82-000540 Board Of Medical Examiners vs. Jose R. Suarez Status: Closed Recommended Order on Tuesday, October 5, 1982.

Summary: Respondent charged with aiding unlicensed person to practice medicine, fraud and misrepresentation. No intent to deceive/harm proven; dismiss.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, Board of Medical )

Examiners, )

)

Petitioner, )

)

vs. ) CASE NO. 82-540

)

JOSE R. SUAREZ, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, Sharyn L. Smith, held a formal hearing in this case

on June 14, 1982, in Miami, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Joseph W. Lawrence II, Esquire

Chief Attorney

Department of Professional Regulation

130 North Monroe Street

Tallahassee, Florida 32301

For Respondent: W. K. Chester, Esquire

810 Northeast 80th Street

Miami, Florida 33138

The issue for determination in this case is whether disciplinary action

should be taken against the Respondent's license for allegedly aiding another in

obtaining a license to practice medicine through fraudulent misrepresentation.

INTRODUCTION

By Four Count Administrative Complaint dated January 22, 1982, the

Respondent Suarez was charged with violating Chapter 458, Florida Statutes.

Specifically, it was charged in Count One that on or about January 29, 1975, the

Respondent Suarez swore and affirmed that to his personal knowledge, Olga

Lourdes Romani, an applicant for Medical licensure, was a graduate of the School

of Medicine of Havana, Cuba and that she lawfully practiced medicine in Cuba

from 1954 through 1961. It was further alleged that since the Respondent Suarez

had no personal knowledge of the truth and veracity of his statement concerning

Ms. Romani when he executed the sworn affidavit, he violated Section

458.1201(1)(b), Florida Statutes (1973), modified and carried forward as Section

458.331(1)(a), Florida Statutes (1981), by making misleading, deceptive, untrue

or fraudulent representations in the practice of medicine and practicing fraud

or deceit in obtaining a license to practice medicine. Count Two charged a

violation of Section 458.1201(1)(j), Florida Statutes (1973), modified and

carried forward as Section 45.331(1)(g), Florida Statutes (1981), by knowingly

aiding, assisting, procuring or advising any unlicensed person to practice

medicine contrary to Chapter 458, Florida Statutes. Count Three accused the

Respondent of violating Section 458.1201(1)(m), Florida Statutes (1974), by

engaging in immoral or unprofessional conduct. Additionally, since the

Respondent was placed on probation by Order of the Board of Medical Examiners on

March 17, 1981, Count Four alleged that the Respondent's actions violated

Section 458.331(1)(h), Florida Statutes, by his failure to perform a statutory

or legal obligation placed upon a licensed physician.

In support of the allegations of the Administrative Complaint, the

Petitioner presented the testimony of Brooks Harle and John McDougald and two

affidavits of the Respondent Suarez. Petitioner Exhibits 1-6 were offered and

received into evidence. The Respondent Suarez testified on his own behalf and

Respondent's Exhibit 1 was admitted into evidence.

A Proposed Recommended Order has been submitted by the Petitioner. To the

extent that the proposed findings submitted by Petitioner are not reflected in

this Order, they are rejected as being either not supported by admissible

evidence or as being irrelevant to the issues determined here.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, the Respondent Jose Raul

Suarez, held a Medical license to practice medicine from the State of Florida,

Board of Medical Examiners.

2. The Respondent Suarez was born in Tampa, Florida, in 1928 and attended

the University of Florida from 1945 through February 1950, receiving a Bachelor

of Science degree on February 5, 1950. Respondent Suarez then attended the

University of Havana, Cuba, from September 13, 1950 until February 15, 1956.

From April 5, 1956 through October 23, 1958, the Respondent attended the Madrid

Medical School, Spain, and then completed an internship' in Miami Beach,

Florida, from January, 1959 through January, 1960.

3. According to her application for Medical licensure filed with the

Florida Board of Medical Examiners, Olga Lourdes Romani attended the Havana

University from September, 1947 to September, 1954, and worked at the Hospital-

Caliato Garcia-Havana from 1953 through 1954. Romani stated in her application

that following a three year absence from the practice of medicine, she resumed

practice in several hospitals and clinics from 1957 through 1961. Romani

subsequently applied for Medical licensure with the Florida Board of Medical

Examiners, attaching to her application an affidavit of Respondent Suarez dated

February 5, 1975, which states as follows:

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION

BOARD OF MEDICAL EXAMINERS

305 South Andrews Avenue, Suite 801

Fort Lauderdale, Florida 33301

AFFIDAVIT

APPLICANT: ROMANI, OLGA LOURDES

I, JOSE RAUL SUAREZ,. . . do hereby swear

and affirm by my personal knowledge, that

OLGA LOURDES ROMANI, attended and graduated

from SCHOOL OF MEDICINE - HAVANA - CUBA and

did lawfully practice the profession of

medicine in Havana Cuba during the years

1954-1961.

