13-004266PL Department Of Health, Board Of Medicine vs. Cheryl Debbie Ackerman, M.D. Status: Closed Recommended Order on Thursday, May 15, 2014.

Summary: Petitioner proved that Respondent had action taken against her New Jersey medical license, failed to report the action to Florida, and failed to update her profile.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MEDICINE,

Petitioner,

vs. Case No. 13 - 4266PL

CHERYL DEBBIE ACKERMAN, M.D.,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursua nt to notice, an administrative hearing was conducted

in this case in Tallahassee, Florida, on March 24 and April 21,

2014. Lisa Shearer Nelson, an administrative law judge assigned

by the Division of Administrative Hearings , presided over the

hearing.

AP PEARANCES

For Petitioner: Jonathan R. Zachem, Esquire

Douglas D. Sunshine , Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 6 5

Tallahassee, Florida 32399 - 3265

For Respondent: Kristian E. Dunn, Esquire

517 East College Avenue

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent has

violated section 458.331(1)(b), (kk), and (nn), Florida Statutes

(2011), as alleged in the Administrative Complaint, and if so,

what penalt y should be imposed?

PRELIMINARY STATEMENT

On January 14, 2013, Petitioner, Department of Health, filed

an Administrative Complaint against Respondent, Cheryl Ackerman,

M.D., alleging that she had violated section 458.331(1)(b), (kk),

and (nn), Florida Sta tutes (2011). The factual allegations in

the Administrative Complaint are that Dr. Ackerman had action

taken against her medical license in New Jersey; that she failed

to notify the Board of Medicine within 30 days of the action by

the New Jersey Board; a nd that she failed to update her

practitioner profile within 15 days of the action.

Dr. Ackerman filed an election of rights form on April 19,

2013, disputing the allegations in the Administrative Complaint

and requesting a hearing pursuant to section 12 0.57(1), Florida

Statutes. On November 4, 2013, the Department forwarded the case

to the Division of Administrative Hearings for assignment of an

administrative law judge.

Pursuant to notice issued November 13, 2013, the hearing was

scheduled for January 7 - 8, 2014. On December 3, 2013, counsel

for Respondent filed an unopposed motion for continuance,

indicating that Respondent had a scheduled court appearance in

New Jersey on January 6, 2014, leaving insufficient time for

travel arrangements to Florida . Based upon the unopposed motion,

the case was continued and rescheduled for February 12 - 13, 2014.

On December 13, 2014, counsel for Respondent filed a Notice

of Withdrawal of Counsel, which complied with the requirements of

Florida Administrative Code Rule 28 - 106.105(3). The Notice was

treated as a motion to withdraw in accordance with the rule, and

was granted by Order dated December 16, 2013.

On January 9, 2014, Respondent filed a document that was

captioned as an ÐUnopposed Motion for Continuance.Ñ Th e Motion

represented that Dr. Ackerman was unable to travel due to Ðhealth

issues with pain from car accident, bleeding,Ñ and civil court

issues in New Jersey. The motion also specifically indicated

that Respondent had contacted counsel for Petitioner and that he

had no objection to the continuance. However, the Department

responded in opposition to the Motion and stated that counsel had

not been contacted before the Motion was filed. On January 13,

2014, an Order was entered denying the Motion, without prejudice

for Dr. Ackerman to file an amended motion that include d

documentation with respect to the New Jersey litigation that

prevent ed her appearance (such as a Notice of Hearing or

subpoena), and/or documentation from a licensed physician other

than Re spondent that demonstra t ed her inability to participate in

the hearing.

Between January 13, 2014, and January 22, 2014, Respondent

filed seven requests for continuance in various forms. At least

two of these requests did not indicate that they were serve d on

opposing counsel, and two Notices of Ex Parte Communication were

filed. The Notice issued January 16, 2014, stated in bold

typeface that Ðno motions will be ruled on without a certificate

of service indicating that a copy of the document filed with t he

undersigned has been served on counsel for Petitioner.Ñ The

admonition made little difference in RespondentÓs filing

practices .

On January 22, 2014, an Order was issued denying

RespondentÓs m otion s for c ontinuance. The Order also permitted

Respo ndent to appear by telephone and ordered a pre - hearing

conference call to be conducted on Monday, February 3, 2014. The

Order also reiterated the type of documentation needed to justify

the continuance Respondent was seeking.

