Petition for Writ of Certiorari — Azima v. Florida Department of Professional Regulation

B5°1757

CASE NO.

Suprenie Court, U.S.

FILED

APR 23 1986

JOSEPH F. SPANIOL, JR.

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, i985

ALI A. AZIMA, M.D., PETITIONER,

v.

FLORIDA DEPARTMENT OF

PROFESSIONAL REGULATION,

BOARD OF MEDICAL EXAMINERS,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI

TO THE DISTRICT COURT OF APPEAL

FOR THE FIRST DISTRICT OF FLORIDA

BERNARD H. DEMPSEY, JR., ESQ.

(Counsel of Record)

FERDINAND M. ROMANO,

ESQ. —

RICHARD LEE BARRETT, ESQ.

DEMPSEY & GOLDSMITH,

Suite 500, Day Building

605 East Robinson Street

Post Office Box 1980

Orlando, Florida 32802

(305) 422-5166

Attorneys for Petitioner,

ALI A. AZIMA, M.D.

PA.

CASE NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

ALI A. AZIMA, M.D., PETITIONER,

Vv.

FLORIDA DEPARTMENT OF

PROFESSIONAL REGULATION,

BOARD OF MEDICAL EXAMINERS,

RESPONDENT.

PETITLON FOR WRIT OF CERTIORARI

TO THE DISTRICT COURT OF APPEAL

FOR THE FIRS? DISTRICT OF FLORIDA

BERNARD H. DEMPSEY, JR., ESQ.

FERDINAND M. ROMANO, ESQ.

RICHARD LEE BARRETT, ESQ.

DEMPSEY & GOLDSMITH, P.A.

Suite 500, Day Building

605 East Robinson Street

Post Office Box 1980

Oriando, Florida 32802

(305) 422-5166

Attorneys for Petitioner,

ALI A. AZIMA, M.D.

QUESTIONS PRESENTED

Whether Section 458.331(1)(t),

Florida Statutes, is violative of the Due

Process Clause of the Fourteenth Amendinent to

the United States Constitution because it is

so vague that it fails to provide physicians

with adequate notice of what medical malprac-

tice standards will be applied in administra-

tive proceedings to determine whether a medi-

cal license may be suspended.

r Whether a statute which author-

izes a state administrative agency to revoke

a physician's license to practice medicine

comports with the due process provision of

the Fourteenth Amendment to the United States

Constitution when that statute requires only

that, as a threshold standard of proof, there

exist some competent substantial evidence of

a violation and the level of that competent

Substantial evidence is not substantially

greater than that required to support conven-

tional administrative action.

-ii-

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINION BELOW

JURISDICTION

STATEMENT OF THE CASE

A. Summary of Findings

and Recommendations

B. Summary of Issues

REASONS FOR GRANTING THE WRIT

I. SECTION 458.331(1)(t), FLA.

STAT. , IS UNCONSTITUTIONAL

BECAUSE IT LACKS REASON-

ABLY CLEAR GUIDELINES SO AS

TO PREVENT OFFICIAL ARBI-

TRARINESS IN THE REVOCATION

OF CONSTITUTIONALLY PROTECT-

ED PROPERTY INTEREST AND HAS

BEEN APPLIED IN A MANNER

WHICH IS SO VAGUE THAT IT

DENIED PETITIONER ADEQUATE

NOTICE OF THE STANDARDS FOR

ENFORCEMENT.

II. THE DECISIONS BELOW ARE BASED

ON A THRESHOLD STANDARD OF

SUBSTANTIAL COMPETENT EVI~

DENCE WHICH STANDARD IS VIOLA-

TIVE OF PETITIONER'S RIGHT TO

“$i i-

16

16

TABLE OF CONTENTS (Cont'd. )

DUE PROCESS BECAUSE IT HAS

RESULTED IN THE SUSPENSION OF

HIS PROFESSIONAL MEDICAL

LICENSE IN THE ABSENCE OF THE

MINIMALLY SUFFICIENT QUANTUM

OF PROOF NECESSARY UNDER THE

FOURTEENTH AMENDMENT OF TRL

UNITED STATES CONSTITUTION.

CONCLUSION

APPENDIX

SECTION I.

Opinion of the District

Court of Appeal, First Dis-

trict, State of Florida.

SECTION II.

Final Order of the Board of

Medical Examiners, State of

Florida.

SECTION III.

Text of Statutes, Regulations

and Constitutional Provisions

Which the Case Involves.

§390.001(7), Fia. Stat.,

Termination of Pregnancies.

§458.331, Fla. Stat., Grounds

for Disciplinary Action;

Action by the Board.

§768.45, Fla. Stat., Medical

Negligence; Standards of

Recovery.

Florida Administrative Pro-

cedure Act, Chapter 120,

Fla. Stat.

-iv-

42

TABLE OF CONTENTS (Cont'd. )

§120.57, Fla. Stat.,

Decisisions Which Affect

Substantial Interests.

§120.68, Fla. Stat.,

Judicial Review.

Fla. Admin. Code,

Rule 10D-72.16.

U.S. Const., Amend. XIV, §1

Citizenship; Privileges and

Immunities; Due Process; Equal

Protection; Apportionment of

Representation; Disqualification

of Officers; Public Debt; En-

forcement.

SECTION IV.

Portion of Record Demonstrating

That Both Federal Questions

Were Timely and Properly Raised.

SECTION V.

Summary of the Case.

The Petitioner.

The Petitioner's Medical

Procedures.

Case History and Testimony

Relating to Holli Schmidt.

Case History and Testimony

on Christine Sellers Kuchar.

Case History and Testimony

Relating to Darlene Baker.

-YV=

A-101

A-116

TABLE OF CONTENTS (Cont'd. )

6. Conclusion. A-124

-vVvil-

TABLE OF AUTHORITIES

Cases Cited

Aiello v. City of Wilmington,

Delaware

623 F.2d 845 (3d Cir. 1980

Baggett v. Bullitt

377 U.S. 362, 84 S.Ct. 1316 (1964)

Barry v. Barchi

443 U.S. 55, 99 S.Ct. 2642 (1979)

Beil v. Burson

402 U.S. S3a- 92 S.Ct. F588 (1971)

Bellotti v. Baird

428 U.S. 132 96 S.Ch. 2857 (1976)

Board of Regents of State

Colleges v. Roth

408 U.S. 564, 92 S.Ct. 2701 (1972)

Bowling v. Department of Insurance

394 So.2d 165 (Fla. Ist DCA 1981)

Boyette v. State, Professional

Practices Council

346 So.2d 598 (Fla. lst DCA 1977)

Coates v. City of Cincinnati

402 U.S. 611, 91 S.Ct. 1686 (1971)

Connally v. General Construction Co.

