Farzad v. Department of Professional Regulation, AP-337

• Decision Date: 30 December 1983
• Docket Number: No. AP-337,AP-337
• Parties: Alam FARZAD, M.D., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, Florida Board of Medical Examiners, Appellee.
• Court: Florida District Court of Appeals

Page 373

443 So.2d 373

Alam FARZAD, M.D., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, Florida Board of Medical Examiners, Appellee.

No. AP-337.

District Court of Appeal of Florida,

First District.

Dec. 30, 1983.

Joseph R. Boyd, Michael L. Berry, Boyd & Smith, Tallahassee, and Melvin A. Rubin, Miami, for appellant.

Joseph W. Lawrence, II, Chief Atty., Dept. of Professional Regulation, Tallahassee, for appellee.

LARRY G. SMITH, Judge.

Appellant, a licensed physician, appeals an order of the Board of Medical Examiners imposing a reprimand upon her for misconduct. She argues (1) that the Board's action is barred by the statute of limitations, and laches; (2) that the Board is without jurisdiction, as her alleged misconduct occurred in 1972, three years before she received her Florida license; and, (3) that there is no competent substantial evidence of intentional misconduct on her part since the record establishes that her 1972 action was coerced. ¹ We affirm the order on appeal.

Certain background facts must first be related. Appellant and her former husband, Kiumaris Bakshandeh, moved to the United States in 1971 from Iran where they had both studied medicine and received medical degrees. Her sister, Iran Farzad Rafael, a medical doctor in Iran, was also living in the United States. Prior to February, 1972, appellant's sister took an examination for foreign medical graduates administered by the Educational Council for Foreign Medical Graduates (ECFMG) three times and failed it each time. A passing grade was required before a foreign medical graduate could become eligible to take medical training in an intern program in the United States. Upon completion of the training for foreign professionals, another examination was required to be passed in order to become licensed in a state.

Appellant's misconduct, which resulted in this disciplinary proceeding, occurred as follows: At the request of her husband, appellant flew to Chicago in February, 1972, to take the ECFMG examination for her sister. Appellant went to the examination site with the entrance papers she had taken from her sister, forged her sister's name at the examination site, and took the examination using her sister's name. Her sister, armed with the passing grade on the examination taken for her by appellant, went on to complete her internship and obtained an Illinois medical license in 1976, specializing in physical medicine and rehabilitation.

Knowledge of appellant's deception came to the Board in an unusual way. In 1976, appellant and her husband began divorce proceedings. Appellant's former husband used his knowledge concerning the 1972 incident to coerce appellant into signing a property settlement and custody agreement in the pending divorce proceeding. In early 1978, appellant instituted proceedings in Dade County Circuit Court to set aside the child custody and support provisions contained in the final judgment of dissolution on the grounds of her husband's coercion and duress. After a lengthy hearing, the circuit court granted appellant's motion to set aside the agreement and awarded custody of the couple's minor daughter to appellant. The Third District Court of Appeal affirmed. See, Bakshandeh v. Bakshandeh, 370 So.2d 417 (Fla. 3rd DCA 1979). In the concluding paragraph of its decision, the court noted that appellant had taken the ECFMG examination for her sister and observed that the appropriate medical authorities should have knowledge of this fact. On April 24, 1979, the Clerk of the Third District Court of Appeal forwarded a copy of the court's opinion to the Board for appropriate action. This was the first notice the Board had concerning the 1972 incident.

