15-006760F Kenneth Stahl, M.D. vs. Department Of Health, Board Of Medicine Status: Closed DOAH Final Order on Wednesday, December 23, 2015.

Summary: The Administrative Complaint was not shown to be unsupported by material facts or by the application of then-existing law to those facts so as to warrant award of attorneys' fees under section 57.105, Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KENNETH STAHL, M.D.,

Petitioner,

vs. Case No. 15 - 6760F

DEPARTMENT OF HEALTH, BOARD OF

MEDICINE,

Respondent.

_______________________________/

FINAL ORDER

This matter has come bef ore F. Scott Boyd, a designated

Administrative Law Judge of the Division of Administrative

Hearings ( " DOAH " ), on Petitioner ' s Amended Motion for Attorneys '

Fees, filed on November 24, 2015, by Kenneth D. Stahl, M.D.,

against the Department of Health, Board of Medicine.

APPEARANCES

For Petitioner: Monica Felder Rodriguez, Esquire

Dresnick and Rodriguez, P.A.

7301 Wiles Road, Suite 107

Coral Springs, Florida 33067

For Respondent: John B. Fricke, Jr., Esqu ire

Jay Patrick Reynolds, Esquire

Corynn Colleen Gasbarro, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahas see, Florida 32399

STATEMENT OF THE ISSUE

The issue in this case is whether Kenneth D. Stahl, M.D.

( " Dr. Stahl " or " Petitioner " ), is entitled to an award of

attorney s ' fees and costs to be paid by the Department of Health,

Board of Medicine ( " Department " or " Respondent " ), pursuant to

section 57.105, Florida Statutes (2014). 1/

PRELIMINARY STATEMENT

Respondent rendered a Final Order adopting recommended

Findings of Fact and Conclusions of Law and dismissing the Second

Administrative Complaint that had been filed against Petitioner in

Department of Health v. Kenneth D. Stahl , Case No. 15 - 0775PL (Fla.

DOAH July 15, 2015; Fla. DOH Oct. 22, 2015)( " the underlying

proceeding " ). That Final Order was not appealed.

Dr. Stahl, who had filed an earlier motion for att orney s '

fees in DOAH Case No. 15 - 0775PL, renewed that motion on

November 19, 2015. The motion asserted that he was the

prevailing party in the underlying proceeding and that Respondent

knew or should have known that, at the time the A dministrative

C omplai nt was served, it was not supported by the material facts

necessary to establish its claims and was not supported by the

application of then - existing law to those material facts. DOAH

Case No. 15 - 6760F was opened on November 24, 2015.

Respondent ' s Respon se to Petitioner ' s Amended Motion for

Attorney ' s Fees was filed on November 25, 2015, reiterating facts

that were undisputed at hearing in the underlying proceeding and

maintaining that the undisputed facts and then - existing law

clearly supported the Admin istrative Complaint. The response

also alleged that because the Recommended Order did not reserve

jurisdiction to determine attorney s ' fees, that DOAH had no

jurisdiction.

Following a telephonic case management conference on

December 1, 2015, it was agree d by the parties that entitlement to

attorney s ' fees could be determined based upon the pleadings in

this case, and the pleadings, record, and O rders in the underlying

proceeding, without the need for an evidentiary hearing. It was

agreed that , if it was determined that Petitioner was entitled to

fees, and the parties could not agree on the amount of the award,

a separate hearing would then be convened to address that issue.

FINDING S OF FACT

1. Review of the record indicates that , at the time the

A dminist rative C omplaint was filed at DOAH, the following facts

were known by Respondent, as later stated in the Findings of Fact

of the Final Order of the underlying case:

a. In February 2011, P atient C.C., a 52 - year - old female, was

admitted to Jackson Memorial Hospital ( " JMH " ) with a diagnosis of

perforated appendicitis. She also had a perirectal abscess. Her

records indicate that she was treated with percutaneous drainage

and a course of intravenous antibiotics. She was discharged on

March 4, 2011.

b. On Ju ne 22, 2011, Patient C.C. presented to the JMH

Emergency Department complaining of 12 hours of abdominal pain in

her right lower quadrant with associated nausea and vomiting.