269 U.S. 385, 46 S.Ct. 126, 70 L.Ed.

322 (1926)

Diebold, Inc. v. Marshal

585 F.2d 1327 (6th Cir. 1978)

Grayned v. City of Rockford

408 U.S. 104, 92 S.Ct. 2294,

33 L.Ed.2d 222 (1972)

-vii-

Page

39

41

17, 42

18, 48

46, 47

36, 39

40

18-19

TABLE OF AUTHORITIES (Cont'd. )

Harman v. Forssenius

380 U.S. 528, 85 S.Ct. 1177 (1965)

Harris County Commissioners Court

v. Moore

4€z0 U.S. 77, 95 8.Ct. S70 (1975)

Intern. Soc. For Krishna Consc.

v. Rochford

585 F.2d 263 (7th Cir. 1978)

Kramer v. Santosky

102 S.Ct. 1388, 455 U.S. 745,

71 L.Ed.2d 599 (1982)

Lake Carriers' Association v.

MacMullan

406 U.S. 498 92 S.Ct. 1749 (1972)

Mathews v. Eldridge

424 U.S. 319, 96 S.Ct. 893 (1976)

McDonald v. Department of Banking

and Finance

346 So.2d 569 (Fla. lst DCA 1977)

Murray v. Norberg

423 F.Supp. 795 (1976)

Musser v. State of Utah

333 U.Be Fa, OB BCE. 397 (1948)

Peden v. State Board of Funeral

Directors and Embalm.

189 So.2d 526 (Fla. 3d DCA 1966)

Procunier v. Martinez

416 U.S. 396, 94 S.Ct. 1800 (1974)

Reid v. Florida Real Estate Com-

mission

188 So.2d 846 (Fla. 2d DCA 1966)

-vili-

50

50

19,

48

50

48

45

22

23

47,

41

44

23

49

TABLE OF AUTHORITIES (Cont'd. )

Robinson v. Florida Board of

Dentistry

477 So.2d 930 (Fla. 3d DCA 1984) 46, 47

Smith v. Goguen

415 U.S. 566, 94 S.Ct. 1242,

39 L.Ed.2d 605 (1974) 18

Southern Pacific Terminal Co.

v. Interstate Commerce Commission

219 U.S. 498 31 S.Ct. 279,

55 L.Ed 310 (1911) 51-52

United States v. Professional Air

Traffic Controllers

6/8 F.2d 1 (Ist Cir. i982) 36

Universal Camera Corp. v. NLRB

340 U.S. 474, 71 S.Ct. 456,

95 L.Ed. 456 (1951) . 45

Village of Hoffman Est. v.

Flipside, Hoffman Est.

455 U.S. 489, 102 S.Ct. 1186 (1982) 16, 22

United States v. National Dairy

Products Corp.

372 U.S. 49, G3 8.Ct. 594 (1963) 21-22

Zwickler v. Koota

389 U.S. 241, 88 S.Ct. 391 (1967) 49-50

Other Authorities

U.S. Const. Amend. XIV 34, 40

42,

28 U.S.C. §2101(c) 3

Rule 20, Revised Rules of the

Supreme Court 3

-ix-

TABLE OF AUTHORITIES (Cont'd. )

$120.57, Fla. Stat. 43

§120.68, Fla. Stat. 43

§390.001, Fla. Stat. Zig ae

§458.331, Fla. Stat. i ee

36, 38

§458.331(1)(t), Fla. Stat. 4-10,

13, 16

4, 33

37, 3

39,

§466.028(1)(y), Fla. Stat. 46

§768.45, Fla. Stat. 19, 20

§768.50(2)(b), Fla. Stat. 20

Rule 10D-72.16, Fla. Admin. Code 27

Standards for Obstetric-Gynecologic

Services, American College of

Obstetrics and Gynecologists

(5th ed. 1982) 1) ae

25, 26

28, 31

34, 37

Davis, Kenneth Culp, Administrative

Law Treatise, West Publishing Cc.,

St. Paul, Minn. 1958 45

CASE NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

ALI A. AZIMA, M.D., PETITIONER,

V.

FLORIDA DEPARTMENT OF

PROFESSIONAL REGULATION,

BOARD OF MEDICAL EXAMINERS,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI

TO THE DISTRICT COURT OF APPEAL

FOR THE FIRST DISTRICT OF FLORIDA

‘The Petitioner, ALI A. AZIMA, M.D.,

respectfully prays that a writ of certiorari

issue to review the judgment and opinion of

the District Court of Appeal for the First

District of Florida entered in his case on

July 15, 1985.

OPINION BELOW

The opinion of the District Court of

Appeal for the First District of Florida ap-

pears in the appendix hereto. The record of

the Board of Medical Examiners and the record

of the hearing are not included.

JURISDICTION

The judgment of the First District

Court of Appeal of Florida, which affirmed

the final order issued by the Florida Board

of Medical Examiners suspending Petitioner's

medical license, was entered on July 15, 1985.

Petitioner sought a rehearing which was de-

nied on August 26, 1985. Petitioner then

timely filed his notice to invoke discretion-

ary jurisdiction of the Florida Supreme Court

on September 23, 1985. On January 24, 1986,

the Supreme Court of Florida denied certi-

Orari and refused to entertain a motion for

rehearing. This Petition for Writ of Certio-

rari was filed within ninety (90) days of

that date as required by Rule 20 of the Revis-

ed Rules of the Supreme Court of the United

States and 28 U.S.C. §210l(c).

STATEMENT OF THE CASE

A. Summary of Findings and Recommendations

This petition arises from the suspen-

sion of Petitioner's medical license by the

Florida Board of Medical Examiners and Depart-

ment of Professional Regulation, based upon a

finding that his treatment of three patients

violated §458.331(1)(t), Florida Statutes,

which authorizes such suspension for medical

malpractice.

