04-002271 Olufemi Okunoren, M.D. vs. Department Of Health, Board Of Medicine Status: Closed Recommended Order on Wednesday, January 5, 2005.

Summary: Petitioner is not eligible for licensure by endorsement because his license was revoked in Mississippi, he was convicted of practicing without a license in Tennessee, and he failed to disclose material facts during the application process.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OLUFEMI OKUNOREN, M.D., )

)

Petitioner, )

)

vs. ) Case No. 04 - 2271

)

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Respondent. )

)

RECOMMENDED OR DER

A formal hearing was conducted in this case on November 29,

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

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Olufemi Okunoren, M.D., pro se

Post Office Box 1992

Madison, Mississippi 39130

For Respondent: Rosanna M. Catalano, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 3 2399 - 1050

STATEMENT OF THE ISSUES

The issues are as follows: (a) whether 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) whether Petitioner meets the training requirements

pursuant to Section 458.331(1)(f), Florida Statutes; (c) whether

Petitioner has had a license to practice medicine acted against

by the licensing authority of another jurisdiction in violation

of Section 458.331(1)(b), Florida Statues; and (d) whether

Petitioner was convicted or found guilty or entered a plea of

nolo contendere to, regardless of adjudication, a crime in any

jurisdiction that directly relates to the practice of medic ine

in violation of Section 458.331(1)(c), Florida Statutes.

PRELIMINARY STATEMENT

On or about April 30, 2004, Respondent Department of

Health, Board of Medicine (Respondent) issued an Amended Notice

of Intent to Deny Licensure to Petitioner Olufemi Okuno ren, M.D.

(Petitioner). On May 24, 2004, Petitioner requested an

administrative hearing to challenge Respondent's decision.

On June 29, 2004, Respondent referred this matter to the

Division of Administrative Hearings. Subsequently, a Notice of

Hearing s cheduled the case for hearing on September 8, 2004.

On August 19, 2004, Respondent filed a Motion to Relinquish

Jurisdiction. The undersigned denied the motion in an Order

dated August 31, 2004.

On August 31, 2004, Respondent filed a Motion to Compe l

Production. On September 1, 2004, Petitioner filed an untimely

Response to Motion to Relinquish By Respondent. Petitioner's

response alleged that Respondent had also failed to comply with

Petitioner's discovery requests and requested a continuance. On

September 1, 2004, Respondent filed a Response to Petitioner's

Motion for Continuance and an Amended Response to Petitioner's

Motion for Continuance. In an Order dated September 2, 2004,

the undersigned denied Respondent's Motion to Compel Production,

Pe titioner's request for an order compelling discovery, and

Petitioner's request for a continuance.

On September 3, 2004, Respondent filed a Motion to Quash or

in the Alternative Motion for Protective Order. In an Order

dated September 24, 2004, the unde rsigned considered the motion,

granting it in part and denying it in part.

When the hearing commenced on September 8, 2004, Petitioner

contacted the undersigned's office by telephone to make an ore

tenus motion for continuance due to a hurricane. That s ame day,

the undersigned issued an Order Granting Continuance and

Re - scheduling Hearing for September 27, 2004.

On September 27, 2004, Petition contacted the undersigned's

office to make an ore tenus motion for continuance due to a

hurricane. That same d ay, the undersigned issued an Order

Granting Continuance and Re - scheduling Hearing on November 29,

2004.

During the hearing, Petitioner testified on his own behalf.

Petitioner offered Exhibit Nos. P1 and P3, which were accepted

into the record as evide nce. The undersigned reserved ruling on

the admissibility of Exhibit No. P2, which is hereby accepted as

record evidence.

Respondent presented the testimony of one witness.

Respondent offered Exhibits Nos. R1 through R5, which were

accepted into the r ecord as evidence.

A transcript of the hearing was filed on December 20, 2004.

Petitioner filed a Proposed Recommended Order on December 15,

2004. Respondent filed a Proposed Recommended Order on

December 22, 2004.

All references hereinafter shall be t o Florida Statutes

(2004) except as otherwise specified.

FINDINGS OF FACT

1. Petitioner is a medical doctor. He is currently

licensed to practice medicine in Mississippi.

