04-000683 Lisa Gail Aptaker, M.D. vs. Department Of Health, Board Of Medicine Status: Closed Recommended Order on Thursday, November 18, 2004.

Summary: Petitioner misrepresented and concealed material facts and failed to update her application to advise Respondent that she was under investigation in New York. Recommend that Petitioner`s application for licensure by endorsement be denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LISA GAIL APTAKER, M.D., )

)

Petitioner, )

)

vs. ) Case No. 04 - 0683

)

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Respondent. )

)

RECOMMENDED O RDER

This matter came on for formal hearing on August 24 - 25,

2004, in Tallahassee, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Allen R. Grossman, Esquire

Gray, Harris & Robinson, P.A.

301 South Bronough Street, Suite 600

Post Office Box 11189

Tallahassee, Florida 32302 - 3189

For Respondent: Rosanna Catalano, Esquire

Edward A. Tellechea, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUES

The issue is whether Respondent properly denied

Petitioner's application for licensure as a physician by

endorsement.

PRELIMINARY STATEMENT

On December 23, 2003, Respondent Department of Health,

Board of Medicine (Respondent) issued a Notice of Intent to Deny

the applicat ion of Petitioner Lisa Gail Aptaker, M.D.

(Petitioner) for licensure as a physician by endorsement.

Respondent based its denial on the following allegations:

(a) Petitioner attempted to obtain a license by misrepresenting

or concealing material facts at any time during any phase of the

licensing process in violation of Section 458.331(1)(gg),

Florida Statutes; (b) Petitioner is unable to practice medicine

with reasonable skill and safety due to a mental condition in

violation of Section 458.331(1)(s), Florida Statutes;

(c) Petitioner failed to comply with Section 456.013(1)(a),

Florida Statutes, because she did not update material facts on

her application; and (d) Petitioner cannot be issued a license

because her New York medical license is unde r investigation. On

or about January 28, 2004, Petitioner requested a formal hearing

to contest the denial of her application.

Respondent referred the case to the Division of

Administrative Hearings on February 26, 2004. On March 4, 2004,

the parties fi led a Joint Response to Initial Order. In a

Notice of Hearing dated March 8, 2004, the undersigned scheduled

the hearing for April 26, 2004.

On April 13, 2004, Petitioner filed a Motion for

Continuance of Hearing. On April 14, 2004, the undersigned

is sued an Order Denying Motion for Continuance of Hearing.

On April 16, 2004, Petitioner filed a Motion to Toll

Proceedings. On April 20, 2004, the undersigned issued an Order

Denying Motion to Toll Proceedings.

On April 20, 2004, the parties filed a Joint Motion for

Continuance. On April 21, 2004, the undersigned issued an Order

Granting Continuance and Re - Scheduling Hearing for June 30 and

July 1, 2004.

On June 9, 2004, Respondent filed a Motion to Compel Mental

Examination. Petitioner filed a r esponse in opposition to the

motion on June 21, 2004.

On June 21, 2004, Petitioner filed a Motion for

Continuance. That same day, Respondent filed a response in

opposition to the motion.

On June 22, 2004, the undersigned heard oral argument in a

telepho ne conference on the pending motions. During the

telephone conference, Respondent withdrew its Motion to Compel

Mental Examination. On June 23, 2004, the undersigned issued an

Order Granting Continuance and Re - Scheduling Hearing for

August 24 - 25, 2004.

On July 27, 2004, Petitioner filed an Emergency Motion for

Protective Order and Request for Hearing. Respondent filed a

response in opposition to the motion on July 28, 2004. An Order

dated July 30, 2004, denied the motion.

When the hearing commence d, the undersigned heard oral

argument on Respondent's Motion for Costs and Sanctions of

Video - Deposition. The undersigned denied Respondent's motion as

to imposing sanctions but reserved ruling as to the imposition

of costs. The aspect of the motion rel ating to costs is hereby

denied.

During the hearing, Petitioner testified in her own behalf

and presented Exhibit Nos. P1 - P4 and P6 - P22, which were accepted

as record evidence. Exhibit Nos. P5 and P23 are not admissible

due to a lack of authentication.

Respondent presented the testimony of two witnesses and

offered seven exhibits. Respondent's Exhibit Nos. R1 and R3 - R7

were accepted as record evidence.

Respondent's Exhibit No. R2 was identified as Petitioner's

application file. Petitioner raised numerous objections to

various portions of Exhibit No. R2, but pages 417 to 674 were

admitted into evidence without objection. During the hearing,

Petitioner's objections relating to a lack of authentication of

pages 316 - 324 in Exhibit No. R2 were overrul ed.

To the extent that pages in Exhibit No. R2 are duplicates

of properly authenticated documents attached to the transcripts

of depositions taken in lieu of testimony at hearing,

Petitioner's objections as to lack of authentication are hereby

overruled. To the extent that pages in Exhibit No. R2 are

documents generated by Respondent, its staff, and consultants,

Petitioner's objections as to lack of authentication are hereby

overruled. Any documents in Exhibit No. R2 generated by

Petitioner, or counsel on her behalf, are not inadmissible for

lack of authentication.

Documents in Exhibit No. R2 specifically excluded for lack

of authentication are as follows: pages 36 - 189 relating to

Petitioner's deposition in civil litigation stemming from

Petitioner's practice at Harlem Hospital Center in New York; any

documents between pages 190 and 313 that were not generated by

the State of New York, Department of Health, and certified as

true and correct copies by its Records Custodian; pages 314 - 315

furnished to Re spondent by Long Island College Hospital

involving civil litigation in New York; documents involving

Petitioner's employment at Long Island College Hospital in pages

361 - 366; and documents in pages 370 - 387 that are not attached to

the deposition of the Rec ords Custodian for Columbia University

Affiliate at Harlem Hospital Center in New York.

On August 27, 2004, Respondent filed a copy of the

deposition in lieu of live testimony of Gloria Whitley.

Ms. Whitley is the Director of Human Resources for Columbi a

University Affiliate at Harlem Hospital Center in New York.

The Transcript of the proceeding was filed on September 8,

2004.

On September 13, 2004, Respondent filed Petitioner's

written deposition to accompany her August 3, 2004, Video -

Deposition. P etitioner's Video - Deposition is Exhibit No. R7.

On October 14, 2004, Petitioner filed her Proposed

Recommended Order. On October 15, 2004, Respondent filed its

Proposed Recommended Order.

FINDINGS OF FACT

1. Petitioner is a 36 - year - old physician who currently

resides in New York City, New York. Petitioner filed the

instant application, seeking to be licensed by endorsement as a

physician in Florida on June 17, 2003.

2. With her application, Petitioner provided Respondent

with all the fees that wer e necessary to process the

application. She also provided a required fingerprint card.

