88-002056F James P. Villotti vs. Board Of Medicine Status: Closed DOAH Final Order on Tuesday, November 8, 1988.

Summary: Board was substantially justified in filing administrative complaint since required credibility determination of patient's mother versus the respondent

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES P. VILLOTTI JR., M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 88-2056F

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

MEDICAL EXAMINERS, )

)

Respondent. )

_____________________________)

FINAL ORDER

A formal hearing in this cause was waived by both parties pursuant to their

Stipulation filed August 30, 1988. The issue for determination herein is

whether Petitioner is entitled to attorney's fees and costs under Section

57.111, Florida Statutes, The Florida Equal Access to Justice Act.

APPEARANCES

For Petitioner: Robert Jackson McGill, Esquire

1515 South Tamiami Trail, Suite One

Venice, Florida 34292

For Respondent: David L. Milford, Esquire

Department of Professional Regulation

130 North Monroe Street

Tallahassee, Florida 32399-0750

Petitioner and Respondent entered into a Stipulation regarding the factual

basis for this dispute. The parties agree that the sole issue remaining in this

proceeding is whether Respondent's action in filing the Administrative Complaint

against Petitioner in DOAH Case NO. 87-0276 was substantially justified, having

a reasonable basis in law and fact at the time it was initiated by the

Department of Professional Regulation, Board of Medicine.

Both parties submitted proposed findings of fact in the form of proposed

final orders. A ruling on each proposed finding of fact can be found in the

Appendix to this Final Order.

FINDINGS OF FACT

1. On July 17, 1986, a Probable Cause Panel of the Board of Medicine met

to review the investigative report which resulted from a complaint filed against

Petitioner by the mother of a deceased patient.

2. Prior to the meeting of the Probable Cause Panel, Robert N. Baskin,

M.D., had reviewed Petitioner's office records, the medical examiner's report,

the emergency room records and a letter from the patient's mother concerning

Petitioner's care and treatment of that patient. Dr. Baskin had concluded that,

if subsequently proven, the facts would constitute negligent or incompetent

practice of medicine.

3. The panel discussed the information which had been previously provided

to it and determined that additional information was necessary before making a

final determination of probable cause or no probable cause. The matter was

returned to the Department of Professional Regulation for additional

investigation.

4. On September 25, 1986, a Probable Cause Panel of the Board of Medicine

met to review the investigative report, including the supplemental report

containing the additional information requested by the prior Probable Cause

Panel.

5. Based on the Investigative report which included Petitioner's office

records, a summary of an interview with Petitioner, summaries of interviews with

the patient's mother, a summary of an interview with and records of the medical

examiner, and a summary of an interview with and the report of consultant Robert

N. Baskin, M.D., the panel found that probable cause existed that Petitioner's

activities had violated:

A. Section 458.331(1)(t), Florida Statutes,

by gross or repeated malpractice or by failing

to practice medicine with that level of care,

skill and treatment which is recognized by a

reasonably prudent similar physician as being

acceptable under similar conditions and

circumstances;

B. Section 458.331(1)(i), Florida Statutes,

now Section 458.331(1)(h), by making or filing

a report which the licensee knows to be false,

intentionally or negligently failing to file a

report or record required by state or federal

law, willfully impeding or obstructing such

filing or inducing another person to do so; and

C. Section 458.331(1)(1), Florida Statutes, now

Section 458.331(1)(k), by making deceptive,

untrue, or fraudulent representations in the

practice of medicine or employing a trick or

scheme in the practice of medicine.

6. The Probable Cause Panel expressed concern regarding several aspects of

Petitioner's treatment of the deceased patient. The panel noted its basis for a

finding of probable cause in Count One, the malpractice count:

A. Diabetic ketone acidosis was consistent with

the patient's history, and there was "sort of a lack

of attention paid about some of [the patient's]

complaints"; and

B. One of the two panel members opined that

Petitioner "did misdiagnose the symptoms that

this patient had", and described Petitioner's

practice in this case as "a little sloppy".

7. Further, the consultant's report questioned whether Petitioner

recognized the seriousness of the patient's condition at the time of his

examination of the patient. This question focused on whether Petitioner had

recommended that the patient be hospitalized, but the patient's mother had

refused to hospitalize her son.

8. Counts Two and Three of the Administrative Complaint were based solely

on whether Petitioner had recommended hospitalization as his records reflected

or if, in fact, the mother's contrary version of what had happened was correct.

One of the two panel members opined that "Somebody's lying." This was a

credibility question to be determined. The Probable Cause Panel found that

there was probable cause to believe that Petitioner may have falsified his

records, if the Hearing Officer found that Petitioner was the one not telling

the truth in this matter.

9. Petitioner's records showed that an addendum was written, stating that

Petitioner recommended that the patient be hospitalized. A memorandum to the

medical records file by Registered Nurse Betty J. Launius, written after the

patient died, explained why Petitioner did not immediately respond to telephone

calls regarding the patient's condition. These documents lent some credibility

to the possibility that they were done after the fact to protect Petitioner from

subsequent litigation alleging malpractice in this case.

10. The Probable Cause Panel recognized that the questions raised by the

investigation should be answered or resolved one way or another at an

evidentiary hearing.