On February 7 and 8, 1984, an admin-

istrative hearing was held in Ft. Myers, Flor-

ida, before Diane D. Tremor, Hearing Officer

for the Florida Department of Administrative

Hearings. On July 24, 1984, Ms. Tremor sub-

mitted a Recommended Order to the Board of

Medical Examiners (hereinafter "BOME") in

which Hearing Officer Tremor found Respon-

dent/Petitioner's (hereinafter "Petitioner" )

treatment of three patients to be in viola-

tion of §458.331(1)(t), Fla. Stat., and con-

cluded that such treatment constituted medi-

cal malpractice. She recommended a one-year

suspension of Petitioner's medical license.

A short hearing was conducted before

the BOME on December 1, 1984, in which the

Board adopted the Hearing Officer's findings

of fact and conclusions of law in toto. The

BOME increased the recommended penalty and

specifically ordered that:

Respondent's li-

cense to practice medicine in

Florida shall be suspended

for a period of one year,

with the specific provision

that in six months Respondent

may request that the Board

Stay the second six months of

the suspension.

as Upon the termina-

tion or stay of the suspen-

sion, Respondent's license to

practice medicine in Florida

Shall be placed on probation

for a period of three years,

Subject to the term and condi-

tion that Respondent make

semi-annual appearances be-

fore the Board.

Se During the periods

of suspension and probation,

Respondent shall earn fifty

(50) hours of Category 1 con-

tinuing medical education

annually.

im, Faes TSA).

B. Summary of Issues

By administrative complaints filed on

March 15, 1983 (Case No. 83-1205) and August

2, 1983 (Case No. 83-2589), the Department of

Professional Regulation (hereinafter "DPR")

charged ALI A. AZIMA, M.D., with violating

§458.331(1)(t), Fla. Stat., with regard to

his medical treatment of five patients. The

Complaint filed on March 15 contained four

counts and related to patients Christine Ann

Sellers (now Christine Kuchar) (Count 1),

Holli Schmidt (Count II), Coleen Lundy (Count

III), and Kathy Holloway (Count IV). The

Complaint filed on August 2, 1983, contained

two counts, both of which related to patient

Darlene Baker.

Count IV of the Complaint filed on

March 15, 1983, and Count II of the Complaint

filed on August 2, 1983, were voluntarily

dismissed, with prejudice, at the commence-

ment of the final hearing. Therefore, only

the first three counts of the March 15 Com-

plaint and Count I of the August 2 Complaint

were considered by the Hearing Officer and

the BOME.

Issues

Based on Count I of the Complaint

filed on March 15, 1983, the Hearing Officer

found that in performing a termination of

pregnancy procedure on Christine Sellers

Kuchar (hereinafter "Kuchar"), Petitioner

violated §458.331(1)(t), Florida Statutes,

because he failed to obtain a patient medical

history, including a determination of the

patient's Rh factor, and failed to send the

tissue specimen to a pathologist.

Count II of the March 15, 1983, Com-

plaint charged that with respect to patient

Holli Schmidt, Petitioner negligently insert-

ed an intrauterine contraceptive device (IUD)

when she was twelve weeks pregnant, failed to

take vital signs, failed to perform blood

work and that on two subsequent occasions

counseled her without performing any examina-

tion to ensure that she was not pregnant.

The Hearing Officer concluded that

the evidence did not establish that the tak-

ing of vital signs or the perfocmance of

blood work were necessary prior to the inser-

tion of an IUD, or that the patient was

twelve weeks pregnant when she last saw the

Petitioner. The Hearing Officer did, how-

ever, find that Petitioner, in violation of

§458.331(1)(t), Fla. Stat., inserted an IUD

into patient Schmidt without taking adequate

precautions to ensure that the patient was

not pregnant at the time of insertion.

Petitioner was found not guilty of

the allegations contained in Count III of the

March 15, 1983, Complaint. Count IV of the

same Complaint was voluntarily dismissed.

As to Count I of the Complaint filed

on August 2, 1983, the Hearing Officer deter-

mined that in performing a termination of

pregnancy procedure on patient Darlene Baker,

Petitioner violated §458.331(l)(t), Fla.

Stat., by failing to send the tissue specimen

to a pathologist for evaluation. Count II of

this Complaint was voluntarily dismissed.

In summary, it was found that Peti-

tioner's conduct constituted the commission

of "gross or repeated malpractice or the fail-

ure to practice medicine with that level of

care, skill and treatment which is recognized

by a reasonably prudent similar physician as

being acceptable under similar conditions and

circumstances." §458.331(1)(t), Fla. Stat.

This finding was based on the Hearing Offi-

cer's conclusions that Petitioner failed to

send tissue specimens to a pathologist for

examination after performing termination of

pregnancy procedures on patients Kuchar and

Baker, failed to determine the Rh factor of

patient Kuchar, and did insert an IUD into

patient Schmidt without taking adequate pre-

cautions to ensure that she was not pregnant

at the time of insertion. The remaining char-

ges in the two Complaints were either dismiss-

ed or were insufficiently established by com-

petent substantial evidence. (R. 700-703).

In support of the findings against

Petitioner, the DPR presented the testimony

of patients Baker and Kuchar; Drs. Constan-

tine Yankopolus, Randall Paul Cowdin, and

=10-

Philip F. Waterman, II, each of whom practice

together in the same office in Fort Myers,

Florida, and each of whom are in direct compe-

tition with the Women's Health Clinic oper-

ated by Petitioner. The DPR also put on Dr.

Craig B. Sibley, who also practices in Fort

Myers, Florida, and is a direct competitor of

Petitioner's Women's Health Clinic. All of

the expert medical witnesses who testified

against Petitioner treated one or more of the

complaining patients. The DPR also presented

the testimony of Theodore M. Purcell, an in-

vestigator for the DPR,

The crux of Petitioner's position is

that all ot the testimony elicited at the

hearing established that his procedures were

in full compliance with the published Ameri-

can College of Obstetrics and Gynecology

(hereinafter "“OB/GYN") standards. There is

absolutely no testimony that Petitioner viola-

-ll-

ted or fell below any published or uniformly

recognized standards. The testimony at best

established that his practices and pro-

cedures, while admittedly meeting the publish-

ed standards, fell below medical standards

established solely by the testimony of four

physicians, all of whom were direct competi-

tors of Petitioner's Women's Health Clinic.

Petitioner testified on his own be-

half. He also presented the testimony of

George Chiu, the Director of Medical Informa-

tion at Fort Myers Community Hospital, and

Anne Wilke, the Executive Secretary for the

Lee County Medical Association.

