocation of

clinical Privileges; terms of probation, or

suspension or revocation of memb ership on

the Medical Staff. Only those actions

described in Article VIII, Section 2 shall

entitle[] the Member to the rights . . . of

hearing and appeal; the other actions shall

entitle the Member to an interview with the

Executive Committee before it se nds it[s]

recommendation to the Governing Body. All

action of the Executive Committee shall be

subject to approval or modification by the

Governing Body.

20. The "Fair Hearing Plan" that Mr. Degina referenced in

his July 6, 1995, letter to Respondent wa s set forth in Article

VIII of the Medical Staff Bylaws of Deering.

21. On or about July 8, 1995, Respondent sent the

following letter to Mr. Degina:

I resign as a provisional member of the

medical staff of Deering Hospital. Although

it will be a financi al sacrifice for me, I

have come to the conclusion that I cannot

remain at Deering Hospital because I cannot

practice the highest level of medicine that

my conscience and my patients demand of me.

I have been a provisional member of the

medical staff sinc e 1992 when I was

recruited by your predecessor, Jamie

Hopping, to bring the highest level of hand

surgical care to an institution that was

crippled by Hurricane Andrew and subsequent

withdrawal from practice of your prior hand

surgeon. You were kind enou gh to send me a

copy of the medical staff bylaws, rules and

regulations last week after I requested it.

The bylaws clearly state that provisional

appointments last for no more than 24 months

(p. 32). I received my provisional

appointment to the medical s taff more than

24 months ago. I have no confidence in the

ability and integrity of those medical staff

officers who are charged with obeying the

bylaws, rules and regulations that exist to

protect the rights of practitioners and have

failed to do so.

I a m uncomfortable with the competency of

many of the operating room and inpatient

area personnel. As you know, we agreed more

than one year ago that Deering recruit

either a nurse practitioner or physician's

assistant whose duties would include

training hos pital personnel whose knowledge

in the care of hand surgery patients has

been clearly deficient. No person has been

recruited and major deficiencies remain in

the staff's knowledge. I have tried my best

to improve the quality of care at Deering by

educat ion and constructive criticism, but

your support has not resulted in sufficient

substantive improvements on a regular basis

by the employees.

We agreed that the marketing efforts for the

hand and microsurgery program be transferred

from Cedars to Deering. More than a year

has passed and there has not been a single

marketing effort by Deering's marketing

director! Indeed, due to the incompetency

of the administrative staff, my former

telephone number 234 - 2600, that remains

listed in Yellow pages ads that cost me

thousands of dollars, became unusable in

January. It remains impossible to place a

recording on the former number indicating

that I have a new telephone number at

Deering. Instead persons calling 234 - 2600

hear a recording that the number has been

disconnected and no additional information

is available. Can you imagine how much

revenue has been lost from new patients who

were lead to believe that my practice was

closed?

Very clearly a pattern has emerged in there

being a major disparity between what you and

Jamie have agreed to with me and what has

been achieved by your staff. I realize that

you rely on your subordinates to execute

your requests and that you cannot devote the

time that is necessary to be sure that they,

in fact, do so.

I canno t continue expending my time and

energies to effect important change for the

better while risking legal exposure and

financial ruin as a result of the

substandard work ethic of others, hence I am

withdrawing my application as I am allowed

under the hospita l's by laws.

I have enjoyed working with you personally

and wish you the best of luck in the never

ending challenge of managing Deering

Hospital.

22. At the time that Respondent submitted this letter of

resignation to Mr. Degina, he knew that Deering's Medical

Executive Committee was considering whether to recommend that

disciplinary action be taken against him for the "care [he had]

rendered to [patients I. H. and R. P.]."

23. Respondent chose not to appear before Deering's

Medical Executive Committee on July 18, 1995, for a "preliminary

interview."

24. On or about July 21, 1995, Mr. Degina sent Respondent

the following letter:

I acknowledge that I have received notice of

your correspondence dated July 8, 1995,

wherein you submitted to the Medical

Exe cutive Committee your voluntary

resignation from the medical staff of

Deering Hospital. As you know, there is an

existing Professional Services Agreement

entered into between yourself and the

hospital for the provision of Medical

Directorship Services for the hand and

microsurgery program. Section 1.2.3

required that you must maintain medical

staff membership at Deering Hospital

throughout the term of the Agreement.

