11-004118F Mark N. Scheinberg, M.D. vs. Department Of Health Status: Closed DOAH Final Order on Thursday, December 22, 2011.

Summary: Respondent was substantially justified in bringing disciplinary proceeding against Petitioner, precluding an award of attorney's fees and costs.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARK N. SCHEINBERG, M.D. , )

)

Petitioner, )

)

vs. ) Case No. 11 - 4118 F

)

DEPARTMENT OF HEALTH , )

)

Respondent. )

)

FINAL ORDER DENYING MOTION FOR ATT ORNEY'S FEES

This case came before Administrative Law Judge John G.

Van Laningham on the motion of Petitioner Mark N. Scheinberg,

M.D. , for attorney's fees and costs pursuant to section 57.111,

Florida Statutes. Respondent Department of Health obj ect ed to

the relief sought. Neither party requested an evidentiary

hearing in accordance with the Initial Order, and u pon review of

the file, the undersigned determined that the matter could be

decided without one.

APPEARANCES

For Petitioner: Stev en L. Lubell , Esquire

Lubell & Rosen, LLC

Museum Plaza, Suite 900

200 South Andrews Avenue

Fort Lauderdale, Florida 33301

For Respondent: Shirley L. Bates, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

STATEMENT OF THE ISSUE

The ultimate issue is w hether Petitioner is entitled to an

award of attorney's fees and costs in an amount not exceeding

$50,000 pursuant to Section 57.111 , Florida Statutes. Because

it is undisputed that Petitioner is a "small business party" who

prevail ed in a previous administrative proceeding initiated by

Respondent , he is entitled to such an award unless Respondent's

decision to prosecute an administra tive complaint against

Petitioner was substantially justified .

PRELIMINARY STATEMENT

Petitioner Mark N. Scheinberg, M.D., initiated this action

by filing Respondent's [sic] Amended Motion for Attorneys' Fees

and Costs with the Division of Administrative Hearings on August

16, 2011. Respondent Department of Health moved to dismiss the

proceeding, on September 6, 2011. An order denying the motion to

dismiss was entered on September 7, 2011. The order provided in

pertinent part as follows:

No later than S eptember 16, 2011, Dr.

Scheinberg may (a) file a written response to

the Department's argument that the

disciplinary proceeding against him was

substantially justified, and (b) in

accordance with the Initial Order, request an

evidentiary hearing if desired .

Dr. Scheinberg timely filed a written reply, as directed, on

September 14, 2011. He did not request an evidentiary hearing.

FINDING S OF FACT

1. After the Board of Medicine found that probable cause

existed to suspect that Dr. Scheinberg had committe d

disciplinable offenses, the Department issued and prosecuted an

administrative complaint against him, charging the obstetrician

with medical malpractice and failure to keep records justifying

the course of treatment in connection with the vacuum - assisted

vaginal de livery of an infant born to p atient L.G. on February

2, 2005, at West Boca Medical Center.

2. Dr. Scheinberg was found not guilty of the charges. See

Dep't of Health v. Scheinberg , Case No. 10 - 10047PL (Fla. DOAH

June 20, 2011; Fla. BOM Aug . 29, 2011).

3. The Department admits that Dr. Sheinberg is an

individual whose net worth did not exceed $2 million at the time

the Department initiated the underlying disciplinary proceeding

and that, therefore, he is a "small business party" as that te rm

is defined in section 57.111(3)(d)1.c., Florida Statutes.

4. The Department admits that, because no appeal was taken

from the final order which the Board of Medicine entered in Dr.

Scheinberg's favor, he is a "prevailing small business party" as

t hat term is defined in section 57.111(3)(c)1.

5. In defending against the administrative charges, Dr.

Scheinberg incurred attorney's fees and costs in excess of

$50,000.

CONCLUSIONS OF LAW

6 . The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

s ections 57.111(4), 120.569 , and 120.57(1), Florida Statutes

(20 1 0) . The Administrative Law Judge has final order authority

in this matter. § 55.111(4)(d), Fla. Stat.