2. Petitioner attended the University of Lagos, College of

Medicine, in Lago s, Nigeria. While he was in medical school,

Petitioner failed a pathology class. He did not have to repeat

the entire class, but he was required to retake the examination

in order to get credit for the course.

3. In 1972, Petitioner graduated from the University of

Lagos, College of Medicine, which is an allopathic foreign

medical school. However, the medical school has not been

recognized and approved by an accrediting agency recognized by

the United States Office of Education (U.S.O.E.). Additional ly,

Petitioner's medical school is not located within a territorial

jurisdiction of the United States.

4. The U.S.O.E. has designated the Liaison Committee on

Medical Education (LCME) as the approved accrediting

organization. Pursuant to this designati on, LCME only has

authority to accredit medical schools in the United States and

Canada.

5. Foreign medical schools are not accredited by anyone in

the United States. The U.S.O.E. has not designated an

accrediting organization for foreign medical schoo ls other than

those located in Canada. Each foreign medical school (excluding

Canada) is accredited by its own country. Therefore, Petitioner

is not eligible for licensure pursuant to Section 458.311(f)1.,

Florida Statutes.

6. The World Health Organizat ion does not approve/accredit

medical schools. Additionally, Respondent has never certified a

foreign medical school pursuant to Section 458.314, Florida

Statutes. Therefore, Petitioner is not eligible for licensure

pursuant to Section 458.311(f)2., Flor ida Statutes.

7. Graduates of foreign medical schools, which have not

been certified pursuant to Section 458.314, Florida Statutes,

must meet the requirements of Section 458.311(f)3., Florida

Statutes. Petitioner meets these requirements in part becaus e

his medical credentials have been evaluated by the Educational

Commission for Foreign Medical Graduates (ECFMG). He holds an

active, valid certificate issued by ECFMG and has passed the

examination utilized by that commission.

8. Since October 1, 199 2, graduates of foreign medical

schools like Petitioner must complete an approved residency or

fellowship of at least two years in one specialty area. The

training must count toward regular or subspecialty certification

by a board recognized and certified by the American Board of

Medical Specialties.

9. The Accreditation Council for Graduate Member Education

(ACGME) is the body that certifies training programs in the

United States. Petitioner has not completed an ACGME - approved

residency or fellowship of at least two years in one specialty

area.

10. From October 1975 to September 1976, Petitioner

completed one year of residency training in the Meharry Medical

College Family Practice program at George W. Hubbard Hospital,

in Nashville, Tennessee. He has not completed any other

residency or fellowship training. Therefore, Petitioner is not

eligible for licensure pursuant to Section 458.311(f)3., Florida

Statutes.

11. In late 1984 or early 1985, Petitioner had a private

medical practice in Holly S prings, Mississippi. He lived across

the state border in Tennessee where he maintained a business

office. Petitioner also advertised his medical practice in a

Tennessee newspaper.

12. On or about September 3, 1985, Petitioner pled no

contest to a crim inal charge that he had met with and talked to

four separate ladies about family planning in his Memphis,

Tennessee, office. The Criminal Court of Shelby County,

Tennessee, found Petitioner guilty of operating an ambulatory

surgery treatment center withou t a license. Petitioner was

required to pay a fine in the amount of $2,000.00.

13. In August of 1989, the Mississippi Division of

Medicaid initiated sanction proceedings against Petitioner for

performing excessive routine laboratory tests in his priva te

practice. In November 1990, the Medicaid and Medicare programs

in Mississippi suspended Petitioner as a provider for three

years.

14. On or about July 26, 1991, the Mississippi State Board

of Medical Licensure issued an order revoking Petitioner's

Mississippi medical license. The order was affirmed on appeal.

The Mississippi Board of Medical Licensure reinstated

Petitioner's Mississippi medical license with conditions in

August 1997. In September 1999, the Mississippi Board of

Medical Licensure r emoved the restrictions/limitations from

Petitioner's medical license.

15. In February 2001, Petitioner had privileges at Hardy

Wilson Memorial Hospital in Hazlehurst, Mississippi. Petitioner

made the decision that he could no longer afford medical

ma lpractice insurance. Because the hospital required physicians

to have malpractice insurance, the hospital reduced Petitioner's

clinical privileges. Although the timing of these events is not

clear, Petitioner voluntarily resigned his privileges at the

ho spital.

