18-003899PL Department Of Health, Board Of Medicine vs. Claudia Patricia Orozco-Fandino, E.O. Status: Closed Recommended Order on Thursday, April 18, 2019.

Summary: Petitioner failed to prove by clear and convincing evidence that Respondent performed cosmetic surgery when her license was confined to electrology.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MEDICINE,

Petitioner,

vs. Case No. 18 - 3899PL

CLAUDIA PATRICIA OROZCO - FANDINO,

E.O.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On November 6 and 7, 2018, a hearing was held via

teleconference from sites in Tallahassee and Tampa, Florida ,

before R. Bruce McKibben, an Administrative Law Judge (ÐALJÑ)

assigned by the Division of Administrative Hearings (ÐDOAHÑ).

For reasons explai ned in the Preliminary Statement below, this

Recommended Order was entered by ALJ Lawrence P. Stevenson.

APPEARANCES

For Petitioner: Barbara L. Davis, Esquire

Cynthia Elizabeth Nash - Early, Esquire

Christopher R. Dierlam, E squire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

For Respondent: Dale R. Sisco, Esquire

Sisco - Law

1110 North Florida Avenue

Tampa, Florida 33602

STATEMENT OF THE ISSUE S

The issue s to be determined are whether Respondent violated

section 478.52(1)(m), Florida Statutes (2017), 1/ by accepting and

performing professional responsibilities that she knew or had

reason to know she was not competent to perform ; and, if so,

what penalty should be imposed for the violations proven.

PRELIMINARY STATEMENT

On April 20, 2018, Petitioner, Department of Health (the

ÐDepartmentÑ), filed a two - count Administrative Complaint

against Respondent, Claudia Patricia Orozco - Fandino, E .O.

Co unt I alleged that Respondent violat ed section 478.52(1)(m) by

performing cosmetic procedures such as liposuction, Brazilian

Butt Lifts, fat transfers or fat grafting, vampire lifts, plasma

injections, and/or other invasive/surgical medical procedures,

on one or more patients. Count II alleged that Respondent

violated section 456.072(1)(a), Florida Statutes (2017), 2/ by

making misleading, deceptive, or fraudulent representations in

or related to the practice of her profession, electrology.

The Administrati ve Complaint makes the following factual

allegations:

5. From in or about June 2014 to in or

about September 2017 (treatment period),

Respondent represented to one or more

patients that she was a licensed physician

and/or otherwise qualified to perform

co smetic procedures in the State of Florida.

6. During the treatment period, Respondent

performed cosmetic procedures such as

liposuction, Brazilian Butt Lifts, fat

transfers or fat grafting, vampire lifts,

plasma injections, and/or other

invasive/surgica l medical procedures, on one

or more patients.

The Administrative Complaint identifies no specific

patients and gives no specific dates when the illicit procedures

were allegedly performed. Respondent did not move to dismiss or

require amendment of the A dministrative Complaint. From the

Amended Joint Pre - h earing Stipulation filed on October 26, 2018,

it appears that the parties came to agree on a roster of eight

patients whose treatment was at issue. This list was

subsequently winnowed to the three pati ents who testified at the

final hearing.

On May 18, 2018, Respondent filed an Election of Rights in

which she contested th e factual allegations of the

Administrative Complaint and requested a formal administrative

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

Statutes. On July 26, 2018, the Department forwarded the case

to DOAH for assignment of an ALJ and the conduct of a formal

administrative hearing.

The case was assigned to ALJ R. Bruce McKibben, who set the

hearing for October 3 and 4 , 2018. On September 26, 2018, the

parties filed a joint motion to continue the final hearing,

citing their difficulty in agreeing to the terms of a pre -

hearing stipulation and the need to schedule depositions of

critical witnesses. By Order dated Septem ber 27, 2018, ALJ

McKibben denied the joint motion, finding that the partiesÓ

failure to timely conduct discovery did not constitute good

cause for a continuance.

