07-000424PL Department Of Health, Board Of Medicine vs. Francisco Vazquez, M.D. Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Friday, August 21, 2009.

Summary: The circuit court found that Respondent rendered an opinion as a medical expert without reasonable investigation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE , )

)

Petitioner, )

)

vs. ) Case No. 07 - 0 4 24 PL

)

FRANCISCO VAZQUEZ, M.D., )

)

Respondent. )

_________________________________ __ )

RECOM MENDED ORDER

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

before Larry J. Sartin, an Administrative Law Judge of the

Division of Administrative Hearings, on March 26, 2007, by video

teleconference between Miami and Tallahassee, Florida.

APPEA RANCES

For Petitioner: Patricia Nelson

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, F lorida 32399 - 3265

For Respondent: Michael Gennett, Esquire

Shutts & Bowen, LLP

201 South Biscayne Boulevard, Suite 1500

Miami, Florida 33131 - 1329

STATEMENT OF THE ISSUE S

The issue s in this case are whether Respondent Francisco

Vazquez, M.D., committed a violation of Chapter 458, Florida

Statutes (200 3)( 2004 ), as alleged in the Administrative

Complaint filed by Petitioner, the Departmen t of Health, on

May 3, 2006, in DOH Case Number 2005 - 03579; and, if so, what

disciplinary action should be taken against his license to

practice medicine in the State of Florida.

PRELIMINARY STATEMENT

On or about May 3, 2006 , the Department of Health filed an

Administrative Complaint against Francisco Vazquez , M.D., an

individual licensed to practice medicine in Florida, before the

Board of Medicine, in which it alleged that Dr. Vazquez had

committed a violation of Section 458.331(1)( jj), Florida

Statutes ( 200 3)( 2004 ). Dr. Vazquez executed an Election of

Rights form in which he disputed the allegations of fact

contained in the Administrative Complaint and requested a formal

administrative hearing pursuant to Section 120.569 (2)(a),

Florida Statutes . Dr. Vaz quez also filed, through counsel, an

Amended Petition for Formal Administrative Hearing.

On January 22, 200 7 , the matter was filed with the Division

of Administrative Hearings with a request that an administrative

law judge be assigned the case to conduct proceedings pursuant

to Section 120.57(1), Florida Stat utes (2006 ). The matter was

designated DOAH Case Number 0 7 - 0424 PL and wa s assigned to the

undersigned.

The final hearing was scheduled by a Notice of Hearing by

Video Teleconference entered February 1 , 2007 , for March 26 ,

2007 .

On March 1, 2007, Dr. Vazquez filed a Motion to Relinquish

Jurisdiction. In the Motion, Dr. Vazquez reported that he was

filing, contemporaneously with the Motion, "a Petition in the

Second Judicial Circuit in and for Leon Coun ty, seeking

declaratory and injunctive relief in holding that §458 . 311

(1)(jj) is unconstitutional under the United States and Florida

Constitutions, in that it allows the state to revoke a

physician's medical license based solely on the entry of a court

o rder in a proceeding where the physician has no legal right to

notice and an opportunity to be heard." Therefore, Dr. Vazquez

suggested that jurisdiction be relinquished to Petitioner

pending the outcome of the constitutional challenge.

On March 19, 2007, after providing verbal notice to the

parties, an Order Denying Motion to Relinquish was entered.

There then followed two motions filed by Dr. Vazquez seeking a

continuance of the final hearing pending the outcome of his

challenge in the courts.

Oral argu ment, conducted by telephone, was heard on

March 21, 2007, on the first motion for continuance. The motion

was denied during the hearing. No order memorializing t he

denial of the continuance has been entered. The second motion

for continuance filed by D r. Vazquez was denied during the final

hearing at the conclusion of Petitioner's case.

The denial of Dr. Vazquez' s motions was based upon the

conclusion that the role of the Division of Administrative

Hearings in this case is a limited one. That role is t o

determine whether Dr. Vazquez is guilty of the following:

Being found by any court in this state to

have provided corroborating written medical

expert opinion attached to any statutorily

required notice of claim or intent or to any

statutorily required r esponse rejecting a

claim, without reasonable investigation .

