10-009141 Dr. Phillips St. Louis vs. Florida Physician Medical Group Status: Closed Recommended Order on Wednesday, August 3, 2011.

Summary: Petitioner was unable to acquire medical malpractice coverage; therefore, Respondent was justified in not hiring him.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. PHILLIPS ST. LOUIS , )

)

Petitioner , )

)

vs. ) Case No. 10 - 9141

)

FLORIDA PHYSICIAN MEDICAL )

GROUP , )

)

Respondent . )

)

RECOMMENDED ORDER

Purs uant to notice, a formal hearing was held on May 4

and 5, 2011, in Orlando, Florida, before J. D. Parrish, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Jerry Girley, Esquire

The Girley Law Firm, P.A.

125 East Marks Street

Orlando, Florida 32803

For Respondent: Alan M. Gerlach, Esquire

Adventist Health System - Legal Services

111 North Orlando Avenue

Winter Park, Florida 32789 - 3675

Mark H. Jamieson, Esquire

Moran Kidd Lyons Johnson & Berkson, P.A.

111 North Orange Avenue, Suite 1200

Orlando, Florida 32801 - 2361

STATEME NT OF THE ISSUE

Whether Respondent, Florida Physician Medical Group

(Respondent or FPMG), violated Florida law by engaging in

discriminatory, disparate treatment of Petitioner, Dr. Phillip

St. Louis (Petitioner). Petitioner maintains that Respondent

refu sal to employ him constitutes discrimination based upon his

race or national origin.

PRELIMINARY STATEMENT

On or about April 6, 2010, Petitioner filed a complaint

with the Florida Commission on Human Relations (FCHR) that

alleged Respondent had subjecte d Petitioner to disparate

treatment constituting discrimination based upon Petitioner race

or national origin. More specifically, Petitioner alleged:

I applied to become an employee of The

Florida Physician Medical Group, in March of

2009. Following my a pplication, an extended

amount of time transpired without me hearing

anything regarding their decision. On

November 25, 2009 I finally had a follow up

meeting with Mr. Bryan Stilz and Mr. David

Middag, both gentlemen are representatives

of F.P.M.G. They advised me that a decision

was made not to hire me because of past

medical malpractice claims filed against me.

On its face, this claim presents as

reasonable but it is suspect and

discriminatory , because they have hired

several non - Black, non - Trindadian

Neurosurgeons who have more malpractice

claims than I have. The following are just

a few names of individual surgeons hired by

F.P.M.G. who also have past malpractice

claims: Dr. William Lu, Dr. Paul Douglas

Sawin and Dr. Christopher Joseph.

The FCHR cond ucted an investigation of the complaint and

issued its Determination of No Cause dated August 27, 2010.

Thereafter, Petitioner timely filed a Petition for Relief

that was forwarded to the Division of Administrative Hearings

(DOAH) for formal proceedings. The case was promptly scheduled

for hearing (hearing date , November 19, 2010) , but was continued

on two occasions in order to provide sufficient discovery

opportunities.

At the hearing, Petitioner testified on his own behalf and

presented the testimony of Stacy Prince, Bryan Stiltz, Dr. Paul

Sawin, Dr. Christopher Baker, Dr. William Lu, Dr. Eric Trumble,

and Dr. Jay Redan. By stipulation , PetitionerÓs Exhibits

1 through 8, and 12 through 15 , were admitted into evidence. In

addition to testimony from the previously named witnesses,

Respondent presented testimony from Sandra Johnson.

RespondentÓs Exhibits 1 , and 5 through 25 , were admitted into

evidence. RespondentÓs Exhibits 2 through 4 , were admitted

solely to establish the jurisdictional process by wh ich the case

came to DOAH.

The Transcript of the hearing was filed on May 24, 2011.

The parties were granted 20 days from the date of the filing

within which to file proposed recommended orders. Both timely

filed proposed orders on June 13, 2011. The pr oposals have been

fully considered in the preparation of this Recommended Order.

This Recommended O rder is entered to complete the DOAH

proceedings in this cause.

FINDINGS OF FACT

1. Petitioner is a black male born in Trinidad. He is

fully educated and qualified to practice medicine in the State

of Florida, and has done so for a number of years. Petitioner

specialty is neurosurgery. He has practiced at a number of

hospitals in the greater Orlando area for over ten years.