On September 28, 2018, the Department filed a motion for

reconsideration of the Order denying continuance, noting the

DepartmentÓs various efforts to obtain discovery from Respondent

during the pendency of the case. By Order dated October 1,

2018, ALJ McKibben denied the DepartmentÓs motion. ALJ McKibben

noted that, under Florida Administrative Code R ule 28 - 106.210, a

litigant seeking a continuance less than five days prior to the

scheduled hearing must demonstrate the existence of an

emergency, and that the Department had failed to meet the ruleÓs

requirement.

The final hearing commenced as sche duled on October 3,

2018. However, based on facts elicited at the outset of the

hearing, ALJ McKibben determined that a continuance was

warranted. By Order dated October 4, 2018, the hearing was

rescheduled for November 6 and 7, 2018.

On October 24, 2018 , the Department filed a notice of

dismissal in which it dismissed Count II of the Administrative

Complaint and stated its intention to pursue only Count I of the

Administrative Complaint.

On October 26, 2018, the parties filed an Amended Joint

Pre - h earing Stipulation, which included facts for which the

parties stated no evidence would be required at hearing. Where

relevant, those facts have been incorporated into this

Recommended Order.

The final hearing convened on November 6, 2018, and

concluded on Nove mber 7, 2018. At the hearing, the Department

presented the testimony of Patients N.M., R.C., and K.H., and of

Frank Steig, M.D., accepted as an expert in plastic and

reconstructive surgery. The DepartmentÓs Exhibits 5, 6, 7, 9,

and 11 were admitted into evidence. Respondent presented the

testimony of Amina Edathodu, M.D., and offered the DepartmentÓs

Exhibit 12, the deposition testimony of Mark Kantzler, M.D., as

part of her case - in - chief. In addition to the DepartmentÓs

Exhibit 12, Respondent offered h er Exhibits 14 - 6, 14 - 26, 14 - 40,

14 - 54, and 14 - 57, all of which were admitted into evidence.

At the hearing, the Department objected to the presentation

of Dr. EdathoduÓs testimony because it had been unable to serve

her for deposition prior to the hearing. ALJ McKibben allowed

the testimony but also held the record open until December 31,

2018, to allow the Department to question Dr. Edathodu about her

whereabouts on the dates of attempted service and to depose the

investigators who attempted to serve Dr. Edathodu, so that both

parties could argue in their proposed recommended orders whether

her testimony should be stricken.

On November 7, 2018, ALJ McKibben entered an Order Placing

Case in Abeyance that stated as follows:

The parties have entered into a pr oposed

settlement of this matter, but the proposal

must be approved by the Board of Medicine,

which meets next in February 2019. The

parties are to notify DOAH within 10 days

after the Board of Medicine meeting as to

the status of the settlement. If the

settlement proposal is approved, the file in

this case will be closed and jurisdiction

released to the Department of Health. If

the settlement is not approved, the parties

will have 20 days after the conclusion of

the Board of Medicine meeting to submit

p roposed recommended orders to DOAH. A

recommended order will be entered within

30 days thereafter.

At the conclusion of the final hearing, the parties stated

that they had entered into a proposed settlement. The parties

understood that ALJ McKibben was retiring from DOAH as of

December 31, 2018. ALJ McKibben made certain the parties

understood that if the settlement agreement did not come to

fruition, then the r ecommended o rder in this case would be

written by another ALJ. As events transpired, the se ttlement

agreement was not finalized. The undersigned was assigned to

review the complete record of the case and write this

Recommended Order.

On January 10, 2019, the Department filed as supplemental

exhibits the deposition testimony of William DeGroot a nd

Patricia Gold, the two Department employees who attempted to

serve Dr. Edathodu with subpoenas to appear for deposition.

After reviewing the deposition transcripts, the undersigned

finds the Department has not provided sufficient grounds for

striking t he testimony of Dr. Edathodu.

The two - volume Transcript of the hearing was filed with

DOAH on December 14, 2018. By Order dated February 5, 2019, the

undersigned approved the partiesÓ agreement to file their

p roposed r ecommended o rders by th e close of b usiness on

February 28, 2019. Both parties timely filed Proposed

Recommended Orders, which have been carefully considered in the

preparation of this Recommended Order.