The DPR's Exhibits A through D and F

through H were received into evidence as well

as Petitioner's Exhibits 1, 2 and 3.

Petitioner refers the Court to Sec-

tion V of the Appendix which contains a sum-

mary of facts material to this Court's consid-

=—s =

eration of the questions presented. In this

summary, Petitioner has attempted to present

portions of the record in an objective manner

in order to demonstrate that Petitioner had

no prior notice of the medical standards by

which it was held that he violated

§438.331(1)(t), Fla. Stat., and to demon-

strate that the DPR did not prove essential

allegations of law and fact by a preponder-

ance of competent substantial evidence.

Specifically, Petitioner contests

findings that:

a. He was legally obligated

to determine the Rh factor of

Ms. Kuchar's blood;

b. He did not determine the

Rh factor of Ms. Kuchar's

blood; and

Ce He was required by law

to send the abortion tissue

-13-

for a pathological examina-

tion when Petitioner, in

accordance with the only stan-

dards of his profession which

he could have been aware of,

clearly determined through a

detailed visual examination

that fetal remains were pre-

sent and the abortion was

successful.

The federal questions presented for

this Court's review were not raised until

Petitioner's appeal from the final order of

the BOME. This is because the state admin-

istrative agency had no jurisdiction to deal

with constitutional issues. Both federal

questions were presented for the first time

in Petitioner's briefs to the District Court

of Appeal for the First District of Florida.

Pertinent quotations from specific portions

Fo

of Petitioner's briefs, showing that the

federal questions were timely and properly

raised, are presented in Section IV of the

Appendix. The District Court of Appeal did

not pass directly on either constitutional

issue.

If there remains uncertainty that

each federal question was adequately raised

before the state court, Petitioner refers

this Court to his discussion of each reason

for granting the writ. In that discussion,

Petitioner presents reasons why this Court

should not invoke the abstention doctrine.

wih

REASONS FOR GRANTING THE WRIT

I. SECTION 458.331(1)(t), FLA. STAT., IS

UNCONSTITUTIONAL BECAUSE IT LACKS REA-

SONABLY CLEAR GUIDELINES SO AS TO PRE-

VENT OFFICIAL ARBITRAPINESS IN THE

REVOCATION OF A CONSTITUTIONALLY PRO-

TECTED PROPERTY INTEREST AND HAS BEEN

APPLIED IN A MANNER WHICH IS SO VAGUE

' THAT IT DENIED PETITIONER ADEQUATE

NOTICE OF THE STANDARDS FOR ENFORCE-

MENT.

This Court has stated that "perhaps

the most important factor affecting the clar-

ity that the constitution demands of a law is

whether it threatens to inhibit the exercise

of constitutionally protected rights." Vil-

lage of Hoffman Est. v. Flipside, Hoffman

Est., 455 U.S. 489, 499, 102 S.Ct. 1186, 1193

(1982).

Petitioner, as a physician licensed

to practice medicine by the State of Florida,

holds a sufficient claim of entitlement to

his license to invoke the protection of the

due process clause because that license can

only be suspended upon a satisfactory showing

that he has committed an act in violation of

$458.331, Fie. Stat. Barry v. Barchi, 443

U.8. $35, 64, 99 S.Ct. 2642, 2649 (i1979)3

Board of Regents of State Colleges v. Roth,

406 G.8. 364,377) 32 8.Ct. 2701, &797

(1972).

Florida law has provided Petitioner

with a property interest in his license be-

cause revocation or other disciplinary action

regarding his medical license is not discre-

tionary. Rather, all disciplinary action

taken by the DPR and the BOME against a medi-

cal license must occur pursuant to §458.331,

Fla. Stat. See Barry v. Barchi, 443 U.S. 55

at 64, 99 S.Ct. 2642 at 2649.

Once a license is issued, as in Peti-

tioner's case, its continued possession may

become essential to the pursuit of a liveli-

hood. The suspension of Dr. AZIMA's license

a) Pn

involves state action that adjudicates a most

important interest of this licensee: employ-

ment in his medical profession. Bell v.

Burson, 402 U.S. 535, 539, 3i &.Ct. i566,

1589 (1971). Petitioner's constitutional

protections provided by the fourteenth amend-

ment limit the state's power to terminate

this entitlement regardless of whether his

interest is denominated a "right" or a “privi-

lege." Id.

When a statute is challenged under

the due process doctrine of vagueness, a

court must determine: (1) whether the stat-

ute provides sufficient notice of what may

not be done, and (2) whether it contains rea-

sonadly clear guidelines so as to prevent

official arbitrariness or discrimination in

its enforcement. Smith v. Goguen, 415 U.S.

566, 573, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605

(1974); Grayned v. City of Rockford, 408 U.S.

~}8=

104, 108, 392 S.Ct. 2294, 2298, 33 L.Ed.2d 222

(1972); Intern. Soc. For Krishna Consc. v.

Rochford, 5t5 F.2d 263, 269 (7th Cir. 1978).

Section 458.331, Fla. Stat., pro-

vides,! in part:

(1) The following acts shall

constitute grounds for which

the disciplinary actions spe-

cified in subsection (2) may

be taken:

* * *

(t) Gross or repeated

malpractice or the failure to

practice medicine with that

level of care, skill, and

treatment which is recognized

by a reasonably prudent simi-

lar physician as being

acceptable under similar con-

ditions and circumstances.

The board shall give great

weight to the provisions of

Ss. 768.45 when enforcing this

paragraph. (Emphasis added).

lBoth §458.331 and §768.45, Fla. Stat., were

modified during 1985. See Section III of the

Appendix for the fully revised text and an

explanation of the changes.

-~19-

Section 768.45, Fla. Stat., which

governs civil standards for recovery in medi-

cal malpractice actions, provides in part:

(1) In any action for re-

covery of damages based on

the death or personal injury

of any person in which it is

alleged that such death or

injury resulted from the neg-

ligence of a health care pro-

vider as defined in s.

768.50(2)(b), the claimant

Shall have the burden of prov-

ing by the greater weight of

evidence that the alleged

actions of the health care

provider represented a breach

of the accepted standard of

care for that health care

provider. The accepted stan-

dard of care for a given

health care provider shall be

that level of care, skill,

and treatment which 1s recog-

nized by a reasonably prudent

Similar health care provider

as being acceptable under

Similar conditions and circum-

Stances. (Emphasis added).