Therefore, in accordance with Section 3.5 of

the Agreement, I am providing written notice

of the termination of the Professional

Services Agreement effective July 8, 1995.

It is my hope that we will be able to afford

a smooth transition of services. If you

have any questions, please do not hesitate

to contact me.

25. Respondent's resignati on having been accepted, there

was no need to decide whether disciplinary action should be

taken against him as a result of the operating room "incidents"

involving patients I. H. and R. P. 4/

26. Respondent enjoyed privileges at other hospitals,

includ ing Miami Children's Hospital (Children's), following his

"resign[ation] as a provisional member of the medical staff of

Deering Hospital."

27. Respondent had been on the medical staff and had had

clinical privileges at Children's since 1979.

28. Of the 400 surgeries that Respondent performed in 1995

and 1996, only 10 were done at Children's.

29. Of the revenues that Respondent's medical practice

generated during those two years, only one tenth of one percent

were attributable to the work he did at C hildren's.

30. Although he did not reap great financial reward from

his work at Children's, he nonetheless wanted to continue his

association with the hospital.

31. Accordingly, in March of 1996, Respondent submitted an

Application for Reappointment to the Medical Staff of Miami

Children's Hospital (Application).

32. The Application contained a statement that Respondent

signed and dated (March 6, 1996). It read, in pertinent part,

as follows::

In making application for reappointment to

the Medical Staf f of Miami Children's

Hospital, I fully understand that any

misstatements in or omissions from this

application constitute cause for denial of

appointment or cause for summary dismissal

from the Medical Staff of Miami Children's

Hospital. All information submitted by me

in this application is true to my knowledge

and belief.

33. The Application contained a "Professional Practice

Information and Certification of Health" section with nine

numbered questions that applicants were instructed to answer.

Appli cants were further instructed to "provide full details on a

separate sheet of paper" with respect to any question answered

in the affirmative.

34. The questions contained in the "Professional Practice

Information and Certification of Health" section were as

follows:

1. Has your license to practice your

profession in any jurisdiction ever been

voluntarily or voluntarily limited,

suspended, revoked, denied, subjected to

probationary conditions, or relinquished; or

have challenges or proceedings toward any o f

those ends ever been instituted?

2. Have your clinical privileges at any

other hospital or health institute ever been

voluntarily or involuntarily limited,

suspended, revoked, not renewed, subjected

to probationary conditions, or relinquished;

or have proceedings toward any of those ends

ever been instituted or recommended by a

Medical Staff Committee or the Governing

Board?

3. Has your Medical Staff membership or

Medical Staff status at any hospital or

health care institution ever been

voluntarily or involuntarily limited,

suspended, revoked, not renewed, subjected

to probationary conditions (excluding

initial conditions routinely placed on all

such privileges at the institution), or

relinquished; or have proceedings toward any

of those ends ever been instituted or

recommended by a Hospital or Medical Staff

Committee or officer or an institutional

Governing Board?

4. Has your request for any specific

clinical privilege ever been denied or

granted with stated limitations (excluding

initial limitations routinely placed on all

such privileges at the institution); or has

such a denial or limitation ever been

recommended by a Hospital or Medical Staff

Committee or officer or a Governing Board?

5. Have you ever been denied membership or

renewal thereof or been subject to any

disciplinary action or revocation in any

medical organization or professional society

(local, state, or national); or have

proceedings toward any of those ends ever

been instituted?

6. Has your Drug Enforcement Agency or

other contro lled substances authorization

ever been voluntarily or involuntarily

denied, revoked, suspended, reduced,

relinquished, or not renewed; or have

proceedings toward any of those ends ever

been instituted?

7. Have you ever been convicted of a

felony?

8. H ave you ever been denied professional

liability insurance or has your policy ever

been canceled?

9. Have any final settlements or judgments

ever been made in any malpractice suits in

which you were named as a defendant?

35. Respondent answered "no" to all nine questions,

including questions 2 and 3.