16. In April 2003, Petitioner signed an application form

for medical licensure by endorsement in Florida. Petitioner

filed the application with Respondent in June 2003.

17. The April 2003 application contained the following

affidavit, signe d by Petitioner on April 6, 2003:

I have carefully read the questions in the

foregoing application and have answered them

completely, without reservations of any

kind, and I declare under penalty of perjury

that my answers and all statements made by

me h erein are true and correct. Should I

furnish any false information in this

application, I hereby agree that such act

shall constitute cause for denial,

suspension or revocation of my license to

practice Medicine in the State of Florida.

18. Question 12b on the April 2003 application inquired

whether Petitioner had been required to repeat any of his

medical education. The question states that if the answer is

"yes," the applicant should explain on a separate sheet

providing accurate details.

19. P etitioner answered Question 12b on the April 2003

application in the negative. His answer was misleading and

inaccurate because it did not disclose that he had to retake an

examination in order to pass a pathology course.

20. Question 18 on the April 2 003 application asked

several questions, three of which are relevant here. First, the

application inquired whether Petitioner currently held staff

privileges in any hospital, health institution, clinic or

medical facility. Petitioner answered "yes" to th is question.

21. Second, Question 18 instructed Petitioner to list any

hospital/health institution/clinic or medical facility where he

held staff privileges. Petitioner listed Jefferson County

Hospital, Emergency Room Privileges.

22. Third, Question 1 8 inquired whether Petitioner had

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. Petitioner ans wered this question

negatively.

23. Question 23 on the April 2003 application inquired

whether Petitioner had ever been convicted or found guilty,

regardless of adjudication, resolution, or expungement, or pled

guilty or nolo contendere to a criminal m isdemeanor or felony in

any jurisdiction. Petitioner answered this question in the

negative.

24. Question 24 on the April 2003 application inquired

whether, regardless of adjudication, Petitioner had ever been

convicted of a violation of, or pled nolo c ontendere to, any

federal, state, or local statute, regulation, or ordinance, or

entered into any plea, negotiated plea, bargain, or settlement

relating to a misdemeanor or felony, or ever had an

adjudication, resolution or expungement. Petitioner answere d

this question in the negative.

25. In a letter dated July 31, 2004, Respondent advised

Petitioner that his application was incomplete. Among other

things, Respondent stated that it was waiting for a response to

an inquiry directed to Jefferson Count y Hospital, verifying

Petitioner's staff privileges and good standing. Respondent

also requested Petitioner to complete and file an

current/updated application form.

26. In August 2003, Petitioner filed the updated

application with Respondent. In res ponse to Question 16 on the

updated application, Petitioner once again denied that he was

required to repeat any of his medical education?

27. In response to Questions 27 and 28 on the updated

application, Petitioner continued to maintain that he current ly

held privileges at Jefferson County Hospital in Fayette,

Mississippi.

28. In response to Question 29 on the updated application,

Petitioner, continued to assert that he had never had any

facility staff privileges denied, suspended, revoked, modified,

restricted, placed on probation, or asked to resign.

29. Petitioner appeared before Respondent's Credentialing

Committee in November 2003. The committee was obligated to

review Petitioner's entire application file, including the April

2003 applicatio n and the August 2003 application.

30. Petitioner failed to disclose his Tennessee criminal

conviction on the April 2003 application. The conviction is

related to practice of medicine because it involved Petitioner

talking to patients from a Tennessee office.

31. During the hearing, Petitioner identified the

following two letters of recommendation: (a) Willie L.

McArthur, M.D., on Jefferson County Family Medicine Center

letterhead; and (b) Bernadette E. Sherman, M.D. on Jefferson

Comprehensive Hea lth Center, Inc. letterhead. Neither of the

letters refers to Petitioner's privileges at Jefferson County

Hospital.

32. Petitioner testified that he answered Question 18 on

the April 2003 application and Questions 27 and 28 on the

updated application correctly, affirming that he held privileges

at Jefferson County Hospital. There is no evidence to the

contrary.