11. Petitioner disputed the allegations contained in the Administrative

Complaint and requested a formal hearing pursuant to Section 120.57(1), Florida

Statutes. The case was referred to the Division of Administrative Hearings to

conduct an evidentiary hearing and to issue a Recommended Order based upon the

evidence presented. Division of Administrative Hearings Case No. 87-0276 was

assigned.

12. On July 16, 1987, DOAH Case No. 87-0276 was heard in Venice, Florida.

13. A Recommended Order was issued on October 22, 1987, recommending that

a Final Order be entered finding Respondent not guilty of the allegations

contained within the Administrative Complaint and dismissing the Administrative

Complaint filed against Petitioner. The Board of Medicine adopted the

Recommended Order and dismissed the Administrative Complaint against Respondent

on February 18, 1988.

14. The parties have agreed that the costs and attorney's fees set forth

in the Amended Petition for Attorney's Fees filed June 20, 1988 are the amounts

in question in this proceeding.

15. Petitioner is a "small business party" as that term is defined in

Section 57.111(3)(d), Florida Statutes.

16. The underlying administrative proceeding was initiated by the

Respondent, a state agency.

17. Petitioner was the prevailing party in the administrative proceeding

material to this matter.

18. There is no evidence that the transcript of the Probable Cause Panel

meeting of July 17, 1986, was provided to or considered by the Probable Cause

Panel which met on September 25, 1986.

19. Petitioner incurred attorney's fees in the amount of $6,780.00 to

defend himself in the underlying administrative proceeding and also incurred

costs in the amount of $3,089.55. The amount of attorney's fees and costs are

reasonable.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has jurisdiction over the

parties to, and the subject matter of, this proceeding. Section 120.57(1),

Florida Statutes.

21. The Florida Equal Access to Justice Act (FEAJA), Section 57.111,

Florida Statutes, provides in relevant part:

(4)(a) Unless otherwise provided by law, an

award of attorney's fees and costs shall be

made to a prevailing small business party in

any adjudicatory proceeding or administrative

proceeding pursuant to chapter 120 initiated

by a state agency, unless the actions of the

agency were substantially justified or

special circumstances exist which would make

the award unjust.

22. The parties have stipulated that the administrative proceeding

material to this proceeding was initiated by the Respondent, a state agency;

that Petitioner is a "small business party" as that term is defined in Section

57.111(3)(d), Florida Statutes; and that the Petitioner is the "prevailing

party" as required by Section 57.111(3)(c), Florida Statutes. A proceeding is

"substantially justified" if it had "a reasonable basis in law and fact at the

time it was initiated". Section 57.111(3)(e), Florida Statutes.

23. Section 455.225, Florida Statutes, requires the Department of

Professional Regulation to submit all legally sufficient complaints filed with

the Department to the probable cause panel of the appropriate board for

determination of probable cause. It further requires the Department to follow

the directions of the panel with regard to the filing and prosecution of a

formal complaint unless the Department determines that probable cause was

improvidently found.

24. The action of the Department of Professional Regulation in filing

Count One of the Administrative Complaint was substantially justified based upon

the probable cause panel's review and evaluation of Petitioner's treatment of

this patient. Specifically, the probable cause panel's comments that Petitioner

had misdiagnosed the patient, that diabetic ketone acidosis was consistent with

the patient's history, that there was a lack of attention paid to some of the

patient's complaints, and the description of Petitioner's practice in this case

as a "little sloppy" demonstrate a reasonable factual and legal basis for the

panel's act of finding probable cause.

25. The Department of Professional Regulation was substantially justified

in filing Counts Two and Three of the Administrative Complaint. There was a

credibility question concerning Petitioner's allegation that he requested the

patient be hospitalized, but the mother refused to hospitalize her son.

Respondent was substantially justified in its actions in this case as there

was a reasonable basis in law and fact for initiating the action.

It is, therefore,

Ordered that the Amended Petition for Attorney's Fees filed by Petitioner

is DENIED.

DONE and ORDERED this 8th day of November, 1988, in Tallahassee, Florida.

___________________________________

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of November, 1988.

APPENDIX TO FINAL ORDER

DOAH Case NO. 88-2056F

1. Petitioner's proposed findings of fact numbered 2, 4, 5, 8, and 9 have

been adopted in substance in this Final Order.

2. Petitioner's proposed findings of fact numbered 1, 10, 11, and 16 have

been rejected as not being supported by the record in this cause.

3. Petitioner's proposed findings of fact numbered 3, 6, 7, and 12-15 have

been rejected as being unnecessary for resolution of the issue herein.

4. Respondent's proposed findings of fact numbered 1-19 have been adopted

in substance in this Final Order.

COPIES FURNISHED:

Robert Jackson McGill, Esquire

Suite One

1515 South Tamiami Trail

Venice, Florida 34292

David L. Milford, Esquire

Department of Professional

Regulation

130 North Monroe Street

Tallahassee, Florida 32399-0750

Lawrence A. Gonzalez, Secretary

Department of Professional

Regulation

130 North Monroe Street

Tallahassee, Florida 32399-0750

Bruce D. Lamb, Esquire

General Counsel

Department of Professional

Regulation

130 North Monroe Street

Tallahassee, Florida 32399-0750

Dorothy Faircloth, Executive Director

Board of Medicine

Department of Professional

Regulation

130 North Monroe Street

Tallahassee, Florida 32399-0750

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 ONE COPY OF A NOTICE OF

APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS' AND A

SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT

COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE

APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED

WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.