* * *

(2). £5) If the health care

provider whose negligence is

claimed to have created the

cause of action is certified

~20«

by the appropriate American

board as a specialist, is

trained and experienced ina

medical speciality, or holds

himself out as a specialist,

a "Similar health care pro-

vider" is one who:

1. Is trained and experi-

enced in the same specialty;

and

as Is certified by the

appropriate American board in

the same specialty.

These interrelated statutory standards give a

physician absolutely no warning, guidance or

notice of what conduct will render him sub-

ject to administrative sanctions.

The constitutionality of a statute,

with regard to vagueness or overbreadth is

generally not considered by this Court in

terms of the statute "on its face," but ra-

ther is reviewed within the context of specif-

ic conduct to which the statute has been ap-

plied. United States v. National Dairy Pro-

ducts Corp., 372 U.S. 29, 83 S.Ct. 594, 595

ee

(1963). Recognizing that the speculative

danger of arbitrary enforcement may not in

and of itself render a statute void for vague-

ness, see Village of Hoffman Est. v. Flip-

side, Hoffman Est., 455 U.S. 457, 102 S.Ct.

1196; and Coates v. City of Cincinnati, 402

U.S. 611, 91 S.Ct. 1686 (1971), Petitioner is

aggrieved because the application of the stat-

utory standard to his conduct did violate his

rights to due process. Murray v. Norberg,

423 F.Supp. 795, 801 (1976). "Vagueness ...

ordinarily constitutes a violation of due

process only where the aggrieved party can

show that the statute ... fails to give ade-

quate notice of some duty that government

imposes...." Id.

This Court has consistently heid that

a limiting construction, by state courts, of

_ what would otherwise constitute an unconstitu-

tionally vague statute, can render the stat-

-22-

ute constitutional. Musser v. State of Utah,

333 U.S. 95, 68 S.Ct. 397 (1948). However,

no limiting construction has been given to

§458.331, Fla. Stat. Rather, in the case at

bar the First District Court of Appeal affirm-

ed a decision of the BOME which was founded

upon a statute so lacking in reasonably clear

guidelines that it fails to prevent official

arbitrariness in enforcement or to put physi-

cians on notice as to what conduct is pro-

scribed or subject to discipline. Krishna v.

Rochford at 269. In fact, the standards by

which Petitioner was judged were contrary to

his reasonable expectations. The unrefuted

testimony is that Petitioner complied with

all published American College of OB/GYN stan-

dards. The only standards which he failed to

follow were those arbitrary standards estab-

lished solely by the self-serving testimony

of those doctors who provide his only competi-

=23<

tion and who do not share his opinion regard-

ing the community benefits of a women's

health clinic.

For example, Petitioner was specifi-

cally disciplined for his failure to send Ms.

Kuchar's products of conception for a patholo-

gical analysis. This finding of guilt was

based wholly upon expert witness testimony

that all products of conception must be sent

to pathology. (R. 232, 249, 271 and 278).

Petitioner, however, testified that there was

no need to send Ms. Kuchar's tissue for path-

Clogical analysis because fetai parts were

readily recognizable, a fact which was in no

way contradicted. (R. 428). Rather than

contradict his factual testimony, the expert

witnesses testified that regardless of whe-

ther fetal parts are recognized, all tissue

must be submitted for pathological analysis.

(R. 232, 249, 271 and 278). This expert tes-

=) oe

timony, which established the standards under

which Petitioner's license was suspended, was

in direct conflict with the published Ameri-

can College of OB/GYN standards. (R. 232,

249, 271 and 278). Those standards provide

in part as follows:

At page 52, the Standards reveal:

In the situation of elective

termination of pregnancy, the

attending physician should

record a description of the

gross products. Unless defin-

ite embryonic or fetal parts

can be identified, the pro-

ducts of elective interrup-

tions of pregnancy must be

submitted to a pathologist

for gross and microscopic

examination. (Emphasis add-

ed).

At page 54, under the heading "Abortion," the

Standards specifically state:

If villi or fetal parts are

not identified with certain-

ty, the tissue specimen must

be sent for further patholo-

gic examination, and the pa-

tient must be alerted to the

possibility of ectopic preg-

nancy. (Emphasis added).

-25-

At page 66 of the Standards, under the head-

ing "Gynecologic Surgery,” is the following:

Tissue removed should be

submitted to a pathologist

for examination. The patient

should be informed of the

tissue diagnosis. An excep-

tion to the practice may be

in elective terminations of

pregnancy in which definitive

embryonic or fetal parts can

be identified. In such in-

stances, the physician should

record a description of the

gross products. Unless defi-

nite embryonic or fetal parts

can be identified, the pro-

ducts of elective interrup-

tions of pregnancy must be

submitted to a pathologist

for gross and microscopic

examination. (Emphasis add-

ed).

(R. £232, 278).

Standards for Obstetric-Gynecologic Services,

American College of Obstetrics and Gynecolo-

gists (5th ed. 1982).

Given that there were, as per the

Standards' dictates, recognizable fetal

parts, Petitioner did not send those speci-

~ 26a

mens to pathology but, rather, disposed of

them in. a Sanitary manner. Petitioner

performed all that was required of him by the

2All that is required by the Florida legisla-

ture is that fetal remains be disposed of in

a sanitary and appropriate manner. Section

390.001, Fla. Stat., provides in part:

(7) FETAL REMAINS.--

Fetal remains shall be dis-

posed of in a sanitary and

appropriate manner and in

accordance with standard

health practices, as provided

by rule of the Department of

Health and Rehabilitative

Services....

The Department of Health and Rehabilitative

Services' rules promulgated pursuant to

§390.001, Fla. Stat., similarly require no

more than disposal in a sanitary, nuisance

free manner. Fla. Admin. Code, Rule

10D-72.16 provides:

10D-72.16 Disposal of

Fetal Remains. All fetal

remains shall be disposed of

in a sanitary, nuisance free

manner. Incineration cr buri-

al of such remains, as well

as other nuisance free meth-

ods, are acceptable so long

as the licensing agency is

FOOTNOTE CONTINUED ON NEXT PAGE.

~2 Fm

American College of OB/GYN standards and Flor-

ida law.