33. The greater weight of the evidence indicates that

Petitioner's reduction of clinical privileges at Hardy Wilson

Memorial Hospital was due to his decisions not to secure

malpractice insurance and to voluntarily resign his privileges.

Therefore, he did not answer Question 18 on the April 2003

application and/or Question 29 on the updated application

incorrectly.

CONCLUSIONS OF LAW

34. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Sections 120.569 and 120.57(1), Florida

Statutes.

35. 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 Osborne Stern Co. , 670 So. 2d at 934.

36. Section 458.313, Florida Statutes, lists the

requirements for a physician to becom e licensed by endorsement.

One of these requirements is that the physician has met the

qualifications for licensure in Section 458.311(1)(b) - (g) or

Section 458.311(1)(b) - (e) and (g) and (3), Florida Statutes.

37. Section 458.311(1)(f), Florida Statute s, states as

follows in pertinent part:

(1) . . . The department shall license

each applicant who the board certifies:

* * *

(f) Meets one of the following medical

education and post graduate training

requirements:

1.a. Is a gradu ate of an allopathic

medical school or allopathic college

recognized and approved by an accrediting

agency recognized by the United States

Office of Education or is a graduate of an

allopathic medical school or allopathic

college within a territorial juris diction of

the United States recognized by the

accrediting agency of the governmental body

of that jurisdiction;

* * *

2.a. Is a graduate of an allopathic

foreign medical school registered with the

World Health Organization and certified

pursuant t o s. 458.314 as having met the

standards required to accredit medical

schools in the United State or reasonably

comparable standards;

* * *

c. Has completed an approved residency

of at least 1 year.

3.a. Is a graduate of an allopathic

foreign medical school which has not been

certified pursuant to 458.314;

b. Has had his or her medical

credentials evaluated by the Educational

Commission for Foreign Medical Graduates,

holds an active, valid certificate issued by

that commission, and has passed the

examination utilized by that commission; and

(c) Has completed an approved

residency of at least 1 year; however, after

October 1, 1992, the applicant shall have

completed an approved residency or

fellowship of at least 2 years in one

spec ialty area. However, to be acceptable,

the fellowship experience and training must

be counted toward regular or subspecialty

certification by a board recognized and

certified by the American Board of Medical

Specialties.

* * *

(3) Notwithstandin g the provisions of

subparagraph (1)(f)3., a graduate of a

foreign medical school need not present the

certificate issued by the Educational

Commission for Foreign Medical Graduates or

pass the examination utilized by that

commission if the graduate:

(a) Has received a bachelor's degree

from an accredited United States college or

university.

(b) Has studied at a medical school

which is recognized by the World Health

Organization.

(c) Has completed all of the formal

requirements of the fore ign medical school,

except the internship or social service

requirements and has passed part I of the

National Board of Medical Examiners

examination of the Educational Commission

for Foreign Medical Graduates examination

equivalent.

(d) Has complete d an academic year of

supervised clinical training in a hospital

affiliated with a medical school approved by

the Council on Medical Education of the

American Medical Association and upon

completion has passed part II of the

National Board of Medical Exami ners

examination or the Educational Commission

for Foreign Medical Graduates examination

equivalent.

38. Section 458.314, Florida Statutes, states as follows

in relevant part:

(2) The department shall be

responsible for the certification of fore ign

medical schools based on the standards

established pursuant to subsection (4). The

department may contract with outside

consultants or a national professional

organization to survey and evaluate foreign

medical schools. Such consultant or

organizatio n shall report to the department

regarding its findings in the survey and

evaluation.

* * *

(4) Any foreign medical school which wishes

to be certified pursuant to this section

shall make application to the department for

such certification, which shall be based

upon a finding that the educational program

of the foreign medical school is reasonably

comparable to that of similar accredited

institutions in the United States and

adequately prepares its students for the

practice of medicine.

* * *

( 8) Each institution which has been

surveyed before October 1, 1986, by the

Commission to Evaluate Foreign Medical

Schools or the Commission on Foreign Medical

Education of the Federation of State Medical

Boards, Inc., and whose survey and

supporting docum entation demonstrates that

it provides an educational program,

including curriculum, reasonably comparable

to that of similar accredited institutions

in the United States shall be considered

fully certified, for purposes of chapter 86 -

245, Laws of Florida.