Unless specifically noted otherwise, all references to the

Florida Statutes are to the 2017 edition.

FINDING S OF FACT

1. The Department is the state agency charged with the

licensing and regulation of electrolysis pursuant to section

20.43 and chapters 456 and 458, Florida Statutes.

2. At all times material to the Administrative Complaint,

Respondent has been licensed as an electrologist in the State of

Florida, having been issued license number EO2650.

3. Respondent is also licensed by the State of Florida as

an acupuncturist, license number AP 1378. Respondent is a

certified surgical as sistant, having obtained certification

through the American Board of Surgical Assistants.

4. Documents in the record indicate that in 1998,

Respondent completed medical school at Universidad Libre in

Barranquilla, Columbia. However, Respondent is not a licensed

medical doctor in the State of Florida.

5. RespondentÓs address of record is 8210 West Waters

Avenue, Tampa, Florida 33615.

6. At all times material to the Administrative Complaint,

Respondent owned and operated Orozco Medical Center (ÐOMCÑ),

l ocated at 8210 West Waters Avenue, Tampa, Florida 33615.

Patient N.M.

7. Patient N.M. is a female born in 1964. She testified

that she was familiar with OMC because she had therapy there

following a car accident in 2000.

8. N.M. presented to OMC in ear ly 2015 for consultation

regarding a liposuction with fat transfer procedure, commonly

called a ÐBrazilian Butt LiftÑ (ÐBBLÑ). Fat is taken from one

part of the body and reinjected into the buttocks.

9. N.M. testified that Blanca Cabrera, who performs

ma ssage s at OMC, recommended a ÐdoctorÑ at OMC named Marlon

Barcelo to perform her BBL. Marlon Barcelo worked at OMC as a

surgical assistant but was not a medical doctor.

10. N.M. testified that she believed Mr. Barcelo would

perform her BBL procedure an d that she never knew that he was

not a physician. Ms. Cabrera told her that Mr. Barcelo had been

a very good doctor in Columbia.

11. N.M. testified that at her initial consultation at OMC

regarding the BBL, she met exclusively with Respondent, who

showe d her where the fat would be removed and where it would be

injected. N.M. testified that she met with Respondent three

times before her surgery.

12. N.M. testified that, at the conclusion of the initial

consultation, she was given an appointment card d irecting her to

return to OMC on January 13, 2015, for an electrocardiogram, lab

work, and the medication she would be expected to take before

the procedure.

13. The medical records indicate that N.M. was confused as

to the dates. It appears from the rec ords that her initial

consultation was on January 13, 2015, that her EKG and lab work

were performed on March 2, 2015, and the date of her surgery was

March 13, 2015.

14. N.M. testified that each time she visited OMC prior to

the surgery, she met only wit h Respondent, who examined her and

explained the procedure to her with no other persons present.

15. N.M. testified that on the date of the surgery, her

daughter drove her to OMC. After she checked in at the front

desk, N.M. was taken to an exam room and told to change into a

hospital gown. Respondent then marked her body to identify the

locations where fat was to be removed.

16. Respondent gave N.M. a medication to calm her prior to

the procedure. The medical record indicates that N.M.Ós pre -

operative medications included Keflex (cephalexin, an

antibiotic), lorazepam (a sedative and anti - anxiety medication) ,

and Benadryl (diphenhydramine, an antihistamine with sedative

properties). N.M. described the medicationÓs effect as Ðlike a

Xanax.Ñ N.M. testif ied that the medication relaxed her but did

not affect her recollection of the procedure. She testified

that she was awake throughout the surgery and was allowed to use

her cell phone during the procedure.

17. N.M. did not recall meeting Dr. Mark Kantzle r and

denied ever meeting Dr. Amina E dathodu. She believed that

Mr. Barcelo was going to perform the surgery, though up until

the morning of the procedure she had not met him.