7 . Section 57.111, Flor ida Statutes, also known as the

Florida Equal Access to Justice Act ("FEAJA"), directs that

unless otherwise provided by law, a reasonable sum for

"attorney's fees and costs" 1 / shall be awarded to a private

litigant when all five of the following predicate findings are

made:

1. An adversarial proceeding was "initiated by a

state agency." [ 2 / ]

2. The private litigant against whom such proceeding

was brought was a "small business party." [ 3 / ]

3. The small business party "prevail[ed]" in the

proceeding initiated by a state agency. [ 4 / ]

4. The agency's actions were not substantially

justified.

5. No special circumstances exist that would make the

award unjust.

See § 57.111(4), Fla. Stat . 5 /

8 . The party seeking an award under section 57.111 bears

the burden of proving elements 1 through 3 (as enumerated

above). If he succeeds, the burden then shifts to the state

agency to disprove either element 4 or element 5 by

affirmatively demonstrating that its actions were substantially

justified or that an award of fees would be unjust under the

circumstances. See Helmy v. Dep ' t of Bus . and Prof ' l Reg . , 707

So. 2d 366, 368 (Fla. 3d DCA 1998).

9 . The re is no dispute that elements 1, 2, and 3 are met

here . The Department contends that an attorney's fees award is

unwarranted neve rtheless because its actions were substantially

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

a reasonable basis in law and fact at the time it w a s initiated

by a state agency . " § 57.111(3)(e), Fla. Stat .

10. In the words of the Firs t DCA, " the ' substantially

justified ' standard falls somewhere between the no justiciable

issue standard . . . and an automatic award of fees to a

prevailing party. " Helmy , 707 So. 2d at 368 ; see also Dep ' t of

H RS v. S.G. , 613 So. 2d 1380, 1386 (Fla. 1st DCA 1993)(citing

with approval a federal court ' s equating " substantial

justification " with " solid though n ot necessarily correct basis

in fact and law " ). Thus, while an agency need not have been

certain of success to be found substantially justified in it s

litigating position , its grounds for action, to avoid liability

for attorney's fees under FEAJA, must have been, not merely

nonfrivolous , but reasonably meritorious.

1 1 . In evaluating whether the Department's decision to

prosecute Dr. Scheinberg was substantially justified, facts

coming to light after the decision was made cannot be used to

second - guess the action . See Dep't of Health, Bd. of Physical

Therapy Practice v. Cralle , 852 So. 2d 930, 933 (Fla. 1st DCA

2003)(subsequent discoveries do not vi tiate reasonableness of

agency's actions). Thus, the "reviewing body ÏÏ whether DOAH or a

court ÏÏ may not consider any new evidence which arose at a fees

hearing, but must focus exclusively upon the information

available to the agency at the time that it act ed." Ag. for

Health Care Admin. v. MVP Health, Inc . , 2011 Fla. App. LEXIS

19197 , *4 (Fla. 1st DCA Dec. 2, 2011).

1 2 . The undersigned takes considerable guidance from MVP

Health , a recent decision reversing the award of attorney's fees

and costs which ha d been entered in MVP Health, Inc. v. Agency

for Health Care Admin istration , Case No. 10 - 5913F, 2010 Fla. Div.

Adm. Hear. LEXIS 221 (Fla. DOAH Dec. 14, 2010). The petitioner

in MVP Health sought an award under section 57.111 after

successfully establishin g in the underlying proceeding that AHCA

had erroneously withdrawn its application for licensure as a home

health agency on the ground that the application was incomplete.

In fact, the petitioner's application had been complete as of

July 24, 2009, approx imately three months before AHCA gave

notice, on October 20, 2009, of the decision to deem the

application incomplete and withdraw it from further

consideration. See MVP Health, Inc. v. Ag. for Health Care

Admin. , Case No. 09 - 6021 (Fla. DOAH Apr. 22, 2010 ), rejected in

part , Case No. 2009012001 (Fla. AHCA May 26, 2010).

1 3 . AHCA had deemed the petitioner's application

incomplete, in relevant part, for two reasons: (1) the

petitioner could not prove that Rey Gomez was the petitioner's

sole shareholder be cause a lawsuit whose existence the

petitioner had fully disclosed in the application, in which

other individuals claimed to own some equity in the petitioner,

was still underway; and (2) the petitioner's accreditation had

been terminated. AHCA argued tha t its concerns about the

petitioner's ownership and accreditation supplied substantial

justification for deeming the application incomplete. The court

agreed.