3. Petitioner graduated from high school at The Spence

School in New York City, New York, in 1986. She graduated from

college at Brown University in Providence, Rho de Island, in

1990.

4. Petitioner attended medical school at The Albert

Einstein College of Medicine of Yeshiva University (AECM) in the

Bronx, New York. While Petitioner was a student at AECM, she

became involved in a personal relationship with a male

colleague, another medical student.

5. In December 1994, AECM charged Petitioner with student

misconduct involving the termination of the relationship with

the male colleague and suspended her from medical school. On

February 8, 1995, the Supreme Cour t of the State of New York, in

and for Bronx County, ordered AECM to reinstate Petitioner as a

student. The Court concluded that AECM, in accordance with its

procedures and after a new hearing, could determine in June 1995

whether Petitioner should be per mitted to graduate in light of

the events of December 1994 and Petitioner's emotional stability

in June 1995. Petitioner graduated from AECM in 1995 with

special distinction for research in obstetrics and gynecology.

6. In June 1996, Petitioner success fully completed a year

of post - graduate medical training in internal medicine at Yale -

New Haven Hospital, which was affiliated with Yale University

School of Medicine. During the course of her year at Yale

University, Petitioner decided to specialize in o bstetrics and

gynecology instead of internal medicine.

7. In June 1998, Petitioner completed two years of

training in obstetrics and gynecology at the New York City

Health and Hospitals Corporation, Lincoln Medical and Mental

Health Center (Lincoln Hosp ital). During the first year,

Lincoln Hospital was affiliated with the New York Medical

College, Medical Education Consortium. During the second year,

Lincoln Hospital was affiliated with the Joan and Sanford I.

Weill Medical College of Cornell Universit y.

8. While working as a resident at Lincoln Hospital,

Petitioner became involved in a personal relationship with a

boyfriend. On September 8, 1996, Petitioner had a heated

argument with the boyfriend on a New York City street that led

to her arrest on charges of harassment in the second degree and

aggravated harassment in the second degree. Subsequently, the

criminal charges were dismissed and the court records were

sealed in June 2000.

9. Petitioner subsequently married a physician with a

practice in New Jersey. Because her husband was practicing

medicine in New Jersey, Petitioner transferred to the University

of Medicine and Dentistry of New Jersey, Robert Wood Johnson

Medical School (UMDNJ), for her third year of training in

obstetrics and gynec ology.

10. At UMDNJ, one of Petitioner's supervisors questioned

whether she had completed all the goals for a third - year

resident. UMDNJ also advised Petitioner that it would not have

a fourth - year position for her to fill. As a result of these

issues , Petitioner was placed in a remediation program so that

the faculty could properly evaluate Petitioner's performance.

11. Petitioner had a "personality conflict" with the

chairman of UMDNJ's obstetrics and gynecology department,

Dr. Robert Knupple, who wanted her to repeat her third - year

training. According to Petitioner, the personality conflict was

due in part to her tardiness and schedule changes. Despite

these problems, Petitioner completed her training at UMDNJ in

June 1999.

12. Between Septembe r 1993 and May 1998, Petitioner

successfully completed the United States Licensing Examination.

She completed Step I in two attempts, Step II in two attempts,

and Step III on her first attempt. Petitioner was licensed to

practice medicine in the State of New York in June 1999. At the

time of the hearing in the instant case, Petitioner's New York

medical license was valid and no formal charges had been filed

against Petitioner by the New York State Department of Health,

Office of Professional Medical Cond uct.

13. Petitioner subsequently transferred to St. Michael's

Medical Center (St. Michael's), which was affiliated with Seton

Hall University, School of Graduate Medical Education (Seton

Hall). Petitioner's marriage was dissolving while she was

working as Chief Resident in obstetrics and gynecology at St.

Michael's. Her ex - husband's sister worked in St. Michael's

emergency room, resulting in personal difficulties that caused

Petitioner to become isolated and withdrawn. The circumstances

of Petitioner' s marital problems had an adverse impact on her

relationship with the chairman and the staff of her department

at St. Michael's/Seton Hall.

14. The chairman ultimately referred Petitioner to the

Physicians' Health Program of the Medical Society of New J ersey

for a psychiatric evaluation. The evaluation found Petitioner

to be free of any DSM - IV diagnosis for psychoactive substance

use disorder and psychiatric diagnosis. Petitioner completed

her work at Seton Hall on June 30, 2000.

15. Sometime during 2000, Petitioner applied for a medical

license in Florida. During the application process,

Respondent's staff requested the chairmen or program directors

of Lincoln Hospital's, UMDNJ's, and St. Michael's departments of

obstetrics and gynecology to provid e evaluations of Petitioner.

16. In June 2000, the Lincoln Hospital evaluation rated

Petitioner as "poor" in regard to her professional relationship

with colleagues. Lincoln Hospital's overall evaluation

recommended Petitioner as qualified and competen t.

17. In July 2000, UMDNJ provided an evaluation, rating

Petitioner as "poor" in the following areas: (a) professional

relationships with colleagues and teaching staff; (b)

professional character as it related to diagnostic/clinical

ability and fitnes s for clinical practice; and (c) personal

character as it related to motivation, initiative,

responsibility, and integrity. In regard to an overall

evaluation, UMDNJ recommended Petitioner with some reservation.

18. Petitioner's department chairman at St. Michael's/

Seton Hall initially filled out a form recommending her with

reservation. After Petitioner underwent the two - day psychiatric

evaluation, the chairman recommended Petitioner without

reservation.

19. In processing Petitioner's 2000 applicati on,

Respondent's staff discovered information relating to

Petitioner's arrest during the time that Petitioner was training

at Lincoln Hospital. Petitioner had not disclosed the 1996

arrest record because she thought all records related to the

alleged inci dent with her then boyfriend were sealed.

Petitioner subsequently withdrew her application for medical

licensure in Florida.

20. In October 2000, Petitioner accepted a faculty

position with Columbia University, College of Physicians &

Surgeons (Columbi a University). Because Columbia University was

affiliated with Harlem Hospital Center (Harlem Hospital),

Petitioner was appointed to its medical staff as an attending

physician. Petitioner's duties included academic and clinical

responsibilities.

21. At Harlem Hospital, Petitioner ran the rotation

program for physician's assistant students. She worked in the

hospital's labor and delivery unit and performed surgeries such

as Caesarean sections. She also took care of patients on the

gynecology floor.

22. Harlem Hospital operates several outpatient clinics.

Petitioner worked at one of the clinics, where she saw patients

and performed some medical procedures.

23. While Petitioner was working at Harlem Hospital, she

enrolled in a two - year graduate p rogram in public health at

Columbia University. Petitioner's schedule at Harlem Hospital

was arranged so that she could attend graduate classes. She

received the degree of Masters in Public Health in March 2004.