4. The affidavit went on to set forth the fact that Dr. Suarez was

licensed to practice medicine in the State of Florida, stating his Medical

license number. (See Petitioner's Exhibit No. 3)

5. Based upon the application for Medical licensure with attachments, Olga

Lourdes Romani became licensed as a Medical doctor in the State of Florida in

1976.

6. Respondent provided an affidavit on April 17, 1981 to Department of

Professional Regulation investigators during the course of the 1981

investigation of the Medical credentials of Olga Lourdes Romani. In the

affidavit he stated as follows:

I am supplying this affidavit at the request

of J.P. McDougald investigator for the Dept.

of Professional Regulation. I have no

personal knowledge when or if she graduated

from the University of Havana Medical School

(she being Olga Lourdes Romani). I signed

affidavit 1-29-75 for Olga L. Romani at her

request because she told me that she had

graduated from the University of Havana

Medical School and had practiced medicine

previously in Cuba. I think it's possible

(at this time) that she may have practiced

medicine 1954-1961 but I do not recall for

sure that she had her license or graduated

from the above University. To my present

knowledge the above Affidavit was not

notarized in my presence, it was apparently

notarized February 5, 1975 which was several

days after my affidavit. The above statement

I have read and is true to the best of my

knowledge at this moment. (See Petitioner's

Exhibit No. 5)

7. In response to the Administrative Complaint, Respondent sent another

affidavit dated February 5, 1982, to the prosecutor for the Department of

Professional Regulation, stating as follows:

This will certify, consistent with my

Affidavit of 1975, that to my personal

knowledge Dr. Olga L. Romani attended and

graduated from the University of Havana

School of Medicine and practiced medicine

in Havana during 1954 to 1961.

The above statement appeared in my Affidavit

of 1975 and is hereby reiterated based on my

personal knowledge that Dr. Romani worked at

the Havana University Hospital as a

physician during the years, 1954, 1955 and

1956; was addressed as a physician during

that time, and was regarded in the University

Hospital by everyone, including me, as a

doctor.

I wish to make absolutely clear that on

making this sworn statement with regard to

Dr. Romani, as when I made the 1975

affidavit, the words "to my personal

knowledge" refer to that personal knowledge

which I had of Dr. Romani's activities in

the Medical profession in Havana during the

time that I knew her, and under no concept

did I intent to imply that I had actually

seen her diploma.

In 1956 I left Cuba to continue my studies in

Spain which I completed in 1958, returning to

Cuba. Since Dr. Romani, to my personal

knowledge, was practicing medicine in Havana

in 1954, 1955, and 1956 up to the time that I

left for Spain, I had no information that her

professional status varied, it was certainly

logical to assume that she would have

continued practicing medicine until the time

that she came to this country. Therefore,

based on personal knowledge, Dr. Romani

practiced medicine until she came to this

country.

In 1981, appearing before the Department of

Professional Regulation in Miami, as part of

a customary investigation into my activities

while under suspension (October 1980 to

October 1981), a private investigator for

the Department, Mr. J.P. McDougald, showed

me the Affidavit which I had signed for Dr.

Romani in 1975. He then proceeded to

question me to determine whether I had ever

seen her diploma or graduation from the

University of Havana Medical School. To this

I replied "No" but that I had personal

knowledge that she was practicing medicine as

previously stated. Mr. McDougald stated that

this did not constitute personal knowledge

since I had not seen her diploma and that I

would have to clarify the previously written

Affidavit (1975). Then Mr. McDougald

together with Mr. Harley, an attorney

proceeded to dictate a statement which they

said would qualify more specifically my

aforementioned Affidavit. Despite my

repeated requests, Messrs. McDougald and

Harley did not allow me to insert into their

dictated verbatim statement certain important

personal remarks, as contained herein, which

would have clearly demonstrated my

nonmalicious intent at the time I signed the

1975 Affidavit, sworn by me in good faith on

the basis of the true knowledge available to

me at that time.