36. His answers to questions 2 and 3 were in fact untrue,

and he knew that they were untrue at the time he filled out the

Application. 5/

37. Only eight months previous (after having been advised

that Dee ring's Medical Executive Committee was looking into

whether it should recommend that disciplinary action be taken

against him), Respondent had "voluntarily . . . relinquished"

his provisional staff membership at Deering and the clinical

privileges that w ent along with such membership. 6/

38. On or about May 10, 1996, Patricia K. Conover,

Children's Director of Medical Staff Services, sent the

following letter to Respondent:

We are in receipt of your application for

renewal of clinical privileges.

The h ospital has received notification from

the National Practitioner[] Data Bank that

an adverse action was taken against your

privileges by Deering Hospital for alleged

unprofessional conduct. The response

indicated that you resigned from staff while

an inve stigation was ongoing.[7/]

Prior to consideration of your application

by the Credentials Committee, the following

information will be required:

1) A description of the incident/s that

provoked your resignation and the charges

made by Deering Hospital.

2) The reappointment application

specifically asks, on Page 3: "Has your

Medical Staff membership or Medical Staff

status at any hospital or health care

institution ever been voluntarily or

involuntarily limited, suspended, revoked,

not renewed, subjecte d to probationary

conditions (excluding initial conditions

routinely placed on all such privileges at

the institution), or relinquished; or have

proceedings toward any of those ends ever

been instituted or recommended by a Hospital

or Medical Staff Committ ee or officer or an

institutional Governing Board?" Your

response was "no." Please provide an

explanation of this inaccurate statement.

3) You indicate that you are exempt from

demonstrating financial responsibility and

that you meet State criteria, on e

requirement of which is that you maintain a

part - time practice of not more than 1,000

patient hours per year. Please provide the

hours of operation of any and all locations

so that the committee can determine whether

you are indeed in a part - time practi ce, or

should be required to carry malpractice

insurance.

As these are indeed serious credentialing

issues, please provide the above - requested

information within 10 days of receipt of

this letter.

39. Respondent responded to Ms. Conover's May 10, 1996,

letter by letter dated May 15, 1996, which read as follows:

Thank you your letter of May 10, 1996, which

was received by me today, May 15, 1996.

The notification from the data bank is

incorrect. No action was ever taken against

me by Deering Hospital.

I enclose a copy of my letter to the

administrator at Deering, in which I stated

that the medical staff had violated its

bylaws by maintaining me in the provisional

category for greater than 24 months. The

violation of the bylaws, and other problems

enum erated in the letter, resulted in my

withdrawing my application, as is clearly

stated in the next to last paragraph of the

letter.

Based upon the Deering bylaws, I did not

resign from the medical staff, because I had

never been appointed to the medical

st aff,[8/] and my application was allowed to

remain in limbo for a significantly longer

period of time than the bylaws allowed.

Hence, as was recommended to me by the

administrator at Deering, I withdrew my

application.

I will be glad to discuss this matte r

further, if it is necessary, with the

Credentials Committee.

I have maintained a part - time practice for

over ten years. I have office hours for six

hours per week, 45 weeks a year, and never

spend more than 500 hours in hospital

patient care. Hence, m y total patient

contact hours have not exceeded 1,000 hours

per year.

If I can provide you with any additional

information, please feel free to contact me.

40. On or about July 31, 1996, Ms. Conover sent the

following letter to Respondent:

Thank you fo r responding to my letter of

May 10, 1996. In that letter we requested

information of the incidents surrounding the

adverse action filed by Deering regarding

your voluntary surrender of privileges for

unprofessional conduct and resignation from

the Medica l Staff at Deering while under

investigation for quality of patient care

issues. It is our understanding that the

same incident was filed both with the Agency

for Health Care Administration (AHCA) and

the National Practitioner[] Data Bank (Data

Bank). Ad ditionally, we had requested an

explanation of the negative response to

Question #3 which was not addressed in your

response.

In your response letter dated May 15th, you

enclosed a letter you wrote to the

administrator at Deering which makes

reference to your request to withdraw your

application for privileges at Deering but

fails to provide the information giving rise

to the report filed by Deering.

