STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, ) BOARD OF MEDICAL EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 77-2043

)

RUTH ROGERS, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on June 26 and June 30, 1978, in Daytona Beach and Orlando, Florida, respectively.

APPEARANCES

For Petitioner: Michael I. Schwartz, Esquire

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

For Respondent: David Rogers, Esquire

3101 Maguire Boulovard

Post Office Box 20065, Suite 280

Orlando, Florida 32814

The Florida State Board of Medical Examiners, Petitioner herein, seeks to revoke, suspend, annul, or otherwise discipline Ruth Rogers, a licensed medical doctor (Respondent herein), on grounds which will be set forth hereinafter in detail, that Respondent is guilty of incompetent and unprofessional conduct in that she departed from and failed to conform to the standards of acceptable prevailing medical practices in the area of treatment of acute lymphoblastic leukemia in the respect of one Dena (Nikki) Decker, which is allegedly a violation of Chapter 458.1201(1)(m), Florida Statutes.

Based upon my observation of the witnesses and their demeanor while testifying, the arguments and authorities cited by counsel and the entire record compiled herein, I make the following:

FINDINGS OF FACT

1. Ruth Rogers is a licensed medical physician authorized to practice medicine in this state. The Complaint allegations centered around testimony of the Respondent, Ruth Rogers, during a custody proceeding in which the Child Protective Services (a State Agency) was attempting to gain custody of one Dena (Nikki) Decker based on facts which will be set forth in detail hereinafter.

2. Jack McGowan, a medical doctor engaged primarily in pediatrics in Fort Pierce, Florida, testified that he first treated Dena Decker during August of 1973, at which time Decker was approximately seven weeks old. Dr. McGowan made subsequent treatments of Dena Deckur on a regular basis through December of 1976. During December, Dr. McGowan noted that Decker's lymph glands were enlarged and he ordered that certain lab work be performed, the results of which were returned to him sometime during early January of 1977. Based on the lab results, Dr. McGowan tentatively diagnosed Dena Decker as being a patient suffering from acute leukemia. To confirm this diagnosis, he referred her to the Shands Teaching Medical Center in Gainesville, wherein Dr. McGowan's diagnosis was confirmed. The treating physicians of Patient Decker at Shands Teaching Hospital were Drs. Jerry L. Arbosa and David Pockmore. It was their medical opinion that Dena was in fact suffering from acute lymphoblastic leukemia and that this disease should be treated by chemotherapy at Shands Teaching Hospital in Gainesville. Drs. Barbosa and Rockmore explained to the parents of Dena Decker the benefits and side effects of chemotherapy treatment, and they suggested that this was the best method of treating a patient such as Dena Decker, who was suffering from acute lymphoblastic leukemia. They noted, however, that there were some side effects, such as loss of hair and the destruction of certain "good" cells as well as "bad" cells. Dema Decker's parents requested time to consider the chemotherapy treatment and Drs. Barbosa and Rockmore stressed to her parents that "time was of the essence". After a few days, the parents of Dena Decker declined the treatment and at that juncture, Drs. Barbosa and Rockmore called in the Child Protective Services of Gainesville wherein a custody proceeding was convened, with the State seeking a custody award of Dena Decker. During that proceeding, Dr. Ruth Rogers, Respondent, testified that she would treat such a patient suffering from acute lymphoblastic leukemia with natural foods, herbs and optimal psychological support. It was Drs. Barbosa and Rockmore's opinion that the method of treatment outlined by the Respondent would be futile and that the patient would die in a short period of time. There was no evidence that the Respondent, Ruth Rogers, counseled with Dena Decker's parents or that she at any time treated Dena Decker by the method to which she testified during the custody proceeding in Gainesville.

   
   

3. Following the conclusion of the Petitioner's case, Respondent's counsel moved for a directed verdict, summary judgment, or a judgment based on a failure on the Petitioner's part to establish a prima facie case. After some consideration, the undersigned concluded that, based on the evidence adduced during the Petitioner's case in chief, insufficient evidence was offered to establish that the Respondent had violated Chapter 458.1201(m), Florida Statutes, as alleged.

   
   

4. Section 458.1201 is the section of the Medical Practices Act which deals with the power of the Board in the denial, suspension, revocation of license, and other discipline of medical practitioners. It reads, in pertinent part:

   
   

   "458.1201l--Demial, 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 follow- ing: (Here is set forth several categories

      of disqualification or misconduct included in which is subsection (m))."

      
      

5. Subsection (m) sets forth as grounds for. . . discipline of a physician, the following facets of misconduct:

   
   

   "(m) Being guilty of immoral or unprofessional conduct, incompetence, negligence or will-

   ful misconduct. Unprofessional conduct shall be any departure from, or the failure to conform to, the standards of acceptable and prevailing medical practice in his area of expertise 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)

   
   

6. The administrative charge herein claimed to be proscribed by the above- quoted section of the statutes deals only with the testimony of the Respondent as to a method of treatment that she would use for treating acute lymphoblastic leukemia. Based on my examination of this record and an analysis of the reported case law, I conclude that the giving of such testimony is not proscribed unprofessional conduct as that term is included within this particular subsection of Chapter 485.1201(m). As the Court of Appeals stated in Lester v. Department of Professional and Occupational Regulation, Fla.App., 348 So.2d 923 (1977), the Court stated:

   
   

   "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 prescriptions. This being true the statute must be strictly construed and no conduct is to be regarded as

   included within it that is not reasonably pro- scribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the applicant or licensee."

   
   

   This being so, I conclude that the above-cited conduct claimed to be violative of Chapter 458 is not proscribed by Chapter 458.1201(m) and I shall recommend that the Board enter a final administrative order dismissing the instant action against the Respondent.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties to this action. (Chapter 120.57(1), Florida Statutes.)

   
   

8. The parties were noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

9. The authority of the Board is derived from Chapter 458, Florida Statutes.

   
   

10. Insufficient evidence was offered to establish that the Respondent engaged in conduct violative of Chapter 458.1201(m), as alleged.

RECOMMENDATION

Based on the foregoing findings and conclusions, hereby RECOMMEND:

That the Administrative Complaint filed herein against the Respondent be DISMISSED.

RECOMMENDED this 28th day of August, 1978, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

Michael I. Schwartz, Esquire Suite 201 Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301

David Rogers, Esquire 3101 Maguire Boulevard Post Office Box 20065 Orlando, Florida 32814

George S. Palmer, M.D. Execuivo Director

State of Florida, Board of Medical Examiners

2009 Apalachee Parkway, Suite 220

Tallahassee, Florida 32301

Docket for Case No: 77-002043

Orders for Case No: 77-002043