I again wish to emphasize that in giving Dr.

Romani my 1975 Affidavit, I acted on my true

conviction that she was a physician, based

on my personal knowledge that she had worked

as a physician in Havana, and at no time was

it my intention to misrepresent, deceive or

in any way offer false information. (See

Respondent's Exhibit No. 1)

8. At the final hearing the Respondent Suarez stated that all the

affidavits which he executed were true. (Transcript p. 89)

9. In his opening statement, counsel for Respondent admitted to the

erroneous signing of the affidavit as to the graduation from Medical school of

Olga Lourdes Romani by Dr. Suarez. (See Transcript p. 12) Dr. Suarez first met

Romani in 1954, seeing her on campus of the University Medical School dressed in

a white smock and he testified that he saw her several times on campus until

1956. He did not see Ms. Romani again or hear from her until 1975 when he

signed the affidavit on her behalf. The Respondent believed Romani to be a

doctor since he had seen her at the hospital, believed that she was practicing

in a ward at the hospital and recalled that Romani was referred to as "doctor".

10. Mr. Suarez had no personal knowledge of the practice of medicine by

Romani from 1956 through 1961 due to his not seeing her during this period of

time, she being possibly in Cuba while he was in Spain and the United States.

However, he executed the affidavit which stated Romani was practicing medicine

during this period in Cuba on his assumption that since Romani was practicing

prior to 1956, she must have been practicing subsequent to that date.

11. No evidence was presented by the Petitioner that Romani had not

graduated from Medical school and practiced medicine for five years in Cuba.

12. Respondent's license as a physician in the State of Florida is

presently on probation for a period of two years following a one year suspension

of. his license to practice medicine. Said suspension and probation resulted

from an Administrative Complaint and formal proceeding wherein it was

established that Respondent fraudulently prescribed scheduled controlled

substances in return for stolen property and monies.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has jurisdiction over the

parties and subject matter of this proceeding. See Section 120.57(1), Florida

Statutes.

14. In Counts One, Two and Three, the Department has charged the

Respondent with violating Sections 458.1201(1)(h), (j) and (m), Florida Statutes

(1974), respectively. Additionally in Count Four, the Respondent has been

charged with violating Section 458.33l(1)(h), Florida Statutes, since he was

placed on probation by Order of the Board of Medical Examiners on March 17,

1981. In pertinent part, the statutes in effect as of February 5, 1975, and as

carried forward, which the Administrative Complaint allege the Respondent

violated, read as follows:

Section 458.1201 Denial, suspension,

revocation of license; disciplinary powers.

(1) The board shall have authority to deny

an application for a license or to discipline

a physician licensed under this chapter or

any antecedent law who, after hearing, has

been adjudged unqualified or guilty of any

of the following:

* * *

(b) Making misleading, deceptive, untrue,

or fraudu1ent representations in the practice

of medicine; employing a trick or scheme in

the practice of medicine; practicing fraud

or deceit in obtaining a license to practice

medicine; or making a false or deceptive

annual registration with the board;

* * *

(j) Knowingly maintaining a professional

connection or association with any person

who is in violation of this chapter or rules

or regulations of the board or knowingly

aiding, assisting, procuring, or advising

any unlicensed person to practice medicine

contrary to this chapter or to rules and

regulations of the board;

* * *

(m) Being guilty of Immoral or unprofessional

conduct, incompetence, negligence, or willful

misconduct. Unprofessional conduct shall

include any departure from, or the failure to

conform to, the standards of acceptable and

prevailing Medical practice in his area of

expertise as determined by the board, in

which proceeding actual injury to a patient

need not be established when the same is

committed in the course of his practice,

whether committed within or without this

state;

Section 458.331 Grounds for disciplinary

action; action by the board.

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

(a) Attempting to obtain, obtaining, or

renewing a license to practice medicine by

bribery, by fraudulent misrepresentations,

or through an error of the department or

the board;

* * *

(g) Aiding, assisting, procuring, or

advising any unlicensed person to practice

medicine contrary to this chapter or to a

rule of the department or the board.

(h) Failing to perform any statutory or

legal obligation placed upon a licensed

physician.

* * *

(l) Making deceptive, untrue, or fraudulent

representations in the practice of medicine

or employing a trick or scheme in the

practice of medicine when such scheme or

trick fails to conform to the generally

prevailing standards of treatment in the

Medical community;.