Unfortunately, Deering has failed to respond

to our written requests for information from

the Data Bank in dicating that you have

submitted a request for correction of the

alleged incorrect report filed by Deering.

The same incident regarding your resignation

of privileges was also reported to AHCA.

Unfortunately, we are unable to obtain any

further informati on from AHCA at this time

since this agency does not currently have

any "public" information regarding this

matter available for public request.

The Credentials Committee is charged with

the affirmative duty of investigating any

reported adverse actions a nd to request

additional information from the applicant in

order to make an informed determination

regarding the qualification of its

applicants. Moreover, pursuant to section

2.7.1 of the Medical Staff Bylaws the

"applicant shall have the burden of

produ cing information for the adequate

evaluation of his qualification and

suitability for the clinical privileges and

staff category requested and for satisfying

requests for information." At this time,

Miami Children's Hospital has made all

reasonable effort s to attempt to obtain such

information. However, the information

needed by the Credentials Committee to

review your application is still incomplete

and unsatisfactory.

Based on the foregoing and in order to

provide the Credentials Committee with

complet e information on which the committee

may base a decision regarding your

application for reappointment, please submit

the following information:

1. Your curriculum vitae, original

application for Medical Staff privileges and

subsequent reappointment appli cations

reflect inconsistent and incomplete listing

of hospitals in which you have held Medical

Staff privileges. Again, your negative

response to Question #3 is inconsistent with

other documentation which you have submitted

in the past. Please keep in m ind that the

application which you submitted to Miami

Children's Hospital contains the following

(signed) statement: "In making application

for reappointment to the Medical Staff of

Miami Children's Hospital, I fully

understand that any misstatements in o r

omissions from this application constitute

cause for denial of appointment or cause for

summary dismissal from the Medical Staff of

Miami Children's Hospital."

Please provide a complete listing of any and

all hospitals on which you have held

membership or privileges from the time of

your initial appointment to the staff at

Miami Children's Hospital on August 20,

1979. Please include the dates of such

association, the status that you held,

whether you currently hold privileges there,

and if not, the rea sons for discontinuance.

2. In light of your negative response to

Question #3, please provide a written

explanation of your failure to disclose

discontinuance of membership and/or

privileges at Deering and/or at any other

facility.

3. Whereas we have b een unsuccessful in our

attempts to secure information from Deering

Hospital and other hospitals which you

purported to hold staff appointment, please

contact each hospital on which you held

privileges since August, 1979 and have them

provide verification of staff appointment,

dates of service, and reasons for

discontinuance if applicable.

4. In reference to the discontinuance of

privileges at Deering Hospital in

particular, please contact the responsible

administrator at that institution to provide

a ful l disclosure of the circumstances which

resulted in their report to the National

Practitioner[] Data Bank.

5. In reference to your declaration that

you are exempt from carrying medical

malpractice insurance, you stated that you

"have office hours for six hours per week,

45 weeks a year, and never spend more than

500 hours in hospital patient care." So

that the hospital may determine if your

"part - time practice" provides sufficient

operative experience to sufficiently

demonstrate current clinical competen ce,

please provide case listings from any and

all hospitals or ambulatory centers at which

you performed surgery during the past two

years.

So that further delay of your application

for continuation of privileges may be

avoided, please provide your respon se to

these foregoing documentation requests

within the next thirty (30) days.

41. Respondent responded to Ms. Conover's July 31, 1996,

letter by letter dated August 27, 1996, which read as follows:

I enclose the information that I have

received to date , which you had requested in

your last letter.

You will find in this package a copy of my

most recent curriculum vitae and list of

surgical procedures performed at Cedars

Medical Center over the past two years. I

am still in the process of obtaining the

information from the other hospitals that I

have practiced at during the past two years

(excluding Miami Children's); namely,

Aventura Hospital. You will note that my

curriculum vitae accurately reflects

information that has been previously

provided to yo u, regarding my medical staff

appointments. My attorney is in the process

of attempting to obtain the additional

information that you requested from Deering

Hospital. I have discussed this matter with

Dr. Tidwell and he is aware of the

difficulties that I have experienced with

Deering Hospital; hence the need for my

attorney's intervention.