Between January 23, 2014, and Jan uary 31, 2014, Respondent

filed seven additional requests for hearing, some of which

continued to lack any indication that Respondent had served

opposing counsel with a copy of the document. On January 30,

2014, the undersigned issued an Order directing R espondent to use

a certificate of service in her motions and that no motion

without a certificate of service would receive a ruling. The

Order went so far as to provide an example of a certificate of

service from the Florida Rules of Judicial Administrati on. The

admonition was to no avail.

On February 3, 2014, a p re - h earing c onference was conducted.

On that same day, Martin McDonnell entered a limited appearance

for the purpose of re presenting Dr. Ackerman at the pre - hearing

c onference. Dr. Ackerman wa s also present on the conference

call. During the conference, Respondent was advised that filing

successive motions or correspondence on a nearly daily basis was

not helpful, in that opposing counsel had to be given an

opportunity to respond to her reques ts. After consideration of

the arguments of counsel and the documentation finally provided,

RespondentÓs motions for continuance were granted and the hearing

previously scheduled for February 12 - 13, 2014, was canceled . T he

parties were directed to file a Joint Status Report no later than

February 12, 2014, regarding dates of availability to reschedule

the hearing. Respondent was advised that no further continuances

would be entertained, absent an extreme emergency. On

February 13, 2014, the hearing was rescheduled for March 24,

2014.

RespondentÓs requests for an additional continuance began

again on February 27, 2014, and an Order Denying Continuance of

Final Hearing was issued March 5, 2014. 1/ Despite t he admonition

given during the pre - hearing c onfer ence, Respondent continued to

file requests on an almost daily basis, and sometimes twice a

day. Between March 6, 2014 and March 17, 2014, an additional

eight motions/letters were filed. Many continued to lack any

indication that Respondent had served op posing counsel. On

March 11, Mr. McDonnell filed a Notice of Withdra wal and/or

Clarification, reitera ting that he had filed a limited appearance

for the sole purpose of repr esenting Respondent during the pre -

hearing c onference and for no other purpose , an d was no longer

representing her .

On March 17 and 19, 2014, Orders Denying Continuance were

filed in response to RespondentÓs continued requests. On Friday,

March 21, 2014, attorney Kristian Dunn filed a Notice of

Appearance on behalf of Respondent, along with an Emergency

Motion for Continuance. Attached to his emergency motion was a

letter from a physician stating that Respondent had been seen in

the Hackensack University Medical Center Emergency Trauma

Department on March 19, 2014, and requesting that she be

ÐexcusedÑ from the ÐmeetingÑ on March 24, 2014; and a note on a

prescription form that she was scheduled for cardiac evaluation

on the morning of the hearing. The Department objected to any

further continuance.

The hearing began on March 24, 2014, as scheduled. The

Department presented the testimony of two witnesses , in order to

preserve their testimony; however , in an abundance of caution,

the remainder of the hearing was continued until April 15, 2014,

in order to allow RespondentÓs partici pation. RespondentÓs

counsel , who was in attendance, was advised, and an Order

memorializing the ruling was issued, that no further continuance

would be granted absent the provision of a sworn affidavit by

RespondentÓs treating physician, identifying the patientÓs

diagnosis, treatment plan, and a date by which Respondent would

be able to participate in the hearing by telephone.

The hearing reconvened on April 15, 2014, and Respondent

appeared by telephone. During the two days of hearing,

Petitioner prese nted the testimony of Joanne Trexler and Miley

Williams, and PetitionerÓs Exhibits 1, 2, and 4 were admitted

into evidence. Respondent testified on h er own behalf, and

RespondentÓs Exhibit 1 was also admitted. Transcripts for each

day of the hearing were ordered: the volume for March 24, 2014

was filed March 31, 2014, and the volume for April 15, 2014 was

filed April 30, 2014. On April 28, 2014, Dr. Ackerman filed a

document that appeared to be a proposed recommended order.

However, her counsel filed a Notice the following day asking that

the document be withdrawn. Because Respondent is represented by

counsel, the document she filed has not been considered. Both

counsel filed Proposed Recommended Orders on May 9, 2014, and

those submissions have been carefully considered in the

preparation of this Recommended Order.

FINDING S OF FACT

1. Respondent is a medical doctor licensed in the State of

Florida, having been issued license number ME 89113.

2. Petitioner is the state agency charged with the

licens ing and regulation of the practice of medicine pursuant to

section 20.43 and chapters 456 and 458, Florida Statutes.

3. Respondent is also licensed as a medical doctor in the

State of New Jersey.

