STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF MEDICAL EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1427

)

EDWARD J. ROSSARIO, M. D., )

)

Respondent. )

)

RECOMMENDED ORDER

This hearing was held pursuant to notice on October 18, 1977, in Daytona Beach, Florida, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert Pierce, Esquire

Suite 201 Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301

For Respondent: James E. Taylor, Jr., Esquire

29 East Pine Street Orlando, Florida 32801

This case was presented on the administrative complaint filed by the Board of Medical Examiners against Dr. Edward Rossario alleging that Dr. Rossario had violated Section 458.1201 (1)(p), Florida Statutes, in that Dr. Rossario was disciplined by the Halifax Hospital Medical Center by suspension from the medical staff of said hospital. The grounds for his discipline by the Halifax Hospital which were of concern to the State Board were Dr. Rossario's failure to properly report a law suit pending against him on his annual application for staff privileges at said hospital, and Dr. Rossario having engaged in sexual activity with a patient contrary to the ethical standards of the staff at Halifax Hospital Medical Center in view of the relationship that must exist between a psychiatrist and his patients.

At hearing the parties stipulated to the introduction of the transcript of the testimony before the hospital Halifax Hospital Medical Center, Medical Judicial Committee, also to admission of copies of the committee's findings and report, Dr. Rossario's resignation and personal testimonial letters in behalf of Dr. Rossario. The Board presented the testimony of Dr. McCafferty regarding the proceedings against Dr. Rossario by the Halifax Medical Center, Medical Judicial Committee, at which Dr. McCafferty functioned as prosecutor. Dr. Rossario presented various witnesses to testify as to his medical status and condition, and to testify to his dedication and character. The basic issue framed in the complaint is whether a local hospital staff took disciplinary action against a physician licensed by the Board of Medical Examiners of the State of Florida.

FINDINGS OF FACT

1. Dr. Rossario is a physician licensed by the Board of Medical Examiners of the State of Florida and specializing in the practice of psychiatry.

   
   

2. Dr. Rossario was disciplined by the Halifax Hospital Medical Center staff, Executive Judicial Committee, for several grounds, among which were the failure to report a pending law suit on his annual application for renewal of staff privileges and engaging in sexual activities with a woman who was his patient contrary to the ethical standards of the staff of the Halifax Medical Center, in view of the relationship that must exist between a psychiatrist and his patient. A record of the proceeding against Dr. Rossario for the Halifax Hospital Medical Center Committee indicates that Halifax Hospital Medical Center Executive Committee found Dr. Rossario guilty of these two offenses. This record, however, did not state the factual basis upon which the committee reached its ultimate findings concerning each of the charges against Dr. Rossario.

   
   

3. The testimony and documentary evidence presented by Dr. Rossario in the instant case show that the check for the annual renewal staff privileges for the application in which Dr. Rossario was found to have withheld notice of the pending suit was dated May 24, 1976. The service of process on that law suit shows that service was not obtained on Dr. Rossario until May 25, 1976. The testimony taken by the Executive Committee concerning submission of the application was vague and based on personal recollection. The cancelled check is considered a more reliable means of establishing the date.

   
   

4. The admission of Dr. Rossario and his testimony revealed that Dr. Rossario first met Melissa Boone as a patient in May of 1974. He saw Melissa Boone several times professionally and an intimate relationship began to develop after three or four professional visits. Eventually, this culminated in an affair between Dr. Rossario and Melissa Boone which lasted from approximately June of 1974, until September of 1975. This affair resulted in sexual intimacy between Dr. Rossario and Melissa Boone, but this was in no way related to any therapy or treatment of Melissa Boone by Dr. Rossario. Their assignations did not take place at Dr. Rossario' s office. Dr. Rossario did not schedule any appointments with Melissa Boone after their affair began, but did see her in his office on several occasions when she came there on her own. On some of these occasions, prior to her seeing the psychiatrist to whom Dr. Rossario had referred her after their affair began, Dr. Rossario prescribed antidepressant drugs for Boone.

   
   

5. Dr. Rossario was aware of the professional conflict in which his affair with Melissa Boone placed him. This was his reason for referring her to another psychiatrist. However, Dr. Rossario did not terminate the relationship because of fear of Melissa Boone's revealing it.