24. Columbia University contracted with Harlem Hospital to

provide it with medical services. At all times relevant here,

Dr. Stephen Matseoane was either the Director of Service or the

Chairman of the Obstetric and Gynecology Department providing

the contracted services.

25. In May or June of 2002, Petitioner applied for a

faculty position at Long Island College Hospital (LICH).

26. On June 24, 2002, Petitioner and Dr. Barbara Lanzara

scrubbed on a cesarean section. As a result of a complication,

the patient began bleeding excessively. Petitioner was not

feeling well and left the operating room to get some water and

to call Dr. Matseoane for assistance.

27. Petitioner drank three cups of water while she waited

for Dr. Matseaone to return her call. She then returned to the

operating r oom.

28. A memorandum dated July 11, 2002, from Dr. Matseoane

to Petitioner stated as follows:

On June 25, 2002, you left the operating

room while a cesarean section was proceeding

and Dr. Lanzara, the principal surgeon was

left unassisted. Your expl anation that you

felt "sick" because of heat in the operating

room is unacceptable. The patient was

bleeding excessively and Dr. Lanzara needed

your continuing assistance until further

help became available. Leaving the

operating room especially in the p resence of

complications is a callous disregarad [sic]

for the patient's safety and will not be

tolerated.

Gloria Whitley, Human Resources Director for Columbia University

Affiliate of Harlem Hospital received a copy of the memorandum

on July 16, 2002.

29. Petitioner signed a contract for employment at LICH on

July 27, 2002. The contract provided for Petitioner to begin

working at LICH on September 1, 2002.

30. Dr. Gail Blakely was Petitioner's supervisor at the

Harlem Hospital clinic. Petitioner d id not approve of some of

the changes initiated by Dr. Blakely, a relatively new attending

physician. Among other matters, Petitioner did not approve of

the way Dr. Blakely organized the charts in the clinic.

31. On August 2, 2002, Dr. Matseoane inform ed Petitioner

that the issues between Dr. Blakely and her were no longer

tolerable. Dr. Matseoane then told Petitioner that she had

until August 5, 2002, to resign her position with the Harlem

Hospital clinic, to which she was assigned and where Dr. Blake ly

was her supervisor, and transfer to another Harlem Hospital

clinic or he would report her alleged misconduct to the New York

State Department of Health, Office of Professional Medical

Conduct.

32. Petitioner argued that she had more seniority than

Dr . Blakely, who had personality conflict problems with several

other staff members. Petitioner argued that it did not make

sense for her to transfer to another clinic because she was

seeing patients at her assigned clinic and because she was

already planni ng to take another position at another hospital in

the near future. Petitioner refused to accept Dr. Matseoane's

suggestion that she transfer to another clinic.

33. A memorandum dated August 2, 2002, from Dr. Matseoane

to Petitioner stated as follows:

Pursuant to the discussion we had on

August 2, 2002, I expect your letter of

resignation from the Department of

Obstetrics and Gynecology no later than

August 5, 2002. Your resignation will be

effective August 31, 2002.

During this period, if any form of

harassment occurs against Dr. Blakely, it

will be reported to the State.

Dr. Matseoane sent Ms. Whitley a copy of the memorandum.

34. Ms. Whitley's duties require her to conduct an

investigation when one staff member makes a complaint against

anoth er staff member. It is a function of Ms. Whitley's job to

know who is hired or fired, or who resigns from the staff. As

the Human Resources Director, Ms. Whitely is not responsible for

hiring medical staff, but she is always involved in Columbia

Universi ty Affiliate of Harlem Hospital's decisions to terminate

an employee who is involved in an altercation with another staff

member.

35. Ms. Whitley was aware that Dr. Blakely and/or

Dr. Matseoane had complained about Petitioner's behavior towards

Dr. Blak ely. She was also aware that Dr. Matseoane met with

Petitioner on August 2, 2002, and that the conflict between

Petitioner and Dr. Blakely was the motivating force behind

Dr. Matseoane's August 2, 2002, memorandum.

36. On or about August 4, 2002, a dis cussion between

Dr. Blakely and Petitioner became very heated. Immediately

after the heated argument between Dr. Blakely and Petitioner,

Dr. Blakely made contact with Felix Davenport, an officer with

the New York City Hospital Police. Officer Davenport t hen

proceeded with Dr. Blakely to the elevator doors, intending to

escort her safely to the first floor of the building. When the

elevator doors opened, Petitioner was standing inside. Officer

Davenport and Dr. Blakely entered the elevator.

37. When Off icer Davenport, Dr. Blakely, and Petitioner

arrived at the first floor, Officer Davenport asked Petitioner

if he could talk to her about what happened with Dr. Blakely on

that day and other days. Petitioner responded that Dr. Blakely

actually was harassin g her and refused to discuss the matter

further. Officer Davenport subsequently wrote an incident

report. He also verbally advised Dr. Matseoane about the

incident.

38. When Ms. Whitley received a copy of Officer

Davenport's report, she told Petitione r that she was to leave

the premises. Ms. Whitley wanted to prevent further arguments

in front of patients.

39. Petitioner subsequently filed a complaint against

Dr. Blakely at the local police precinct. Petitioner filed the

complaint because she felt personally threatened.

40. In a letter dated August 5, 2002, Petitioner's counsel

advised Dr. Matseoane that she had not done anything to warrant

his threats to report her to the State unless she resigned from

the clinic. The letter stated that Petit ioner hoped to take

another position with another hospital by September 1, 2002, and

that she would resign after securing the other position.

Ms. Whitley received a copy of this letter.

41. On August 9, 2002,Ms. Whitley sent the Harlem Hospital

Police a photograph of Petitioner together with a memorandum,

which stated as follows:

Per our conversation, please be advised that

Dr. Aptaker is not allowed on the premises

until after her hearing takes place. You

will be informed as to that date shortly.

Ms . Whitley does not send, and the Harlem Hospital Police do not

receive, instructions like the one contained in Ms. Whitley's

memorandum unless an employee or staff member has been asked to

resign or terminated under adverse circumstances. Employees who

vo luntarily resign usually just turn in their hospital

identification and no further action is taken.

42. In this case, Ms. Whitley wrote the memorandum based

on her understanding as Human Resources Director that

Dr. Matseoane had asked Petitioner to resi gn her privileges at

Harlem Hospital. Ms. Whitley wrote the memorandum with the

sanction of Petitioner's superiors.

43. Ms. Whitley began looking into the allegations against

Petitioner. However, she never had a chance to complete the

investigation o r conduct a hearing.