4. The Department of Law and Public Safety, Division of

Consumer Affairs, New Jersey Board of Medical Examiners (New

Jersey Board) is the licensing authority regulating the practice

of medicine in the State of New Jersey.

5 . On or about February 21, 2012, the New Jersey Board

entered an Order of Automatic Susp ension of RespondentÓs New

Jersey medical license. The basis for the Order was RespondentÓs

purported failure to comply with a Private Letter Agreement

previously entered between Respondent and the New Jersey Board ,

in that she allegedly failed to undergo an independent

psychiatric evaluation and failed to provide required psychiatric

reports to the stateÓs Physician Assistance Program (PAP). 2/

6 . The action by the New Jersey Board constitutes action

against RespondentÓs medical license by the licensing a uthority

of another jurisdiction.

7 . Respondent did not report the action against her New

Jersey license to the Florida Board of Medicine on or before

March 23, 2012, or within 30 days of the action against her

license.

8 . When documents are received by the Department, they are

imaged into the DepartmentÓs system. Mail for the licensing unit

is picked up several times a day, and all documents are indexed

by the licenseeÓs license number. A licensee can check to see if

documents are received by contactin g the Department by telephone

or e - mail.

9. As of the week before the hearing, no information

regarding Dr. Ackerman had been received by the Department from

Dr. Ackerman .

10 . Respondent claims that she notified the Board by both

United States Mail and by certified mail of the action against

her New Jersey license. A copy of the letter she claims to have

sent is RespondentÓs Exhibit 1. This letter is dated March 2,

2012, is not signed, does not contain her license number in

Florida or New Jersey, and is addressed to ÐFlorida License

Board . Ñ The document does not include an address beyond

Tallahassee, Florida. No zip code is included. Dr. Ackerman

could not say whether she had a receipt for the certified mail,

only that she probably Ðhad it somewhere .Ñ She could not

identi f y who, if anyone, signed for it . W hen asked for the

address where she mailed the letter, Dr. Ackerman said , after a

considerable pause, 452 Bald Cypress Way , and claimed she knew

that address Ðoff the top of her head . Ñ 3/ The copy admitted into

evidence only reflects a faxed date of March 22, 2014, two days

before the hearing. 4 /

11 . By contrast, Board staff testified credibly as to the

process for logging mail at the Department, and that no

notification had been received from Dr . Ackerman. While staff

acknowledged that it is ÐpossibleÑ for mail to come to the

Department and not be routed appropriately , the more persuasive

evidence in this case is that the Board staff received nothing

from Dr. Ackerman. RespondentÓs claim that b oth copies of her

letter somehow slipped thr ough the c racks is simply not

believable.

1 2 . Moreover, Dr. Ackerman is a physician. As such, she is

presumed to be a relatively intelligent person, capable of

providing appropriate notification to the Board. The docket and

evidentiary record in this case demonstrate that when she wants

to get a message across, she is capable of doing so (and equally

capable of avoiding answering a direct question if it is not to

her advantage). Her claim that she notified the Board of the

action against her license in New Jersey is not credible , and is

rejected .

1 3 . Dr. Ackerman also did not update her practitioner

profile. Practitioner profiles can be updated by faxing the

updated information, using the fax number available on - line; by

mailing the information to the Department; or by logging into the

practitioner profile database using the licenseeÓs specific log -

in ID and password. Dr. Ackerman did none of those.

CONCLUSIONS OF LAW

1 4 . The Division of Administrative Heari ngs has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to sections 120.569 and 120.57(1), Florida

Statutes (2013).

1 5 . This is a proceeding in which Petitioner seeks to

suspend RespondentÓs license to practice medicine . Because

disciplinary proceedings are considered to be penal in nature,

Petitioner is required to prove the allegations in the

Administrative Complaint by clear and convincing evidence. DepÓt

of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

1 996); Ferris v. Turlington , 510 So. 2d 29 2 (Fla. 1987).

1 6 . Clear and convincing evidence Ðrequires more proof than

a Òpreponderance of the evidenceÓ but less than Òbeyond and to

the exclusion of a reasonable doubt.ÓÑ In re Graziano , 696 So.

2d 744, 753 (Fla. 1997). As stated by the Florida Supreme Court,

the standard:

entails both a qualitative and quantitative

standard. The evidence must be credible;

the memories of the witnesses must be clear

and without confusion; and the sum total of

the evidence m ust be of sufficient weight to

convince the trier of fact without

hesitancy.

