12-002391PL Department Of Health, Board Of Medicine vs. R. George Farhat, M.D. Status: Closed Recommended Order on Tuesday, October 9, 2012.

Summary: DOH proved that impaired physician was terminated from PRN monitoring contract for non-compliance without good cause.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE , )

)

Petitioner , )

)

vs. ) Case No. 12 - 2391PL

)

R. GEORGE FARHAT, M.D. , )

)

Respondent . )

)

RECOMMENDED ORDE R

On August 29, 2012, an administrative hearing was held in

this case in Tampa, Florida. The Administrative Law Judge (ALJ),

J. Lawrence Johnston, participated telephonically.

APPEARANCES

For Petitioner: Jonathan R. Zachem, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: R. George Farhat, M.D., pro se

411 Cl eveland Street

Clearwater, Florida 33755

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent should be

disciplined for being terminated from a treatment program for

impaired practitioners by the Physician ' s Resource Network.

PRELIMINARY STATEMENT

Petitioner, the Department of Health (DOH), filed an

Administrative Complaint (DOH Case 2009 - 21209) against Respondent

on April 23, 2012. Respondent disputed the facts and requested

an administrative hearing. The matter wa s referred to the

Division of Administrative Hearings for assignment of the ALJ,

who scheduled the case for a hearing on August 28 and 29 (later

changed to August 29 only) in Tampa. When it appeared that

Respondent might not attend the hearing and that DO H ' s only other

witness would be testifying by telephone, the ALJ arranged to

participate telephonically. On August 24, certain facts were

deemed admitted for failure to timely respond to DOH 's request

for admissions.

Respondent appeared for the final hear ing and was allowed to

amend the facts admitted. DOH then called Debra Troupe and

Respondent to testify and had Petitioner ' s Exhibits 1, 2 , and 3

admitted in evidence. Responden t testified in his own behalf.

The Transcript of the final hearing was filed on

September 18. DOH filed a P roposed R ecommended O rder, which has

been considered. Respondent did not file a proposed recommended

order.

FINDING S OF FACT

1. Respondent, R. George Farhat, M.D., is licensed as a

medical doctor in Florida, holding license ME 69982.

2. In March 2005, Respondent entered into a chemical

dependency monitoring contract with Professional Resources

Network (PRN), an approved treatment provider fo r impaired

practitioners.

3. In February 2009, Respondent tested positive for alcoh ol

on a urine screen. In March 2009, PRN referred Respondent for

psychiatric evaluation because of the test result .

4. Respondent did not cooperate with the evaluation.

Specifically, Respondent did not sign the release for the

psychiatrist to forward hi s evaluation to PRN. In addition, the

evaluating psychiatrist required that Respondent undergo a

psychological evaluation. Respondent did not cooperate and did

not undergo psychological evaluation, as required by the PRN

psychiatrist. As a result, the P RN psychiatrist was unable to

complete his evaluation and was unwilling to opine that it would

be safe for Respondent to return to the practice of medicine.

5. After receiving the psychiatrist ' s report, PRN

terminated Respondent for violation of the terms of his

monitoring contract by failing to obtain the required evaluation.

As a result, PRN referred Respondent back to DOH for appropriate

action .

6. Respondent did not have good cause for not complying

with the ter ms of his monitoring contract.

7. Duri ng the time period at least from the end of

August 2012 through the date of the final hearing, Respondent has

been in a treatment program at a hospital in Clearwater called

Windmoor. No evidence was presented as to the reason f or or

nature of the treatmen t.

8. Other findings proposed by Petitioner were not supported

by competent, substantial evidence but rather only by hearsay

evidence that would not be admissible over objection in civil

actions. See Conclusion 10 , infra.

CONCLUSIONS OF LAW

9. Section 4 56.072(1)(hh), Florida Statutes (2009),

subjects a physician to discipline for being terminated from

a treatment program for impaired practitioners, which is

overseen by an impaired practitioner consultant as described in

section 456.076, for failure to co mply, without good cause, with

terms of the monitoring or treatment contract entered into by the

licensee, or for not successfully completing any drug treatment

or alcohol treatment program .