As soon as the additional information is

forthcoming, I shall gladly forward it to

you.

42. Sometime in the fall of 1996, Respondent received a

letter from Children 's informing him that his Application "had

been turned down and that [he] had a right to have a fair

hearing."

43. Respondent requested, and was granted, a "fair

hearing" on the denial of his Application.

44. Thereafter, a final determination was made to deny

Respondent's Application and remove him from Children's medical

staff.

CONCLUSIONS OF LAW

45. The Board of Medicine (Board) is now, and has been at

all times material to the instant case, statutorily empowered to

take disciplinary action against a Florida - licensed medical

doctor based upon any of the grounds enumerated in Subsection

(1) of Section 458.331, Florida Statutes.

46. The Board may take such action only after the licensee

has been given reasonable written notice of the charges and an

ade quate opportunity to request a proceeding pursuant to

Sections 120.569 and 120.57, Florida Statutes.

47. An evidentiary hearing must be held if requested by

the licensee when there are disputed issues of material fact.

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

48. At the hearing, Petitioner bears the burden of proving

that the licensee engaged in the conduct, and thereby committed

the violations, alleged in the charging instrument.

49. "In any administrative action against a [medical

docto r] which does not involve revocation or suspension of

license [like the instant case], [Petitioner has] the burden, by

the greater weight of the evidence, to establish the existence

of grounds for disciplinary action." Section 458.331(3),

Florida Statutes .

50. Regardless of the punitive action sought to be taken

against the doctor, in determining whether Petitioner has met

its burden of proof, it is necessary to evaluate Petitioner's

evidentiary presentation in light of the specific factual

allegations ma de in the charging instrument. Due process

prohibits an agency from taking disciplinary action against a

licensee based upon conduct not specifically alleged in the

charging instrument. See Hamilton v. Department of Business and

Professional Regulation , 764 So. 2d 778 (Fla. 1st DCA 2000);

Lusskin v. Agency for Health Care Administration , 731 So. 2d 67,

69 (Fla. 4th DCA 1999); and Cottrill v. Department of Insurance ,

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

51. Furthermore, "the conduct proved must leg ally fall

within the statute or rule claimed [in the charging instrument]

to have been violated." Delk v. Department of Professional

Regulation , 595 So. 2d 966, 967 (Fla. 5th DCA 1992). In

deciding whether "the statute or rule claimed to have been

violat ed" was in fact violated, as alleged by Petitioner, if

there is any reasonable doubt, that doubt must be resolved in

favor of the licensee. See Whitaker v. Department of Insurance

and Treasurer , 680 So. 2d 528, 531 (Fla. 1st DCA 1996); Elmariah

v. Departm ent of Professional Regulation, Board of Medicine , 574

So. 2d 164, 165 (Fla. 1st DCA 1990); and Lester v. Department of

Professional and Occupational Regulations , 348 So. 2d 923, 925

(Fla. 1st DCA 1977).

52. In those cases where the proof is sufficient to

establish that the licensee committed the violation(s) alleged

in the charging instrument and that therefore disciplinary

action is warranted, it is necessary, in determining what

disciplinary action should be taken against the licensee, to

consult the Bo ard's "disciplinary guidelines," as they existed

at the time of the violation(s). See Parrot Heads, Inc. v.

Department of Business and Professional Regulation , 741 So. 2d

1231, 1233 (Fla. 5th DCA 1999)("An administrative agency is

bound by its own rules . . . creat[ing] guidelines for

disciplinary penalties."); and Orasan v. Agency for Health Care

Administration, Board of Medicine , 668 So. 2d 1062, 1063 (Fla.

1st DCA 1996)("[T]he case was properly decided under the

disciplinary guidelines in effect at the time of the alleged

violations."); see also State v. Jenkins , 469 So. 2d 733, 734

(Fla. 1985)("[A]gency rules and regulations, duly promulgated

under the authority of law, have the effect of law."); Buffa v.

Singletary , 652 So. 2d 885, 886 (Fla. 1st DCA 19 95)("An agency

must comply with its own rules."); Decarion v. Martinez , 537 So.