44. In a letter dated August 12, 2002, Petitioner resigned

her position with Columbia University/Harlem Hospital effective

August 13, 2002. Petitioner wrote the August 13, 2002, date in

by hand in a space left blank for that purp ose and in the

presence of Ms. Whitley.

45. On August 12, 2002, Petitioner signed an addendum to

her resignation letter. The addendum stated that Columbia

University had discussed certain matters with Petitioner's

attorney regarding her resignation. It addressed the following

issues: (a) Petitioner's tuition stipend; (b) Petitioner's

employment compensation for the month of August 2002 and

consideration for another four months of salary; (c) financial

reimbursement for conferences to which Petitioner was committed;

(d) provision of good personal and professional references

and/or forms upon future request; and (e) the ability to review

all personal and professional files at any time.

46. The final two paragraphs of the resignation addendum

stated as follows:

6) The removal of all letters and/or memos

from my files that are not honest, and are

not representative of my personal and

professional performance at HHC. Basically,

upon my personal review as of approximately

one week ago there were no n egative

documents in my file and this is the way my

file should remain. In addition, there is

no basis to make any negative reports to any

medical or government agencies; such reports

would be deemed false.

7) Access to my office and any other

facilities in the institution to remove any

personal items and complete the transition I

am making on this voluntary resignation and

my leaving to my new position.

A hand - written note at the bottom of the resignation addendum

states that "[t]hese matters will be under discussion between

the attorneys, but my resignation remains effective as . . . ."

47. Petitioner worked at LICH for one year beginning

September 1, 2002. However, in April 2003, Petitioner

interviewed for a position with the University of Miami, School

of Medicine, Department of Obstetrics and Gynecology, in Miami,

Florida. She submitted her resignation to LICH in May 2003 to

be effective August 31, 2003.

48. Petitioner filed the instant application on June 23,

2003, in preparation for assuming a position at the University

of Miami. The following day, the New York State Department of

Health, Office of Professional Medical Conduct, sent Petitioner

a letter informing her that she was being investigated regarding

the medical care of her patient, S .R.

49. On August 18, 2003, Petitioner appeared for an

interview before an investigative committee of the New York

State Department of Health, Office of Professional Medical

Conduct. The interview involved the care of S.R. at Harlem

Hospital plus addi tional behavioral issues. Counsel accompanied

Petitioner during the interview.

50. As part of the application process, Respondent sent

Petitioner a letter requiring her appearance before Respondent's

Credentials Committee (the Committee) on September 1 3, 2003.

Respondent's letter indicated that Petitioner's appearance was

for the purpose of discussing Petitioner's suspension from

medical school, her arrest in 1996, a less than favorable

evaluation from UMDNJ, a less than favorable evaluation from

St. M ichael's, and Petitioner's medical malpractice cases.

51. Petitioner appeared at the September 13, 2003, meeting

as required. The Committee members expressed their concerns

about Petitioner's past history of problems with personal

relationships and ho w such problems might affect her

professional practice in the future.

52. In her sworn response to the Committee's concerns,

Petitioner repeatedly stated that she had not had "any problems

at all" since the incidents with the two gentlemen in 1994 and

1996 and the New Jersey mental examination in 2000. Petitioner

told the committee that she had been in a serious relationship

for two and a - half years and had not had any sort of problem at

all with anyone.

53. In response to a Committee member's conce rn that

Petitioner was always going to have to deal with personal

circumstances for the rest of her life, Petitioner stated as

follows:

And I think I've been able to deal with that

now. I appreciate your bringing up this

concern. There have difficultie s with my

relationship that I've had for two - and - a -

half years and they've been dealt with

without any interventions whatsoever in my

professional life.

54. The Committee initially considered a motion to approve

Petitioner's license contingent upon a P rofessionals Resource

Network (PRN) evaluation and clarification from LICH regarding

whether Petitioner's privileges at LICH were restricted in any

manner. Ultimately, the Committee requested and Petitioner

agreed to undergo a PRN evaluation. Petitioner also agreed to

waive the ninety - day time frame imposed by Section 120.60(1),

Florida Statutes. The Committee then voted to table

Petitioner's application.

55. PRN is the statutorily mandated consultant to

Respondent on issues of physician impairment. Dr. Raymond Pomm

is the Medical Director of PRN. He first met Petitioner at the

September 13, 2003, Committee meeting.

56. Dr. Pomm gave Petitioner three pairs of evaluators

from which to choose, each pair consisting of a psychologist and

a psychiatr ist. Petitioner selected Dr. Larry Harmon to conduct

her psychological evaluation and Dr. Eva Ritvo to conduct her

psychiatric evaluation.

57. On September 17, 2003, Petitioner completed a full day

of psychological testing in Dr. Harmon's office. Th e

psychological testing included, but was not limited to, the

following: (a) the Minnesota Multi - Phasic Personality Inventory

(MMPI); (b) the Wonderlic Personnel Test; (c) the Physician

Self - Understanding Leadership Skills Enhancement Survey

(P.U.L.S.E.); (d) the Millon Clinical Multiaxial Inventory - III

(Millon); and (e) Practitioner Feedback Questionnaire.

58. After Petitioner completed the testing, she initially

gave Dr. Harmon permission to call her most recent physician -

supervisors. The calls were to be made using the guise that

Petitioner was participating in a leadership program for which

he needed to gather information. This method of gathering

information is considered acceptable and ethical because it

preserves the anonymity and integrity of the physician being

evaluated.

59. On September 18, 2003, Petitioner went to meet with

Dr. Ritvo, the psychiatrist. Upon her arrival, Petitioner

realized that Dr. Ritvo's office was affiliated with the

University of Miami, where Petitioner had accepte d an offer of

employment. Petitioner was concerned that she would be entered

into the psychiatric patient database at the University of

Miami, School of Medicine, and declined to undertake an

evaluation with Dr. Ritvo.

60. On September 18, 2003, Petitio ner faxed Dr. Harmon a

note stating that she rescinded any and all releases that she

had signed the day before. The effect of the note prohibited

Dr. Harmon from sharing any information with PRN and Dr. Ritvo.

The note specifically rescinded her authoriz ation to obtain

references from anyone at her previous places of employment.

61. Later on September 18, 2003, Petitioner amended her

note to allow Dr. Harmon to exchange information with PRN, but

forbade his contact with her supervising physicians.

62. Dr. Harmon's written evaluation is dated September 22,

2003. According to the report, Dr. Harmon was unable to reach

any conclusions because Petitioner did not allow him to obtain

collateral confirmation of Petitioner's self - report from current

or re cent supervisors. However, the report does note that

Petitioner claimed to have had a extremely positive professional

and personal experiences for the past three years. She did not

inform him of any difficulties with interpersonal relationships

after 200 0.

