Gross v. Department of Health

• Citation: 819 So.2d 997
• Decision Date: 28 June 2002
• Docket Number: No. 5D01-2074.,5D01-2074.
• Parties: Howard E. GROSS, M.D., Appellant, v. DEPARTMENT OF HEALTH, etc., Appellee.
• Court: Court of Appeal of Florida (US)

819 So.2d 997

Howard E. GROSS, M.D., Appellant, v. DEPARTMENT OF HEALTH, etc., Appellee.

No. 5D01-2074.

District Court of Appeal of Florida, Fifth District.

June 28, 2002.

Robert D. Henry of Ringer, Henry, Buckley & Seacord, P.A., Orlando, for Appellant.

Pamela H. Page, Senior Attorney, Agency for Health Care Administration, Tallahassee, for Appellee.

SAWAYA, J.

Howard Gross, M.D., appeals the final order of the Board of Medicine (the Board)¹ concluding that Gross deviated from the standard of care defined by section 458.331(1)(t), Florida Statutes (2000).² Gross asserts the Board, which is made up of several medical doctors, abused its discretion in rejecting the Administrative Law Judge's (the ALJ) recommended findings of fact because the findings were supported by substantial competent evidence and because the Board substituted its own expert opinion for that of the ALJ. We agree and reverse.

Factual And Procedural Background

In August 2000, the Department of Health (the Department) filed an administrative complaint against Gross following his injection of air, rather than ionic dye, into an eighty-four-year-old patient scheduled to receive a heart catheterization via a ventriculogram. A ventriculogram is an injection of dye into the heart for visualization of the passing of dye through its various chambers. To accomplish this, an electromechanical injector made by Medrad is used.

The injector and the personnel necessary to assist in the heart catheterization are furnished by the hospital as part of the catheterization laboratory. A written protocol was adopted by the hospital for the preparation of the Medrad injector by the catheterization personnel, including the loading of the injector with dye. In the instant case, the hospital personnel failed to follow the protocol and failed to load the injector with dye before Gross started the procedure. When the procedure advanced to the time to inject the dye, the laboratory technician presented the injector to Gross as ready for the injection. As a result, air instead of dye was injected into the patient. The injection of air resulted in the patient's death despite Gross's life-saving efforts. The Department alleged that the air injection was a failure on the part of Gross to practice medicine with the level of care, skill and treatment required by section 458.331(1)(t).

Gross elected to have a formal hearing where both parties presented evidence concerning the events leading up to the injection and expert analysis on the applicable standard of care. After hearing the evidence, the ALJ issued a recommended order that set forth findings of fact and conclusions of law. The ALJ made the following findings which the Board admits are supported by substantial competent evidence:

26. Testimony revealed that at ORMC and other hospitals it was the Cardiac Cath Lab staff's responsibility to load the MEDRAD injector without the direct supervision of physicians and that physicians are rarely in the lab when the MEDRAD injector is loaded.

27. The "standard of care" does not require the physician to watch the loading of dye or the expulsion of air from the syringe in the loading process.

The ALJ recommended the Board enter an order finding that Gross did not violate section 458.331(1)(t). The ALJ's recommended order was then submitted to the Board for adoption. At the Board's hearing, several of the board members took issue with the ALJ's finding that Gross's performance did not fall below the appropriate standard of care and did not constitute a violation of section 458.331(1)(t). Thereafter, the Board issued its final order finding that Gross's performance was below the applicable standard of care and that he did violate section 458.331(1)(t). As a penalty, the Board issued a letter of concern, levied a $5000 fine and required Gross to complete five hours of continuing medical education. Gross appeals from this order.

The issue we must resolve is whether the Board abused its discretion in rejecting the ALJ's findings of fact and substituting its findings and conclusions that Gross breached the applicable standard of care standard and the provisions of section 458.331(1)(t). In order to resolve this issue, we will discuss the standard of review that we must apply to the instant case, then follow that discussion with our legal analysis.

Standard Of Review

Agency Review of Proceedings Before An Administrative Law Judge

When substantial interests of a party are determined by an agency, the affected party is entitled to proceed in accordance with section 120.57(1), Florida Statutes, which allows for a hearing involving disputed issues of fact to be conducted by an administrative law judge, formerly referred to as a hearing officer.³ § 120.569(1), Fla. Stat. (2001). After hearing all of the evidence, the administrative law judge shall render a recommended order consisting of findings of fact, conclusions of law, and a recommended disposition or penalty. § 120.57(1)(k), Fla. Stat. (2001).