Clear 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

testimony must be precise and

lacking in confusion as to the

facts in issue. The evidence must

be of such a weight that it

produces in the mind of the trier

of fact a firm belief or

conviction, without hesitancy, as

to the truth of the allegations

sought to be establish ed.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994)(quoting, with

approval, Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4 th DCA

1983)); see also In re Henson , 913 So. 2d 579, 590 (Fla. 2005).

ÐAlthough this standard of proof may be met where the evidence is

in conflict, it seems to preclude evidence that is ambiguous.Ñ

Westinghouse Elec. Corp. v. Shuler Bros. , 590 So. 2d 986, 989

(Fla. 1991).

1 7 . The Administrative Complaint contains three counts

against Dr. Ackerman, charging her with violations of sec tion

458.331(1)(b ), (kk), and (nn) . Section 458.331 provides, in

pertinent part:

(1) The following acts constitute grounds

for denial of a license or disciplinary

action, as specified in s. 456.072(2):

* * *

(b) Having a license or the authority to

pr actice medicine revoked, suspended, or

otherwise acted against, includ ing the

denial of licensure, by the licensing

authority of any jurisdiction, including its

agencies or subdivisions . The licensing

authorityÓs acceptance of a physicianÓs

relinquishment of a license, stipulation,

consent order, or other settlement, offered

in response to or in anticipation of the

filing of administrative charges against the

physicianÓs license, shall be construed as

action against the physicianÓs license.

* * *

(kk) Failing to report to the board, in

writing, within 30 days if action as defined

in paragraph (b) has been taken against

oneÓs license to practice medicine in

another state, territory, or country.

* * *

(nn) Violating any provision of this

chapter or c hapter 456, or any rules adopted

pursuant thereto.

1 8 . Section 456.042 is referenced as the provision in

chapter 456 Respondent violated for the purposes of C ount III

(which alleges a violation of section 458.331(1)(nn)) , and

provides:

456.042 Practitio ner profiles; update. Ï A

practitioner must submit updates of required

information within 15 days after the final

activity that renders such information a

fact . The Department of Health shall update

each practitionerÓs practitioner profile

periodically . An updated profile is subject

to the same requirements as an original

profile.

1 9 . Count I of the Administrative Complaint charges

Respondent with violating section 458.331(1)(b), by having action

taken against her license in New Jersey by the licensing a uthority

of that st ate. Petitioner proved the violation alleged in Count I

by clear and convincing evidence.

20 . Count II of the Administrative Complaint charges

Respondent with violating section 458.331(1)(kk), by failing to

timely report to the Florid a Board of Medicine, in writing, within

30 days, that the New Jersey Board took action against her medical

license. Petitioner proved the violation alleged in Count II by

clear and convincing evidence.

21 . Count III of the Administrative Complaint charg es

Respondent with violating section 458 .331(1)(nn), by failing to

timely update her practitioner profile within 15 days of the New

Jersey Board action , in violation of section 456.042 . The

Department proved the violation alleged in Count III by clear and

convincing evidence.

2 2 . The Board has adopted disciplinary guidelines which

provide notice of a range of appropriate penalties for

disciplinary violations. Florida Administrative Code Rule 64B8 -

8.001(2)(b) provides that, for action taken against a lic ense in

another jurisdiction, the penalty for a first offense ranges from

imposition of discipline comparable to the discipline which would

have been imposed if the substantive violation had occurred in

Florida , to susp ension or denial of the license until the license

is unencumbered in the jurisdiction in which disciplinary action

was originally taken, and a fine of $1,000 to $5,000.

2 3 . The Florida provision most closely resembling the action

taken by New Jersey is section 456.072(1)(hh), which makes it a

violation to be terminated from a treatment program for impaired

practitioners, for failure to comply with the terms of the

monitoring or treatment contract. Rule 64B8 - 8.001(2)(ww) provides

that for a first offense , an appropriate penalty is a suspensi on

until the licensee demonstrates compliance with all of the terms

of the monitoring or treatment contract, and is able to

demonstrate the ability to practice medicine with reasonable skill

and safety , to be followed by a term of probation and imposition

of a fine from $1,000 to $2,500. An alternative comparable

violation would be a violation of section 458.331(1)(s)(inability

to practice medicine with reasonable skill and safety as a result

of a physical or mental condition). The guideline penalty

ident ified in rule 64B8 - 8.001(2)(s) for a first violation of this

subs ection is from probation and 50 to 100 hours of community

service to suspension until the licensee can demonstrate the

ability to practice with reasonable skill and safety, followed by

probat ion and an administrative fine from $1,000 to $5,000.