2d 1083, 1084 (Fla. 1st DCA 1989)("Until amended or abrogated,

an agency must honor its rules."); and Williams v. Department of

Transportation , 531 So. 2d 994, 996 (Fla. 1st DC A 1988)(agency

is required to comply with its disciplinary guidelines in taking

disciplinary action against its employees).

53. At the time of the alleged violation in the instant

case, the Board's "disciplinary guidelines" were found in Rule

61F6 - 20.00 1, Florida Administrative Code, which provided, in

pertinent part, as follows:

(1) Purpose. [T]he Board provides within

this rule disciplinary guidelines which

shall be imposed upon . . . licensees whom

it regulates under Chapter 458, F.S. The

purpose o f this rule is to notify . . .

licensees of the ranges of penalties which

will routinely be imposed unless the Board

finds it necessary to deviate from the

guidlelines for the stated reasons given

within this rule. The ranges of penalties

provided below a re based upon a single count

of each provision listed; . . . Each range

includes the lowest and highest penalty and

all penalties failing between. The purposes

of the imposition of discipline are to

punish the . . . licensees for violations

and to deter them from future violations; to

offer opportunities for rehabilitation, when

appropriate; and to deter other . . .

licensees from violations.

(2) Violations and Range of Penalties. In

imposing discipline upon . . . licensees, in

proceedings pursuant to Section

120.57(1) . . . Florida Statutes, the Board

shall act in accordance with the following

disciplinary guidelines and shall impose a

penalty within the range corresponding to

the violations set forth below. The verbal

identification of offenses are descriptive

only; the full language of each statutory

provision cited must be consulted in order

to determine the conduct included.

VIOLATION

* * *

(k) Deceptive, untrue, or fraudulent

representations in the practice of medici ne

(458.331(1)(k), F.S.)

RECOMMENDED RANGE OF PENALTY

* * *

(k) From probation to revocation or denial

and an administrative fine from $250.00 to

$5,000.00.

* * *

(3) Aggravating and Mitigating

Cir cumstances. 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) Expo sure of patient or public to injury

or potential injury, physical or otherwise:

none, slight, severe or death;

(b) Legal status at the time of the

offense: no restraints or legal

constraints;

(c) The number of counts or separate

offenses establishe d;

(d) The number of times the same offense or

offenses have previously been committed by

the licensee . . .;

(e) The disciplinary history of the . . .

licensee in any jurisdiction and the length

of practice;

(f) Pecuniary benefit or self - gain inu ring

to the . . . licensee;

(g) Any other relevant mitigating factors.

54. The Amended Administrative Complaint issued in the

instant case alleges that Respondent violated Subsection (l)(k)

of Section 458.331, Florida Statutes, by making false

represen tations on his Application for Reappointment to the

Medical Staff of Miami Children's Hospital.

55. At all times material to the instant case, Subsection

(1)(k) of Section 458.331, Florida Statutes, has authorized the

Board to take disciplinary action ag ainst a Florida - licensed

medical doctor for "[m]aking deceptive, untrue, or fraudulent

representations in or related to the practice of medicine."

56. "[D]eceptive, untrue, or fraudulent representations"

made on an application for hospital privileges cann ot be said to

have been made "in . . . the practice of medicine"; however, the

making of such representations are "related to the practice of

medicine," within the meaning of Subsection (1)(k) of Section

458.331, Florida Statutes. See Elmariah v. Departme nt of

Professional Regulation, Board of Medicine , 574 So. 2d at 165,

n.1. ("[I]t is of no consequence that the Board found

appellant's deceptive applications for staff privileges bore

some relation to his practice or attempt to practice medicine.

Regardle ss of whether appellant's misrepresentations somehow

related to his practice or attempt to practice, it cannot be

said that they were made 'in' the practice of medicine. . . .

n.1. We note that the subsection in question, which was

redesignated as subsec tion (k) in 1986, was amended in 1989.

See ch. 89 - 374, § 11, Laws of Fla. At present, the following

constitutes a valid basis for disciplinary action: '(k) Making

deceptive, untrue, or fraudulent representations in or related

to the practice of medicine or employing a trick or scheme in

the practice of medicine.' Section 458.331(1)(k), Fla. Stat.