Shortly after her arrival, she described her pain to a nurse as

"10" on a scale of one to ten.

c. A computed tomography ( " CT " ) scan of Patient C.C.'s

abdomen was conducted. The CT report noted that the "the uterus

is surgically absent," and "the ovaries are not identified." It

noted that "the perirectal abscess that was drained pre viously is

no longer visualized" and that the "appendix appears inflamed and

dilated." No other inflamed organs were noted. The radiologist's

impression was that the findings of the CT scan were consistent

with non - perforated appendicitis.

d. Patient C. C.'s pre - operative history listed a "total

abdominal hysterectomy" on May 4, 2005. Patient C.C.'s prior

surgeries and earlier infections had resulted in extensive scar

tissue in her abdomen.

e. Patient C.C. was scheduled for an emergency appendectomy

an d signed a "Consent to Operations or Procedures" form for

performance of a laparoscopic appendectomy, possible open

appendectomy, and other indicated procedures.

f. Patient C.C. was taken to surgery at approximately

1:00 a.m. on June 23, 2011. Dr. Stahl was the attending

physician, and notes indicate that he was present throughout the

critical steps of the procedure.

g. The Operative Report was dictated by Dr. Eddie Manning

after the surgery and electronically signed by Dr. Stahl on

June 23, 2011. The r eport documents the post - operative diagnosis

as "acute on chronic appendicitis" and describes the dissected and

removed organ as the appendix.

h. Progress notes completed by the nursing staff record

that , on June 23, 2011, at 8:00 a.m., P atient C.C. "deni es pain"

and that the laparoscopic incision is intact.

i. Similar notes indicate that at 5:00 p.m. on June 23,

2011, P atient C.C. "tolerated well reg diet" and was waiting for

approval for discharge.

j. Patient C.C. was discharged on June 24, 2011, a lit tle

after noon, in stable condition.

k. On June 24, 2011, the Surgical Pathology Report indicated

that the specimen removed from P atient C.C. was not an appendix,

but instead was an ovary and a portion of a fallopian tube. The

report noted that inflammat ory cells were seen.

l. Surgery to remove an ovary is an oophorectomy and surgery

to remove a fallopian tube is a salpingectomy.

m. On Friday, June 24, 2011, Dr. Nicholas Namias, chief of

the Division of Acute Care Surgery, Trauma, and Critical Care, wa s

notified by the pathologist of the results of the pathology

report, because Dr. Stahl had left on vacation. Dr. Namias

arranged a meeting with P atient C.C. in the clinic the following

Monday. At the meeting, P atient C.C. made statements to

Dr. Namias r egarding her then - existing physical condition,

including that she was not in pain, was tolerating her diet, and

had no complaints. Dr. Namias explained to P atient C.C. that her

pain may have been caused by the inflamed ovary and fallopian tube

or may have been caused by appendicitis that resolved medically,

and she might have appendicitis again. He explained that her

options were to undergo a second operation at that time and search

for the appendix or wait and see if appendicitis recurred. He

advised ag ainst the immediate surgery option because she was

"asymptomatic."

2. The S econd A mended A dministrative C omplaint alleged that

Dr. Stahl performed a wrong procedure when he performed an

appendectomy which resulted in the removal of Patient C.C.'s ovary

an d a portion of her fallopian tube instead.

3. The Final Order concluded that the evidence did not

clearly show that the wrong procedure was performed. It concluded

that it was more likely that exactly the right procedure was

performed on Patient C.C. Th at is, it was likely that an

oophorectomy and salpingectomy were the right procedures to remove

the inflamed organ s and address the abdominal pain that caused

P atient C.C. to present at the JMH emergency room, but that the

right procedure was initially den ominated incorrectly as an

"appendectomy," as a result of patient history and erroneous

interpretation of the CT scan.

CONC LUSIONS OF LAW

4. Respondent asserts that D O AH lacks jurisdiction.

Section 57.105 provides, in pertinent part:

(4) A motion by a p arty seeking sanctions

under this section must be served but may not

be filed with or presented to the court

unless, within 21 days after service of the

motion, the challenged paper, claim, defense,

contention, allegation, or denial is not

withdrawn or app ropriately corrected.

(5) In administrative proceedings under

chapter 120, an administrative law judge shall

award a reasonable attorney's fee and damages

to be paid to the prevailing party in equal

amounts by the losing party and a losing

party's attorn ey or qualified representative

in the same manner and upon the same basis as

provided in subsections (1) - (4). Such award

shall be a final order subject to judicial

review pursuant to s. 120.68. If the losing

party is an agency as defined in s. 120.52(1),

the award to the prevailing party shall be

against and paid by the agency. A voluntary

dismissal by a nonprevailing party does not

divest the administrative law judge of

jurisdiction to make the award described in

this subsection.

5. Respondent asserts that DOAH has no jurisdiction because

Petitioner's P roposed R ecommended O rder did not discuss attorney s '

fees, and the Recommended Order did not reserve jurisdiction.

