05-003807F Melody M. Johnson, P.A. vs. Department Of Health, Board Of Medicine Status: Closed DOAH Final Order on Wednesday, March 1, 2006.

Summary: Petitioner failed to establish that she was a small business, where the Administrative Complaint was brought against her in her individual capacity. Respondent was substantially justified in filing the Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MELODY M. JOHNSON, P.A., )

)

Petitioner, )

)

vs. ) Case No. 05 - 3807F

)

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Respondent. )

)

FINAL ORDER

On October 14, 2005, Petitioner, Melody M. Johnson, P.A.

(Johnson), 1 filed Respondent's Motion for Attorneys' Fees and

Costs Pursuant to §57.111, Florida Statutes (2005). 2 On

November 3, 2005, Respondent, Department of Health, Board of

Medicine (Departmen t), filed a Motion to Dismiss Petition for

Attorney's Fees, waiving its right to an evidentiary hearing.

On November 11, 2005, Johnson filed Petitioner's Response to

Respondent's Motion to Dismiss Petition for Attorneys' Fees,

waiving her right to an evid entiary hearing on the issues of

whether she is a small business party and whether the Department

was substantially justified in filing the Administrative

Complaint.

APPEARANCES

For Petitioner: Michael S. Smith, Esquire

Sonneborn Rutt er Cooney &

Klingensmith, P.A.

Post Office Box 024486

West Palm Beach, Florida 33402 - 4486

For Respondent: Lynne Quimby - Pennock, Esquire

Department of Health

Prosec ution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to recover attorney's fees

and costs pursuant to Se ction 57. 111, Florida Stat utes.

PRELIMINARY STATEMENT

On January 26, 2005, the Department filed an Administrative

Compliant against Johnson, alleging a violation of Subsection

458.331(1)(t), Florida Statutes (2001). Johnson requested an

administrative hearing, and the case was for warded to the

Division of Administrative Hearings and assigned DOAH Case

No. 05 - 0840PL. A final hearing was held on May 13, 2005, and a

Recommended Order was issued on August 17, 2005. A Final Order

was entered October 19, 2005, adopting the findings of fact and

conclusions of law of the Recommended Order and dismissing the

Administrative Complaint.

On October 14, 2005, Johnson filed Respondent's Motion for

Attorneys' Fees and Costs Pursuant to §57.111, Florida Statutes,

accompanied by an affidavit from J ohnson ; an affidavit by

Michael Smith, her attorney ; and an invoice for professional

services from Sonneborn, Rutter, Cooney & Klingensmith, P.A.

On November 3, 2005, the Department filed a Motion to

Dismiss Petition for Attorneys' Fees, accompanied by Ex hibits A

through F. Exhibit A consists of pages 169 and 170 of the

Transcript of the final hearing in DOAH Case No. 05 - 0840PL.

Exhibit B is a composite exhibit entitled "Complete DOH Material

to PCP. " Exhibit C is a Department of Health Medical Review

c ompleted by Philip T. Nix, PA - C, MPAS. Exhibit D is

Petitioner's Response to Respondent's Request for Production of

Documents in DOAH Case No. 05 - 0840PL. Exhibit E is a portion of

the transcript of a meeting of the North Probable Cause Panel of

the Board of Medicine on January 21, 2005. Exhibit F is the

Final Order in Department of Health v. Melody McSorley Johnson,

P.A. , DOH Case No. 2003 - 02105 and DOAH Case No. 05 - 0840PL.

In its Motion to Dismiss, the Department contends that

Johnson is not a small bu siness and that the Department was

substantially justified in filing the Administrative Complaint.

The Department agreed to waive an evidentiary hearing.

On November 11, 2005, Johnson filed Petitioner's Response

to Respondent's Motion to Dismiss Petition for Attorneys' Fees,

waiving an evidentiary hearing on the issues of whether Johnson

was a small business and whether the Department was

substantially justified in filing the Administrative Complaint.

FINDINGS OF FACT

1. On January 26, 2005, the Departm ent filed an

Administrative Complaint against Johnson, alleging that she

violated Subsection 458.331(1)(t), Florida Statutes (2001),

relating to the care of a patient seen in the e mergency r oom of

Highlands Regional Medical Center (Highlands) on April 16, 2000.

