STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 80-076

)

MICHAEL L. SOLLOWAY, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on August 20 through 21, 1980, in Miami, Florida.

APPEARANCES

For Petitioner: Roy L. Glass, Esquire

The Whitehouse

203 North Gadsden Street Tallahassee, Florida 32301

For Respondent: Mallory Horton, Esquire

Concord Building

66 West Flagler Street Miami, Florida 33131

ISSUES PRESENTED

Whether Respondent's license to practice medicine should be revoked, or otherwise disciplined, on the ground that he, as alleged, violated the Medical Practice Act, Section 458.1201(1)(m), Florida Statutes (1978), and Section 458.331(1)(t), Florida Statutes (1979), by engaging in immoral, unprofessional con duct, incompetence, negligence, or willful misconduct, including failure to conform to the prevailing medical practice in the field of psychiatry.

CONCLUSIONS AND RECOMMENDATION

Conclusions:

Respondent violated Sections 458.1201 (1)(m), Florida Statutes (1978), 458.331(1)

Florida Statutes (1979), by attempting

to terminate the psychiatrist-patient re- lationship with a female patient, and then sexually exploiting her for the purpose of gratifying his own needs. Insufficient

evidence was presented to establish that

his subsequent prescription of drugs to that patient violated the Medical Practice Act.

Recommendation:

Suspend Respondent's license to practice medicine for a period of one (1) year.

BACKGROUND

On December 14, 1979, the Petitioner, Florida Department of Professional Regulation, Board of Medical Examiners ("DEPARTMENT") filed an administrative complaint charging that Respondent Michael L. Solloway, M.D. ("SOLLOWAY"), violated the Florida Medical Practice Act by (1) engaging in sexual activity with and exploiting a female patient to gratify his own needs, and (2) prescribing excessive or inappropriate drugs to that same female patient.

SOLLOWAY disputed the factual basis of the charges and requested a Section 120.57(1) Florida Statutes (1979), hearing. On January 10, 1980, the DEPARTMENT forwarded his request to the Division of Administrative Hearings for assignment of a hearing officer.

On February 8, 1980, SOLLOWAY moved to strike paragraphs 12 and 13 of the complaint, and, on February 21, 1980, moved to dismiss or strike the complaint, in its entirety. After argument, paragraphs 8(C) and (D) of the complaint were dismissed because they represented an attempt to retroactively apply a penal statute; the remainder of the motions were denied.

By notice dated January 31, 1980, final hearing was set for March 25, 1980. On February 19, 1980, the parties jointly requested a continuance; their request was granted, and hearing was ultimately reset for May 15 through 16, 1980. On May 14, 1980, the parties again requested a continuance in order to give them an additional opportunity to settle the case; their request was granted. On May 30, 1980, settlement efforts having proved unsuccessful, final hearing was reset for August 20 through 21, 1980.

At final hearing, the DEPARTMENT called as its witnesses, Nancy T. Denberg, Wallace Norman, Sandra Lerner, Ronald Shellow, M.D., Norma Hamilton, M.D., Stanley Holzberg, M.D., and Avis Kallan; it offered into evidence Petitioner's Exhibits 1/ 1 through 10, inclusive, each of which was received.

SOLLOWAY called as his witnesses, Joel Kallan, M.D., Stanley Hanna, M.D., and Michael I. Rose, M.D. He offered Respondent's Exhibits 1/ 1 through 4 into evidence. Exhibits 1 through 3 were received; objection to Exhibit 4 was sustained, and it has been appended for purpose of review.

At conclusion of hearing, the parties requested and were given the opportunity to submit proposed findings of fact and conclusions of law by September 10, 1980. The DEPARTMENT subsequently submitted proposed findings, SOLLOWAY did not. The three-volume transcript of hearing was ordered by the parties, and received on October 8, 1980.

FINDINGS OF FACT

Based upon the evidence presented at hearing, the following facts are determined:

I.

The Doctor

1. Respondent, Michael L. Solloway, M.D. ("SOLLOWAY") is licensed to practice medicine in Florida under License No. 11845, issued by the Board of Medical Examiners. He obtained his medical degree from the University of Miami, interned in the United States Air Force, was honorably discharged, and returned to Miami in 1968 to begin a three-year residency training program at Jackson Memorial Hospital. In 1971, he opened a private office at Suite 720, Dupont Plaza Center, Miami, Florida, and has continuously engaged in the practice of psychiatry at that location since that time. (P.E. 4.)

   
   

   II.

   
   

   The Patient

   
   

2. On May 9, 1973, SOLLOWAY began treating, Sandra A. Lerner, a 19-year- old female. She continued receiving long-term dynamic psychotherapy from SOLLOWAY for over three (3) years--until May 16, 1977--the date when the complained-of sexual misconduct allegedly occurred. The only significant interruption of psychotherapy treatment occurred between September 30, 1974, and July 11, 1975, for reasons which are immaterial here. (Testimony of Lerner;

   P.E. 1, 4.)