6. Respondent is correct that the Recommended Order

contained no reservation of jurisdic tion to consider attorney s '

fees. There was no indication in the pleadings that fees were at

issue. Petitioner here filed no answer to the A dministrative

C omplaint in the underlying proceeding. 2/ The first motion for

attorney s ' fees was not filed until September 16, 2015, about two

months after the Recommended Order had been issued on July 15,

2015. The Final Order was issued on October 23, 2015, and a

renewed motion for fees was filed on November 19, 2015.

7. Unlike some other attorney s ' fees provisio ns, 3/

section 57.105 contains no direction as to when or how a request

for attorney s ' fees shall be made. The language quoted above ,

that the award of fees in an administrative proceeding shall be

awarded "in the same manner" and upon the same basis as i n civil

proceedings, requires consideration. The Florida Supreme Court in

Stockman v. Downs , 573 So. 2d 835, 837 (Fla. 1991) , held:

Our review of the case law leads us to the

conclusion that the better view is the one

expressed in our earlier cases -- a cl aim for

attorney's fees, whether based on statute or

contract, must be pled. The fundamental

concern is one of notice. Modern pleading

requirements serve to notify the opposing

party of the claims alleged and prevent

unfair surprise. 40 Fla. Jur 2d Plea dings

Section 2 (1982). Raising entitlement to

attorney's fees only after judgement fails to

serve either of these objectives. The

existence or nonexistence of a motion for

attorney's fees may play an important role in

decisions affecting a case. For ex ample, the

potential that one may be required to pay an

opposing party's attorney's fees may often be

determinative in a decision on whether to

pursue a claim, dismiss it, or settle. A

party should not have to speculate throughout

the entire course of an action about what

claims ultimately may be alleged against him.

Accordingly, we hold that a claim for

attorney's fees, whether based on statute or

contract, must be pled. Failure to do so

constitutes a waiver of the claim.

The court went on to hold that once pled, proof of attorney s ' fees

could be presented after judgment, upon motion within a reasonable

time.

8. Shortly afterwards, in Ganz v. Hzj , 605 So. 2d 871, 872 -

73 (Fla. 1992), the court considered an earlier version of

section 57.105 and declined to apply the "no plea, no fees" rule

of Stockman . The court found that it would be extremely

difficult, if not impossible, for a party to plead in good faith

its entitlement to attorney s ' fees under section 57.105 before

the case ended, because only then could a reasonable judgment be

made as to whether only frivolous issues had been raised.

9. It might reasonably be argued that the Ganz opinion

was predicated upon the "complete absence of a justiciable

issue of either law or fact" language that then ap peared in

section 57.105, since repealed, and that therefore the pleading

requirement of Stockman should now be applied. 4/ However,

section 57.105 now also includes subsection (4), the "safe

harbor" provision quoted above, which requires a party seeking

f ees to serve the motion but not file it until at least 21 days

later, allowing the challenged claim or contention to be withdrawn

or corrected. In compliance with this provision, it is undisputed

that Petitioner served Respondent with his motion for fees on

March 20, 2015.

10. This notice requirement brings section 57.105 within an

exception recognized by Stockman itself, at page 838:

Where a party has notice that an opponent

claims entitlement to attorney's fees, and by

its conduct recognizes or acquies ces to that

claim or otherwise fails to object to the

failure to plead entitlement, that party

waives any objection to the failure to plead

a claim for attorney's fees.

11. Respondent, aware of Petitioner's motion for fees, did

not object during hearing to Petitioner's failure to plead

entitlement, and so waived that objection.

12. As for the timeliness of the motion, prior to the

adoption of Florida Rule of Civil Procedure 1.525 in 2001,

Florida case law permitted motions for attorney s ' fees to be

filed within a "reasonable time" of the plaintiff's abandonment

of the claim or within a reasonable time after the final judgment

was entered. Barco v. Sch. Bd. , 975 So. 2d 1116, 1119 (Fla.

2008). Florida Rule of Civil Procedure 1.525 was adopted to

establish an explicit time requirement for service of fee and

cost motions in order to resolve the uncertainties caused by the

"reasonable time" standard. See Saia Motor Freight Line, Inc. v.

Reid , 930 So. 2d 598, 600 (Fla. 2006).

13. As the Uniform Rules appli cable to administrative

proceedings still contain no guidance as to the appropriate time

to file fee or cost motions, these "uncertainties" may remain,

but in this case , the motion was filed 27 days after the Final

Order that made Petitioner a prevailing p arty, raising no issue.