§ 458.331(1)(jj) , Fla. Stat. . It was concluded that this

statutory provision simply required an administrative law judge

of the Division of Administrative Hearings to determine whether

a court of the state had entered an order making such a finding

and that, if so, there was no opportunity to go behind the order

to determine whether the court had erred. Given the simplicity

of the factual issues to be addressed, it was concluded that the

final hearing could proceed without any significant hardship to

either party. It was also concluded that, by proceeding to

final hearing and the issuance of a recommended Order,

Dr. Vazquez would be able to not only pursue his challenge to

the facial constituti onality of the disciplinary provision, but

to challenge the statue as applied in an appeal of the final

order ultimately entered in this case. Toward that end,

Dr. Vazquez was given 30 days in which to pursue further

discovery which could form the basis o f a proffer of evidence

pertinent to his constitutional challenge.

At the commencement of the final hearing, a Motion to Take

Official Recognition filed by Petitioner was granted.

Petitioner called no witnesses at the final hearing.

Instead, Petitioner ha d admitted three exhibits, Petitioner's

Exhibits numbered 1, 2, and 3. Dr. Vazquez testified on his own

behalf. He also had admitted Respondent's Exhibits numbered 2,

3, and 8.

The one - volume Transcript of the final hearing was filed

with the Division of Administrative Hearings on April 2, 2007.

Proposed recommended orders were, therefore, to be filed on or

before April 30, 2007. On April 23, 2007, Dr. Vazquez filed a

Joint Motion for Extension of Time to Submit Proposed Orders and

Proffer of Evidence. That Motion was granted. Proposed Orders

were to be filed on or before May 30, 2007.

On April 17, 2007, Petitioner filed a Motion to Reopen the

Hearing and Record and Schedule Evidentiary Formal Hearing.

While Petitioner had agreed initially with the un dersigned's

interpretation of Section 458.331(1)(jj), Florida Statutes,

Petitioner suggested in its Motion a new interpretation of

Section 458.331(1)(jj), Florida Statutes. Essentially,

Petitioner argued that Section 458.331(1)(jj), Florida Statutes,

shou ld be interpreted as requiring Petitioner to present a prima

facia case of a violation by offering a court order and, once

presented, giving Dr. Vazquez an opportunity to prove

essentially that the order was incorrect. Petitioner argued

that this new inte rpretation would make the statute

constitutional.

On May 8, 2007, an Order Denying Petitioner's Motion to

Reopen the Hearing was entered. Petitioner's new interpretation

of Section 458.331(1)(jj), Florida Statutes, was rejected as

contrary to any reasonab le reading of the statute.

On May 16, 2007, Respondent filed Respondent's Motion for

Protective Order. In the Motion, Dr. Vazquez represented that

Petitioner had scheduled Dr. Vazquez's deposition. Dr. Vazquez

argued that he should be protected against a ttending the

deposition, in pertinent part, because the legal interpretation

of Section 458.331(1)(jj), Florida Statutes, asserted in

Petitioner's Motion to Reopen had been rejected. In response to

the Motion, Petitioner argued that it should be allowed t o take

the deposition so that it could prepare a proffer of evidence on

its statutory interpretation. On May 24, 2007, an Order Denying

Respondent's Motion for Protective Order was entered.

On May 22, 2007, Dr. Vazquez filed Respondent's Motion to

Amend P etition. No response having been filed, the Motion was

granted.

On Ma y 30, 2007, both parties filed Proposed Recommended

Orders. Dr. Vazquez also filed Respondent's Proffer of

Evidence. The Proposed Recommended Orders have been fully

considered in prepa ring this Recommended Order.

FINDINGS OF FACT

A. The Parties .

1. Petitioner, the Department of Health (hereinafter

referred to as the "Department"), is the agency of the State of

Florida charged with the responsibility for the investigation

and prosecuti on of complaints involving physicians licensed to

practice medicine in Florida. § 20.43 and Chs. 456 and 458,

Fla. Stat. (2006).

2. Respondent, Francisco Vazquez , M.D., is, and was at all

times material to this matter, a physician licensed to practice

me dicine in Florida pursuant to Chapter 458, Florida Statutes,

having been issued license number ME 68742 on July 6, 1995 .

3. Dr . Vazquez's address of record is 4595 Palm Beach

Boulevard, Fort Myers , Florida 33905 .

B. The Court's Order .

4 . On September 5, 2003, Dr. Vazquez executed an Affidavit

offering his expert medical opinion that 40 physicians and a

hospital were negligent in the care of Patient C.L. The same

day, the Affidavit was attached to Notices of Intent to Initiate

Medical Negligence Litigati on, as required before initiating

medical malpractice litigation by Section 766.106(2)(a), Florida

Statutes.

5. Subsequently, litigation was initiated in the Circuit

Court of the Sixth Judicial Circuit in and For Pinellas County,

Florida, Case No. 04 - 875C I - 7 (hereinafter referred to as the

"Circuit Court Case").

