11-001600PL Department Of Health, Board Of Medicine vs. Roger L. Gordon, M.D. Status: Closed DOAH Final Order on Tuesday, October 4, 2011.

Summary: Section 57.105 does not authorize the imposition of sanctions against a party for failure to secure the admission of evidence that it might successfully have offered under a different theory. Therefore, attorney's fees will not be awarded.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE , )

)

Petitioner , )

)

vs. ) Case No. 11 - 1600PL

)

ROGER L. GORDON, M.D. , )

)

Respondent . )

)

FINAL ORD ER DENYING RESPONDEN T'S MOTION FOR ATTOR NEY FEES

This case is before the undersigned on Respondent's Motion

for Attorney Fees ("Motion"), which Roger L. Gordon, M.D. ("Dr.

Gordon"), filed pursuant to section 57.105, Florida Statutes, on

September 7, 2011 . Petitioner Department of Health

("Department") timely submitted its Response to Respondent's

Motion for Sanctions Pursuant to F.S. 57.105 on September 15,

2011. The matter is fully briefed and decidable on the papers.

In the underlying proceeding, the Department alleged that

Dr. Gordon had committed medical malpractice in connection with

a breast augmentation procedure performed on patient "D.V." in

November 2004, and that he had failed to maintain medical

records justifying the course of D.V.'s tre atment. Based on

these charges, the Department sought to impose discipline

against Dr. Gordon's medical license.

At the final hearing on August 24, 2011, the Department

attempted to introduce the medical records (the "Records")

relating to D.V.'s treatm ent at the Florida Center for Cosmetic

Surgery, which facility is also known as the South Florida

Center for Cosmetic Surgery. For reasons set forth in the

Recommended Order issued on September 20, 2011, the Department's

efforts to admit the Records into evidence over Dr. Gordon's

hearsay objection were not successful. As a result, the

Department's case essentially collapsed for lack of proof.

In his Motion, Dr. Gordon argues that he is entitled to an

award of fees under section 57.105 primarily on the following

grounds:

Petitioner should have known at the time

this matter was referred to DOAH, and

certainly knew prior to trial that there was

no way to confirm the authenticity or

completeness of the [Records]. The

Department also knew that the [R]ecord s were

inadmissible to support findings of fact in

this case, and without the medical records

it was unlikely that the allegations . . .

could be established by clear and convincing

evidence.

Motion at 3. In other words, according to Dr. Gordon, the

De partment should have known that necessary evidence (the

Records) would be rejected ÏÏ and thus that its case was doomed.

Section 57.105 (1)(a) provides that the prevailing party is

entitled to an award of attorney's fees if the losing party

pressed forward with a claim or defense that was "not supported

by the material facts necessary to establish [it]." Notably,

Dr. Gordon does not argue that the material facts failed to

support the underlying disciplinary action; rather, he contends

that evidence in the D epartment's possession (i.e., the

Records), which was needed to establish the Department's

material allegations, was obviously inadmissible.

Dr. Gordon's position raises an interesting issue, which is

whether, under section 57.105(1)(a), the term "material facts"

is synonymous with, e.g., "admissible evidence" or "findings of

fact," as Dr. Gordon would have it, or rather should be applied

less technically to include "historical facts" ÏÏ a broader

concept that might take into account the losing part y's

reasonable understanding of the actual events of the past.

Curiously, neither party argues the point, although it is fairly

debatable. On the one hand, allegations for which there is no

admissible proof cannot become material findings of fact in

suppo rt of a claim or defense. Thus, a claim or defense which

rests upon factual allegations that cannot be proved for lack of

admissible evidence is, in a sense, not supported by the

material facts, regardless of what actually happened as a matter

of historic al fact. On the other hand, there is plainly a

difference between having no proof and having insufficient

admissible proof ÏÏ and between proved (or provable) facts and

actual historical facts. In this case, for example, the

Department had proof but was un able to get it admitted into

evidence. As a result, the undersigned could not make findings

of fact for the Recommended Order based upon the Records. The

Department, however, no doubt had developed a reasonable

understanding of the historical facts (="ma terial facts"?) based

on those Records. Suppose, then, that the charges were

supported by the material historical facts as revealed in the

Records. Were that so, should the Department's inability to

overcome the hearsay objection to the admission of the Records

be deemed sufficient grounds under section 57.105(1)(a) to order

the payment of Dr. Gordon's attorney's fees?