The motion was timely.

14. By the explicit terms of the statute, a request for

award of attorney s ' fees made pursuant to section 57.105(5) is to

be considered by an administrative law judge. The determination

is a final order s ubject to judicial review. § 57.105(5), Fla.

Stat.; Jain v. Fla. Agric. & Mech. Univ. , 914 So. 2d 998, 999

(Fla. 1st DCA 2005).

15. DOAH has jurisdiction over the parties and the subject

matter of this proceeding under sections 120.569, 120.57(1), and

57.105(5), Florida Statutes (2015).

16. Petitioner has the burden of proving by a preponderance

of the evidence that he is entitled to an award of attorney s '

fees. Fla. Dep't of Transp. v. J.W.C. Co. , 396 So. 2d 778 (Fla.

1st DCA 1981); Balino v. Dep't of HRS , 348 So. 2d 349 (Fla. 1st

DCA 1977); § 120.57(1)(j), Fla. Stat.

17. The standard for award of fees established by

section 57.105 reads , in pertinent part , as follows:

(1) Upon the court's initiative or motion of

any party, the court shall award a reasonable

attorney's fee, . . . on any claim or defense

at any time during a civil proceeding or

action in which the court finds that the

losing party or the losing party's attorney

knew or should have known that a claim or

defense when initially presente d to the court

or at any time before trial:

(a) Was not supported by the material facts

necessary to establish the claim or defense;

or

(b) Would not be supported by the application

of then - existing law to those material facts.

18. Petitioner first a rgues that Respondent knew, or should

have known, that the Administrative Complaint was not supported by

the material facts necessary to establish its claims. The phrase

"supported by material facts" was defined in Albritton v. Ferrera ,

913 So. 2d 5, 7 n. 1 (Fla. 1st DCA 2005), to mean that the "party

possesses admissible evidence sufficient to establish the fact if

accepted by the finder of fact." If the losing party "presents

competent, substantial evidence in support of the claim . . . and

the trial cou rt determines the issue of fact adversely to the

losing party based on conflicting evidence," fees are not

warranted. Siegel v. Rowe , 71 So. 3d 205, 212 (Fla. 2d DCA 2011).

19. There was competent, substantial evidence introduced by

Respondent at hearing , undisputed by Petitioner, showing that:

( 1) the patient had earlier been diagnosed with a perforated

appendix; ( 2) based upon the patient's history and the CT scan, the

reasonable initial diagnosis was acute appendicitis; ( 3) Dr. Stahl

was scheduled to perform an appendectomy and believed he was

performing an appendectomy throughout the procedure; and ( 4) that

he actually performed a different procedure .

20. Section 456.072(1)(bb) , Florida Statutes, provides that

the act of performing a wrong procedure constitutes grounds for

which disciplinary action may be taken. Whether Dr. Stahl

committed that act is a question of ultimate fact. This was the

critical dispute between the parties.

21. Ultimate facts are "those facts found in that vaguely

defined f ield lying between evidential facts on the one side and

the primary issue or conclusion of law on the other, being but

the logical results of the proofs, or, in other words, mere

conclusions of fact." Tedder v. Fla . Unemp. App. Comm'n , 697 So.

2d 900, 902 (Fla. 2d DCA 1997)(Danahy, A.C.J., specially

concurring)(citing Black's Law Dictionary 1365 (5th ed. 1979).

Ultimate facts are those facts which are necessary to determine

the issues in a case, as distinguished from the evidentiary facts

supporting them. Id.

22. There was no evidence presented at hearing to bolster

the pre - operative diagnosis of acute appendicitis , and Dr. Stahl

was convincing in his demonstration that he acted reasonably in

removing an infected organ he wrongly thought was the appendi x.

It was determined in the Final Order that Respondent failed to

prove the ultimate fact that , when Dr. Stahl performed the

oophorectomy and salpingectomy , these were the wrong procedures.

23. But fees are not necessarily appropriate just because

the un derlying proceeding was decided in Petitioner's favor. Even

when the party seeking fees succeeds in obtaining dismissal of the

action or a summary judgment, fees are not automatic. Read v.

Taylor , 832 So. 2d 219, 222 (Fla. 4th DCA 2002).

24. While the Final Order made a finding of ultimate fact

contrary to the position of Respondent, Respondent did present

competent, substantial evidence in support of its position that

might have convinced another trier of fact, but was simply not

accepted. It cannot be concluded that Respondent's complaint was

meritless or not supported by material facts. Martin Cnty.