2 4 . For a violation of section 458.331(1)(kk)(failure to

report action by another jurisdiction), the guideline penalty for

a first offense is an administrative fine of $1,000 to $5,000 , a

reprimand, a nd 50 to 100 hours of community service , to denial or

revocation of the license and payment of $5,000.

2 5 . For failing to update practitioner profile information,

as alleged in Count III, the recommended penalty for a first

offense if the licensee compli es within six months (which

Respondent has not), is an administrative fine of up to $2,000.

If the licensee complies after six months, the recommended penalty

is an administrative fine of up to $5,000 and a reprimand.

26. Respondent does not live in Flo rida, and at this time,

is unable to practice medicine in her home state of New Jersey.

Under these circumstances, requiring community service would not

be appropriate. Given RespondentÓs behavior during the pendency

of these proceedings, the undersigned shares the concern voiced by

th e New Jersey Board regarding RespondentÓs present ability to

practice with reasonable skill and safety. A penalty that

requires a demonstration of the ability to practice safely is

necessary to protect the public.

27. Whe n the Board considers the penalty recommended below,

it is suggested that the Board consider allowing Dr. Ackerman to

present evidence of compliance with the New Jersey P A P to be

recognized with respect to any petition for reinstatement, in lieu

of requiri ng a separate evaluation by FloridaÓs PRN program,

unless Dr. Ackerman intends to practice in Florida. Given that

Dr. Ackerman lives in New Jersey and practiced in that state,

requiring a separate contract with PRN may be burdensome.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Board of Medicine enter a

Final Order finding that Respondent has violated section

458.331(1)(b), (kk), and (nn). In addition, it is recommended

that the Boa rd im pose the following penalty:

1. a reprimand of RespondentÓs license to practice

medicine ;

2. a n administrative fine of $5,000 ;

3. s uspension of RespondentÓs license to practice medicine

until such time as Respondent demonstrates that her license in

New J ersey has been reinstated and demonstrates the ability to

practice medicine with reasonable skill and safety ; and

4. reservation of jurisdiction by the Board to impose a

period of probation should Respondent successfully petition the

Board for reinstatem ent and demonstrate compliance with the terms

described in recommendation three.

D ONE AND ENTERED this 15 th day of May , 2014 , in Tallahassee,

Leon County, Florida.

S

LISA SHEARER NELSON

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 15 th day of May , 2014 .

ENDNOTE S

1/ RespondentÓs many reasons for seeking continuance s included

her appearance before traffic court in New Jersey, snow Ðevery

other day , Ñ vaguely referenced injuries from a traffic accident,

elderly parents needing care, an assault (which sh e stated was by

an attorney), the need for a Florida attorney, and chest pains.

Little if any documentation was provided to support these claims.

2/ The contents of the Order are hearsay and cannot, standing

alone, be used to establish the underlying b asis for New JerseyÓs

actions. § 120.57(1)(c), Fla. Stat. However, its purpose for

admission in this case is not to establish the truth of the basis

for New JerseyÓs actions, but simply to establish that the New

Jersey Board of Medical Examiners took act ion.

3/ The actual address of the Board is 4052 Bald Cypress Way, Bin

C - 03, Tallahassee, Florida 32399 - 3253. The address is readily

available on the BoardÓs website and as a licensee, should have

been readily available to Respondent.

4 / Respondent als o refused to acknowledge that her license was

suspended by New Jersey, despite the claim that she notified the

Board of the suspension. When asked directly whether her license

is currently suspended in the S tate of New Jersey, she would only

indicate that there is a motion pending to reinstate it. When

told she needed to answer the question regarding the current

status of her license, as opposed to what she was seeking, she

simply stated, ÐIÓm not sure of the status right now. Like I

said, thereÓs a lot of paperwork going on with this Board of

Medical Examiners.Ñ

COPIES FURNISHED:

Jonathan R. Zachem, Esquire

Department of Health

Prosecution Services Unit

Bin C65

4052 Bald Cypress Way

Tallahassee, Florida 32399

Kristian Eiler Dunn, Esquire

Dickens and Dunn, P.L.

517 East College Avenue

Tallahassee, Florida 32301

Allison M. Dudley, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way , Bin C 03

Tallahassee, Florida 32399

Jennifer A. Tschetter, General Counsel

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 this case.