63. Dr. Harmon's report contains supplemental information

in an addendum. This information indicates that Dr. Harmon had

to prod Petitioner to provide details about her suspension from

medical school in 1994 and her arrest in 1996. After

considera ble probing about her more recent relationships,

Petitioner stated that she had had excellent professional and

personal experiences since 2000. It is apparent from the report

that Petitioner did not tell Dr. Harmon about any relationship

difficulties afte r she underwent the psychiatric evaluation at

St. Michael's/Seton Hall in 2000.

64. Dr. Harmon's supplemental information indicates that

Petitioner appeared to minimize her own contribution to negative

events that happened to her. Additionally, she ap peared to have

little insight into the cause of her current difficulties. In

general, Petitioner minimized the impact that her behavior has

had on others, expressing surprise that the medical school

suspended her and not her boyfriend and that the police would

arrest her for having a heated discussion on the street. In

fact, after probing, Petitioner denied that her behavior has

ever been inappropriate or that anything she has ever done could

have contributed to her problems during training other than

sel ecting the wrong relationships. She specifically denied

having any behavior or academic problems at Columbia University.

She denied that she had ever been fired or asked to resign from

any job and that she had ever consulted any attorney for any

reasons associated with workplace issues.

65. In reviewing Petitioner's insight and judgment,

Dr. Harmon concluded that her judgment appeared to be currently

fair to poor, although poor by history. Dr. Harmon apparently

reached this conclusion based on Petiti oner's report that she

had no problems in the last two or three years.

66. The MMPI is an objective true/false personality

inventory and measure of symptomology consisting of 567

questions. The test measures personality psychopathology,

family adjustme nt, socialization, somatic complaints,

depression, anxiety, and other mental health concerns.

67. Petitioner answered questions on the MMPI in a way

that undermined the validity of the test. She responded to the

test items by claiming to be unrealistic ally virtuous. In other

words, she depicted herself the way she wished other people to

view her instead of providing a realistic depiction.

68. The Wonderlic Personnel Test examines basic cognitive

function. On this test, Petitioner demonstrated that she did

not have anything wrong with her intellect or her ability to use

her intellect.

69. The Millon is a 175 - item psychological questionnaire

that measures the following: (a) clinical personality patterns

such as antisocial or dependent; (b) severe personality

pathology such as paranoid or borderline; (c) clinical syndromes

such as anxiety or alcohol dependence; (d) severe symptoms such

as thought disorder or major depression; and (e) validity

indicators including disclosure, desirability and debasem ent.

Once again, Petitioner's responses compromised the validity of

the test. Her responses suggested an effort to present a

socially acceptable appearance or a resistance to admitting

personal shortcomings. Petitioner's responses on the Millon

sugges ted compulsive personality patterns, histrionic traits,

and narcissistic features.

70. The Practitioner Credibility Questionnaire -- Self -

Assessment Version is a non - clinical questionnaire. On this

questionnaire, Petitioner denied that she had exhibited any

disruptive behaviors in the past two years, including but not

limited to, the following: (a) inappropriate disruptive

communications; (b) disruptive behaviors regarding medical care;

(c) disruptive behavior towards policies and procedures; (d)

disrup tive interpersonal behaviors; and (e) any other disruptive

professional behaviors.

71. The P.U.L.S.E. is a non - clinical, self - report

questionnaire of work behavior, which either motivates other

team members to do their best work or disrupts their abili ty to

do their best work. As to the questions relating to motivating

behaviors, Petitioner reported that she "sometime less

frequently" shows up on time for commitments. Otherwise,

Petitioner reported that "definitely more frequently than

average" respon ds when asked for help, spots and solves

problems, takes charge when necessary, gives helpful and

constructive advice, helps out when work needs to be done, and

works collaboratively with other departments.

72. As to questions on the P.U.L.S.E. involvi ng disruptive

behaviors, Petitioner denied any and all common disruptive

workplace behaviors. She indicated that she "never" does them.

73. As to questions on the P.U.L.S.E. involving disruptive

impact on others, Petitioner denied any and all common

dis ruptive reactions in others. Instead, Petitioner indicated

that she "never" produces common negative reactions in others in

the workplace.

74. After Petitioner refused to undergo an evaluation by

Dr. Ritvo, Dr. Pomm provided her with the names of addi tional

psychiatrists that could perform the evaluation. Petitioner

selected Dr. Richard Seely.

75. Dr. Seely evaluated Petitioner on September 25, 2003.

His evaluation results were very different from Dr. Harmon's

results. Dr. Seely found nothing wr ong with Petitioner. His

report states that Petitioner appeared to be open, honest, and

ready to take responsibility for her past behaviors. During the

evaluation, Petitioner emphasized that she had learned from her

past mistakes. However, it is apparen t from the report that

Petitioner did not disclose any relationship problems after she

underwent the psychiatric evaluation at St. Michael's in 2000.

76. Additionally, Petitioner told Dr. Seely she was not

currently involved in a significant romantic re lationship,

although she was dating. This statement is contrary to

Petitioner's statement to the Committee on September 13, 2003,

when she repeatedly asserted that she had been in a serious

relationship for two and a - half years.

77. Dr. Seely's report incorporated Dr. Harmon's report.

He concluded that Petitioner did not suffer from any emotional

or characterological deficit that would diminish her capacity to

meet accepted standards for the practice of medicine.

78. On October 4, 2003, Respondent held a regularly

scheduled meeting at which it reviewed the report of the

Committee, including the PRN report. Petitioner was not

provided notice of this meeting and was not in attendance when

her evaluation was discussed.

79. On October 4, 2003, Dr. Pomm provided Respondent with

a written and oral report of several issues that arose during

PRN's evaluation of Petitioner. Dr. Pomm's written report

observed that none of Petitioner's three evaluations performed

over the course of time by experts in the field had rendered a

diagnosis. Dr. Pomm's written report did not recommend

requiring Petitioner to enter a PRN monitoring contract as a

condition of being licensed. Dr. Pomm stated in sworn testimony

on October 4, 2003, that he believed Petitioner coul d practice

medicine with reasonable skill and safety.

80. Respondent refused to accept the conclusion that

Petitioner was able to practice medication with reasonable skill

and safety. Respondent once again tabled Petitioner's

application, directing PRN to go back and get additional

collaborative information about Petitioner by completing a

survey of people that she worked with in the last three years.

81. Dr. Pomm relayed Respondent's request for

collaborative information to Petitioner and Dr. Seely. The

three of them agreed to have Dr. Seely gather the information.

Petitioner then provided the required contact information.

82. In a letter dated November 5, 2003, Dr. Seely advised

Dr. Pomm that he had made the necessary inquiries by telephone

on November 3 - 4, 2003. First, Dr. Seely spoke with Dr. Carlos

Benito, the Acting Program Director at UMDNJ. Dr. Benito

confirmed that Dr. Robert Knupple, the former Program Director

with whom Petitioner had past difficulties, was no longer

affiliated with UMDNJ.