18. N.M. was taken to the surgical room and placed on a

table. She stated tha t there was a drape that blocked her view

of the surgical area, but that it was low enough to allow her to

see everyone in the room. She could see two men, Mr. Barcelo

and someone identified as ÐAbel,Ñ and Ms. Cabrera, the massage

therapist, who appeared to be assisting. N.M. testified that

Mr. Barcelo performed the liposuction. She testified that

everyone in the room was wearing surgical gowns and gloves but

no surgical masks.

19. N.M. testified that during the liposuction procedure,

Respondent told he r that she would be performing the fat

injections because she was very good at that procedure.

20. N.M. testified that after the liposuction was

completed, Mr. Barcelo called on Respondent to perform the fat

injections into her buttocks. N.M. stated that she saw

Respondent walk into the room carrying a syringe. During this

portion of the procedure N.M was positioned on her stomach but

stated that she knew from the conversation in the room that it

was Respondent who was placing the injections into her but tocks.

21. Upon conclusion of the procedure, Respondent gave N.M.

pain medication for post - surgical pain. N.M. returned to OMC

for a follow - up visit regarding the lack of drainage from her

incision. During this visit, Respondent examined N.M. and gave

h er medication to reduce the swelling she was experiencing.

22. Dr. Edathodu testified that she has been a licensed

physician in the State of Florida for over 25 years. From 2015

through 2017, she worked as a contract physician at OMC and

acted as medic al director for the facility. Dr. Edathodu

developed the protocols for OMCÓs tumescent liposuction

procedures and ensured they were followed.

23. Dr. Edathodu remembered N.M. as a patient who had

undergone previous surgeries and presented for further

lip osuction and fat transfer. Dr. Edathodu testified that she

performed the liposuction procedure on N.M.

24. Dr. EdathoduÓs signature is on the cosmetic surgery

consent form that was also signed by N.M. on March 3, 2015. The

ÐLiposuction and Autologous Fa t TransferÑ consent form signed by

N.M. on March 3, 2015, specifically names Dr. Edathodu as the

surgeon who will perform the procedure and was signed by

Dr. Edathodu.

25. Dr. Edathodu testified that she reviewed the procedure

with N.M., discussing the risks and benefits. Dr. Edathodu does

not speak Spanish and uses Respondent to translate with Spanish

speakers such as N.M. She identified herself to N.M. as a

surgeon through RespondentÓs translation. Dr. Edathodu spoke to

N.M. about having realistic e xpectations and cautioned her that

she may not obtain an optimal result because of her previous

procedures.

26. Dr. Edathodu testified that, aside from her, the

persons in the surgical theater were three surgical assistants:

Respondent, Mr. Barcelo, and P avel Cabanes. It is found that

Mr. Cabanes must have been the ÐAbelÑ referred to by N.M.

27. Dr. Edathodu testified that during the surgery, there

is a drape between the surgical field and the patientÓs face and

head, to prevent the patient from being di sturbed by the sight

of the procedure. The drape is made of disposable paper and is

about five feet high. When performing the surgery, Dr. Edathodu

is unable to see the patientÓs face and the patient is unable to

see past the drape.

28. Dr. Edathodu tes tified that she performed the entire

surgical procedure on N.M. Dr. Edathodu made the site markings

on N.M. while Respondent took photographs. Respondent did not

perform any part of the surgical procedure. Respondent

performed none of the fat transfer o n N.M. Respondent did

nothing other than what Dr. Edathodu specifically directed her

to do.

29. Dr. Edathodu testified that she met with N.M. on four

or five occasions after the surgery.