Conser . Alliance v. Martin Cnty. , 73 So. 3d 856, 857 (Fla. 1st

DCA 2011)(party wrongfully required to defend against meritless

claim is entitled to rec oup attorney s ' fees).

25. Petitioner failed to prove that he is entitled to

attorneys' fees under section 57.105(1)(a).

26. Petitioner also seeks to sanction Respondent's counsel, 5/

claiming that they knew or should have known that the

A dministrative C o mplaint was not supported under existing law.

Petitioner asserts that in every other "wrong procedure" case

Respondent has prosecuted, the "patient had to be taken back to

surgery shortly after the initial procedure to have the correct

procedure performed ."

27. Even assuming that Petitioner is correct that a rapid

return to the operating room is more than simply a factual

difference and should be considered a necessary element of any

wrong procedure case, Petitioner failed to cite any existing law

so ho lding. Neither did Respondent cite any existing law

confirming its position. This was not surprising. A surgeon who

is scheduled to perform one operation and believes he is

performing it throughout the procedure, but actually performs a

different proced ure that turns out to the one needed by the

patient is highly unusual. Application of the statute to those

facts was a case of first impression.

28. W hen there is a lack of applicable case law, the

existence of two different legal theories does n o t provi de a basis

for imposition of sanctions under section 57.105(1)(b). See

Jelencovich v. Dodge Enters . , 2010 U.S. Dist. LEXIS 9453, *2

(S.D. Fla. Jan. 8, 2010)(considering both section 57.105 and

Federal Rule 11 and citing Laborers Local 938 Joint Health &

W elfare Trust Fund v. B.R. Starnes Co. of Fla . , 827 F.2d 1454,

1458 (11th Cir. 1987)("Rule 11 is intended to deter frivolous

suits, not to deter novel legal arguments or cases of first

impression .")).

29. Petitioner failed to prove that he is entitled to fees

from Respondent's attorneys under section 57.105(1)(b).

30. Although the Recommended Order and Final Order in the

underlying proceeding were favorable to Petitioners, it was not

shown that Respondent knew or should have known that the

A dministrative C omplaint was unsupported by the material facts

necessary to establish its claims or that it was not supported by

the application of then - existing law to those facts so as to

warrant an award of attorney s ' fees under section 57.105 .

OR DER

Based upon the fo regoing Findings of Fact and Conclusions of

Law, it is hereby:

ORDERED that Petitioner's Amended Motion for Attorneys' Fees

is denied.

DONE AND ORDERED this 2 3r d day of December , 2015 , in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

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 2 3r d day of December , 2015 .

ENDNOTE S

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2014 codification in effect at the time the

Department initiated the Administrative Complaint against

Petitioner.

2/ An answer is permitted, but not required, under Florida

Administrative Code Rule 28 - 106.203.

3/ Compare section 57.111(4)(b)2., providing that application for

attorney s ' fees must be made within 60 days after the small

business party bec omes a prevailing party.

4/ The rule in Ganz might be understood to distinguish between

statutes that provide entitlement to fees because of the inherent

nature of the underlying claim or defense, in which the basis for

fees is known from the outset, an d statutes that provide

entitlement to fees based on some event that occurs during the

cause of action, which cannot be anticipated. Advanced

Chiropractic & Rehab. Ctr. v. United Auto. Ins. Co. , 140 So. 3d

529, 536 (Fla. 2014). Section 57.105 provides fe es in both

situations.

5/ See § 57.105(3)(c), Fla. Stat.; Waddington v. Baptist Med.

Ctr. of the Beaches, Inc. , 78 So. 3d 114, 117 (Fla. 1st DCA

2012)(fees awarded under section 57.105(1)(b) must be paid in

full by offending party's counsel, if the part y is represented).

COPIES FURNISHED:

John B. Fricke, Jr., Esquire

Jay Patrick Reynolds, Esquire

Corynn Colleen Gasbarro, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

(eServed)

Monic a Felder Rodriguez, Esquire

Dresnick and Rodriguez, P.A.

7301 Wiles Road , Suite 107

Coral Springs, Florida 33067

(eServed)

Nichole C. Geary, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1701

(eServed)

John H. Armstrong, M.D., F.A.C.S.

State Surgeon General

Department of Health

4052 Bald Cypress Way, Bin A - 00

Tallahassee, Florida 32399 - 1701

(eServed)

Andre Ourso, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way, Bin C - 03

Tallahassee, Florida 32399 - 3253

(eServed)

Edward A. Tellechea, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

(eServed)

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 administrative appeal w ith the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

of the order to be reviewed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appel late district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.