2. The instant case arose w hen Petitioner was denied

employment with Respondent. Petitioner maintains he is fully

competent and qualified to become employed by Respondent and

that the company has denied him employment based upon his race

(black) and national origin.

3. Prior to Ma rch 2009, Respondent considered hiring

Petitioner for employment. With that end as the objective,

Petitioner submitted an application for malpractice coverage

through an entity that insures Respondent's physicians. That

entity, described in the record as ( the Trust ) , reviews

applications for coverage and considers whether it can provide

malpractice coverage for a physician based upon a number of

factors, including but not limited to, past work history,

education and training, and past malpractice claims m ade against

and paid by the subject physician.

4. Approval for medical malpractice coverage by Adventist

Health System (AHS) through the Risk Management Department (Risk

Management) was a prerequisite to employment with Respondent.

5. The requirement to obtain professional liability

coverage was pursuant to the company - wide policy CW RM 220. At

all times material to his application, Petitioner knew or should

have known that Respondent required medical malpractice

coverage. As of the time of the hear ing and for at least nine

years prior thereto, Petitioner has performed neurosurgery

without malpractice coverage. This practice, known in the

record as working "bare," is disfavored by Respondent.

6. All physicians who seek to be employed by Respondent

must submit an application for review and approval for

professional liability coverage under the self - insured Trust.

7. Personnel employed with AHS's Risk Management review

applications and recommend disposition of the requests for

coverage. Stacy Prin ce joined AHS as a director of Risk

Management in 2005.

8. Stacy Prince and Sandra Johnson were responsible for

deciding whether Petitioner would qualify for medical

malpractice coverage. The decision to deny coverage for

Petitioner was reached without regard for Petitioner's race or

national background. At the time that Petitioner was being

considered for medical malpractice coverage with the Trust,

Stacy Prince and his supervisor (Sandra Johnson) did not know

the PetitionerÓs race or national origin.

9. The Risk Management decision was based on Petitioner's

malpractice claims history , as is more fully explained below.

10. Neurosurgery is a high - risk medical practice. It is

possible that this specialty group of physicians are exposed to

more claim s and more serious claims than other specialty

physicians. Nevertheless, in determining whether a physician

can be covered, Risk Management must look at the totality of the

circumstances to evaluate whether a candidate can be covered by

the Trust.

11. Most physicians covered by the Trust do not have any

malpractice claims. Of those who do have malpractice claims ,

the vast majority have had only one or two incidents of alleged

malpractice.

12. Because each candidate's application for coverage was

r eviewed on a case - by - case basis, the factual circumstances

surrounding a malpractice claim may be pertinent to the decision

of whether a physician may be covered.

13. An example of a malpractice claim that would not be

given much gravity would be one that occurred while a physician

was in training under the supervision of a licensed physician.

In such instances, the training physician is named incidentally

to the primary supervising physician. Such "shotgun" claims

typically name everyone who provided ca re for the patient ,

regardless of the personal interaction or level of care actually

rendered. None of PetitionerÓs claims fell within this

category.

14. A second type of malpractice claim that might be

discredited would be one that did not result in any monetary

award or damages to the patient. None of PetitionerÓs claims

fell within this category.

15. Based upon Stacy Prince's review of Petitioner's

history of claims, Petitioner was deemed too great a risk to

provide medical malpractice coverage. The malpractice history

reviewed included four claims disclosed by Petitioner and a

fifth claim that was not reported by Petitioner , but was

discovered by Risk Management. The fact that the fifth claim

was not disclosed to Risk Management in the application process

was also a concern to Mr. Prince and influenced his decision.

16. No physician, regardless of specialty, with claims

similar to PetitionerÓs has been insured by the Trust.

Additionally, although unknown to Petitioner at the time of

application, a sixth medical malpractice claim was made against

Petitioner. The potential for additional claims (that could be

also unknown to Petitioner) was a concern in determining whether

to provide coverage for Petitioner.