30. Dr. EdathoduÓs testimony, as supported by the medical

records, is credited. Perhaps because of her inability to speak

English, N.M. appeared confused and inconsistent in her

testimony, at least as it appeared in the Transcript. N.M.Ós

credibility was strained by her uncertainty as to dates and

medications. She off ered improbable details, such as the lack

of coverage by the surgical drape and the failure of the

surgical team to wear masks. N.M. was certain that Respondent

was performing the fat injection , even though N.M. could not see

what was happening. Though N .M. testified that she was awake

and alert during the procedure, the undersigned cannot disregard

that she had been given a medication that she likened to Xanax,

most likely the lorazepam. The undersigned hesitates to rely

upon N.M.Ós disjointed testimony where it conflicts with the

straightforward and credible testimony of Dr. Edathodu. 3/

31. Based on the foregoing findings of fact, it is found

that the Department has failed to establish by clear and

convincing evidence that Respondent performed an

inva sive/surgical medical procedure on Patient N.M.

Patient R.C.

32. Patient R.C. is a female born in 1988. At the time of

the hearing, she worked as a claims specialist. She testified

that a friend from her previous job at HealthPlan Services

referred her to OMC for a consultation. She first went to OMC

on or about June 6, 2016.

33. R.C. testified that this initial consultation was with

Respondent. She told Respondent that she wanted liposuction on

her back and waist and wanted the fat transferred to he r

buttocks. They discussed the procedure and pricing. From that

point until the day of the surgery, R.C. went to OMC only to

drop off periodic payments for the surgery. Her only contact

was with the person at the front desk. She testified that she

did not see Respondent again until the day of her surgery.

34. R.C.Ós surgery was scheduled for August 5, 2016. R.C.

testified that she was dropped off at OMC by her childrenÓs

father. She went in and met Respondent and a few workers in the

front of the fac ility. When she went to the back to prepare for

the procedure, she met a man wearing scrubs whom she had never

seen before. Two other staff persons were present, but R.C.

stated she only talked with the one staff person who spoke

English.

35. R.C. testi fied that Respondent and the man in scrubs

marked her body for the surgery. She believed that Respondent

was going to perform the surgery. R.C. stated that she was not

familiar with Dr. Edathodu.

36. R.C. stated that she filled out the consent forms o n

August 5, 2016. An assistant gave her medication, saying it

would calm her down. R.C. was not told the name of the

medication, but testified that she took a blue pill and half of

a white pill. The medical records indicate she was given Ativan

(a brand name for lorazepam) and Benadryl. R.C. testified that

the medications made her drowsy.

37. R.C. was assisted to the room where the surgery would

be performed. R.C. testified that she was placed on her

stomach, face down. Everyone in the room was weari ng a surgical

mask. In the room were Respondent, the man in the scrubs, and

two assistants.

38. R.C. stated that she was awake during the procedure,

but was drowsy and did not recall much about it. She could hear

RespondentÓs voice and the noise of th e liposuction machine.

She could not see who actually performed the procedure. After

it was over, one of the assistants phoned R.C.Ós driver and

helped R.C. get up and walk. Respondent handed her a bag

containing pills that R.C. believed were antibiotic s. She

received post - operative instructions.

39. R.C. testified that she returned to OMC for a follow -

up visit about a month after the surgery and met with

Respondent.

40. Dr. Edathodu testified that she performed the surgical

procedure, called Ðtume scent liposuction,Ñ on R.C. on August 5,

2016. On August 2, 2016, R.C. signed a Ðliposuction &

autologous fat transfer consentÑ form that specifically named

Dr. Edathodu as the surgeon who would perform the sur gery.

Dr. Edathodu ordered, reviewed, and si gned R.C.Ós lab results.

41. Dr. Edathodu met with R.C. prior to the procedure and

completed a Ðpre - operative clearanceÑ form to document R.C.Ós

fitness and willingness to go through the surgery. Both R.C.

and Dr. Edathodu signed the pre - operative clea rance form.

Dr. Edathodu testified that she met with R.C. three or four

times post - surgery. As in the case of N.M., all of the medical

records support the ver sion of events described by

Dr. Edathodu. 4/

42. Dr. EdathoduÓs testimony, as supported by the medical

records, is credited. R.C. frankly conceded that she did not

remember much about the surgery and could not see who performed

it. Dr. Edathodu clearly and credibly recalled performing the

procedure. The greater weight of evidence supports the fin ding

that Dr. Edathodu performed the surgery, assisted by Respondent

and Mr. Barcelo. The evidence could not sustain a finding that

Respondent performed a surgical procedure on R.C.