39. Petitioner has not met his burden of proving that he

meets the requirements for licensure set forth in Section

458.311(1)(f), Florida Statues, for several reasons. First, his

medical school has not been approved by an accrediting agency

recogniz ed by the United States Office of Education and/or his

medical school is not located within a territorial jurisdiction

of the United States. See § 458.311(1)(f)1.a., Fla. Stat.

40. Second, there is no persuasive evidence that

Petitioner's medical school is registered with or recognized by

the World Health Organization. Even if it were, Petitioner's

medical school has not been certified pursuant to Section

458.314, Florida Statutes. See § 458.311(1)(f)2.a., Fla. Stat.

41. Respondent has never certifie d a foreign school

pursuant to Sections 458.314(2) and 458.314(4), Florida

Statutes. Moreover, there is no competent evidence that

Petitioner's medical school meets the requirements for

certification set in Section 458.413(8), Florida Statutes.

42. Th ird, Petitioner has not completed an approved

residency or fellowship of at least 2 years in one specialty

area. See § 458.311(1)(f)3.a., Fla. Stat.

43. Section 458.313, Florida Statutes, provides as follows

in pertinent part:

(6) The departme nt 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

a violation of this chapter until such time

as the investigation is complete, at which

time the provisi ons of s. 459.331 shall

apply. Furthermore, the department any not

issue an unrestricted license to any

individual who has committed any act or

offense in any jurisdiction which would

constitute the basis for disciplining a

physician pursuant to s. 458.33 1. 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. 458.331, the

board may enter an order imposing one or

more of the terms set forth i n 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 appropriate requirement set

forth in this section, it may enter an order

requiring one or mo re of the following

terms:

(a) Refusal to certify to the

department an application for licensure,

certification, or registration with

restriction on the scope of practice of the

licensee; or

(b) Certification to the department of

an application for licensure, certification,

or registration;

(c) Certification to the department of

an application for licensure, certification,

or registration with placement of the

physician on probation for a period of time

and subject to such conditions as th e board

may specify, including, but not limited to,

requiring the physician to submit to

treatment, attend continuing education

courses, submit to reexamination, or work

under the supervision of another physician.

44. Section 458.331(1), Florida Statu tes, states as

follows in relevant part:

(1) The following acts shall

constitute grounds for which the

disciplinary action specified in subsection

2 may be taken:

* * *

(b) Having a license or the authority

to practice medicine revoked, s uspended, or

otherwise acted against, including the

denial of licensure, by the licensing

authority of any jurisdiction, including its

agencies or subdivisions.

(c) Being convicted or found guilty

of, or entering a plea of nolo contendere

to, regardl ess of adjudication, a crime in

any jurisdiction which directly relates to

the practice of medicine or to the ability

to practice medicine.

* * *

(gg) Misrepresenting or concealing a

material fact at any time during any phase

of a licensing or dis ciplinary process or

procedure.

45. Respondent has met its burden of proving that

Petitioner has violated Section 458.331(1), Florida Statutes, in

the following ways: (a) Mississippi revoked Petitioner's

medical license; (b) Petitioner was convicted of operating an

unlicensed clinic in Tennessee; (c) Petitioner failed to

disclose his criminal conviction on the April 2003 application;

and (d) Petitioner failed to disclose (on both applications) the

fact that he had to repeat an examinati on after failing a course

in medical school.

46. Respondent did not meet its burden of proving the

following allegations: (a) that Petitioner misrepresented his

staff privileges at Jefferson County Hospital in Fayette,

Mississippi; or (b) that Petitio ner misrepresented facts

regarding his resignation of staff privileges and/or reduction

in clinical privileges at Hardy Wilson Memorial Hospital.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That Re spondent enter a final order denying Petitioner's

application for a medical license by endorsement.

DONE AND ENTERED this 5th day of January, 2005, 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 Administrat ive Hearings

this 5th day of January, 2005.

COPIES FURNISHED :

Rosanna M. Catalano, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32 399 - 1050

Olufemi Okunoren, M.D.

Post Office Box 1992

Madison, Mississippi 39130

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 He alth

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 this Recommended Order. Any exceptions

to this Recommended Order sh ould be filed with the agency that

will issue the final order in this case.