When these standards are juxtaposed

alongside the testimony of the doctors pre-

sented by the DPR as experts, the constitu-

tional infirmity is laid bare:

Dr. Cowdin not only disagreed with

the published standards on this matter, but

went so far as to find the very standards

which govern his profession to be below ac-

ceptable medical standards. He testified as

follows:

Q. I will read you the Standards

for Obstetric-Gynecologic

Services, published by the

American College of Obstetri-

cians and Gynecologists, Page

52: In the situation of elec-

tive termination of pregnan-

assured that the disposal

method utilized is nuisance

free.

As such, Petitioner's procedures regarding

termination of pregnancies is fully in compli-

ance with §390.001, Fla. Stat.

~-28—

cy, the attending physician

should record a description

of the gross products.

Now, you Gon't do that

in all cases, right?

Correct,

Unless definite embryonic or

fetal parts can be identi-

fied, the products of concep-

tion must be submitted to a

pathologist for gross and

microscopic examination.

Do you agree with that?

No, I think all tissues

should be submitted. P

So you disagree with those

Standards?

Correct, because whether or

not there is embrionic [sic]

tissue present does not rule

out a concomitant hydatiform

[sic] or a carcinoma.

Do you think you or someone

else has or should inform

them of this?

I think it would be a good

idea.

(R. 278)

(Emphasis added).

~29—

When Dr. Yankopolus was asked about

the standards, this dialogue followed:

Q. If a patient comes to see an

OBGYN for the purpose of ter-

Minating a pregnancy and the

pregnancy is in fact or the

abortion procedure is per-

formed and the products of

conception are not forwarded

to a pathologist for examina-

tion although the doctor has

visually examined the pro-

ducts of conception, in your

opinion would that doctor's

treatment, medical treatment

of that patient, fall below

an acceptable standard of

care?

A. Absolutely.

Q. Why is that?

A. I don't feel that visual exam-

ination of tissue is adequate

for the determination as to

whether or not there are chor-

ionic villi present. In cer-

tain cases the documentation

of that requires microscopic

examination by a trained path-

Ologist.

(R. 249).

-30-

Later during the hearing when the

published OB/GYN standards were brought to

his attention, Dr. Yankopolus responded as

follows:

Q. What does it say; what does

it say here?

A. 1981 Committee on Profession-

al Standards.

Q. Now, can you 1ook on Page 52.

There is something underlined

in yellow. Could you read it

to the hearing officer?

A. In a situation of selective

termination of pregnancy, a

physician should record a

description of the gross pro-

ducts definitely being identi-

fied as products of elective

interruptions, and if not

easily identifiable, they

must be submitted to a pathol-

ogist for gross and microscop-

ic examination.

Q. Does this say that you should

record the gross examination?

And you don't? Because you

feel that you are not capable

of doing this.

-3]-

A. That's correct.

Q. Does this mean that you fall

below the standards, Doctor?

A. In fact, I am above the stan-

dards.

Q. Above the standards? Okay.

(R. 232).

(Emphasis added).

While Dr. Yankopolus may choose to

practice above the standards required by his

profession, certainly Dr. AZIMA should not be

denied his right to practice medicine for

scrupulously following the published stan-

dards dictated by his profession.

Perhaps the most telling testimony of

all came from Dr. Cowdin and it speaks direct-

ly to, and emphasizes, the arbitrary stan-

dards employed against Petitioner:

Q. Does the Lee County Medical

Society have any standards

that you know of?

A. With regards to what?

-32-

Falling below the standard if the Rh

Factor is not determined by the doc-

tor; sending the results to a pathol-

ogy [sic]; taking the hemoglobin

count. All of those things that you

said if it wasn't done it falls below

the standard; does the Lee County

Medical Society have those standards?

As to whether or not they have them

formally stated out, I am not cer-

tain.

Why aren't you certain? You know

they don't. Why are you alleging--

I think the standard of care, if I

may so state, 1S something that is

dictated by the practicing physicians

in that community and the manners in

which they practice their medicine.

Do they tell each other, then, what

they do?

Certainly.

When did you tell Dr. Azima what your

Standards are?

I never have.

When did he tell you what his stan-

dards are?

He never has.

-33-

Q. But that's how they are determined,

by one doctor telling another; is

that what you have testified to?

A. I think that's a reasonable state-

ment.

GO. ALL. vight. Let's go on. You have

stated that it falls below the stan-

dards if the remains of the abortion

are not sent to pathology. I think

we have established that about 10

times, right?

A. Right.

(Emphasis added).

It was this testimony, and not the

published American College of OB/GYN stan-

dards or any other reasonably objective stan-

dards, by which Petitioner was found guilty

of violating §458.331(1)(t), Fla. Stat., and

it is this arbitrary method of establishing

Standards of enforcement which renders

§458.331(1)(t) violative of the Fourteenth

Amendment to the United States Constitution.

—

The most disturbing factor regarding

prosecutions under §458.331(1)(t), Fla.

Stat., is that a doctor may be denied the

right to practice medicine based on unwritten

and uncodified standards. These standards

may be established by a loosely assembled

group of his ostensible peers who are his

competitors or who may disagree with his poli-

tical or societal views, e.g., the propriety

of operating a women's health clinic. As

such, medical licensees are put on no notice

whatsoever regarding what conduct is prohibit-

ed. This leaves the DPR free to create and

enforce standards which are developed at

will, promulgated ad hoc, and enforced ex

post facto. If a physician cannot be assured

of the continued possession of his license by

following to the letter the published stan-

dards of his profession, then no physician

-~35-

can fully serve his profession, nor practice

with confidence.

Petitioner was never provided any

warning of the standards which were used to

judge his medical practice. Government regu-

lation cannot proscribe the doing of an act

in terms so vague that men of Common intelli-

gence must necessarily guess at its meaning

and differ as to its application. Connally

v. General Construction Co., 269 U.S. 385,

391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926);

United States v. Professional Air Traffic

Concrollers, 678 F.2d 1, 3 (list Ge. 1962).

Petitioner has had a valuable proper-

ty right taken from him for behavior which he

could not reasonably understand to be pro-

scribed and which he had no way of knowing

constituted a violation of §458.331, Fla.

Stat. (R. 369-421).

=36-

The standard which is required by

§458.331(1)(t), Fla. Stat., is "that level of

care, Skill, and treatment which is recog-

nized by a reasonably prudent similar physi-

cian as being acceptable under similar condi-

tions and circumstances." Petitioner has

demonstrated that his treatment of Christine

Sellers, Holli Schmidt and Darlene Baker

fully complied with the only recognized and

published standards applicable to his special-

ty, i.e., those standards set by the American

College of OB/GYN. (See Appendix Section V).

