Safirstein v. Dept. of Health
This text of 271 So. 3d 1178 (Safirstein v. Dept. of Health) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Third District Court of Appeal State of Florida
Opinion filed April 24, 2019. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D18-633 Lower Tribunal Nos. 12-14499, ME0013780 ________________
George M. Safirstein, Appellant,
vs.
Department of Health, Board of Medicine, Appellee.
An Appeal from the Department of Health, Board of Medicine.
Sanchez-Medina, Gonzalez, Quesada, Lage, Gomez & Machado LLP, and Roland Sanchez-Medina, Jr., for appellant.
Christine E. Lamia, Chief Appellate Counsel (Tallahassee), for appellee.
Before SALTER, LINDSEY, and HENDON, JJ.
HENDON, J. Dr. George M. Safirstein (“Safirstein”) appeals the decision of the
Department of Health Board of Medicine1 (“Board”) to revoke his license to
practice medicine in Florida. We affirm.
Safirstein was a licensed physician in Florida, practicing at Synergy
Integrative Health and Med Spa / Optimal Health Age Management Centers in
Hallandale Beach, Florida. Safirstein was administratively charged with medical
malpractice in a twenty-one count complaint filed by the Board. The
administrative complaint addressed Safirstein’s treatment of seven patients over
the course of two years, and recites twenty-one counts alleging that Safirstein
failed to meet the prevailing standard of care in his treatment of these patients,
failed to perform necessary physical examinations on these patients,
inappropriately prescribed controlled substances to these patients, and failed to
maintain complete and legible medical records justifying the course of treatment
for these patients. Subsequent to a finding of probable cause, Safirstein returned
an election of rights form in which he did not dispute the material allegations
contained in the administrative complaint. He elected to move forward with an
informal hearing which would allow him to present mitigating factors to the Board.
1The Board is the state agency charged with regulating the practice of medicine pursuant to section 20.43, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 458, Florida Statutes.
2 The election was also signed by his attorney, Mr. Medina, who had been actively
representing him in the underlying investigation.
The informal hearing was scheduled for Friday, February 2, 2018, and
Safirstein does not dispute that he received notice of the hearing. On Monday,
January 29, 2019, four days prior to the hearing, Safirstein’s attorney emailed the
Board enquiring about obtaining a continuance based on Safirstein’s health, but
provided no details. The following morning, the Board’s Administrator responded,
and asked that Safirstein file a formal request for continuance or a waiver of
appearance, and suggested sending documentation from Safirstein’s physician
indicating why Safirstein could not travel from Hallandale Beach to Orlando for
the hearing.
On Thursday afternoon, the day before the scheduled hearing, Mr. Medina
made a formal request via email for a continuance of the hearing. He again stated
that Safirstein was not feeling well and had been advised not to travel. Mr. Medina
offered to submit a letter from Safirstein’s physician, if requested. Later that
evening, the Administrator responded to Mr. Medina that the Chair had denied the
request for continuance because it was untimely filed.
The Board met at the scheduled time the following day. Safirstein was not
present, and Mr. Medina did not attend the hearing on Safirstein’s behalf. The
Board members noted that Safirstein’s request for continuance was untimely filed
3 and did not explain his ill health; and one member questioned why Safirstein’s
attorney did not attend on his behalf. Ultimately, the Board decided to move
forward on the allegations because it was an informal hearing at which Safirstein’s
presence was not required, Safirstein had admitted to the factual allegations of the
complaint (characterized as “egregious”), any facts in mitigation would not alter
the outcome, and neither Safirstein nor his attorney had timely provided any
medical reasons for his failure to attend. The Board unanimously found Safirstein
in violation of the statutes cited in the complaint,2 and revoked Safirstein’s license
to practice medicine in Florida.
On appeal, Safirstein argues that the Board abused its discretion by denying
his request for a continuance of the hearing based on his assertion of ill health. He
contends that had the hearing been reset, he could have presented mitigating
factors at the reset hearing.
Our standard of review of an agency’s interpretation of a statute is de novo.
Amend. VI, Art. V, § 21, Fla. Const. (declaring that appellate courts may no longer
2 Section 458.331(1)(t), Fla. Stat. (2012) (subjecting a licensee to discipline for committing medical malpractice as defined in section 456.50, Fla. Stat.); section 458.331(1)(q), Fla. Stat. (2012) (subjecting a licensee to discipline for prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of the physician's professional practice); Section 458.331(1)(m), Fla. Stat. (2012) (subjecting a licensee to discipline for failing to keep legible medical records, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations, etc.).
4 defer to an agency's statutory interpretation, and must instead apply a de novo
review). The standard of review of the agency's findings of fact is that of
“competent, substantial evidence.” § 120.68(7)(b), Fla. Stat. (2012); see also De
Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957).
This was a non-evidentiary, informal hearing. Safirstein’s answer admitted
to the facts alleged in the twenty-one count complaint; neither the record on appeal
nor the initial brief explain or specify what the “other mitigating factors” might be
that could have altered the outcome of the administrative hearing. Further, Rule
28-106.210, Florida Administrative Code, provides that a continuance may be
granted for good cause shown, and such requests must be made at least five days
prior to the date of the scheduled hearing, except in cases of emergency.
Safirstein’s attorney’s formal request for a continuance was untimely made one
day prior to the noticed hearing; and there was no indication from Mr. Medina that
Safirstein’s health problem was an emergency that would justify a continuance.
Counsel is presumed to know the applicable procedural rules.
The record on appeal contains competent, substantial evidence upon which
the Board properly relied to find the offenses “egregious” and the sanction of
revocation appropriate. See § 120.68(7)(b), Fla. Stat. (2012). Further, we find no
abuse of discretion in the Board’s decision to deny Safirstein’s motion for
continuance, and to proceed with the hearing and render its decision. See Kale v.
5 Dep't of Health, 175 So. 3d 815, 817 (Fla. 1st DCA 2015) (“A board's imposition
of a penalty . . . is reviewed for an abuse of discretion.”); Gonzalez-Gomez v.
Free access — add to your briefcase to read the full text and ask questions with AI
Related
Cite This Page — Counsel Stack
271 So. 3d 1178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/safirstein-v-dept-of-health-fladistctapp-2019.