The agency may adopt the recommended order, or the agency may reject or modify the findings of fact. § 120.57(1)(l), Fla. Stat. (2001). Findings of fact in a recommended order may not be rejected or modified unless the agency states with particularity in its final order that the findings were not based upon competent substantial evidence or that the proceedings on which the findings are based did not comply with the essential requirements of law. Id.; Greseth v. Department of Health & Rehabilitative Servs., 573 So.2d 1004 (Fla. 4th DCA 1991). When determining whether to reject or modify findings of fact in a recommended order, the agency is not permitted to weigh the evidence, judge the credibility of the witnesses, or interpret the evidence to fit its ultimate conclusions.⁴ Neither may an agency's responsibility to determine if substantial evidence supports the administrative law judge's findings of fact be avoided by merely labeling, either by the administrative law judge or the agency, contrary findings as conclusions of law.⁵ Moreover, an agency may not rely on its own expertise to reverse the administrative law judge's finding that a particular statute was not violated. Cohn v. Department of Prof'l. Regulation, 477 So.2d 1039 (Fla. 3d DCA 1985). In summary, if there is competent substantial evidence to support the findings of fact in the record, the Florida courts, including this court, have consistently held that the agency may not reject them, modify them, substitute its findings, or make new findings.⁶

Review By Appellate Courts

Our review of the Board's order is governed by section 120.68, Florida Statutes (2000). See Legal Envtl. Assistance Found., Inc. v. Clark, 668 So.2d 982 (Fla. 1996)

. A reviewing court may set aside agency action when it finds that the action is dependent on any finding of fact that is not supported by substantial competent evidence in the record, a material error in procedure, an incorrect interpretation of law, or an abuse of discretion. § 120.68(7), Fla. Stat. (2000). When factual findings are reviewed, the court must not substitute its judgment for that of the agency in assessing the weight of the evidence or resolving disputed issues of fact. See § 120.68(10), Fla. Stat. (2000). An agency's action may be set aside only if the findings are not supported by substantial competent evidence.

The courts have encountered difficulties when the administrative law judge's findings are supported by substantial competent evidence which are rejected or modified by the agency's adoption of its own findings which are also supported by substantial competent evidence. This court has held that in these instances, the agency's order must be reversed because it "did not follow established principles of law when it discarded findings of its hearing officer which were supported by competent substantial evidence." City of Umatilla v. Public Employees Relations Comm'n, 422 So.2d at 907. The Board argues, however, that the deference rule applies and compels a different result.

The Deference Rule

The deference rule recognizes that policy considerations left to the discretion of an agency may take precedence over findings of fact by an administrative law judge. The rule provides:

Matters that are susceptible of ordinary methods of proof, such as determining the credibility of witnesses or the weight to accord evidence, are factual matters to be determined by the hearing officer. On the other hand, matters infused with overriding policy considerations are left to agency discretion.

Baptist Hosp., Inc. v. Department of Health & Rehabilitative Servs., 500 So.2d 620, 623 (Fla. 1st DCA 1986) (citations omitted); McDonald v. Department of Banking & Fin., 346 So.2d 569 (Fla. 1st DCA 1977).

In the instant case, the Board argues that whether Gross failed to comply with the applicable standard of care is a matter infused with overriding policy considerations and it may, therefore, give less deference to the findings of fact by the ALJ. Matters infused with overriding policy considerations include instances where an agency must interpret one of its own rules, as was the case in Baptist Hospital, or where a statute confers broad discretionary authority upon the agency which depends on whether certain criteria are found by the agency to exist, as was the case in McDonald.⁷

On the other hand, "[w]here issues `are determinable by ordinary methods of proof through the weighing of evidence and the judging of the credibility of witnesses,' they are `solely the prerogative of the hearing officer as finder of fact.'" B.B. v. Department of Health & Rehabilitative Servs., 542 So.2d 1362, 1364 (Fla. 3d DCA 1989) (quoting Holmes v. Turlington, 480 So.2d 150, 153 (Fla. 1st DCA 1985)). In these instances, if the court concludes that both the administrative law judge's findings and the agency's substituted or modified findings are supported by substantial competent evidence, the...