On August 18, 1981, the Board filed an administrative complaint charging appellant with violating Section 458.1201(1)(b), (k) and (m), Florida Statutes (1977). ² Appellant moved to dismiss the administrative complaint on the grounds that it was barred by the statute of limitations and/or laches, which was denied. After a hearing, the hearing officer entered a recommended order finding that the Board had not proved that appellant violated Section 458.1201(1)(b) by practicing fraud or deceit in obtaining a license to practice medicine for her sister, reasoning that the ECFMG examination was a qualifying examination, not a final examination for licensure. ³ However, the hearing officer found that the Board had sustained its allegation that appellant violated Section 458.1201(1)(m). The hearing officer determined that the facts demonstrated an intentional act of misconduct by appellant which resulted in her sister receiving a benefit to which she was not entitled and that these actions constituted immoral or willful misconduct. The hearing officer recommended that the Board impose a private letter of reprimand. The Board adopted the hearing officer's recommended order with the exception of the penalty provision.

Appellant's contentions that this action is barred by the statute of limitations contained in Section 95.11(3)(p), Florida Statutes (1981), and laches, must be decided adversely to her. In Donaldson v. State Department of Health and Rehabilitative Services, 425 So.2d 145, 147 (Fla. 1st DCA 1983), this court ruled that in the absence of specific legislative authority, civil or criminal statutes of limitation are inapplicable to administrative license revocation proceedings. Compare, The Florida Bar v. McCain, 361 So.2d 700 (Fla.1978). We find no legislative intent manifested in Chapter 458 that the limitation provisions of Chapter 95 should be applicable to disciplinary proceedings against a physician.

Although Donaldson indicates that Chapter 95 is not applicable to this administrative proceeding in the absence of contrary legislative intent, appellant urges that our decision in Bishop v. State of Florida, Division of Retirement, 413 So.2d 776 (Fla. 1st DCA 1982), dictates a contrary result. In Bishop, three teachers who had retired in 1973 and 1974 filed a petition for administrative relief in 1980 seeking adjustments in their annuity payments under the Teachers Retirement System, or return of the funds they had contributed to the annuity program under that system. The hearing officer dismissed their petition on the grounds that the statute of limitations had run on their claim and the Division of Retirement adopted this recommendation in its final order. This court disagreed that the statute of limitations had run, concluding instead that the teachers' claims sounded in contract rather than tort, and that since the contract called for payment in installments, the statute of limitations would run against each installment only from the day it became due. Nevertheless, the court affirmed the final order finding no breach of contract on the state's part. Bishop involved an action which was an administrative substitute for the common law remedy of a suit for breach of contract, rather than a disciplinary proceeding brought in the name of the sovereign, as here. We hold that this administrative disciplinary proceeding is not barred by Section 95.11(3)(p), Florida Statutes (1981).

Having found that the statute of limitations is not applicable, we are persuaded that the parallel concept, the doctrine of laches, usually utilized in equitable proceedings, is similarly inapplicable to this administrative license revocation proceeding. On this issue we follow the line of authority reflected in the collection of cases discussing the applicability of the statute of limitations or doctrine of laches to a proceeding to revoke a license to practice medicine found in the Annotation, 63 A.L.R.2d 1080 (1959).

Next, we address appellant's contention that Florida is without jurisdiction to invoke disciplinary measures since the 1972 incident occurred three years before her licensure. In response, appellee relies on Gould v. State, 99 Fla. 662, 127 So. 309 (1930), in which the Supreme Court stated that an attorney could be disbarred for misconduct which occurred prior to his licensure. See also State ex rel. Turner v. Earle, 295 So.2d 609 (Fla.1975). Similarly, appellee reasons that it may consider acts of misconduct which occurred prior to licensure when taking disciplinary action against a licensee.

However, we are constrained to point out that there is a distinction between attorney disbarment proceedings and disciplinary proceedings against a physician under Chapter 458. Disciplinary proceedings against an attorney are within the exclusive jurisdiction of the Florida Supreme Court. Art. V, § 15, Fla. Const. As recognized in Gould v. State, 127 So. at 311, the court has inherent power vested in it to control the conduct of its own affairs and to maintain its own dignity.

On the other hand, disciplinary proceedings against physicians are governed by statute, and the rule is clear that where statutes authorizing revocation of a license to engage in the practice of a profession are invoked, the provisions of the...