1 4 . Regarding the first justification, the court explained

that a reasonable person, having kn owledge as AHCA did of the

ongoing litigation, "might believe that the application did not

contain all of the information concerning [the petitioner's]

ownership ." 2011 Fla. App. LEXIS 19197 at *6 . Regarding

accreditation, the court ruled that "a reasona ble person could

find that AHCA was 'substantially justified' in withdrawing the

application as in complete" based on the fact that "the

[accrediting body] had notified AHCA by e - mail that . . .

proceedings . . . to terminate [the petitioner's accreditatio n ]"

had been started, which " clearly indicated that [the

petitioner's] disaccreditation was certain and imminent." Id.

at *6 - *7 .

1 5 . MVP Health teaches the undersigned that in evaluating

an agency's action under section 57.111, the dispositive

questio n is whether a reasonable person , viewing the facts known

to the agency at the time of the decision in the light most

favorable to the agency, might believe that the agency acted

properly . In other words, under MVP Health , the standard of

review for an ag ency's decision for purposes of section 57.111

is deferential ÏÏ akin to a determination of whether the agency

abused its discretion in acting as it did .

16 . In this case, the Department contends that the

decision to prosecute Dr. Scheinberg was substant ially justified

because the Department had obtained the written opinion of an

expert who asserted that Dr. Scheinberg had not met the

prevailing standard of care. In fact, the Department's expert,

Dr. Busowski, had stated in a letter to the Department dat ed

March 13, 2009, that Dr. Scheinberg's treatment of patient L.G.

had been substandard. In relevant part, Dr. Busowski informed

the Department as follows:

The standard of care would not have been to

let the patient remain at cervical dilation

of rim for 10 hours. The baby should have

been delivered sooner and not delivered via

a vacuum delivery which was performed. It

should have been a cesarean section hours

earlier. There was no evidence that

physician was present during the course of

labor until the delivery. There is no

documentation from the nurses that he ever

came out and examined the patient.

17 . Dr. Busowski's opinion suffers from some analytical

weaknesses that should give a reasonable person pause regarding

the persuasiveness of the opin ion. One is that the expert d id

not actually describe the standard of care in such a way that

would permit its application by someone other than Dr. Busowski.

Instead Dr. Busowski state d what the standard of care is not and

declare d that Dr. Scheinberg s hould have performed a C - section

"hours earlier." While this clearly indicated that Dr. Busowski

was critical of Dr. Scheinberg's conduct, i t is not possible to

conceptualize a generally applicable standard of care from his

opinion. Consequently, a reaso nable person cannot independently

evaluate the credibility of the standard of care that Dr.

Busowski had in mind , much less whether Dr. Busowski correctly

a pplied this standard to the circumstances surrounding

Dr. Scheinberg's treatment of L.G .

18 . In view of the foregoing, Dr. Busowski's opinion is

essentially an appeal to authority, namely his own. Because he

is a physician specializing in the relevant field, Dr. Busowski

is an authority, and the Department was not acting capriciously

in relyin g upon his expertise. The strength of an appeal to

authority, however, rests on (a) the credentials, professional

standing, and reputation of the authority and (b) the extent to

which the authority's opinion falls within a professional

consensus in the ma tter at issue . Reliance upon the expert

opinion of a highly respected authority on a matter about which

there is little controversy among experts in the field is one

thing. Reliance upon the opinion of a little known or lightly

regarded authority on a ma tter about which there is no

professional consensus is another.

19 . Here, it is difficult reasonably to assess the

relative strength of Dr. Busowski's opinion because his

March 13, 2009, letter sheds little light on the factors that a

reasonable pe rson should want to consider in weighing the

authoritativeness of the opinion. Under MVP Health , however, it

is unnecessary to probe too deeply into the agency's litigating

position in search of potential flaws . The determinative

question is whether, con sidering Dr. Busowski's opinion that

Dr. Scheinberg should have performed a C - section on patient L.G.

hours before the vacuum - assisted delivery occurred, a reasonable

person might believe that Dr. Scheinberg had not met the

prevailing standard of care. V iewing the facts known to the

Department when it decided to take action against

Dr. Scheinberg's license in the light most favorable to the

Department, the undersigned concludes that a reasonable person

might so believe.