17. With regard to Petitioner's claims , at least two of

the claims were unresolved , as of the time of review of

Petitioner's application. Additionally, a parallel

investigation and administrative action by the Florida

Department of Health regarding one claim was also a concern for

Risk Manage ment. Whether or not Petitioner practices within the

standard of care expected of physicians in Florida is of

significant importance to Respondent.

18. No other candidate for employment presented to

Respondent with similarly - serious claims. Petitioner's lack of

candor regarding the number of claims against him and the

severity of claims was also a concern to the undersigned. No

physician was given preferential treatment by Respondent who was

similarly situated , as no other physician reviewed in this

rec ord had similar claims.

19. The factors resulting in the denial of coverage were:

the number of claims, the open claims, the history of damages

awarded, the unknown amount of future damages based upon

unresolved claims, the lack of malpractice coverage, and

Petitioner's failure to fully and accurately disclose

information needed to review his application.

20. None of the physicians who Petitioner identified as

comparably situated , and who allegedly received more favorable

treatment , had the number or sev erity of claims, the level of

damages associated with the claims, or were practicing "bare"

for the period of time Petitioner has chosen to practice. All of

the doctors were eligible for medical malpractice coverage at

all times material to this case or du ring employment with

Respondent.

21. In contrast, Petitioner practiced "bare" for almost

nine years since his insurer canceled his insurance coverage due

to the ÐNature of ClaimÑ in July of 2000. Petitioner was

cancelled by his insurer after the insure r had to pay its policy

limits of $500,000.

22. An example of a malpractice claim associated with

Petitioner was his operation on the wrong side of a patientÓs

head. That surgery resulted in a $1.75 million dollar

settlement.

23. Petitioner presented no evidence to establish that any

of Respondent's actions or inactions were based upon his race or

national origin. Respondent articulated bon a fide business

reasons for why the Trust denied medical malpractice coverage

for Petitioner.

24. More impor tant, had Risk Management agreed to provide

coverage for Petitioner , then Bryan Stiltz, Respondent's CEO,

would have hired Petitioner.

25. The decision not to hire Petitioner due to his failure

to qualify for medical malpractice coverage was not based o n

PetitionerÓs race or national origin and was consistent with

RespondentÓs employment policy.

CONCLUSIONS OF LAW

26. DOAH has jurisdiction over the parties to and the

subject matter of these proceedings. §§ 120.57(1) and 760.11,

Fla. Stat. (2010).

27. The Florida Civil Rights Act of 1992 (the Act) is

codified in s ections 760.01 through 760.11, Florida Statutes

(2009). "The Act, as amended, was [generally] patterned after

Title VII of the Civil Rights Acts of 1964 and 1991, 42 U.S.C.

§ 2000, et seq. , as well as the Age Discrimination in Employment

Act (ADEA), 29 U.S.C. § 623. Federal case law interpreting

[provisions of] Title VII and the ADEA is [therefore] applicable

to cases [involving counterpart provisions of] the Florida Act."

FSU v. Sondel , 685 So. 2d 923, 925 (Fla. 1st DCA 1996); see

Joshua v. Cty of Gainesville , 768 So. 2d 432, 435

(Fla. 2000)("The [Act's] stated purpose and statutory

construction directive are modeled after Title VII of the Civil

Rights Act of 1964.").

28. The Act makes ce rtain acts prohibited "unlawful

employment practices," including those described in s ection

760.10, which provides:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise t o

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

(b) To limit, segregate, or c lassify

employees or applicants for employment in

any way which would deprive or tend to

deprive any individual of employment

opportunities, or adversely affect any

individual's status as an employee, because

of such individual's race, color, religion,

sex , national origin, age, handicap, or

marital status.

29. The Act gives the FCHR the authority to issue an order

prohibiting the practice and providing affirmative relief from

the effects of the practice, including back pay, if it finds

following an admi nistrative hearing that an unlawful employment

practice has occurred. See § 760.11. To obtain relief from the

FCHR, a person who claims to have been the victim of an

"unlawful employment practice" must, "within 365 days of the

alleged violation," file a complaint ("contain[ing] a short and

plain statement of the facts describing the violation and the

relief soug ht") with the FCHR. § 760.11(1) . It is concluded

that Petitioner filed a complaint within the statutory time

limitation.