(1989)(emphasis added). Although we would not presume to

interpret a statute not presently before us, we note that the

added language (emphasized) should give pause to those who might

assume that actions similar to appellant's remain

unpunishable."); and Department of Health, Board of Medicine, v.

Hays , Nos. 97 - 5910 and 97 - 5911, 1998 WL 929950 (Fla. DOAH

1998)(Recommended Order)(" Respondent's use of the term 'p ending'

in describing his affiliations with St. Anthony's and Bayfront

when he signed the Palms of Pasadena Hospital application [for

privileges] , was an untrue representation related to the

practice of medicine."; recommended that Board " find Respondent

g uilty of having violated the provisions of Section

458.331(1)(k), Florida Statutes . . . .").

57. To establish that a licensee committed a violation of

Subsection (1)(k) of Section 458.331, Florida Statutes, by

"[m]aking deceptive, untrue, or fraudulent r epresentations" on

an application for hospital privileges, it must be shown, not

only that the licensee provided false or misleading information

on the application, but also that the licensee knowingly did so.

See Gentry v. Department of Professional and Occupational

Regulations , 293 So. 2d 95, 97 (Fla. 1st DCA 1974)(former

statutory provision prohibiting licensed medical doctors from

"[m]aking misleading, deceptive and untrue representations in

the practice of medicine" held not to apply to "representatio ns

which are honestly made but happen to be untrue"; "[t]o

constitute a violation, . . . the legislature intended that the

misleading, deceptive and untrue representations must be made

willfully (intentionally)"); see also Munch v. Department of

Profession al Regulation, Division of Real Estate , 592 So. 2d

1136, 1143 (Fla. 1st DCA 1992)("It is clear that Section

475.25(1)(b) [Florida Statutes, which, in its first clause,

authorizes the Florida Real Estate Commission to discipline a

licensee guilty of fraud, misrepresentation, concealment, false

promises, false pretenses, dishonest dealing by trick, scheme or

device, culpable negligence, or breach of trust in any business

transaction] is penal in nature. As such, it must be construed

strictly, in favor of the one against whom the penalty would be

imposed. . . . Reading the first clause of Section

475.25(1)(b), and applying to the words used their usual and

natural meaning, it is apparent that it is contemplated that an

intentional act be proved before a viol ation may be found.").

58. In the instant case, Petitioner made such a showing.

It proved by the greater weight of the evidence that, as alleged

in the Amended Administrative Complaint, Respondent knowingly 9/

made false representations on his Applicatio n for Reappointment

to the Medical Staff of Miami Children's Hospital by indicating

thereon "that he had not previously relinquished clinical

privileges at any hospital" and "that he had never relinquished

hospital privileges."

59. Accordingly, Responde nt should be found guilty of

violating Subsection (1)(k) of Section 458.331, Florida

Statutes, as charged.

60. In its Proposed Recommended Order, Petitioner suggests

that the undersigned recommend that the Board impose the

following penalties upon Respon dent: "a Reprimand, payment of

an Administrative Fine in the amount of $5,000.00 to be paid

within 180 days, and payment of costs of investigation and

prosecution."

61. Having carefully considered the facts of the instant

case in light of the provisions of Rule 61F6 - 20.001, Florida

Administrative Code, set forth above, and further recognizing

that the Board is now, and has been at all times material to the

instant case, statutorily authorized to "assess costs related to

the investigation and prosecution" of those disciplinary cases

it decides, 10/ the undersigned concludes that the penalty

suggested by Petitioner is an appropriate one to impose in the

instant case.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is h ereby

RECOMMENDED that Petitioner issue a final order in which it

finds Respondent guilty of the violation of Subsection (1)(k) of

Section 458.331, Florida Statutes, alleged in the Amended

Administrative Complaint and, as punishment therefor, reprimands

Re spondent and requires him to pay a fine in the amount of

$5,000.00, as well as the "costs related to the investigation

and prosecution of the case," 11/ within 180 days of the date

of the final order.