   
   

   CONCLUSIONS OF LAW

6. Section 458.1201(p) , Florida Statutes, provides as follows: "458.1201 Denial, suspension, revocation of

   license; disciplinary powers.-

   (p) Being removed or suspended, or having disciplinary action taken, by his peers within any professional medical association,

   society, professional standards review organization established pursuant to s. 249F of Public Law 92-603, or similarly constituted professional body, whether or not such association, society, organization, or body is local, regional, state, national, or international in scope, or by being

   disciplined by a licensed hospital or medical staff of said hospital for immoral or unprofessional conduct or willful misconduct or negligence by the person in his capacity as a physician licensed pursuant to this chapter. Any body taking action as set forth in this paragraph shall report such action to the board within 30 days of its occurrence or be subject to a fine assessed by the board in an amount not exceeding $500."

   
   

7. In this instance, regarding the charge of concealing the law suit on his application, the facts show that Dr. Rossario's check was dated before the complaint in the action was served upon Dr. Rossario. There is no other documentary evidence when Dr. Rossario submitted the application. It is clear that Dr. Rossario could not conceal on his application that of which he had no knowledge. Therefore, although there was a finding of guilt by the Halifax Hospital Medical Center Executive Committee, the allegation of concealment against Dr. Rossario is not proven in light of the cancelled check introduced in the instant case.

   
   

8. Regarding the affair between Dr. Rossario and Melissa Boone, this did not involve any therapy or attempted therapy by Dr. Rossario. Dr. Rossario clearly understood his obligations as a physician, and sought to avoid the potential conflict by referring Melissa Boone to another psychiatrist. Dr. Rossario's affair was unethical and was not consistent with the best interest of his patient. Even if one does not consider the short span of time between Dr. Rossario's active treatment of Melissa Boone and their initial assignation, it is clear that Dr. Rossario continued to prescribe medication for Melissa Boone for several weeks until she began to see Dr. Rotstein. Dr. Rossario violated a very basic principle of doctor/patient relationship in having a sexual involvement with his patient.

RECOMMENDATION

In mitigation Dr. Rossario introduced the testimony of three medical experts, all psychiatrists, whose testimony generally was that Dr. Rossario had a character neurosis which made it difficult for him to differentiate between real relationships and the type of relationship based upon the neurotic needs of another. In the opinion of his primary treating physician, his character neurosis could not be "cured," but he had learned in essence how to compensate for it by learning about the nature of this type of relationship. Dr. Rossario has practiced and is now practicing as a general practitioner.

The facts show Dr. Rossario engaged in sexual activity with a patient in the course of a relatively long-term affair unrelated to his treatment of this patient. Dr. Rossario's affair with his patient was brought on by his need for a close relationship and his character neurosis which made it difficult to differentiate between a real relationship and a relationship based upon the patient's neurotic needs. There is no evidence that Dr. Rossario consciously

misused his status as the patient's physician to obtain the patient's sexual favors. What is presented, however, is a situation in which Dr. Rossario's character neurosis prevented him from recognizing transference which, according to expert testimony, occurs in all psychiatric therapy and which is basic to such therapy. While Dr. Rossario's physicians stated that he now understands transference as well as most psychiatrists, the real question is whether Dr.

Rossario can compensate for his disability in this regard sufficiently to render competent health care to his patients. The affirmative answer to this question by the experts called by Dr. Rossario is not exhaustive and broad enough to be conclusive.

Based on the foregoing findings of fact and conclusions of law, and matters presented in mitigation, the Hearing Officer recommends that the Board revoke Dr. Rossario's license to practice medicine with consideration of his relicensure upon Dr. Rossario's demonstrating to the Board that he can deliver competent health care in psychiatry or in any other area of practice for which he applies.

DONE and ORDERED this 11th day of January, 1978, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Robert Pierce, Esquire Suite 201 Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301

James E. Taylor, Jr., Esquire

29 East Pine Street Orlando, Florida 32801

Docket for Case No: 77-001427

Orders for Case No: 77-001427