The undersigned will sidestep the foregoing question by

assuming for argument's sake (without deciding) that the answer

is a qualified "yes" ÏÏ that is: Yes . . . if the Department knew

or should have known that the Records could not possibly be

received in evidence over Dr. Gordon's hearsay objection. The

undersigned can make such an assumption because, even under this

pro - prevailing pa rty interpretation of section 57.105 (1)(a), he

concludes that ÏÏ for purposes of awarding Dr. Gordon his

attorney's fees ÏÏ the prosecution was sufficiently supported by

the material facts to avoid sanction.

To be sure, the Department knew that Dr. Gordon wo uld

resist the introduction of the Records; he had not kept this

strategic goal a secret, having moved in limine to have the

Records excluded. For this reason, the Department should have

been prepared to deal with the inevitable hearsay objection. In

fac t, it was clear that the Department had given the matter some

thought, for at hearing arguments intended to make the Records

admissible were advanced. Maybe the Department should have

known, however, that the arguments it presented in this regard

would li kely be rejected. At any rate, if the arguments the

Department presented were the only arguments available, then Dr.

Gordon's Motion would be more compelling.

But the Department left other arguments on the table ÏÏ

arguments that, while perhaps not slam - dunks, offered at least a

reasonable possibility of success. The undersigned will mention

three, those being the ones whose absence surprised him most.

Admissions By a Party - Opponent. Dr. Gordon argued that the

Department could not establish the pre dicate for the business

record exception for lack of a proper custodian. The Department

disputed this contention but ultimately proved Dr. Gordon

correct. In so doing, the Department seemed to have forgotten

the other hearsay exceptions. The Department could have

contended, for example, that at least some of the Records

contain admissions under section 90.803(18), Florida Statutes.

Of course, the Department would have needed to demonstrate the

authenticity of the Records pursuant to section 90.901; that is,

someone would have had to testify that the Records are what the

Department claims, i.e., D.V.'s medical records. This is a less

demanding showing than that required to lay the foundation for

the business record exception, however, and the Department

probably could have made it. Assuming, as seems likely, that

the Records contain some of Dr. Gordon's own statements or other

statements attributable to him, such statements might then have

come into evidence under section 90.803(18).

Waiver of the Right Against Self - Incrimination.

Presumably, had he testified, Dr. Gordon could have established

the facts necessary to admit the Records under section

90.803(6). Through his counsel, however, Dr. Gordon threatened

to take the Fifth if called as a witness at hearing. Thus, by

threatening to remain silent, Dr. Gordon complicated (and

eventually thwarted) the Department's job of establishing the

foundation for admitting the Records under the business record

exception.

Arguably, however, Dr. Gordon had wai ved the privilege he

threatened to invoke. This is because, on March 29, 2007, Dr.

Gordon ÏÏ through his then - attorney ÏÏ had served a discovery

response in which he had admitted or denied 22 factual matters

set forth in the Department's First Request for Adm issions. He

had done this without objecting on grounds of self -

incrimination, even though the matters closely tracked the

allegations of the Administrative Complaint. In so doing,

Dr. Gordon clearly waived the privilege with regard to the

particular a dmissions. See, e.g., Hargis v. Fla. Real Estate

Comm'n , 174 So. 2d 419, 422 (Fla. 2d DCA 1965); see also Purcell

v. Dep't of Bus. & Prof'l Reg. , 708 So. 2d 1019 (Fla. 5th DCA

1998).

It is a closer question whether Dr. Gordon, having

voluntarily answere d the Department's request for admissions,

waived his right to remain silent later in the proceeding ÏÏ e.g.,

at hearing ÏÏ regarding the subjects of his admissions, such that

he could be compelled to give further testimony about the

details of those subjects. Compare, e.g., State ex rel.