83. Next, Dr. Seely spoke with Dr. Robert DiBenedetto, the

Acting Program Director of the obstetric and gynecology

residency program at Seton Hall. Dr. DiBenedetto had never met

Petitioner but noted that her file reflected a resident who was

av erage in performance. One note in the file stated that her

performance was marginal. Another file note indicated that she

lacked flexibility.

84. Dr. DiBenedetto felt compelled to inform Dr. Seely

that Seton Hall had received an inquiry from the New Y ork State

Department of Health on September 4, 2003. In response to that

inquiry, Seton Hall had sent the entire contents of Petitioner's

file to the Department of Health.

85. Dr. Seely spoke with two of Petitioner's colleagues at

Harlem Hospital, Dr. Joseph Bobrow and Dr. James Ryan. He also

spoke with Dr. Glendon Henry, Harlem Hospital's Medical

Director. Dr. Stephen Matseoane, Chairman of the Department of

Obstetrics and Gynecology, was on vacation and therefore not

available to speak to Dr. Seely .

86. Dr. Bobrow stated that Petitioner was a good doctor

who had good character and integrity. He stated that he trusted

Petitioner and would gladly practice with her.

87. Dr. Henry remembered Petitioner through he did not

practice with her. Initial ly, Dr. Henry stated that no problems

or complaints came across his desk during the nearly two years

that Petitioner was at Harlem Hospital. Dr. Henry then stated

that Petitioner did have a personal difficulty with someone on

the obstetric and gynecology staff but could not say whose fault

it was.

88. Dr. Ryan confirmed his understanding that Petitioner

left Harlem Hospital due to a conflict with a newly arrived

attending physician who was in a position of authority over

Petitioner. Dr. Ryan agreed wi th Dr. Henry that Petitioner

could not be faulted for the conflict. According to Dr. Ryan,

the remaining staff continued to have significant animosity

toward the newly arrived attending physician after Petitioner

left Harlem Hospital.

89. Dr. Pomm prov ided Respondent with a supplemental

written report dated November 6, 2003. Dr. Pomm's report

incorporated Dr. Seely's November 5, 2003, report. Dr. Pomm

stated that based on the previous evaluations and collaborative

information, Petitioner did not need monitoring as condition of

being licensed.

90. Petitioner appeared before an investigative committee

of the New York State Department of Health, Office of

Professional Medical Conduct, for the second time on

November 10, 2003.

91. Subsequent to Dr. P omm's submission of his

supplemental written report to Respondent, Respondent scheduled

Petitioner's application for further consideration at

Respondent's meeting on December 6, 2003. Petitioner received

notice that she was required to attend the meeting.

92. While Dr. Pomm was flying to the December 2003

meeting, his office received an anonymous facsimile transmission

that included negative information about Petitioner. The

information consisted of the following: (a) incident reports

created by Officer Davenport, Harlem Hospital Police; (b)

memoranda written by Dr. Gail Blakley, who initiated the Harlem

Hospital Police reports; and (c) documentation from the New York

State Department of Health, Office of Professional Medical

Conduct, regarding appearanc es before its investigative

committee.

93. Dr. Pomm requested that these materials be forwarded

to him at the meeting. Dr. Pomm could not determine the truth

or validity of the information on such short notice. Dr. Pomm

knew he needed an opportunity t o validate the information and

incorporate it in his evaluation of Petitioner.

94. Dr. Pomm informed Petitioner about his receipt of the

information. He provided copies to Petitioner immediately prior

to her appearance before Respondent in December 200 3.

95. When Dr. Pomm appeared before Respondent on

December 6, 2003, he testified that he had come once again

prepared to say that there was no reason for Petitioner not to

be licensed in Florida. He stated that he had not had an

opportunity to thoroug hly review the recently received documents

or to discuss them with Petitioner. In response to a specific

question, Dr. Pomm told Respondent that the evaluators did not

have the documents in question when they completed their

reports. Dr. Pomm also stated that consideration of the

documents would be essential to completing an evaluation of

Petitioner. Dr. Pomm declined to make any further comments on

the matter.

96. Petitioner was not represented by counsel at the

December 6, 2003, meeting. She admitt ed that she was aware of

the investigation in New York when she appeared before

Respondent in October 2003 and denied having any problems after

2000.

97. Petitioner requested an opportunity to review the

documents and to seek counsel. She requested an op portunity to

withdraw her application. Respondent denied both requests.

98. On December 6, 2003, Respondent initially considered a

motion to table Petitioner's application again. Ultimately,

Respondent voted to deny Petitioner's application. The Notice

of Intent to Deny is dated December 23, 2003.

99. On January 24, 2004, Petitioner appeared before the

Committee. She requested that the Committee place a stay on the

denial of her application pending a completion of the

investigation. The Committee d enied her request.

100. Dr. Pomm is a board - certified psychiatrist who has

been practicing medicine since 1981. As an expert in

psychiatry, Dr. Pomm regularly relies on the evaluation of other

psychiatrists and psychologists to form opinions.

101. Dr. Pomm's testimony during the hearing is credited

here. First, he discussed Dr. Harmon's determination that

Petitioner's responses on the Millon test showed compulsive

personality patterns, histrionic traits, and narcissistic

features. According to Dr. Pomm, individuals with these

characteristics tend to be demanding, attention - seeking,

emotionally charged, self - serving with a significant degree of

self - righteous indignation, lacking compassion for others, and

lacking insight into their behavior, or wor se, deceiving.

102. Dr. Pomm stated that the characteristics demonstrated

by Petitioner on the Millon could negatively interfere with

patient care. It was especially significant to Dr. Pomm that

Petitioner demonstrated these traits on the Millon becaus e a

degree of pathology could still be detected even though

Petitioner's obvious efforts to present herself in a socially

acceptable way compromised the validity of the test.

103. Second, Dr. Pomm considered Petitioner's inconsistent

responses during h er interview with Dr. Harmon. For instance,

Dr. Harmon was unable to elicit details about Petitioner's

arrest in 1996 without considerable probing and Petitioner's

responses to questions about the arrest changed as she provided

more details.

104. Thir d, Dr. Pomm testified that Petitioner's history

demonstrates a pattern of poor decisions despite negative

consequences. According to Dr. Pomm, Petitioner does not

understand her behavior's impact on others, which critically

affects her ability to practice medicine with reasonable skill

and safety.