6. On February 22, 2005, the presiding judge in the

Circuit Court Case, the Honorable Bruce Boyer, entered an Order

of Dismissal with Prejudice as to D rs . Hallgren and Schulman

Based on Their Moti on to Determine the Sufficiency of the

Plaintiff's Presuit Investigation. The Order was entered after

a February 2, 2005, hearing for which Dr. Vazquez received no

notice and in which he did not participate.

7. Among other things, Judge Boyer found in th e

February 22, 2005, Order the following:

This cause came to be heard on February 2,

2005, on the motion of two of the

defendants, Scott Hallgren, D.O. and Michael

Schulman, [D.O.] to determine whether the

plaintiff's claim rests on a reasonable

basis an d request for dismissal. Neither

the pro se plaintiff nor her former

attorneys appeared at the hearing. The

Court reviewed the defendants' motion and

supporting materials which show the

following: . . . that the plaintiff's

presuit expert is not a gastr oenterologist

and does not otherwise appear to be

qualified to comment on the defendants'

care; that the plaintiff's presuit expert

does not appear to have made any reasonable

effort to investigate and determine what

role the defendants played in the deced ent's

care; that the plaintiffs' presuit expert

submitted a scattergun presuit affidavit

which charged forty doctors and one hospital

with negligence apparently without

investigating what role each health care

provider played in the decedent's care; that

f ormer plaintiff's counsel served the

notices of intent on Drs. Hallgren and

Schulman based on an inadequate supporting

affidavit and without an adequate presuit

investigation; . . . .

8. Judge Boyer then ordered that the complaint against

Drs. Hallgren a nd Schulman be dismissed and indicated that

"[t]he Court has forwarded a copy of this order to the Division

of Quality Assurance of the Department of Health concerning the

conduct of the presuit expert, Francisco M. Vazquez, M.D., in

accordance with Fla. S tat. § 766.206(5)(a)(2003). "

9. Based upon the foregoing findings, Judge Boyer "found"

that Dr. Vazquez provided a corroborating written medical expert

opinion for inclusion with a statutorily required notice of

claim or intent without reasonable investig ation.

10 . Dr. Vazquez became aware of Judge Boyer's February 22,

2005 , O rder when he was notified of the investigation of this

matter.

CONCLUSIONS OF LAW

A. Jurisdiction .

1 1 . The Division of Administrative Hearings has

jurisdiction over the subject mat ter of this proceeding and of

the parties thereto pursuant to Sections 120.569, 120.57(1), and

456.073(5), Florida Statutes (2006).

B. The Charges of the Administrative Complaint .

1 2 . Section 458.331(1), Florida Statutes (2005) ,

authorizes the Board of M edicine (hereinafter referred to as the

"Board"), to impose penalties ranging from the issuance of a

letter of concern to revocation of a physician's license to

practice medicine in Florida if a physician commits one or more

acts specified therein.

1 3 . I n its Administrative Complaint the Department has

alleged that Dr. Vazquez has violated Section 45 8.331(1)(jj),

Florida Statutes (2003)(2004 ).

C. The Burden and Standard of Proof .

1 4 . The Department seeks to impose penalties against

Dr. Vazquez through th e Administrative Complaint that include

suspension or revocation of his license and/or the imposition of

an administrative fine. Therefore, the Department has the

burden of proving the specific allegations of fact that support

its charge that Dr. Vazquez violated Section 458.331(1)(jj ),

Florida Statutes (2003)(2004) , by clear and convincing evidence.

Department of Banking and Finance, Division of Securities and

Investor Protection v. Osborne Stern and Co. , 670 So. 2d 932

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987);

Pou v. Department of Insurance and Treasurer , 707 So. 2d 941

(Fla. 3d DCA 1998); and Section 120. 57(1)(j), Florida Statutes

(2006 )("Findings of fact shall be based on a preponderance of

the evidence, except in penal or licensur e disciplinary

proceedings or except as oth erwise provided by statute.").

1 5 . What constitutes "clear and convincing" evidence was

described by the court in Evans Packing Co. v. Department of

Agriculture and Consumer Services , 550 So. 2d 112, 116, n. 5

(F la. 1st DCA 1989), as follows:

. . . [C]lear and convincing evidence

requires that the evidence must be found to

be credible; the facts to which the

witnesses testify must be distinctly

remembered; the evidence must be precise and

explicit and the witnesse s must be lacking

in confusion as to the facts in issue. The

evidence must be of such weight that it

produces in the mind of the trier of fact

the firm belief or conviction, without

hesitancy, as to the truth of the

allegations sought to be established.

Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983).

See also In re Graziano , 696 So. 2d 744 (Fla. 1997); In re

Davey , 645 So. 2d 398 (Fla. 1994); and Walker v. Florida

Department of Business and Professional Regulation , 705 So. 2d

652 (Fla. 5th DCA 1998)(Sharp, J., dissenting).

D. Section 458.331(1)( jj ), Florida Statutes (2003)(2004 ) .

1 6 . Section 458.331(1)( jj ), Florida Statutes (2003)(2004 ) ,

defines the following disciplinable offense:

( jj) Being found by any court in this

state to have pro vided corroborating written

medical expert opinion attached to any

statutorily required notice of claim or

intent or to any statutorily required

response rejecting a claim, without

reasonable investigation .

1 7 . The "statutorily required notice of claim o r intent"

referred to in Section 458.331(1)(jj), Florida Statutes, is set

out in Section 766.106(2)(a), Florida Statutes (2003):

After completion of presuit investigation

pursuant to s. 766.203 (2) and prior to

filing a complaint for medical negligence, a

claimant shall notify each prospective

defendant by certified mail, return receipt

requested, of intent to initiate litigation

for med ical negligence. Notice to each

prospective defendant must include, if

available, a list of all known health care

providers seen by the claimant for the

injuries complained of subsequent to the

alleged act of negligence, all known health

care providers du ring the 2 - year period

prior to the alleged act of negligence who

treated or evaluated the claimant, and

copies of all of the medical records relied

upon by the expert in signing the affidavit.

The requirement of providing the list of

known health care pr oviders may not serve as

grounds for imposing sanctions for failure

to provide presuit discovery .

1 8 . Section 766.203(2), Florida Statutes, further

describes the requirements of a presuit investigation:

PRESUIT INVESTIGATION BY CLAIMANT. -- Prior to

issuin g notification of intent to initiate

medical negligence litigation pursuant to s.

766.106 , the claimant shall conduct an

investigation to ascertain that there are

reas onable grounds to believe that:

(a) Any named defendant in the litigation

was negligent in the care or treatment of

the claimant; and

(b) Such negligence resulted in inj ury to

the claimant.

Corroboration of reasonabl e grounds to

initiate medical negligence litigation shall

be provided by the claimant's submission of

a verified written medical expert opinion

from a medical expert as defined in s.

766.202 (5), at the time the notice of intent

to initiate litigation is mailed, which

statement shall corroborate reasonable

grounds to support the claim of medical Fla.

Stat. negligence . [Emphasis added].

1 9 . In this matter, Dr. Vazquez provided the "verified

written medical expert opinion " required of the presuit

investigation in the Circuit Court Case.

20 . In dismissing the complaint against two of the

defendants in the Circuit Court Case for which Dr. V azquez's

medical expert opinion was relied upon to satisfy Section

766.106, Florida Statutes , Judge Boyer, complied with the

requirements of Section 766.206(5)(a), Florida Statutes (2003):

( 5)(a) If the court finds that the

corroborating written medical expert opinion

attached to any notice of claim or intent or

to any response rejecting a claim lacked

reasonable investigation or that the medical

expert submitting the opinion did not meet

the expert witness qualifications as set

forth in s. 766.202 (5), the court shall

report the medical expert issuing such

corroborating opinion to the Division of

Medical Quality Assurance or its designe e.

If such medical expert is not a resident of

the state, the division shall forward such

report to the disciplining authority of that

medical expert .

2 1 . It is apparent from Judge Boyer's February 22, 2005,

Order that he found that Dr. Vazquez's writte n medical expert

opinion of September 5, 2003, " lacked reasonable investigation

[and] that the medical expert submitting the opinion did not

meet the expert witness qualifications as set forth in s.

766.202 (5) . . . ."

2 2 . Given the language of Judge Boyer's Order and his

compliance with the requirements of Section 766.206(5)(a),

Florida Statutes, it has been clearly and convincingly pro ved

that Dr . Vazquez is in violation of Section 458.331(1)(jj),

Florida Statutes (2003)(2004).

E. The Appropriate Penalty .

2 3 . In determining the appropriate punitive action to

recommend to the Board in this case, it is necessary to consult

the Board's " disciplinary guidelines," which impose restrictions

and limitations on the exercise of the Board's disciplinary

authority under Section 458.331, Florida Statutes. See Parrot

Heads, Inc. v. Department of Business and Professional

Regulation , 741 So. 2d 123 1 (Fla. 5th DCA 1999).

