97-003635 Thomas Vincent Savino vs. Board Of Medicine Status: Closed Recommended Order on Friday, April 3, 1998.

Summary: Evidence showed doctor entitled to licensure by endorsement.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS VINCENT SAVINO, M.D., )

)

Petitioner, )

)

vs. ) Case No. 97-3635

)

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this

matter before the Division of Administrative Hearings, by its

designated Administrative Law Judge, Diane Cleavinger, on

February 5, 1998, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Eric B. Tilton, Esquire

Gustafson, Tilton, Henning

and Metzger, P.A.

204 South Monroe Stree t, Suite 200

Tallahassee, Florida 32301

For Respondent: Lynne Quimby Pennock, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

Whether Petitioner should be granted a license to practice

medicine in the State of Florida.

PRELIMINARY STATEMENT

In May of 1996, Petitioner submitted an application for

licensure by endorsement to the Florida Board of Medicine. It

was subsequently deemed to be complete. At the request of the

Board, Petitioner appeared before the medical credentials

committee of the Board on January 18, 1997, to answer questions

about his medical education. That committee forwarded

Petitioner's application to the full Board without a

recommendation for either approval or disapproval.

The full Board met on April 5, 1997, and voted to deny

Petitioner's application. That action was memorialized in an

order issued on April 25, 1997, and filed on May 2, 1997.

On May 21, 1997, Petitioner timely filed a petition

requesting a formal administrative hearing on the Board's

denial.

At the hearing, Petitioner testified on his own behalf.

Respondent called one witness to testify. Additionally, the

parties introduced 2 joint composite exhibits into evidence.

After the hearing, the parties submitted Proposed

Recommended Orders on February 27, 1998. The parties' proposed

findings of fact have been considered and utilized in the

preparation of this Recommended Order, except where such

findings were not shown by the evidence, or were immaterial,

irrelevant, cumulative, or subordinate.

FINDINGS OF FACT

1. Dr. Thomas Vincent Savino, M.D., is presently licensed

in New York and New Jersey. He has taken and passed all the

necessary examinations in order to be licensed under Florida

law.

2. Prior to medical school, Petitioner was enrolled in

osteopathic medical school for one year. Eventually in part due

to financial considerations and in part because Petitioner

desired to go to medical school, Dr. Savino was accepted to

medical school at the State University of New York (SUNY)

medical school. While in medical school, Dr. Savino had some

academic difficulties that were documented in the transcript

presented to the Board. His academic difficulty was unrelated

to his abilities to render medical care. Eventually, the

problems he had at SUNY were the subject of a lawsuit against

the University. The lawsuit took over a year during which time

Petitioner was enrolled and attended classes at SUNY, including

a neurology course or clerkship. The neurology course was

successfully completed as attested to in a letter from the Dean

of Students of SUNY. The letter was submitted to the Board.

Petitioner eventually lost his suit against the University and

did not receive credit for the neurology course. Therefore,

Petitioner's transcript from SUNY showed that Dr. Savino

eventually successfully completed every required course except

neurology. Neurology is not required by most medical schools.

However, Petitioner was permitted to take the course. He

successfully completed the course at St. Vincent's Medical

Center.

3. Dr. Savino did not list the neurology course under the

area designated for listing medical school clerkships in the

application. The reason that the neurology clerkship was not

listed in Petitioner's application was that Petitioner did not

receive credit for it despite completing the course

successfully. Petitioner reasonably believed that listing the

neurology course as a clerkship would have implied that he had

received credit for it. The information was not hidden, but was

contained in other documentation to the application. Clearly

Petitioner was not attempting to mislead or hide the information

from the Board.

4. Petitioner finished his last year of medical school at

Ross University. Petitioner was awarded an M.D. degree from

Ross University School of Medicine in 1990. Petitioner

adequately documented that he attended and passed the medical

school curriculum necessary for licensure in the State of

Florida.

5. Importantly, since Petitioner has been in practice,

there have been no allegations of malpractice made against him,

nor have there been any Medicare or Medicaid complaints filed

against him. He has had a successful career after graduation.

6. The Board contends that Petitioner misrepresented the

facts in response to question 11 on the application. Question

11 states: Was attendance in medical school for a period other

than the normal curriculum? Petitioner answered "no" to

question 11.

7. In Petitioner's case, he took 4 years to complete

medical school while he was officially enrolled in various

medical school programs. The question is at best vague,

ambiguous, and subject to varying interpretations, especially on

facts like those here. Moreover, the dates of Petitioner's

attendance at medical school were documented in his application.

The Board was never misled by Petitioner's negative response and

was well aware of Petitioner's time in medical school. The

Board discussed this very subject at its meeting regarding Dr.

Savino. In short, the answer to question 11 was not material to

any matter necessary to be found by the Board and does not

demonstrate bad character.