Montgomery v. United Cancer Found. , 693 N.E.2d 1149 (Ohio App.

1997), with Haas v. Bowman , 62 Pa. D. & C.4th 1 (C.P. Allegheny

2003). The undersigned need not explore that legal issue in

detail here, for no decision in the m atter is required. It

suffices to say that the Department could have made a reasonable

argument that Dr. Gordon had waived his Fifth Amendment

privilege regarding the details of his admissions. Had the

argument succeeded, the Department likely could have gotten the

Records into evidence.

To Supplement or Explain. The Department could have argued

that the Records, or some of them, were admissible under section

120.57(1)(c), which permits hearsay to be " used for the

[limited] purpose of supplementing or explaining other

evidence." Here, the "other evidence" would have been Dr.

Gordon's admissions as set forth in his Response to Request for

Admissions. Some of the Records seem plainly to have been

admissible to explain or supplement the admissions becaus e, in

at least one instance, the admissions specifically referred to

the Records. Dr. Gordon had admitted without qualification the

following matter:

6. According to her medical records,

Patient D.V. tolerated the procedure well,

with an estimated blood loss of 100 cc.

Patient D.V. was discharged home at

approximately 11:45 a.m.

Had the Department pursued this angle, it might have been able

to admit enough of the Records to provide a basis in the

evidence for its expert witness's testimony.

The unders igned is not suggesting that most or all of the

Records necessarily would have been admitted under one or more

of the foregoing arguments ÏÏ Dr. Gordon's able counsel might well

have advanced persuasive counterarguments had the need arisen.

Nor is the under signed suggesting that, had the Records been

admitted, the Department would have prevailed on the merits.

The purpose of the discussion above is narrower ÏÏ to show that,

contrary to Dr. Gordon's contention, the Department should not

have known that all att empts to offer the Records as evidence

would be hopeless. Indeed, if anything, the Department should

have been able successfully to move at least some of the Records

into evidence; its failure to do so was not the result of the

Records being patently inad missible. Section 57.105 does not,

however, authorize sanctions against a party for losing a case

it might have won. Therefore, attorney's fees will not be

awarded pursuant to section 57.105(1)(a).

As a secondary basis for an award, Dr. Gordon argues t hat

the Department unreasonably delayed the underlying proceeding.

This argument implicitly invokes section 57.105(2), which makes

a party liable for damages resulting from improper delay

stemming from "any action" of that party "taken primarily for

the p urposes of unreasonable delay." Dr. Gordon has not,

however, identified any "action" of the Department that

unreasonably slowed the proceeding; he complains, instead, of

inaction on the Department's part, the failure to move things

forward expeditiously. Further, the Department's alleged

procrastination apparently occurred while the Department was

acting in its regulatory capacity, not as a litigant.

Dr. Gordon has not pointed to any dilatory action which the

Department allegedly took as a litigan t. Therefore, attorney's

fees will not be awarded pursuant to section 57.105(2).

Upon consideration, it is

ORDERED that the Motion is denied.

DONE AND ORDERED this 4th day of October , 2011 , in

Tallahassee, Leon County, Florida.

S

JOHN G. VAN LANINGHAM

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 Cler k of the

Division of Administrative Hearings

this 4th day of October , 2011 .

COPIES FURNISHED :

Monica Rodriguez, Esquire

Dresnick, Rodriguez, and Perry P.A.

One Datran Center, Suite 1610

9100 South Dadeland Boulevard

Miami, Florida 33156

Robert Ant honie Milne, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

Nicholas Romanello, General Counsel

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin A - 02

Tallahas see, Florida 32399

Joy Tootle, Executive Director

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way

Tallahassee, Florida 32399

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 proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

notice of appeal with the Clerk of the Division of Administr ative

Hearings and a copy, accompanied by filing fees prescribed by

law, 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 3 0 days

of rendition of the order to be reviewed.