The Administrative Complaint was based on a probable cause

finding by the Board of Medicine on January 21, 2005.

2. In determining that probable cause existed to file an

administrative complaint against Johnson, the Probable Cause

Panel considered the affidavit of Philip T. Nix, PA - C, MPAS, who

opined that Johnson "failed to meet the standard of care by not

ordering and obtaining an emergency CT scan of the brain based

on the documented signs and symptoms of dizziness, neck pain,

syncope, inability of patient to raise head, headache,

intractable vomiting and weakness."

3. The Probable Cause Panel also considered the affidavit

of Don Harvey, M.D., which was submitted by counsel for Johnson

for consideration by the Probable Cause Panel. Dr. Harvey

op ined that Johnson's care of the patient at issue did not fall

below the standard of care required of a physician's assistant

and that a CT scan of the brain was not necessarily indicated.

The Probable Cause Panel did take into consideration the opinion

of Dr. Harvey when they made the determination that probable

cause existed to file an administrative complaint.

4. The investigation file was submitted to the Probable

Cause Panel and reviewed by the Probable Cause P anel prior to

their determination of pr obable cause. The investigation file

revealed that the patient at issue had considered the filing of

a civil lawsuit against Johnson and others. Included in the

investigation file were affidavits by physicians, which were

taken to support the civil lawsu it. An affidavit by John L.

Gentri, M.D., was in the investigation file. Dr. Gentri opined

that Johnson practiced below the standard of care by her failure

"to recognize the classical symptoms for intracerebral

hemorrhage, failure to order any diagnostic tests, including CT

Scan of the head with contrast and lumbar puncture, and failure

to obtain a formal neurological consultation."

5. The affidavit of Charles Brock, M.D. , was in the

investigation file. Dr. Brock also opined that Johnson

practiced below the standard of care during the initial

evaluation of the patient in the emergency room.

6. Included in the investigation file was a written

statement submitted by Johnson. In the statement, Johnson

stated:

From my review of the records, the triage

nurs e took a history and evaluated the

patient. Initially, the patient's [sic]

presented at triage at 9:58 A.M. with

complaints of nausea, vomiting, dizziness

and cannot raise the head. The vital signs

were 150/90 blood pressure, pulse of 80,

respirations of 20. I saw the patient at

10:02 A.M. and she told me she had been

vomiting 2 or 3 times an hour since the

night before and she had sharp intermittent

abdominal pain and that she had had a fever

and she had some headache on the top of her

head and had ques tionably passed out. She

had a cough, flank and back pain. I took a

past medical history, the medicines she was

on, and any allergies. I did a complete

physical exam, I found she was alert,

anxious, and moderate distress.

7. Johnson requested an admi nistrative hearing, and the

case was forwarded to the Division of Administrative Hearings

(DOAH). The case was assigned DOAH Case No. 05 - 0849PL. On

April 29, 2005, the Department filed Petitioner's Motion to

Amend Administrative Complaint, which was gran ted by an O rder

dated May 5, 2005.

8. The actions which were the subject of the

Administrative Complaint occurred at Highlands, where Johnson

was a full - time employee. The evidence neither established that

at the time of the incident alleged in the Admin istrative

Complaint that Johnson was practicing as a sole proprietor of an

unincorporated business nor that she was contracting with

Highlands as an independent contractor. Thus, the

Administrative Complaint was brought against Johnson in her

individual c apacity while an employee of Highlands and not for

violations that occurred while she was practicing as the sole

proprietor of an unincorporated business.

9. The final hearing in DOAH Case No. 05 - 0849PL was held

on May 13, 2005. Johnson testified that t he records that she

made in the emergency room indicating that the patient had

"passed out" were in error and that the patient complained of

dizziness, but denied passing out. The opinion of Philip Nix,

the Department's expert witness, that Johnson's care of the

patient fell below the standard of care was based in part on his

assumption that the patient had lost consciousness.

10. The evidence does not establish that at the time that

the Administrative Complaint was issued that the Department, the

Probabl e Cause Panel, or Mr. Nix was aware that Johnson's

notation in the medical records that the patient ha d passed out

was in error. Based on the written statement provided by

Johnson included in the investigation file, it does not appear

that prior to the fi ling of the Administrative Complaint Johnson

had informed the Department or the Probable Cause Panel that the

notation was in error.

