BARRY JACK KAPLAN, D.O., APPELLANT,
v.
DEPARTMENT OF HEALTH, BOARD OF OSTEOPATHIC MEDICINE, APPELLEE

Fla. 5th DCA | 2009-03-06
No. 5D08-1036
MONACO and TORPY, JJ, concur.
8 So. 3d 391 Florida District Court of Appeal, Fifth District (2009) Positive Treatment
Cited by 2 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Dr. Barry Kaplan appeals a Board of Osteopathic Medicine disciplinary order suspending and restricting his medical license for failing to meet the standard of care in treating a patient. The court affirms the Board's decision and rejects Kaplan's argument that the imposed penalty was more severe than recommended by the administrative law judge.


Holding

The Board properly imposed a more severe penalty than recommended by the ALJ because it complied with statutory requirements to review the complete record and state with particularity its reasons for increasing the penalty, which were directly related to Dr. Kaplan's significant prior disciplinary history. The Board was authorized to consider prior disciplinary actions even though they did not conclude with a formal finding of statutory violation.


Headnotes

[1] An administrative agency may consider a licensee's prior disciplinary actions when determining an appropriate penalty, even if those prior actions did not result in a for…

[2] An agency must review the complete record and state with particularity its reasons for deviating from an administrative law judge's recommended penalty, citing to the rec…

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Key Quotes

“Section 120.57(1)(Z), Florida Statutes (2008), provides that where an agency reduces or increases the recommended penalty in a recommended order, it must engage in a review of the complete record and state with particularity its reasons for doing so by citing to the record.”

Establishes the statutory standard governing agency modification of ALJ-recommended penalties

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Facts & Procedural History

Dr. Kaplan was charged with violating Florida law by failing to practice osteopathic medicine with the level of care recognized by a reasonably pruden…

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Opinion of the Court
EVANDER, J.

EVANDER, J.

Dr. Barry Kaplan appeals a final order of the Board of Osteopathic Medicine (the Board) which, inter alia, suspended and restricted his license to practice osteopathic medicine. We affirm the Board’s decision and write only to address Dr. Kap-lan’s contention that the Board wrongfully imposed a penalty more severe than recommended by the administrative law judge (ALJ).

On November 21, 2006, an administrative complaint was filed by the Department of Health (the Department) which alleged that Dr. Kaplan had violated section 459.015(l)(x), Florida Statutes (2005) by failing to practice osteopathic medicine with the level of care, skill, and treatment recognized by a reasonably prudent similar osteopathic physician in the care of his patient, B.C. Dr. Kaplan disputed the complaint and requested a formal administrative hearing. After holding a contested hearing, the ALJ entered a recommended order. In its recommended order, the ALJ found that the Department had proven its allegations by clear and convincing evidence and recommended that Dr. Kap-lan be fined $6,500 and placed on three years probation with such conditions as determined appropriate by the Department, including additional education re*393quirements.1

The record reflects that Dr. Kaplan had been disciplined by the Board on three prior occasions — two of which involved patient care. The prior administrative complaints had been resolved by Dr. Kaplan’s stipulation to the imposition of certain sanctions, including, in one case, a suspension of his right to perform certain surgical procedures. Although the ALJ was aware of the prior disciplinary actions, it found that Dr. Kaplan should be treated as a first-time offender because the prior disciplinary proceedings did not conclude with an order in which there had been a “finding” of a statutory violation. The Department filed an exception to the ALJ’s determination that Dr. Kaplan should be treated as a first-time offender and the exception was properly sustained by the Board. Rule 64B15-19.003, Florida Administrative Code, specifically authorizes the Board, in its determination of an appropriate penalty, to consider the number of times the licensee has previously been disciplined by the Board. The rule does not limit consideration of prior disciplinary actions to those cases in which there has been a “finding” of a statutory violation.

The sanctions ultimately imposed by the Board were authorized for a violation of section 459.015(l)(x), but far more severe than recommended by the ALJ. Dr. Kap-lan was issued a reprimand, assessed a fine of $6,500, ordered to take a medical records course, and prohibited from performing cosmetic surgery until such time as he demonstrated competency in cosmetic surgery by obtaining Board certification. Additionally, the Board suspended Dr. Kaplan’s license for one year with six months stayed, and imposed a three year probationary period to follow the suspension.

We find no error in the Board’s determination of the sanctions to be imposed against Dr. Kaplan. Section 120.57(1)(Z), Florida Statutes (2008), provides that where an agency reduces or increases the recommended penalty in a recommended order, it must engage in a review of the complete record and state with particularity its reasons for doing so by citing to the record. See also Hether v. Dep’t of Health, 980 So.2d 1124 (Fla. 5th DCA 2008). Here, the Board fully complied with the requirements of section 120.57(1)(Z). The Board’s final order reflected that the increased penalty was directly related to Dr. Kaplan’s significant disciplinary history.

AFFIRMED.

MONACO and TORPY, JJ, concur.


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Citator

Cited By

  • Aleong v. State, 10 So. 3d 1210 (Fla. 4th DCA 2009)
    …PER CURIAM. Affirmed. See Kaplan v. Dept. of Health, 8 So. 3d 391 (Fla. 5th DCA 2009). WARNER, POLEN and TAYLOR, JJ., concur.…

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