Lester v. Department of Professional and Occupational Regulations, State Bd. of Medical Examiners

• Decision Date: 29 July 1977
• Docket Number: No. FF-228,FF-228
• Citation: 348 So.2d 923
• Parties: Joseph L. LESTER, Jr., Appellant, v. DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATIONS, STATE BOARD OF MEDICAL EXAMINERS of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 923

348 So.2d 923

Joseph L. LESTER, Jr., Appellant, v. DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATIONS, STATE BOARD OF MEDICAL EXAMINERS of Florida, Appellee.

No. FF-228.

District Court of Appeal of Florida, First District.

July 29, 1977.

Rehearing Denied Sept. 1, 1977.

Mallory H. Horton, Horton, Perse & Ginsberg, Miami, for appellant.

Michael I. Schwartz, Slepin & Schwartz, Tallahassee, for appellee.

MASON, (Retired), Associate Judge:

This is an appeal from a final judgment of the Circuit Court of Leon County in which the trial court refused to restrain or enjoin the appellee Board (defendant below) from prosecuting disciplinary action against the appellant (plaintiff below) pursuant to Chapter 458.1201(1), F.S., for alleged unprofessional conduct within the intent and meaning of Section 458.1201(1)(m) of such Chapter.

On February 17, 1977, the appellant, a licensed physician and surgeon practicing in Key West, Florida, brought the action below for declaratory judgment seeking an adjudication that a certain charge of unprofessional conduct made against him by the appellee Board pursuant to said Section 458.1201(1)(m) was not such as to be encompassed within the meaning and intent of such statute, and for an injunction against the appellee Board prosecuting such charge.

The administrative complaint filed by the Board alleged that the appellant received checks in various amounts from Key West Association, Inc., T/A DePoo Hospital between March of 1974 and August of 1976, which the Board charged amounted to a 4% rebate or kick-back of either the gross hospital receipts or of the total hospital charges incurred by the appellant's patients in such hospital, and that such action on his part constituted unprofessional conduct within the meaning of said Section 458.1201(1)(m). Attached to appellee's administrative complaint were two exhibits: (1) a consultant agreement dated June 1, 1965, by which appellant was to receive 4% of the gross receipts of the hospital for acting as a consultant to the owner of the hospital in the management, planning and operation of the DePoo Hospital, and (2) an agreement dated January 31, 1975, by which appellant was to continue to serve the hospital as such consultant for which services he would be paid a fixed compensation monthly of Fourteen Hundred ($1400.00) Dollars.

In its administrative complaint the appellee Board charged that these agreements were no more than cover-ups for rebates or kick-backs to the appellant of portions of the charges made by the hospital to the appellant's patients. Such, the appellee contends, amounts to unprofessional conduct proscribed by Section 458.1201(1)(m).

The trial court, after hearing, made two conclusions: (1) that the statute as framed was not intended as a limitation or restriction on what might be termed unprofessional conduct, and (2) that the administrative complaint, though specifying that it was brought under Section 458.1201(1)(m) would also lie under the provisions of another subsection of Section 458.1201(1), viz subsection (h), which prohibits a licensee from engaging in unethical and deceptive conduct or practice. Thereupon, the trial court refused to enjoin the appellee Board from proceeding with the disciplinary action against the appellant. It is to be noted that the Board in preferring the charge of unprofessional conduct against the appellant specifically charged him with unprofessional conduct as proscribed only by subsection (m) of Section 458.1201(1).

Section 458.1201 is the section of the Medical Practice Act (Chapter 458, F.S.) which deals with the powers of the Board in the denial, suspension, revocation of license, and other discipline of medical practitioners. It reads, in part, as follows:

"458.1201 Denial, suspension, revocation of license; disciplinary powers

(1) The board shall have authority to deny an application for a license or to discipline a physician licensed under this chapter or any antecedent law who, after hearing, has been adjudged unqualified or guilty of the following: (Here is set forth several categories of disqualification or misconduct included in which is subsection (m) ).

Subsection (m) sets forth as grounds for denial of license to or discipline of a physician the following facets of misconduct:

"(m) Being guilty of immoral or unprofessional conduct, incompetence, negligence, or willful misconduct. Unprofessional conduct shall include any departure from, or the failure to conform to, the standards of acceptable and prevailing medical practice in his area of expertise as as determined by the board, in which proceeding actual injury to a patient need not be established; when the same is committed in the course of his practice, whether committed within or without this state." (Emphasis supplied)

The administrative charge against the appellant was for unprofessional conduct claimed to be proscribed by the above quoted subsection of the statute and we are called upon to decide whether the acceptance of rebates or kick-backs, if in fact the doctor did receive the same from the hospital, is condemned unprofessional conduct as that term is included within this particular subsection of the statute. We hold that it is not.

In construing the language and import of this statute we must bear in mind that it is, in effect, a penal statute since it imposes sanctions and penalties in the nature of denial of license, suspension from practice, revocation of license to practice, private or public reprimand, or probation, upon those found guilty of violating its proscriptions. This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the applicant or licensee.

It is true that the legislature in enacting Chapter 458 stated that the statute was enacted in the interest of the public welfare and is to be liberally construed so as to advance that purpose. But such laudable expression of purpose does not justify a construction which includes within the ambit of the statute's proscription conduct not clearly included therein. Nor does it justify a construction that would deny to an individual physician the right to know in advance from a reading of the language what conduct is proscribed by the legislature. See Ex Parte Amos, 93 Fla. 5, 112 So. 289 (1927). Nowhere in this subsection is the receipt or acceptance of rebates prohibited or declared to be unprofessional conduct.

It is clear that what the legislature was condemning as unprofessional conduct in this particular subsection was conduct by a practicing physician in the practice of medicine which did not conform to the prevailing standards of practice exercised by other practitioners in the same area of practice or expertise. The proscription is against poor medical practice as measured by the prevailing standards of good practitioners. It would take a strained construction indeed to say that the underscored language in the statute condemns anything else. There is not the slightest suggestion,...