11. A Recommended Order was issued on August 17, 2005,

finding that the Department failed to establish the allegations

in the Amended Administrative Complaint. On October 18, 2005,

the Department filed a Final Order in DOH Case No. 2003 - 02105,

adopting the findings of fact and the conclusions of law

contained in the Recommended Order and dismissing the

Administrative Comp laint against Johnson.

12. Johnson filed Respondent's Motion for Attorneys ' Fees

and Costs Pursuant to §57.111, Florida Statutes, on October 14,

2005. Included with the motion, was an affidavit of Johnson.

13. Based on the affidavit filed by Johnson, th e

undisputed evidence establishes that at the time the

Administrative Complaint was filed, Johnson was "a sole

proprietor of an unincorporated business which consisted of

[her] own professional practice as a physician's assistant" and

that her "professiona l practice consisted of [herself] and no

other employees" and that her "professional practice did not

have more than 25 full - time employees or a net worth of not more

than $2 million, including both personal and business

investments."

14. Johnson retained Sonneborn, Rutter, Cooney &

Klingensmith, P.A. , to represent her in the administrative

action filed by the Department. Michael S. Smith, Esquire was

counsel of record for Johnson. She also retained expert

witnesses to testify on her behalf at the final hearing in the

administrative action.

15. The a ffidavit of Michael S. Smith, Esquire was

submitted with the motion for fees. Attached to his affidavit

was an invoice from his law firm, which listed the hours of

attorney time and paralegal time expended i n defense of Johnson

and a list of the costs incurred in defense of the

administrative proceeding.

16. Based on Smith's affidavit, it is undisputed that

Smith is a member of the Florida Bar in good standing and has

been practicing law for 19 years, during which time he

prosecuted or defended civil and administrative matters

concerning medical malpractice. Smith customarily charges his

clients $150 per hour for the defense of administrative matters

such as DOAH Case No. 05 - 0840PL.

17. Based on the undispu ted invoice attached to the motion

for fees and costs, Johnson incurred $19,485.00 for attorney's

fees and paralegal fees and $9,770.40 for costs in the defense

of the Administrative Complaint filed against he r in DOAH Case

No. 05 - 0840PL. The fees and cos ts are reasonable and were

necessary for the defense of the administrative proceeding.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 57.111(4), 120.569, a nd 120.57, Fla. Stat.

19. Subsection 57.111(4)(a), Florida Statutes, provides:

Unless otherwise provided by law, an award

of attorney's fees and costs shall be made

to a prevailing small business party in any

adjudicatory proceeding or administrative

proc eeding pursuant to chapter 120 initiated

by a state agency, unless the actions of the

agency were substantially justified or

special circumstances exist which would make

the award unjust.

20. The term "small business party" is defined in

Subsection 57.11 1(3)(d), Florida Statutes, as follows:

1.a. A sole proprietor of an unincorporated

business, including a professional practice,

whose principal office is in this state, who

is domiciled in this state, and whose

business or professional practice has, at

th e time the action is initiated by the

state agency, not more than 25 full - time

employees or a net worth of not more than

$2 million, including both personal and

business investments; or

b. A partnership or corporation, including

a professional practice, which has its

principal office in this state and has at

the time of the action is initiated by a

state agency not more than 25 full - time

employees or a net worth of not more than

$2 million . . . .

21. It is undisputed that at the time the incident which

was the subject of the Administrative Complaint occurred,

Johnson was an employee of Highlands. It is undisputed that at

the time the Administrative Complaint was filed, Johnson was the

sole proprietor of an unincorporated business. The evidence

does no t establish whether Johnson was practicing as a sole

proprietor of an unincorporated business in addition to her

employment with Highlands at the time of the incident alleged in

the Administrative Complaint. It is clear that the actions

alleged in the Adm inistrative Complaint did not involve her

status as a sole proprietor of an unincorporated business, but

involved actions committed while she was an employee. Thus, the

Administrative Complaint was brought against Johnson in her

individual capacity not in her capacity as a sole proprietor of

an unincorporated business.

22. In Florida Real Estate Commission v. Shealy , 647 So.

2d 151 (Fla. 1st DCA 1994), the court held that a small business

party as defined in Section 57.111, Florida Statutes, does not

enco mpass individual employees. In Daniels v. Florida

Department of Health , 898 So. 2d 61 (Fla. 2005), the Florida

Supreme Court held that when a complaint is filed against a

person in the person's individual capacity, the person does not

qualify as a small b usiness pursuant to Section 57.111, Florida

Statutes.