43. R.C. was a more credible witness than N.M., and her

testimony on som e of the details regarding her consultations and

pre - operative events was persuasive. However, it must be kept

in mind that the only relevant factual question is whether

Respondent performed an Ðinvasive/surgical medical procedureÑ on

R.C. The evidence o n this question is not persuasive.

44. Based on the foregoing findings of fact, it is found

that the Department has failed to establish by clear and

convincing evidence that Respondent performed an

invasive/surgical medical procedure on Patient R.C.

Pati ent K.H.

45. Patient K.H. is a female born in 1989. She learned of

OMC from a friend at work. She first came into OMC for a

consultation regarding a liposuction and fat transfer on

November 29, 2016. K.H. testified that she met only with

Respondent at this initial consultation. On November 29, 2016,

K.H. signed an Ðinformation ce rtificationÑ form accepting

Dr. Mark Kantzler as the physician who would be in charge of her

liposuction procedure.

46. K.H. came back to O M C on January 9, 2017, to make a

$ 500 deposit and to schedule the surgery. The procedure was

scheduled for February 11, 2017. Again, K.H. testified that she

met alone with Respondent, who told her that she would need to

come in a couple of day s before the surgery to get medication

and a list of things she would need for post - operative care.

47. K.H. testified that she believed that Respondent was a

physician and that she would be performing the liposuction

procedure.

48. The Ðliposuction and autologous fat transfer consentÑ

form that K. H. signed on February 9, 2017, authorize d

Dr. Kantzler to perform the liposuction and fat transfer

procedure.

49. The Ðsurgery certificationÑ form that K.H. signed on

February 9, 2017, indicate d that Dr. Kantzler reviewed the

entire medical file with her before performing the procedure.

50. On February 11, 2017, K.H. was driven to OMC by her

mother. Shortly after arriving, K.H. noted the presence of a

tall man with white hair and blue eyes.

51. An OMC assistant escorted K.H. to a room with a bed

and a chair. Respondent came in to the room and marked K.H. for

surgery. Respondent then called in the tall man with white hair

and blue eyes, who looked at the surgical markings and then

asked K.H. some questions about her stretch marks. During her

direct e xamination, K.H. testified that she was not given the

manÓs name.

52. During cross - examination, K.H. was forced to concede

that during an August 2017 interview, she told Department

investigators that she had been introduced to the tall man with

white hair and blue eyes and that his name was Dr. Mark

Kantzler.

53. K.H. testified that Respondent gave her a pill to take

before surgery. She was taken to the surgical suite and was

placed on the table. K.H. testified that the surgical drape

prevented her from seeing the surgical area. The only people

she had noted in the room were Respondent and ÐClaudia,Ñ a woman

K.H. recognized as a massage therapist at OMC. She could not be

certain whether or not Dr. Kantzler was in the room.

54. K.H. testified that she was awake during the surgery.

She stated that she was in pain during the surgery and

complained, in Spanish, to Respondent. K.H. stated that

Respondent told her she had Ða little stubborn fatÑ and

continued the procedure without doing anything to allevia te her

pain. K.H. testified that all conversation during the procedure

was in Spanish. She heard no English being spoken.

55. K.H. confirmed that Dr. Kantzler was the physician who

signed the letter requesting that she be excused from work

immediately a fter her surgery.

56. Dr. Kantzler testified that he had no specific

recollection of K.H. or of her procedure. He stated that he

worked on a contract basis with OMC for about three years. He

came in about once a week to perform liposuction procedures,

c onforming to the protocols established by Dr. Edathodu. He saw

the patients only briefly before their procedures, relying on

Respondent to perform the patient consultations and Dr. Edathodu

to prescribe the pre - operative tests in her role as medical

direc tor. He was paid by the procedure.