10. Because it seeks to impose license discipline, DOH has

the b urden to prove its allegations by clear and convincing

evidence. See Dep ' t of Banking & Fin . v. Osborne Stern & Co.,

Inc. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So.

2d 292 (Fla. 1987). This " entails both a qualitative and

quantitative sta ndard. The evidence must be credible; the

memories of the witnesses must be clear and without confusion;

and the sum total of the evidence must be of sufficient weight to

convince the trier of fact without hesitancy. " In re Davey ,

645 So. 2d 398, 404 (Fl a. 1994). See also Slomowitz v. Walker ,

429 So. 2d 797, 800 (Fla. 4th DCA 1983). " Although this standard

of proof may be met where the evidence is in conflict, . . . it

seems to preclude evidence that is ambiguous. " Westinghouse

Electric Corp., Inc. v. Shuler Bros., Inc. , 590 So. 2d 986, 988

(Fla. 1st DCA 1991). DOH met its burden of proof as to the

allegations in the Administrative Complaint. The burden was not

met as to findings proposed by Petitioner that were supported

only by hearsay evidence that would not be admissible over

objection in civil actions. See § 120.57(1)(c), Fla. Stat.

(2012). Unlike in Avalon ' s Assisted Living, LLC v. Ag. for

Health Care Admin. , 80 So. 3d 347, 351 (Fla. 1st DCA 2011),

Respondent did not object on grounds of hearsa y. Nonetheless,

the hearsay evidence would not support a finding. See Yost v.

Unemployment Appeals Comm ' n , 848 So. 2d 1235, 1237 - 38 (Fla. 2d

DCA 2003); Harris v. Game & Fresh Water Fish Comm ' n , 495 So. 2d

806, 808 (Fla. 1st DCA 1986).

11. Petitioner inc orrectly proposes that discipline should

be imposed under Florida Administrative Code Rule 64B8 -

8.001(2)(hh) (Revised Feb. 20 09) for improperly interfering with

an investigation or a disciplinary proceeding in violation of

section 458.331(1)(hh). The corr ect disciplinary guideline is

rule 64B8 - 8.001(2)(vv), under which the recommended penalty for

the first violation of section 456.072(1)(hh) is: suspension

until compliance with all terms of the monitoring or treatment

contract and demonstration of ability to practice with reasonable

skill and safety to be followed by a term of probation; and a

fine of $1,000 to $2,500. (The rule cites to paragraph (gg) of

the statute, but it is clear from the word description in the

rule that paragraph (hh) was intended.) In this case, a $2,000

fine is appropriate to accomplish the purpose of penalizing

offending licensees, which includes punishing them for their

violation s and deterring them and other licensees from committing

future violation s . Fla. Admin. Code R. 64B8 - 8.001(2 ).

Consideration of the aggravating and mitigating factors in

paragraph (3) of the rule would not alter the appropriate

penalty.

12. Under section 456.072(4), the Board of Medicine in its

final order shall assess costs related to the investigatio n and

prosecution of the case. Costs to be assessed under the statute

include, but are not limited to, salaries and benefits of

personnel, costs related to the time spent by the attorney and

other personnel working on the case, and any other expenses

incu rred by the department for the case.

RECOMMENDATION

Based upon the foregoing Findings of Fac t and Conclusions of

Law, it is

RECOMMENDED that the Board of Medicine enter a final order:

finding Respondent guilty as charged; suspending his license

until he complies with all terms of his monitoring contract and

demonstrates his ability to practice with reasonable skill and

safety, to be followed by a term of probation as determined by

the Board of Medicine to be appropriate when the suspension is

lifted ; fin ing him $2,000; and assessing the costs of the

investigatio n and prosecution of the case.

DONE AND ENTERED this 9th day of October , 2012 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Jud ge

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 9th day o f October , 2012 .

COPIES FURNISHED:

Jonathan R. Zachem, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

R. George Farhat , M.D.

33523 West 8 Mile Road, No. A - 3

Livonia, Michigan 48 152

R. George Farhat, M.D.

411 Cleveland Street

Clearwater, Florida 33755

Jennifer A. Tschetter, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1701

Joy Tootle, Executive Director

Board of Medicine

Depa rtment of Health

4052 Bald Cypress Way

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 Recommen ded Order should be filed with the agency that

will issue the Final Order in this case.