30. PetitionerÓs comp laint alleged that he was subjected

to discrimination based upon his race and national origin. Each

claim stands alone as a basis for discriminatory conduct ;

therefore, each claim is addressed individually.

31. For purposes of a claim of discrimination based upon

race, Florida courts have recognized that actions under the Act

are analyzed under the same framework as the federal law.

Accordingly, Petitioner must establish that he is a qualified

individual who was denied employment on account of his race

while others not within the protected class received favorable

treatment. Petitioner failed to present any evidence that race

was a motivating factor in why he was not employed by

Respondent. Respondent employs persons from PetitionerÓs race.

A non - blac k person was not hired over Petitioner. In fact no

physician was hired instead of Petitioner. Had Petitioner

obtained malpractice coverage, Respondent would have hired him.

PetitionerÓs race was a non - issue.

32. Similarly, PetitionerÓs national origi n played no part

in the decision not to hire him. No less - qualified or otherwise

unprotected person , of any national origin , was hired instead of

Petitioner. No such physician was treated more favorably than

Petitioner. PetitionerÓs national origin had no bearing on

RespondentÓs decision.

33. Petitioner has the burden of proving the allegations

asserted. "Discriminatory intent may be established through

direct or indirect circumstantial evidence." Johnson v.

Hamrick , 155 F. Supp. 2d 1355, 1377 (N.D. G a. 2001). Direct

evidence is evidence that, if believed, would prove the

existence of discriminatory intent without resort to inference

or presumption. See Wilson v. B/E Aero., Inc. , 376 F.3d 1079,

1086 (11th Cir. 2004). In this case, Petitioner failed to prove

discrimination either by direct or indirect evidence.

34. Moreover, although victims of discrimination may be

"permitted to establish their cases through inferential and

circumstantial proof," Petitioner similarly failed to present

credible infer ential or circumstantial proof. See Kline v.

Tenn . Valley Auth . , 128 F.3d 337, 348 (6th Cir. 1997).

35. Had Petitioner established circumstantial evidence of

discrimination, the burden of proof would have shifted to

Respondent to articulate a legitimate, non - discriminatory reason

for its action. If the employer successfully articulates a

reason for its action, then the burden shifts back to the

complainant to establish that the proffered reason was a pretext

for the unlawful discrimination. See Malu v. Cty of

Gainesville , 270 Fed. Appx. 945; 2008 U.S. App. LEXIS 6775 (11th

Cir. 2008). In this case, the persuasive evidence established

that Petitioner was not hired by Respondent because he could not

obtain medical malpractice coverage through the Trust. There is

no proof, direct or otherwise, that Petitioner could obtain

medical malpractice coverage from any source. Respondent

required that all physicians be covered. Respondent did not

treat Petitioner any differently than other physician hired.

All we re required to have coverage. If the question were

whether Risk Management treated Petitioner differently than

other physicians who sought coverage were treated, the answer

would be the same. No physician similarly situated was treated

more favorably tha n Petitioner , because no physician was

similarly situated. No physician who was afforded coverage had

the history of claims and damages and lack of candor

demonstrated by Petitioner. Had Petitioner been approved by

Risk Management, Respondent would have hired him. PetitionerÓs

effort to attribute the decisions of a third, non - party entity

(Risk Management) to Respondent is not persuasive. Even so,

Risk Management articulated bone fide reasons for the denial of

coverage.

36. In light of the foregoing, R espondent's discrimination

complaint must be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a final order finding no cause for an unlawful

e mployment practice as alleged by Petitioner, and dismissing his

employment discrimination complaint.

DONE AND ENTER ED this 3rd day of August , 2011 , in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd da y of July , 2011 .

COPIES FURNISHED :

Jerry Girley, Esquire

The Girley Law Firm

125 East Marks Street

Orlando, Florida 32803

Alan M. Gerlach, Esquire

Adventist Health System - Legal Services

111 North Orlando Avenue

Winter Park, Florida 32789 - 3675

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Mark H. Jamieson, Esquire

Moran, Kidd, Lyons, Johnson & Berkson, P.A.

111 North Orange Avenue, Suite 1200

Orlando, Florida 32801 - 2 361

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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 this case.