105. Fourth, Dr. Pomm considered the contrast between the

evaluations of Dr. Harmon and Dr. Seely. In the evaluation with

Dr. Seely, Petitioner's level of responsibility, accountability

and openness to evalu ation was markedly greater. Dr. Pomm

opined that the contrast shows that Petitioner presented herself

to Dr. Seely in a way that serves her best, as she did in the

MMPI examination. Dr. Pomm concluded that something was going

on that neither Dr. Harmon n or Dr. Seely described by diagnosis.

106. Additionally, Dr. Pomm was of the opinion that

Petitioner had taken an active role to prevent the evaluators

from being able to create a diagnostic impression. Dr. Pomm

stated that one needs the cooperation of the individual being

evaluated in order to conduct a mental examination and that PRN

did not receive Petitioner's full cooperation.

107. At the hearing, Dr. Pomm testified that he could not

advocate for Petitioner's licensure because he did not have a

valid evaluation. Dr. Pomm was no longer willing to rely on

Dr. Harmon's and Dr. Seely's evaluations because they had been

unaware that Petitioner was under investigation by the New York

State Department of Health. Dr. Pomm opined that the evaluators

wer e

evaluating the impact [Petitioner] has on

patient care, and if there is something

consistent with her history and her

potential psychopathology, and this becomes

an example of that, that could be the basis

for either further questioning regarding

that, actual formulation and potential

recommendations.

108. Dr. Pomm changed his opinion because the negative

information he subsequently reviewed had not been validated and

incorporated into the evaluation. He also changed his opinion

based on his viewing of Petitioner's videotape deposition in

this case.

109. Dr. Pomm described his concerns about Petitioner's

videotape deposition as follows:

The fact that she came to a videotape

deposition with sunglasses and a hat and a

scarf partly around her mouth and at first

refused to look at the camera, that has

nothing to do with her dress; in fact, just

the refusal to look at the camera was of

some concern. I have to start wondering,

why is she refusing to look at the camera,

what are we hiding?

* * *

I have to add in also responses to the

questions, which appear to be resistant,

defensive, and not forthcoming . . . . I

had visions of Dr. Harmon [sic] kind of

report, the immense type of probing. . . . I

saw an individual who saw a psychiatrist

sometime ago and appeared to do well . . . .

Now we go to a videotape, and I'm seeing

things that are reflective of what

Dr. Harmon alluded to in terms of the need

to probe and not being forthcoming and the

difficulty getting information.

Now I ha ve to take into my mind what

the psychological testing said in terms of

attempting to put on the best face, given

the situation, so I have to wonder why the

inconsistency over time, given the different

evaluators and the different situations,

we're seeing this. It causes obviously a

big red flag in my head to see this type of

inconsistency.

110. Petitioner's behavior, appearance, and eye contact

during the videotape deposition were in stark contrast to what

Dr. Pomm observed of her when he first met h er September 2003.

Dr. Pomm found Petitioner's inconsistent behaviors alarming. In

fact, he described her behavior during the videotape deposition

as something "out of the realm of normal." Essentially,

Petitioner impeded Respondent's ability to perform a proper,

complete, and valid mental evaluation so that it was impossible

to assess whether she is able to practice medicine with

reasonable skill and safety.

111. Question 29 on the application completed by

Petitioner on June 17, 2003, asks for a "ye s" or "no" answer to

the following:

Have you ever had any staff privileges

denied, suspended, revoked, modified,

restricted, placed on probation, asked to

resign or asked to take a temporary leave of

absence or otherwise acted against by any

facility?

Pet itioner answered "no" to this question on her June 17, 2003,

application.

112. During the hearing, Petitioner maintained that she

would still answer "no" to Question 29. Petitioner's answers to

Question 29 were incorrect and misrepresented or concealed

information that was relevant to Petitioner's consideration of

her application.

113. The greater weight of the evidence indicates that

Petitioner was asked to resign her position at her assigned

clinic and transfer to another clinic on or about August 2,

2003. When Petitioner refused this request, Dr. Matseoane

requested Petitioner's resignation from Columbia

University/Harlem Hospital. At the very least, Petitioner's

privileges as an attending physician at Harlem Hospital were

suspended, restricted, or otherwise acted against on or before

August 9, 2002, when Ms. Whitley advised the Harlem Hospital

Police that Petitioner was no longer allowed on the premises

pending a hearing.

114. Question 30 on the application completed by

Petitioner on June 17, 2003, asks for a "yes" or "no" answer to

the following:

Have you ever been asked, or allowed to

resign from any facility in lieu of

disciplinary action or during any pending

investigations into your practice?

Petitioner answered "no" to this question o n her application.

115. During the hearing, Petitioner stated that "no" was

still the correct answer to Question 30. Petitioner's answers

to Question 30 were incorrect and misrepresented or concealed

information that was relevant to Respondent's consid eration of

her application.

116. The greater weight of the evidence indicates that

Dr. Matseoane asked Petitioner to resign from Harlem Hospital or

he would report her misconduct to the New York State Department

of Health, Office of Professional Medical Conduct. Petitioner

actually resigned before Ms. Whitley completed her

investigation.

117. Question 36 of the application completed by

Petitioner on June 17, 2003, asks for a "yes" or "no" answer to

the following:

Have you ever been notified to appe ar before

any licensing agency for a hearing on a

complaint of any nature including, but not

limited to, a charge or violation of the

Medical Practice act, unprofessional or

unethical conduct?

Petitioner answered "no" to Question 36 on her application.

118. During the hearing, Petitioner continued to maintain

that "no" was the correct answer to Question 36. Petitioner's

answers to Question 36 were correct under one reasonable

interpretation of the words "for a hearing on a complaint."

119. It is tr ue that Petitioner was never formally charged

and noticed to appear for a formal hearing before the New York

State Department of Health, Office of Professional Medical

Conduct. Instead, the New York licensing agency was conducting

an investigation about P etitioner's care of a patient and issues

involving her interpersonal relationships. Petitioner was given

notice and the opportunity to appear with counsel for a formal

investigative interview on two occasions.

120. Petitioner failed to inform Responden t about the New

York investigation until she was confronted at Respondent's

December 2003 meeting. At that time, Petitioner stated as

follows:

I'm looking at question 36, and if I were to

fill out the application as of now, I just

recently had these mee tings with the OPMC in

New York, I would have checked off "yes,"

but I do understand that now, as far as

updating the Board and whatever the Board

can do as far as -- it was not intentional

and nothing was being, as was told,

concealed.

* * *

I honestly d idn't know that this required

and update.

121. Under the circumstances of this case, Petitioner was

obligated to update her application and to inform Respondent

about the New York investigation. Petitioner knew or should

have known that she could only b e licensed by endorsement in

Florida if the New York licensing agency resolved all issues in

her favor.

CONCLUSIONS OF LAW

122. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

case pursuant to Sec tions 120.569 and 120.57(1), Florida

Statutes (2004).