2 0 . Therefore, follow ing the approach of the First DCA in

MVP Health , it is concluded that the Department was

substantially justified in prosecuting the administrative

charges against Dr. Scheinberg which formed the basis of the

underlying proceeding.

2 1 . Accordingly, Dr. Scheinberg's application for

attorney's fees and costs is denied .

It is ORDERED that Dr. Scheinberg shall recover nothing in

this action. The file of the Division of Administrative

Hearings is closed.

DONE AND ORDERED this 22nd day of December , 20 1 1 , 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 Fili ng (850) 921 - 6847

www.doah.sta te. fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of December , 20 1 1 .

ENDNOTES

1 / Under FEAJA, "[t]he term 'attorney's fees and costs' means

the reasonable and necessary attorney's fees and costs incurr ed

for all preparations, motions, hearings, trials, and appeals in

a proceeding." § 57.111(3)(a), Fla. Stat.

2 / FEAJA provides that "[t]he term 'initiated by a state agency'

means that the state agency" did (or was required to do) one of

three things: (1) "[f]iled the first pleading in any state or

federal court in this state; (2) "[f]iled a request for an

administrative hearing pursuant to chapter 120;" or (3) "[w]as

required by law or rule to advise a small business party of a

clear point of entry aft er some recognizable event in the

investigatory or other free - form proceeding of the agency."

§ 57.111(3)(b), Fla. Stat.

3 / The term "small business party" is defined as follows:

1.a. A sole proprietor of an unincorporated

business, including a pr ofessional practice,

whose principal office is in this state, who

is domiciled in this state, and whose

business or professional practice has, at

the time 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,

including both personal and business

investments;

b. A partnership or corporation, including

a professional practice, which has its

principal office in this state and has at

the time the action is initiated by a state

agency not mor e than 25 full - time employees

or a net worth of not more than $2 million;

or

c. An individual whose net worth did not

exceed $2 million at the time the action is

initiated by a state agency when the action

is brought against that individual ' s license

to e ngage in the practice or operation of a

business, profession, or trade; or

2. Any small business party as defined in

subparagraph 1., without regard to the

number of its employees or its net worth, in

any action under s. 72.011 or in any

administrative pr oceeding under that section

to contest the legality of any assessment of

tax imposed for the sale or use of services

as provided in chapter 212, or interest

thereon, or penalty therefor.

§ 57.111(3)(d), Fla. Stat.

4 / Pursuant to § 57.111(3)(c), Fla. Sta t., a party is a

"prevailing small business party" when:

1. A final judgment or order has been

entered in favor of the small business party

and such judgment or order has not been

reversed on appeal or the time for seeking

judicial review of the judgment or order has

expired;

2. A settlement has been obtained by the

small business party which is favorable to

the small business party on the majority of

issues which such party raised during the

course of the proceeding; or

3. The state agency has sought a voluntary

dismissal of its complaint.

5 / The purpose of FEAJA is to " diminish the deterrent effect"

exerted by the expense of legal proceedings, which discourages

"certain persons" from challenging "unreasonable governmental

action." § 57.111(2), Fla. Stat. (emphasis added). Consonant

with the legislature's modest goal, FEAJA provides that "[n]o

award of attorneyÓs fees and costs for an action initiated by a

state agency shall exceed $50,000." § 57.111(4)(d)2., Fla.

Stat.

COPIES FURNISHED :

Steven L. Lubell , Esquire

Lubell & Rosen, LLC

Museum Plaza, Suite 900

200 South Andrew s Avenue

Fort Lauderdale, Florida 33301

Shirley L. Bates, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Joy Tootle, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Talla hassee, Florida 32399 - 3265

Nicholas Romanello , General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitl ed 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

one copy of a Notice of Administrative Appeal with the agency

clerk of the Division of Administrative Hearings and a second

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 Administrative Appeal must be filed

within 30 days of rendition of the order to be reviewed.