Colbert v. Department of Health, 1D03-5401.
| Decision Date | 23 December 2004 |
| Docket Number | No. 1D03-5401.,1D03-5401. |
| Citation | 890 So.2d 1165 |
| Parties | Donald COLBERT, M.D., Appellant, v. DEPARTMENT OF HEALTH, Appellee. |
| Court | Florida District Court of Appeals |
Lisa Shearer Nelson of Holtzman Equels, Tallahassee, for Appellant. Dana Baird of the Department of Health, Tallahassee, for Appellee.
This is an appeal from a final order of appellee, the Department of Health (DOH), imposing an administrative fine and special conditions of probation on appellant, Dr. Donald Colbert, for certain violations of the Florida Medical Practice Act (chapter 458, Florida Statutes). We summarily affirm as to the first two of appellant's issues, but reverse as to the third.
In his third point on appeal, Dr. Colbert complains that DOH erred in rejecting the recommended conclusion of the administrative law judge (ALJ) finding that he did not violate section 458.331(1)(m), Florida Statutes (Supp. 1996),1 which requires written medical records as a means of justifying the course of the patient's treatment, insofar as the finding related to the patient's post-operative records. In so concluding, the ALJ stated: "Those records adequately documented the treatment Respondent [Dr. Colbert] administered, and they are not required to explain why Respondent did not take an alternative course of treatment." In setting aside the ALJ's conclusion, DOH, while accepting the ALJ's recommended factual findings, nonetheless stated that Dr. Colbert was required to explain why he did not undertake an apparently indicated course of treatment, as provided in Florida Administrative Code Rule 64B8-9.003(2).2 We cannot agree with the agency's interpretation of either the rule or the statute it is charged with administering.
Initially, we note that our review standard over an agency's interpretation of law is that of clearly erroneous, meaning the interpretation will be upheld if the agency's construction falls within the permissible range of interpretations. See Natelson v. Dep't of Ins., 454 So.2d 31, 32 (Fla. 1st DCA 1984)
. If, however, the agency's interpretation conflicts with the plain and ordinary intent of the law, judicial deference need not be given to it. Florida Hosp. v. Agency for Health Care Admin., 823 So.2d 844, 845 (Fla. 1st DCA 2002).
In the case at bar, DOH was of the opinion that the ALJ, in finding that Dr. Colbert's post-operative records were not in violation of the statutory record-keeping requirements, had erroneously relied on this court's decision in Breesmen v. Department of Professional Regulation, Board of Medicine, 567 So.2d 469 (Fla. 1st DCA 1990), which had held that the agency could not lawfully interpret section 458.331(1)(m), a penal statute requiring strict construction, as authorizing discipline of a physician for failing to keep sufficient medical records under the theory that a reasonably prudent physician would adequately document in a patient's medical chart the basis for his or her not undertaking a particular course of treatment. The court pointed out that such interpretation was clearly...
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