57. Dr. Kantzler testified that he does not speak Spanish,

but that his surgical assistants, Respondent and Mr. Barcelo,

would often converse in Spanish during surgery.

58. Dr. Kantzler reviewed the medical records and

confirmed that he signed the documents and performed the surgery

on K.H.:

Q. Is there any doubt in your mind about

whether or not you performed these

procedures?

A. Not when IÓm looking at the files, no.

Q. And if you had not done the procedures,

wou ld you have signed off on the

documentation?

A. I wouldnÓt have had them to sign. No.

59. Dr. KantzlerÓs lack of a clear recollection

distinguishes this procedure from those involving Dr. Edathodu.

However, an offsetting distinguishing factor is that K.H. had a

clear recollection of seeing and speaking with Dr. Kantzler at

OMC on the morning of her surgery. She did not see him enter

the surgical suite or hear him speak during the procedure, but

she was unable to say that he was not in the room. The medical

record is replete with indications that Dr. Kantzler performed

the liposuction and fat transfer procedure on K.H.

60. Dr. Kantzler testified that he voluntarily

relinquished his Florida medical license in 2017 Ðfor my own

reasons not relevant to t his [case].Ñ The DepartmentÓs Proposed

Recommended Order suggests that this relinquishment was Ðin

response to or in anticipation of disciplinary proceedings.Ñ

There is no record evidence to support the DepartmentÓs

suggestion , and it is disregarded here .

61. Based on the foregoing findings of fact, the

Department has failed to establish by clear and convincing

evidence that Respondent performed an invasive/surgical medical

procedure on Patient K.H.

CONCLUSIONS OF LAW

62. The Division of Administra tive Hearings has

jurisdiction over the subject matter and the parties to this

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

Statutes (2017).

63. This is a proceeding whereby the Department seeks to

impose discipline against RespondentÓs lice nse to practice

electrology. The Department has the burden to prove the

allegations in the Administrative Complaint by clear and

convincing evidence. DepÓt of Banking & Fin. v. Osborne Stern

and Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 595

So. 2d 292 (Fla. 1987).

64. In Evans Packing Co. v. Department of Agriculture and

Consumer Services. , 550 So. 2d 112, 116 n.5 (Fla. 1st DCA 1989),

the Court defined clear and convincing evidence as follows:

[C]lear and convincing evidence requires

that th e evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

evidence must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of suc h weight that it produces in the

mind of the trier of fact the firm belief of

conviction, without hesitancy, as to the

truth of the allegations sought to be

established. Slomowitz v. Walker , 429 So.

2d 797, 800 (Fla. 4th DCA 1983).

65. Judge Sharp, in he r dissenting opinion in Walker v.

Florida Department of Business and Professional Regulation , 705

So. 2d 652, 655 (Fla. 5th DCA 1998)(Sharp, J., dissenting),

reviewed recent pronouncements on clear and convincing evidence:

Clear and convincing evidence req uires more

proof than preponderance of evidence, but

less than beyond a reasonable doubt. In re

Inquiry Concerning a Judge re Graziano , 696

So. 2d 744 (Fla. 1997). It is an

intermediate level of proof that entails

both qualitative and quantative [sic]

el ements. In re Adoption of Baby E.A.W. ,

658 So. 2d 961, 967 (Fla. 1995), cert.

denied , 516 U.S. 1051, 116 S. Ct. 719, 133

L.Ed.2d 672 (1996). The sum total of

evidence must be sufficient to convince the

trier of fact without any hesitancy. Id.

It must p roduce in the mind of the trier of

fact a firm belief or conviction as to the

truth of the allegations sought to be

established. Inquiry Concerning Davey , 645

So. 2d 398, 404 (Fla. 1994).

66. This burden of proof may be met where the evidence is

in conf lict; however, Ðit seems to preclude evidence that is

ambiguous.Ñ Westinghouse Elec. Corp. v. Shuler Bros. , 590 So.

2d 986, 988 (Fla. 1st DCA 1991).