But the Hearing Officer and the BOME, instead

of relying on these published standards, re-

lied solely upon the testimony of competitors

to establish arbitrary standards, more strin-

gent than those established by the American

College of OB/GYN. Petitioner had no notice

whatsoever of these arbitrary standards. (R.

692-708, 709-751).

=37-

It is evident from the record that

Petitioner has had a valuable property right

taken from him for behavior which he could

not reasonably understand to be proscribed.

The DPR presented expert testimony of four

interested witnesses to establish a new stan-

dard of care, skill and treatment, which is

above that set by the American College of

Obstetrics and Gynecology; and the testimony

of these same witnesses is so inconsistent as

to cause great doubt that a reasonably pru-

dent similar physician could be expected to

recognize this new standard as the minimally

acceptable standard of care, skill and treat-

ment required by §458.331, Fla. Stat. (See

Appendix Section V for a synopsis of the sig-

nificant conflict among the experts regarding

standards of medical practice).

This application of §458.331(1)(t),

Fla. Stat., to Petitioner's practice clearly

=-38-

violated the first essential of due process

of the law because men of common intelligence

differed in opinion as to its application.

Connally v. General Construction Co., 269

U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed.

322 (1926); see also Aiello v. City of Wilm-

ington, Delaware, 623 F.2d 845, 850 (3d Cir.

1980. (See Appendix Section V). The only

relevant standards of practice which Petition-

er had notice of were the written standards

promulgated by the American College of OB/GYN

and, therefore, these were the only standards

by which Petitioner could determine “that

level of care, skill, and treatment which is

recognized by a reasonably prudent similar

physician as being acceptable under similar

conditions and circumstances."

§458.331(1)(t), Fla. Stat. There was no tes-

timony that Petitioner violated the written

published standards; to the contrary, the

=39-

testimony revealed that he followed these

standards scrupulously.

Because the DPR chose to apply new

and arbitrary criteria which have never been

published or otherwise communicated, the deci-

sion below is violative of Petitioner's due

process rights. Diebold, Inc. v. Marshal,

585 F.2d 1327 (6th Cir. 1978). The statute

in question has been applied in an arbitrary

and otherwise constitutionally invalid manner.

This vague application of the statute in ques-

tion has resulted in an unconstitutional tak-

ing of Petitioner's property interests in

violation of the Fourteenth Amendment to the

United States Constitution.

If there remains doubt that Petition-

er sufficiently presented this federal due

process question before the state courts,

Petitioner prays for the foilowing reasons

that this Court not invoke the abstention

~40-

doctrine. The statute in question is vague

to individuals to whom it plainly applies

because these licensees cannot understand

what is required of them. Nor is it in the

public interest that medical doctors fore-

swear all activity which is arguably within

the scope of the statute's vague terms,

Procunier v. Martinez, 416 U.S. 396, 94 S.Ct.

1800 (1974). The abstention doctrine is not

appropriate because the statute is lacking in

terms susceptible of objective measurement.

Baggett v. Seta aee, 377 GiB... 362, 84 B.CE.

1316 (1964).

@4)-

II. THE DECISIONS BELOW ARE BASED

ON A THRESHOLD STANDARD OF SUB-

STANTIAL COMPETENT EVIDENCE,

WHICH STANDARD IS VIOLATIVE OF

PETITIONER'S RIGHT TO DUE PROCESS

BECAUSE IT HAS RESULTED IN THE

SUSPENSION OF HIS PROFESSIONAL

MEDICAL LICENSE IN THE ABSENCE

OF THE MINIMALLY SUFFICIENT QUAN-

TUM OF PROOF NECESSARY UNDER THE

FOURTEENTH AMENDMENT OF THE UNITED

STATES CONSTITUTIOY.

As noted above, the continued posses-

sion of Petitioner's medical license is essen-

tial to his livelihood such that a suspension

of that license is an adjudication of a valu-

able and important interest. (See p. 7, in-

fra). Any suspension of Petitioner's license

must be in accord with the procedural due

process required by the Fourteenth Amendment

of the United States Constitution. Barry v.

Barchi, 443 U.S. 55, 99 S.Ct. 2642 (1979).

For the administrative adjudication

of rights, the State of Florida utilizes a

vague, "Sliding scale" standard of substan-

~42-

tial competent evidence, §§120.57(1)(b)(9)

and 120.68(10), Fla. Stat.,3 which requir-

es that a licensee's violation be proven "by

evidence which weighs as 'substantially' on a

scale suitable for evidence as the penalty

does on the scale of penalties." Bowling v.

Department of Insurance, 394 So.2d 165, 172

(Fla. lst DCA 1981). Notwithstanding the

artful nature of this analogy, it is a sub-

jective standard whose threshold requirements

are not commensurate with the protections

afforded Petitioner's property rights under

the fourteenth amendment. In adopting this

standard of substantial competent evidence,

the State of Florida has retreated from the

higher standard of “clear and convincing

proof" which was applied in license revoca-

3§§120.57 and 120.68, Fla. Stat., are relevant

portions of the Florida Administrative Pro-

cedure Act and have been reproduced in Sec-

tion III of the Appendix.

=43-

tion proceedings prior to the adoption of the

Florida Administrative Procedure Act. See

Bowling v. Department of Insurance, supra, at

171; see also Reid v. Florida Real Estate

Commission, 188 So.2d 846, 851 (Fla. 2d DCA

1966).

The deficiencies of this vague eviden-

tiary standard have not been remedied by the

courts of Florida. The Bowling court acknowi-

edged that when a proceeding may result in

the loss of a professional license, "the cri-

tical matters in issue must be shown by evi-

dence which is indubitably as ‘'substantial'

as the consequences," Bowling, supra, at

172, but that court's allegiance to the due

process standard was not put to the test

under the facts in Bowling. In cases which

do not envelop due process questions of con-

stitutional proportion, the courts of Florida

have recited Justice Frankfurter's statement

_ yo

made in Universal Camera Corp. v. NLRB, 340

U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed.

456, 467 (1951):

Th~ substantiality of evi-

dence must take into account

whatever in the record fairly

detracts from its weight.

See Bowling at 172 and McDon-

ald v. Department of Banking

and Finance, 346 So.2d 569,

579 (Fla. Jst DCA 1977).

But, as noted by Professor Kenneth C.