   
   

3. In 1973, Sandra Lerner was diagnosed by SOLLOWAY as suffering from a personality disorder--known as borderline personality. Her disorder manifested itself in poor impulse control, somatic symptoms (such as severe headaches), difficulty in relating to others and forming personal relationships, occasional hystrionic behavior, including severe rage reactions and depression when thwarted by others, and no-addictive dependence on drugs. Prior to her referral to SOLLOWAY, she had been hospitalized after an overdose of Quaaludes and received psychological testing from Gloria O. Greenberg, Ph.D., a psychologist. These tests indicated that Miss Lerner was an infantile, egocentric, hostile individual--one who had been lonely, withdrawn, and alienated for a long period of time. She had a conflicting relationship with her father which caused her serious sexual problems and an intense fear of male sexuality. Dr. Greenberg predicted that, in psychotheraphy, Miss Lerner could be expected to be childish, demanding, and manipulative. (Testimony of Lerner; P.E. 1, 2, 4.)

   
   

   III.

   
   

   The Psychiatrist-Patient Relationship

   
   

4. During the course of her psychotherapy, Miss Lerner was a sick and troubled woman, erratic, unpredictable in behavior, and desperately needing to form and maintain a personal relationship. Her therapy sessions with SOLLOWAY, held once or twice a weak, allowed her to experience complex psychological phenomenon known as "transference". She began to feel sexual fantasies and form a personal attachment toward SOLLOWAY; she idealized him and saw him as a nurturing father figure. "Transference" is frequently experienced in psychotherapy; it can be a valuable therapeutic tool to help patients understand and overcome their illness. In this case, SOLLOWAY was aware that "transference" was taking place during his extended therapy sessions with Miss Lerner. However, instead of maintaining a professional detachment, SOLLOWAY began to experience personal and subjective feelings toward Miss Lerner, a form of "counter-transference". Prior to May 16, 1977--the date of his alleged

   sexual misconduct with Miss Lerner--SOLLOWAY had twice discussed with Miss Lerner that, if they engaged in dating and a social relationship, their psychotherapeutic, doctor-patient relationship must end. 2/ (Testimony of Lerner, Hamilton, Holzberg; P.E. 4, 9.)

   
   

   IV.

   
   

   Sexual Activity During Therapy

   
   

5. On May 16, 1977, at 5:00 or 6:00 p.m., Miss Lerner arrived at SOLLOWAY's office for her regular psychotherapy appointment. She was "high", having just taken one-half a Quaalude capsule. After entering his office, their conversation turned to the nature of their relationship. SOLLOWAY told her that he could be her boyfriend if she understood that he could never again be her doctor. 3/ After acknowledging such, she went to the door and locked it, as instructed by SOLLOWAY. At the time, she sensed what he was going to do, and felt he was testing her; she feared his rejection. He then told her to take her clothes off; after she complied, he did likewise, and both engaged in sexual intercourse. (Testimony of Lerner; P.E. 4, 9.)

   
   

6. After that day, Miss Lerner no longer received psychotherapy treatment from SOLLOWAY. They began a stormy social relationship and briefly cohabited from June, 1978, to January, 1979, when SOLLOWAY moved out. His rejection made her hostile, angry, and vindictive. She began a campaign to harass and annoy SOLLOWAY at his home--resulting in the issuance of a temporary injunction to restrain her. Her harassment of SOLLOWAY was consistent with her personality disorder--a disorder with which she continued to be afflicted. (Testimony of Lerner, Hamilton, Holzberg; P.E. 4, R.E. 1, 2.)

   
   

   V.

   
   

   Prescription of Drugs to Sandra Lerner: Inappropriate Medical Practice

7. SOLLOWAY prescribed the following mood altering drugs for Sandra Lerner on the dates and in the amounts indicated:

   
   

   DATE	DRUGS	NO.	OF	PILLS
   7/5/78	Sopor		7
   7/12/78	Sopor		7
   9/22/78	Quaalude or		15
   	Sopor
   9/30/78	Quaalude or		7
   	Sopor
   10/17/78	Quaalude or		7
   	Sopor
   11/27/78	Quaalude or		7
   	Sopor
   11/30/78	Quaalude or		3
   	Sopor
   12/23/78	Quaalude or		14
   	Sopor
   12/27/78	Percodan		30
   1/2/79	Quaalude or		14
   	Sopor

   (Prehearing Stipulation of Respondent, Paragraph V, Testimony of Lerner.)

   
   

8. Miss Lerner had a drug abuse history well known to SOLLOWAY, including Seconal and Quaalude overdoses in 1973 and a Quaalude overdose in January, 1977. By prescribing the drugs indicated in paragraph 7, supra, to Miss Lerner, a person known by him to abuse Quaaludes, SOLLOWAY engaged in an inappropriate medical practice; furthermore, the prescriptions of tranquilizers and mood altering drugs on December 27, 1978, and January 2, 1979, were excessive in quantity, irrespective of the patient's ailment which they were intended to remedy. (Testimony of Shellow.)

   
   

9. SOLLOWAY prescribed the above drugs to Miss Lerner at a time when she was his close friend, not his patient. Such prescription of drugs to a non- patient does not constitute a deviation from an acceptable standard of medical practice, as long as the prescription is for the benefit of the individual. (Testimony of Lerner, Rose; P.E. 4.)