67. Count I of the Administrative Complaint alleges that

Respondent violated section 478.52(1)(m) by perf orming cosmetic

procedures , such as liposuction, BBL s , fat transfers or fat

grafting, vampire lifts, plasma injections, and/or other

invasive/surgical medical procedures, on one or more patients.

Section 478.52(1)(m) provides:

(1) The following acts cons titute grounds

for denial of a license or disciplinary

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

* * *

(m) Accepting and performing professional

responsibilities which the licensee knows,

or has reason to know, she or he is not

competent to perform.

68. There is no question that the acts alleged in the

Administrative Complaint would constitute violations of section

478.52(1)(m). RespondentÓs licensure is limited to

Ðelectrolysis or electrology,Ñ defined by section 478.42(5) as :

T he permanent removal of h air by destroying

the hair - producing cells of the skin and

vascular system, using equipment and devices

approved by the board which have been

cleared by and registered with the United

States Food and Drug Administration and that

are used pursuant to protoc ols approved by

the board.

69. However, the Department has failed to carry its

burden. Two physicians testified in a straightforward manner

that they performed the surgeries in question. Their testimony

was fully supported by the medical records offere d into evidence

by the Department.

70. The DepartmentÓs case is contingent upon the

undersigned finding that the physicians were lying and the

medical records were falsified. The undersigned would be fully

willing to make this finding if the testimony of the three

patients had been at all convincing. Their testimony did not

appear to be deliberately untruthful; it was simply muddled and

confused.

71. That some of this confusion may be laid at the feet of

Respondent is not in doubt. The patients app eared unsure of who

would perform their surgeries or what medications they were

receiving. Two of the patients spoke little or no English,

whereas the physicians spoke only English. This situation made

Respondent the sole conduit for patient information, and she

apparently left these patient s with the idea that she or

Mr. Barcelo would be performing their surgeries.

72. Nonetheless, the record failed to demonstrate, even by

a preponderance of the evidence, that Respondent actually

performed the surgeries in question. Therefore, Count I of the

Administrative Complaint should be dismissed.

73. As noted in the Preliminary Statement, the Department

has already dismissed Count II of the Administrative Complaint.

RECOMMENDATION

Based on the foregoing Findi ngs of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Health enter a

f inal o rder dismissing Count I of the Administrative Complaint

against Respondent, Claudia Patricia Orozco - Fandino, E .O.

DONE AND ENTERED this 1 8 th day of April , 2 019 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fa x Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 8 th day of April , 2019 .

ENDNOTE S

1/ Section 478.52 has not been amended since 2005, well before

any of the events alleged in the Adminis trative Complaint.

2/ The substance of section 456.072(1)(a) has been effective

since at least 1997. See section 69, chapter 97 - 261, Laws of

Florida, which enacted section 455.624, Florida Statutes (1997),

subsection (1)(a) of which contained the same l anguage as current

section 456.072(1)(a).

3/ It is again noted that the undersigned did not have the

benefit of seeing either witness testify in person. These

findings are based solely on the written record of the case.

4/ The Department did not conte st the veracity or accuracy of

the medical records, which the Department itself entered into the

record. When counsel for Respondent showed selected records to

the patients, they invariably agreed with their accuracy. The

physicians confirmed their corre ctness. All these factors lead

to the conclusion that the medical records for these patients are

genuine and accurate.

COPIES FURNISHED:

Barbara L. Davis, Esquire

Florida Department of Health

Office of the General Counsel

Bin C - 65

4052 Bald Cypress W ay

Tallahassee, Florida 32399

(eServed)

Dale R. Sisco, Esquire

Sisco - Law

1110 North Florida Avenue

Tampa, Florida 33602

(eServed)

Cynthia Elizabeth Nash - Early, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

(eServed)

Christopher R. Dierlam, Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Claudia Kemp, JD, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way, Bin - C03

Tallahassee, Florida 32399 - 3253

(eServed)

Louise Wilhite - St. Laurent, General Counsel

Department of Health

4052 Bald Cypress Way, Bin - C 65

Tallahassee, Florida 32399 - 1703

(eServed)

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.