15. The Petitioner urges that the Respondent Suarez violated Section

458.1201(1)(b), Florida Statutes (1973), by making fraudulent representations to

obtain a license to practice medicine. However, this statute in question,

Section 453.1201(1)(b), Florida Statutes (1973), specifically addresses the

situation where one seeks to obtain a license to practice medicine and

proscribes conduct which amounts to fraud or deceit. When Section

458.1201(1)(b) and (j) are read in para materia, it appears that Section

458.l20l(1)(b), Florida Statutes, was intended to apply when a physician obtains

his own license through fraud or deceit while Section 453.1201(1)(j), Florida

Statutes, applies when a physician knowingly assists another to obtain Medical

licensure. See Lester v. Department of Professional Regulation, 348 So.2d 923,

925 (Fla. 1st DCA 1977).

16. However, assuming arguendo, that Section 458.1201 (1)(b), Florida

Statutes, is applicable to the facts alleged in the instant case, the evidence

presented by the Petitioner Is legally insufficient to demonstrate fraud or

deceit on the part of the Respondent' Suarez. Also see Gentry v. Department of

Professional Regulation, 293 So.2d 95 (Fla. 1st DCA 1974) requiring that untrue,

misleading or deceptive statements made by a physician be willful in order to

constitute a violation of Section 458.1201(1)(b), Florida Statutes,

17. Similarly, fraud requires proof of a willful intent to deceive; it is

an intentional or deliberate act in which scienter must generally be

established. This rule is modified when one makes a statement implying

knowledge when he has no knowledge that his statement is true or false and his

statement proves to be false. In such a situation a recklessness equivalent to

fraud has been found to exist. See 37 Am Jur.2d, Fraud and Deceit at 199-206.

18. In the instant case, the representation of the Respondent Suarez

concerning Romani's practice in Cuba from 1954-1961 was based on his belief that

she was in fact a doctor practicing in Havana during this period. The basis for

this assertion was the Respondent's assumption that she was a doctor since he

saw her at a hospital where she was addressed as doctor, wore a doctor's coat

and practiced at the hospital where he saw her. Whether based on this limited

information the Respondent's assumption concerning Romani was reasonable is a

matter of conjecture. While the Respondent's assumption could be characterized

as an overstatement, it does not rise to the level of Intentional fraud or

deceit required to be demonstrated pursuant to the statute. This is especially

true where, as in this case, the representations are made by a third person

having no interest in the transaction to which the representation relates. See

37 Am Jur.2d, supra, at 208.

19. Additionally, the Department failed to demonstrate that the

Respondent's assumption concerning Romani was in error. No evidence was

introduced to prove or infer that Romani had failed to graduate from Medical

school and did not practice medicine in Cuba during the years that the

Respondent assumed she was a practicing physician. See 37 Am Jur. 2d, supra, at

283, wherein it is stated that "[I]t is a fundamental principle of law. . in

order to seek relief on a basis of fraud . . . the person seeking redress must

have been damaged, injured or harmed as a result of the asserted fraud . . . as

is often stated, he must have been misled to his hurt." In sum, what is present

in this case is a careless overstatement by the Respondent based on his possibly

erroneous assumptions concerning Romani.

20. Similarly, Section 458.1201(1)(j), Florida Statutes (1973), requires

proof that a licensed physician knowingly aided an unlicensed person to practice

medicine. As stated, supra, the record fails to demonstrate that the Respondent

knew that he was aiding an unlicensed person to practice medicine in violation

of Chapter 458, Florida Statutes. The Department's proof in this case is

essentially limited to the Respondent's allegedly inconsistent affidavits. The

affidavit which the Respondent is charged with falsifying is a document prepared

by the Department or the Board of Medical Examiners, which amounts to a fill-in-

the-blank" form. The Respondent's subsequent affidavits and hi testimony at the

final hearing establish that while the Respondent's personal knowledge regarding

Romani was limited, he signed the first affidavit based on his presumably good

faith assumption that she was a practicing physician. If the Department

requires specific information from an affidavit concerning the scope of an

affiant's personal knowledge, it should consider altering its form to

specifically inquire whether an affiant has seen a diploma, been present at a

commencement exercise or in the alternative, ask an affiant to explain in detail

the factual basis for the matters set forth in the affidavit.