2 4 . The Board's guidelines are set out in Florida

Administrative Code Rule 64B8 - 8.001, which provides the

following "purpose" and instruction on the application of the

penalty ranges provided in the Rule:

(1) Purpose. Pursuant to Section 456.079,

F.S., the Board provides within this rule

disciplinary guidelines which shall be

imposed upon applicants or

licensees whom it regulates under Chapter

458, F.S. The purpose of this rule is to

notify applicants and licensees of the

ranges of penalties which will routinely be

imposed unless the Board finds it necessary

to deviate from the guidelines for the

stated reasons given within this rule. The

ranges of penalties provided below are based

upon a single count violation of each

provision listed; multiple counts of the

violated provisions or a combination of the

violations may result in a higher penalty

than that for a single, isolated violation.

Each range includes the lowest and highest

penalty and all penalties falling between.

The pu rposes of the imposition of discipline

are to punish the applicants or licensees

for violations and to deter them from future

violations; to offer opportunities for

rehabilitation, when appropriate; and to

deter other applicants or licensees from

violation s.

(2) Violations and Range of Penalties.

In imposing discipline upon applicants and

licensees, in proceedings pursuant to

Section 120.57(1) and 120.57(2), F.S., the

Board shall act in accordance with the

following disciplinary guidelines and shall

impose a penalty within the range

corresponding to the violations set forth

below. The verbal identification of

offenses are descriptive only; the full

language of each statutory provision cited

must be consulted in order to determine the

conduct included .

2 5 . Florida Admin istrative Code Rule 64B8 - 8.001( 2 ) goes on

to provide, in pertinent part, t hat the penalty range for a

violation of Section 458.331(1)( jj) , Florida Statutes, is

"[ f ] rom denial or revocation of license with the ability to

reapply upon pa yment of $1,000.00 fine to denial of license

without ability to reapply."

2 6 . Florida Administrative Code Rule 64B8 - 8.001(3)

provides that, in applying the penalty guidelines, the following

aggravating and mitigating circumstances are to be taken into

acc ount:

(3) Aggravating and Mitigating

Circumstances. Based upon consideration of

aggravating and mitigating factors present

in an individual case, the Board may deviate

from the penalties recommended above. The

Board shall consider as aggravating or

miti gating factors the following:

(a) Exposure of patient or public to

injury or potential injury, physical or

otherwise: none, slight, severe, or death;

(b) Legal status at the time of the

offense: no restraints, or legal

constraints;

(c) The number of counts or separate

offenses established;

(d) The number of times the same offense

or offenses have previously been committed

by the licensee or applicant;

(e) The disciplinary history of the

applicant or licensee in any jurisdiction

and the lengt h of practice;

(f) Pecuniary benefit or self - gain

inuring to the applicant or licensee;

(g) The involvement in any violation of

Section 458.331, F.S., of the provision of

controlled substances for trade, barter or

sale, by a licensee. In such cases, the

Board will deviate from the penalties

recommended above and impose suspension or

revocation of licensure.

(h) Where a licensee has been charged

with violating the standard of care pursuant

to Section 458.331(1)(t), F.S., but the

licensee, who is als o the records owner

pursuant to Section 456.057(1), F.S., fails

to keep and/or produce the medical records.

(i) Any other relevant mitigating

factors.

2 7 . In Petitioner's Proposed Recommended Order, the

Department has suggested that Dr. Vazquez' licen se to practice

medicine be revoked with the ability to reapply. While t his

recommendation is consistent with the guidelines , taking into

consideration the mitigating and aggravating circumstances and

the fact that Dr. Vazquez did not have an opportunity t o be

heard before issuance of the February 22, 2005, Order, it is

recommended that Dr. Vazquez's license only be suspended.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the a final order be entered by the Board

of Medicine finding that Francisco Vazquez , M.D., has violated

Section 458.331(1)( jj ) , Florida Statutes, as described in this

Recommended Order; suspending his license to practice m edicine

in the State of Florida for two years; and imposing a fine in

the amount of $1,000.00.

DONE AND ENTERED this 18th day of June, 2007 , in

Tallahassee, Leon County, Florida.

S

LARRY J. SARTIN

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 18th day of June, 2007 .

COPIES FURNISHED :

Michael P . Gennett, Esquire

Shutts & Bowen, LLP

201 South Biscayne Boulevard, Suite 1500

Miami, Florida 33131

Patricia Nelson, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3250

Larry McPherson, Executive Director

Depar tment of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

Dr. Ana M. Viamonte Ros, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 - 1701

Josefina M. Tamayo, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in these cases.