23. Johnson argues that the only time to consider whether

Johnson was a small business is at the time the Administrative

Complaint is filed. This argument would have merit if the

Administrative Compla int had been brought against Johnson based

on her actions as a sole proprietorship. It is clear that the

Administrative Complaint was not brought against Johnson for

actions committed while practicing as a sole proprietorship, but

was brought against her in her individual capacity while an

employee. The Administrative Complaint must relate to the small

business. Otherwise, an absurd result could occur such as a

teacher, whose teaching certificate is being disciplined by the

Education Practices Commission for misconduct in the classroom,

could be qualified as a small business because, in addition to

teaching, she was the sole proprietor of an antique shop.

24. Johnson has failed to qualify as a small business

pursuant to Section 57.111, Florida Statutes. Even if Johnson

were considered to be a small business for purposes of

Section 57.111, Florida Statutes, the Department has established

that it was substantially justified in filing the Administrative

Complaint. Subsection 57.111(3)(e), Florida Statutes, provides:

"A proceeding is 'substantially justified' if it had a

reasonable basis in law and fact at the time it was initiated by

a state agency." Attorney's fees and costs are not to be

awarded if the actions of the agency were substantially

justified at the time the action was initiated.

25. At the time the Administrative Complaint was filed,

the Department had conducted an investigation, and had obtained

an opinion from an expert, Philip Nix, that Johnson's actions

fell below the standard of care. I n addition to Mr. Nix's

opinion, the Probable Cause Panel was also privy to two

affidavits in the investigation file from physicians also

opining that Johnson's actions fell below the standard of care.

The Probable Cause Panel was aware of the opinion fro m

Dr. Harvey that Johnson's actions did not fall below the

standard of care.

26. In Department of Health, Board of Medicine v. Thomas ,

890 So. 2d 400 (Fla. 1st DCA 2004), the Department had three

expert opinions. One of the expert opinions indicated the

physician did not meet the standard of care, and the other two

opinions indicated that the physician did meet the standard of

care. The court stated: "The Department was free to believe

the opinion of one expert despite the existence of two expert

op inions to the contrary because a decision to prosecute that

turns on a credibility assessment has a reasonable basis in fact

and law."

27. Johnson argues that the Department should have

investigated the case more fully before bringing the

Administrative C omplaint, because a more complete investigation

would have revealed that the patient did not lose consciousness.

Such an argument is without merit. The medical record made by

Johnson indicated that the patient had passed out. When Johnson

submitted a wr itten statement to the Department prior to the

meeting of the Probable Cause Panel, she did not indicate that

her notation in the medical records was in error. Thus, it was

reasonable to conclude that the patient had passed out.

ORDER

Based on the foreg oing Findings of Fact and Conclusions of

Law, it is

ORDERED that the Motion for Attorneys ' Fees and Costs

Pursuant to §57.111, Florida Statutes, is DENIED.

DONE AND ORDERED this 1st day of March , 2006 , in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 1st day of March , 2006 .

ENDNOTES

1/ Petitioner filed the motion for attorneys' fees under the

name Melody M. McSorley, which was her name at the time the

Administrative Complaint was filed against her in DOAH Case

No. 05 - 3807. At the time of the final hearing in DOAH Case

No. 05 - 3807, Petitioner had married, and her married name was

Melody M. Johnson. The R ecommended O rder and the F inal O rder

reflected her married name, and she will be referred to in this

F inal O rder by her married name.

2/ Unless otherwise indicated, citations to the Florida

Statutes are to the 2005 edition.

COPIES FURNISHED :

Lynne Quimby - Pennock, Esquire

Department of Health

Prosecution Services Unit

4052 Ba ld Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Robert E. Fricke, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Michael S. Smith, Esquire

Sonneborn Rutter Cooney & Klinge nsmith, P.A.

Post Office Box 024486

West Palm Beach, Florida 33402 - 4486

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Edward A. Tellechea, Esquire

Rosanna Catalano, Esquire

Office of Attor ney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review procee dings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original Notice of Appeal with the agency clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed by la w, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.