8. The Board, in its order, and in its pretrial statement,

contends that Dr. Savino misrepresented a material fact by

stating on his curriculum vitae that he was an Assistant

Clinical Physician at a time prior to when he graduated from

medical school. It was a phrase Petitioner made up in order to

describe his position while he was employed as an assistant

office manager/aide in his father's medical practice.

Petitioner's father was a clinical physician. The curriculum

vitae itself shows that Dr. Savino was not awarded an medical

degree until 1990. The curriculum vitae listed the assistant

clinical physician's job from 1987-1988.

9. Additionally, Dr. Savino properly reflected his job in

his father's office as "assistant and office manager" in a

letter he wrote to the Board dated May 6, 1996. The letter was

written to the Board prior to the curriculum vitae's becoming an

issue. In reviewing the record, all the facts regarding

Petitioner's job with his father were contained in Petitioner's

application. They were not hidden from the Board.

10. In short, the statement regarding Petitioner's job

with his father is not a material misrepresentation. It was a

poor choice of words and use of the English language.

11. Finally, the Board asserted that Petitioner received

his other medical licenses and medical degree through fraudulent

means. The Board bases this charge on the job description

discussed above. However, the record is devoid of any evidence

that any other jurisdiction or school relied on or used this

information or description in any manner or that any fraud was

committed by Dr. Savino in regard to these other jurisdictions.

12. There is no evidence that Dr. Savino intended to

mislead the Board as to either when he became licensed elsewhere

or when he began active practice. There is no evidence in the

record that contradicts either his testimony or the written

evidence that he supplied concerning the jobs he has held in the

past or his medical education, all of which was in Petitioner's

favor. None of the technicalities raised by the Board

demonstrate that Petitioner is of bad character, lacks candor,

or has committed any fraud or misrepresentation to the Board or

in any other jurisdictions. Therefore, Petitioner is entitled

to licensure by endorsement.

CONCLUSIONS OF LAW

13 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

14. Chapter 458, Florida Statutes is the statute

regulating the licensing and disciplining of physicians in the

state of Florida. Section 458.313, Florida Statutes, sets forth

the standards for licensure by endorsement.

15. Among the requirements established in Section 458.313,

Florida Statutes, are that candidates meet the requirements set

forth in Section 458.311(1)(b)-(f), Florida Statutes, and not be

in violation of the standards set forth in Section 458.331,

Florida Statutes. The charges in this case involve the sections

on fraud and misrepresentation.

16. The Petitioner bears the bur den of demonstrating his

fitness to practice medicine and entitlement to licensure. See

Balino v. Department of Health and Rehabilitative Services , 348

So. 2d 349 (Fla. 1st DCA 1977); Florida Department of

Transportation v. J.W.C., Co. , supra .

17. Petitioner does meet the educational standards

established in Section 458.311(1)(f), Florida Statutes.

Moreover, he did provide documentation adequate to support that

conclusion to the Board. Petitioner did not intend to

fraudulently deceive the Board concerning his work history prior

to obtaining a medical degree. His fitness to practice medicine

in Florida, likewise, has not been tainted by any fraudulent

misrepresentation or concealment in terms of statements made on

the originally-filed application.

18. Fraud, misrepresentation, or concealment is an

offense involving the necessary element of specific intent or

scienter to conceal, misrepresent, or perpetrate fraud. Such

intent was not proven in this case and, in fact, was disproven.

The fact that the information relating to Petitioner was

available on the curriculum vitae that was originally submitted,

on the letter given to the Board prior to its meeting and in the

documentation submitted with the application demonstrates the

lack of any fraudulent intent by Petitioner. Moreover, an

unintentional misstatement or omission is insufficient to

support a charge of fraud. See Department of Professional

Regulation, Board of Medical Examiners v. Suarez , DOAH Case No.

82-540; Suarez v. Department of Professional Regulation, Board

of Medical Examiners , DOAH Case No. 86-3996; and Department of

Professional Regulation, Board of Medicine v. Rosenthal , DOAH

Case No. 91-2815. Therefore Dr. Savino is entitled to

licensure by endorsement in Florida.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is

RECOMMENDED:

That a Final Order be entered granting the Petitioner's

license to practice medicine in the State of Florida.

DONE AND ENTERED this 3rd day of April, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of April , 1998.

COPIES FURNISHED:

Eric B. Tilton, Esquire

Gustafson, Tilton, Henning

and Metzger, P.A.

204 South Monroe Street, Suite 200

Tallahassee, Florida 32301

Lynne Quimby Pennock, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Dr. Marm Harris, Executive Director

Board of Medicine

Department of Health

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Angela T. Hall, Agency Clerk

Department of Health

1317 Winewood Boulevard, Building 6

Tallahassee, Florida 32399-0700

Pete Peterson, General Counsel

Department of Health

Building 6, Room 102-E

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Dr. James Howell, Secretary

Department of Health

Building 6, Room 306

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

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.