123. It is the general rule in administrative proceedings

that applicants have the burden of presenting evidence of their

fitness for licensure. See Dept. of Banking and Finance v.

Osborne Stern Co. , 670 So. 2d 932, 934 (Fla. 1996) and Florida

Dept. of Transportation v. J.W.C. Co. , 396 So. 2d 778 (Fla. 1st

DCA 1981). An agency has the burden of presenting evidence that

applicants are unfit for licensure because the have violated

certain statutes. See Osborn Stern Co. , 670 So. 2d at 934.

124. Section 458.331(3), Florida Statutes (2003), states

as follows:

(3) In any administrative action

against a physician which does not involve

revocation or suspension of license, the

division shall have t he burden, by the

greater weight of the evidence, to establish

the existence of grounds for disciplinary

action. The division shall establish

grounds for revocation or suspension of

license by clear and convincing evidence.

125. Section 456.013, Flori da Statutes (2003), states as

follows in relevant part:

(1)(a) Any person desiring to be

licensed in a profession within the

jurisdiction of the department shall apply

to the department in writing to take the

licensure examination. The application

shall be made on a form prepared and

furnished by the department. . . . The form

shall be supplemented as needed to reflect

any material change in any circumstance or

condition stated in the application which

takes place between the initial filing of

the application and the final grant or

denial of the license and which might affect

the decision of the department.

* * *

(3)(a) The board, or the department

when there is no board, may refuse to issue

an initial license to any applicant who is

under investigation or prosecution in any

jurisdiction for an action that would

constitute a violation of this chapter or

the professional practice acts administered

by the department and the boards, until such

time as the investigation or prosecution is

comple te, and the time period in which the

licensure application must be granted or

denied shall be tolled until

15 days after the receipt of the final

results of the investigation or prosecution.

126. Section 458.313, Florida Statutes (2003), states as

fol lows in relevant part:

(6) The department shall not issue a

license by endorsement to any applicant who

is under investigation in any jurisdiction

for an act or offense which would constitute

an violation of this chapter until such time

as the inv estigation is complete, at which

time the provision of s. 458.331 shall

apply. . . . 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

pursuant to s. 45 8.331, the board may enter

an order imposing one or more of the terms

set forth in subsection (7).

(7) When the board determines that any

applicant for licensure by endorsement has

failed to meet, to the board's satisfaction,

each of the appropria te requirements set

forth in this section, it may enter an order

requiring one or more of the following

terms:

(a) Refusal to certify to the

department an application for licensure,

certification, or registration . . .

127. Section 458.331, Flor ida Statutes (2003), states as

follows in pertinent part:

(1) The following acts constitute

ground for denial of a license or

disciplinary action, as specified in s.

456.072(2):

* * *

(s) Being unable to practice medicine

with reasonable s kill and safety to patients

by reason of illness or use of alcohol,

drugs, narcotics, chemicals, or any other

type of material or as a result of any

mental or physical condition.

* * *

(gg) Misrepresenting or concealing a

material fact at any ti me during any phase

of a licensing or disciplinary process or

procedure.

* * *

(2) The board may enter an order

denying licensure or imposing any of the

penalties in s. 456.072(2) against any

applicant for licensure or licensee who is

found guilt y of violation any provision of

subsection (1) of the section or who is

found guilty of violation any provision of

456.072(1).

128. Respondent properly denied Petitioner's application

because she knowingly misrepresented and concealed material

facts on her licensure application, in her subsequent oral

statements to Respondent, and during her PRN evaluations. Her

answers to Questions 29 and 30 on the application concealed the

adverse circumstances surrounding her resignation from Harlem

Hospital. Her o ral statements to Respondent concealed the truth

about her continued difficulties with personal and/or

professional relationships, her resignation at Columbia

University/Harlem Hospital, and the on - going investigation in

New York. Petitioner misrepresente d and concealed information

regarding her personal/professional relationships after 2000 and

the New York investigation during her PRN evaluations. The

greater weight of the evidence indicates that Petitioner is

guilty of violating Section 458.331(1)(gg), Florida Statutes

(2003). See also §§ 456.072 and 458.331(2), Fla. Stat. (2003).

129. According to Dr. Pomm, Petitioner does not understand

her behavior's impact on others, which critically affects her

ability to practice medicine with reasonable skill and safety.

Dr. Pomm concluded that something was going on that neither

Dr. Harmon nor Dr. Seely described by diagnosis because

Petitioner impeded Respondent's ability to receive a proper,

complete, and valid mental evaluation. Therefore, it was

impossi ble to assess whether she is able to practice medicine

with reasonable skill and safety.

130. The facts of this case show that Respondent had good

reason to be concerned about Petitioner's mental condition.

Respondent was justified in denying Petitione r's application due

to her lack of cooperation and deliberate misrepresentations

during the PRN evaluations, which were necessary in order for

Respondent to determine her ability to practice medicine with

reasonable skill pursuant to Section 458.331(1)(s), Florida

Statutes (2003).

131. The greater weight of the evidence indicates that

Respondent properly refused to certify Petitioner's application

to the Department of Health pursuant to Section 458.313(6),

Florida Statutes (2003). That statute allows R espondent to

consider an applicant's misconduct in any jurisdiction which

would constitute the basis for disciplining a physician pursuant

to Section 458.331, Florida Statutes (2003). Petitioner

violated Section 458.331(1)(gg), Florida Statutes (2003), in the

instant jurisdiction, and therefore, is not entitled to

licensure.

132. Petitioner is under investigation in New York for

issues related to patient care and her behavior. However,

Respondent did not present evidence that the New York

investigation involved "an action that would constitute a

violation of this chapter or the professional practice acts

administered by the department and the boards." See §

456.013(3)(a), Fla. Stat. (2003).

133. Respondent properly denied Petitioner's application

pu rsuant to Section 456.013(1)(a), Florida Statutes (2003),

because she failed to supplement or update it after learning

about the New York investigation. The New York investigation

constituted a material change in circumstances. If Petitioner

had disclose d the investigation in a timely manner, Respondent

could have incorporated validated information about the

investigation into its PRN evaluations.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

Tha t Respondent enter a final order denying Petitioner's

application for licensure by endorsement.

DONE AND ENTERED this 18th day of November, 2004, in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

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 He arings

this 18th day of November, 2004.

COPIES FURNISHED :

Rosanna M. Catalano, Esquire

Edward A. Tellechea, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Al len Grossman, Esquire

Gray, Harris & Robinson, P.A.

301 South Bronough Street, Suite 600

Post Office Box 11189

Tallahassee, Florida 32302 - 3189

Larry McPherson, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahass ee, Florida 32399 - 1701

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way

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 t his Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.