Davis, "{T]Jhe plain reality is that the sub-

stantial evidence rule as the courts apply it

is a variable." 4 Administrative Law Trea-

tise, sec. 29.02, p. 126.

Petitioner contends that essential

proof of guilt must be established by more

than mere substantial competent evidence be-

Fore his license can be taken by an adminis-

trative board. The case at bar is distin-

guishable from other Florida appellate hold-

ings which, under Florida's substantial compe-

tent evidence standard, have resulted in the

+45

reversal of similar license revocations. See

Boyette v. State, Professional Practices Coun-

cil, 346 So.2d 598, 599-560 (Fla. lst DCA

1977), where an administrative order revoking

a teacher's certificate was held to be unsup-

ported by substantial competent evidence

because it was determined that the order was

not even supported by a preponderance of the

evidence. In Robinson v. Florida Board of

Dentistry, 477 So.2d 930 (Fla. 3d DCA 1984),

a license suspension was reversed upon a find-

ing that "[o]ne professional's opposing

opinion, without more, on a particular treat-

ment is neither substantial competent evi-

dence nor a measure of ‘generally prevailing

peer performance.' Cf. §466.028(1)(y), Fla.

Stat." Id. at 932.

The issues raised by both Boyette and

Robinson are distinguishable from the issue

raised herein by Petitioner. Both the

-_T

Boyette and Robinson courts merely addressed

whether there was a clear preponderance of

evidence upon which to support a license revo-

cation. While Petitioner also denies that

his license revocation was Supported by a

preponderance of evidence, the issue he

raises here is that the vague standard of

competent substantial evidence, which was

applied to Petitioner's license revocation

proceedings, does not satisfy procedural due

process requirements.

This precise issue was presented in

Peden v. State Board of Funeral Directors and

Embalm., 189 So.2d 526, 527-529 (Fla. 3d DCA

1966), but the reviewing court refused to

address it.4

4In his concurring opinion to the Peden case,

Justice Carroll suggested that in a license

revocation proceeding, due process requires

at a minimum "that such charges must be prov-

ed by a preponderance of the evidence." Id.

at 329.

=47—

Petitioner contends that under Flor-

ida law, the standard requiring some substan-

tial competent evidence as a predicate to

license revocation by an administrative

board, is a vague standard which does not

satisfy constitutional requirements of due

process. This Court's earlier holdings which

deal with licenses, property interests and

individual rights suggest that the evidence

against Petitioner must be so clear, strong,

and unequivocal as to remove reasonable doubt

as to the guilt of the Petitioner. Bell v.

Burson, supra, 91 S.Ct. 1586 at 1589-1590,

402 U.S. 535 at 539-441 (driver license revo-

cation); Mathews Vv. Eldridge, 424 U.S. 319,

96 S.Ct. 893 (1976) (revocation of Social

Security benefits); Kramer v. Santosky, 102

S.Ct. 2396, 43535 0.8. 7O35 FA £288.24 399

(1982) (revocation of parental interests in

natural child). In contrast, the subjective

-48-

standard, calling only for some competent

substantial evidence to support penal sanc-

tions against Petitioner, borders on the same

criteria applied in ordinary civil proceed-

ings and amounts to a taking of an important

interest based on little more than a prepon-

derance of the evidence.

Petitioner contends that this federal

due process question has been sufficiently

presented before the state courts. The due

process implications of this vague "sliding

scale" standard of evidence have also been

presented in Peden, supra. Therefore, the

state courts have been given an opportunity

to vindicate the federal claim.

Furthermore, abstention is not to be

ordered unless the state statute is of an

uncertain nature and subject to a limiting

construction. Zwickler v. Koota, 389 U.S.

~~

241, 251, 88 S.Ct. 391, 397 (1967); Harman v.

Forssenius, 380 U.S. 528, 534, 85 S.Ct. 1177,

L203 (2h 0437% The applicability of the

statute challenged herein, however, is not

uncertain, Lake Carriers' Association v.

MacMullan, 406 U.S. 498, 511, 92 S.Ct. 1749,

1757-1758 (1972), because the state courts

have interpreted this statute. Yet, the

Florida judiciary has not construed the

statute in a manner which avoids in whole or

in part the federal constitutional infirmity.

Bellotti v. Baird, 428 U.S. 132, 132-133, 96

S.Ct. 2857, 2859 (1976). Furthermore, the

vagueness claim goes to the obligatory stan-

dards imposed by the statute. Due to the

above factors, the abstention doctrine is not

appropriate. Harris County Commissioners

Court v. Moore, 420 U.S. 77, 86, 95 S.Ct.

870, 876-877 (1975).

-50-

CONCLUSION

For these reasons, a writ of certior-

ari should be granted to review the judgment

and opinion of the District Court of Appeal

for the First District of Florida.

The issues presented to this Court

are of great importance not only to medical

practitioners in Florida, but to all licensed

professionals and the peopie they serve.

This Court has not heretofore addressed the

notice requirements and evidence standards

which are required to revoke such an impor-

tant property interest.

Petitioner's license was suspended

for one year ending January 15, 1986, at

which time he began a three year probationary

period. The unconstitutional suspension of

professional licenses for brief periods of

time is a repetitive state action which may

evade review. Southern Pacific Terminal Co.

=$)-

v. Interstate Commerce Commission, 2iS U.S.

498, 51S, 33 8.Ct. 279, 283, 35 &.84@ 310

(1911).

The sanctions imposed by the Florida

Board of Medical Examiners prevent Petitioner

from practicing medicine in a reasonable and

constitutionally protected fashion. Further-

more, the stigma of the disciplinary actions

has and will continue to have a detrimental

effect on his ability to earn a living.

These sanctions have caused and con-

tinue to cause Petitioner's patients to lose

confidence in his ability to practice medi-~

cine. This suspension, while relatively

short in duration, has also made it impos-

Sible for Petitioner to obtain medical mal-

-52-

practice insurance at reasonable rates and to

be granted hospital privileges.

Respectfully submitted,

BERNARD H.. DEMPSEY, JR., ESQ.

FERDINAND M. ROMANO, ESQ.

RICHARD LEE BARRETT, ESQ.

DEMPSEY & GOLDSMITH, P.A.

Suite 500, Day Building

605 East Robinson Street

Post Office Box 1980

Orlando, Florida 32802

(305) 422-5166

Attorneys for Petitioner,

ALI A. AZIMA, M.D.

-53-