21. Finally, the Respondent Suarez is charged with violating Section

458.1201(1)(n), Florida Statutes (1973), which prohibits, inter alia, Immoral

conduct. The acts committed by the Respondent, while unquestionably careless

and possibly negligent, could hardly be characterized as immoral. As previously

stated, the Petitioner failed to show that the Respondent knew that the Romani

affidavit was false when it was executed. The fact that the Respondent's

assumptions do not constitute the requisite degree of personal knowledge

required by Petitioner, does not necessarily equate with a finding of

intentionally fraudulent, deceitful or immoral conduct on the part of the

Respondent.

22. The allegations concerning a violation of Section 458.331(1)(h),

Florida Statutes, was not briefed by the Department in its Proposed Recommended

Order. Since the statute was not In effect when the Respondent executed the

Romani affidavit, it can not be applied ex post facto to such act. Linkous v.

Department of Professional Regulation, Case No. 81-1343, District Court of

Appeals, Fifth District, August 4, 1982; 7 FLW 1665.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That the Petitioner Department of Professional Regulation, Board of Medical

Examiners enter a Final Order dismissing the Administrative Complaint against

Respondent Suarez.

DONE and ORDERED this 5th day of October, 1982, in Tallahassee, Florida.

___________________________________

SHARYN L. SMITH, Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of October, 1982.

COPIES FURNISHED:

Joseph W. Lawrence II, Esquire

Chief Attorney

Department of Professional Regulation

130 North Monroe Street

Tallahassee, Florida 32301

W. K. Chester, Esquire

810 Northeast 80th Street

Miami, Florida 33138

Dorothy Faircloth, Executive Director

Florida Board of Medical Examiners

130 North Monroe Street

Tallahassee, Florida 32301

Samuel R. Shorstein, Secretary

Department of Professional Regulation

Old Courthouse Square Building

130 North Monroe Street

Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

BEFORE THE BOARD OF MEDICAL EXAMINERS

DEPARTMENT OF PROFESSIONAL

REGULATION, BOARD OF MEDICAL

EXAMINERS,

Petitioner,

vs. CASE NO. 82-540

JOSE R. SUAREZ, M. D.,

Respondent.

________________________________/

FINAL ORDER

This matter came on for final action by the Board of Medical Examiners

pursuant to Section 120.57(1)(b)9., F.S., at a public meeting on December 3,

1982, in Kissimmee, Florida, for review of the recommended order of the hearing

officer entered herein and the exceptions filed by the Petitioner, Department of

Professional Regulation. A transcript of the proceedings is available, if

necessary.

FINDINGS OF FACT

Following a review of the complete record, the Board of Medical Examiners

adopts and incorporates by reference the Find- ings of Fact of the Hearing

Officer.

CONCLUSIONS OF LAW

1. Following its review of the complete record, the Board of Medical

Examiners hereby rejects the Conclusions of Law of hearing officer with regard

to the Respondent not having violated Sections 458.1201(1)(b), 458.1201(1)(j)

and 458.1201(1)(m), and finds that based upon the findings of fact found by the

hearing officer and accepted above that the Respondent did violate Sections

458.1201(1)(b), 458.1201(1)(j), and 458.1201(1)(m), F.S.

2. The Board hereby adopts and incorporates by reference the remaining

conclusion of law of the hearing officer.

Accordingly, based upon a review of the complete record by the Board, the

Findings of Fact and the Modified Conclusions of Law. the Recommendation of the

hearing officer is rejected and, IT IS THEREFORE

ORDERED AND ADJUDGED that the license to practice medicine in the State of

Florida of Jose R. Suarez, M.D., be and hereby is suspended for a period of

ninety days; reprimanded, and following the period of suspension placed on

probation for a period of one year to run concurrent with his current probation

subject to the following terms and conditions: that the Respondent appear

before the Board semiannually, and that the Respondent perform one hundred

twenty-five (125) hours of community service in the form of providing free

Medical services for appropriate individuals, agencies or charitable

organizations, and report on same at his semiannual appearances.

This Order shall take effect on the date of filing.

DONE AND ORDERED this 17th day of December, 1982.

BOARD OF MEDICAL EXAMINERS

By:_______________________________

Dorothy J. Faircloth

cc: All Counsel of Record.

Jose R. Suarez, M.D.

4138 Southwest 97th Court

Miami, Florida 33165