DONE AND ENTERED this 29th day of October, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(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 29th day of October, 2002.

ENDNOTES

1/ Deering now operates as Jackson South Community Hospital.

2/ The undersigned has rejected the assertion made by

Respondent (in his proposed finding of fact 6) that the record

is devoid of evidence that "Respondent's provisional status was

ever extended an additional twelve (12) months from October,

1994." On page 11 of Respondent's Application for Appointment

to the Deering Medical Staff (Petitioner's Exhibit 4), which

(according to the printed notation on the top of the page) was

"not to be filled in by applicant" and was "for hospital records

only," is the handwritten "remark," "up for reappointment

10/95." Further proof that Respondent remained a provisional

member of the Deering medical staff after October of 1994, can

be found in the July 8, 1995, letter in whi ch Respondent

announced his resignation "as a provisional member of the

medical staff of Deering Hospital" (Petitioner's Exhibit 2) and

in Respondent's Application for Reappointment to the Medical

Staff of Deering, which is dated "2/24/95" (Petitioner's Ex hibit

5). Furthermore, Respondent himself testified that he continued

on the Deering medical staff after October of 1994, and that he

"performed surgery at Deering" as recently as "late June 1995."

3/ It is unclear who reported the incidents in questio n to the

hospital administration.

4/ At some point in time, the Agency for Health Care

Administration investigated these "incidents" and found that

there was no probable cause to initiate disciplinary action

against Respondent's license to practice medi cine in Florida.

5/ Respondent testified that he "thought that question number

three was basically asking have you been thrown off the staff at

another hospital for practicing bad medicine." The undersigned

has rejected this testimony inasmuch as it is difficult to

believe that a reasonable person with Respondent's education and

background would have read the question so narrowly, given the

language used in the question, which makes abundantly clear that

Children's was interested in finding out other th ings from the

applicant (in addition to whether the applicant had ever "been

thrown off the staff at another hospital for practicing bad

medicine"), including whether the applicant had ever

"voluntarily . . . relinquished" his or her "Medical Staff

members hip or Medical Staff status at any hospital or health

care institution."

6/ There is no reason to believe that, at the time he filled

out the Application, Respondent had forgotten about his

voluntary dissociation with Deering.

7/ Children's had obtaine d this information from the National

Practitioner Data Bank on or about February 11, 1996

8/ The evidentiary record reveals otherwise. Respondent had

"been appointed to the medical staff" of Deering (as a

provisional staff member) and, until his resign ation, had

enjoyed the privileges of such membership status.

9/ Although Respondent testified that he never intended to be

untruthful on his Application, his actions belie this claim.

See State v. Breland , 421 So. 2d 761, 766 ( Fla. 4th DCA

1982)( "Actio ns manifest intent.").

10/ See Section 456.072(4), Florida Statutes ("In addition to

any other discipline imposed through final order, or citation,

entered on or after July 1, 2001, pursuant to this section or

discipline imposed through final order, or c itation, entered on

or after July 1, 2001, for a violation of any practice act, the

board, or the department when there is no board, shall assess

costs related to the investigation and prosecution of the

case."). The Board has had such authority "to asses s costs

related to the investigation and prosecution of the case" since

before the violation committed by Respondent in the instant

case. See Section 9 of Chapter 94 - 119, Laws of Florida.

11/ "In the absence of a rule setting out a procedure for

establ ishing the appropriate amount of such costs, fundamental

fairness requires that the Board . . . require [Petitioner] to

submit to the Board and to the Respondent an itemized listing of

the costs for which payment is requested and that the Respondent

be giv en an opportunity to contest the accuracy and/or

reasonableness of the costs before the Board determines the

amount of costs the Respondent will be required to pay."

Department of Health, Board of Nursing v. Matus , No. 97 - 1911,

1997 WL 1053326 (Fla. DOAH 1997)(Recommended Order).

COPIES FURNISHED:

Kim M. Kluck, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Jay Cohen, Esquire

Grossman and Roth, P.A.

2665 South Bayshore Drive

Grand Bay Plaza, Penthouse On e

Miami, Florida 33133

Larry McPherson, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

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 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 th e Final Order in this case.