   
   

10. Evidence was offered to show that SOLLOWAY used certain drugs for recreational purposes and that he prescribed drugs to others for such purposes. Such evidence, except insofar as it applies to prescriptions to Miss Lerner, is outside the scope of the DEPARTMENT's charges against him. To the extent the DEPARTMENT asserts that the prescription of drugs to Miss Lerner, as indicated above, was contrary to acceptable medical practice because she subsequently used them for recreational purposes, such assertion is unsupported by persuasive evidence. The only testimony offered to establish such a preposition was that of Miss Lerner; her credibility was impeached by her subjective demeanor, bias, evasiveness, and expressed hostility toward SOLLOWAY. (Testimony of Lerner.)

    
    

    VI.

    
    

    Medical Ethics: Sexual Activity Between Psychiatrist and Patient Prohibited

11. Sexual activity between a psychiatrist and patient is unethical, and proscribed by the Principles of Medical Ethics, with Annotations Especially Applicable to Psychiatry (1978 Edition Revised) . The Annotations, supra, stress the paramount importance of the psychiatrist's duty to avoid gratifying of his own needs by exploiting a patient:

    
    

    This becomes particularly important because of the essentially private, highly personal, and sometimes intensely emotional nature of the relationship established with the psy- chiatrist.

    
    

    Further, the necessary intensity of the therapeutic relationship may tend to acti- vate sexual and other needs and fantasies on the part of both patient and therapist, while weakening the objectivity necessary for control . . . Section I, Paragraph

    1 and 2, Principles with Annotations.

    VII.

    
    

    Investigation and Hearing by South Florida Psychiatric Society

12. At all times material hereto, SOLLOWAY was a member of the South Florida Psychiatric Society, Inc., a district branch of the American Psychiatric Association. Membership in the Society is limited to psychiatrists practicing in the south Florida area. Miss Lerner filed with the Society a complaint charging SOLLOWAY with unethical conduct. On August 14, 1979, the Ethics Committee of the Society met to investigate the complaint and formulate a recommendation. (testimony of Holzberg; P.E. 10.)

    
    

13. At the Ethics Committee hearing, SOLLOWAY was charged with violating Section 1, Paragraphs 1 and 2 of the Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry by (1) exploiting his patient and gratifying his own needs by engaging in sexual activity with Miss Lerner; and (2) prescribing drugs (Quaalude and Dexedrine) to Miss Lerner for non- therapeutic purposes. Miss Lerner testified, and was aided by Norma Hamilton, M.D., a psychiatrist assigned to assist in presenting her complaint. SOLLOWAY was accorded the right to confront his accuser, was represented by counsel, and was present throughout the hearing. He testified in his own behalf, and answered questions of the Committee members. At the conclusion of the hearing, the Committee unanimously sustained the charge that SOLLOWAY engaged in sexual intercourse with Miss Lerner, his patient, and exploited her to gratify his own needs, it unanimously concluded, therefore, that he was guilty of unethical conduct in violation of Section I, Paragraphs 1 and 2 of the Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry and recommended (by 4-1 vote) that he be suspended from the Society for a period of

    12 months. As to the other charge, the Committee concluded that insufficient evidence was presented to support the allegation that SOLLOWAY prescribed drugs for non-therapeutic purposes, and recommended that no action be taken. On August 14, 1979, the Executive Council of the Society considered, and adopted the Committee's recommendations; by letter dated August 24, 1979, the Council recommended to the American Psychiatric Association that SOLLOWAY be suspended from membership for 12 months. That suspension recommendation is still pending, and no final action by the Association has been taken. (Testimony of Holzberg, Hamilton; P.E. 9, 10.)

    
    

    VIII.

    
    

    Termination and Sexual Activity:

    
    

    Breach of Accepted Standard of Care

    
    

14. The medical ethic which prohibits sexual activity between a psychiatrist and patient applies only if a psychiatrist-patient relationship exists. The essence of SOLLOWAY's defense is that the psychiatrist-patient relationship between he and Miss Lerner ended, by mutual agreement, during the beginning of the May 16, 1977, therapy session, and prior to any sexual activity:

    
    

    Q. (By Mr. Glass) Dr. Solloway, you indi- cated that, in your opinion, your pro- fessional relationship as a psychiatrist to Sandra Lerner as a patient was ter-

    minated on May 16 of 1977. In what fashion was it terminated, how was it terminated?

    A. (Dr. Solloway) I suggested that it be terminated, and she agreed.

    Q. (Mr. Glass) And in your opinion it was terminated on that date?

    A. (Dr. Solloway) Absolutely.

    
    

    (Deposition of Michael L. Solloway; Pg. 54, P.E. 4.)

    
    

15. Under acceptable psychiatric practice, termination of the psychiatrist-patient relationship--the ending of the psychotherapeutic bond-- requires more than the consent or acquiescence of the patient, or the stopping of formal therapy sessions. In psychotherapy, termination refers to a psychological process which takes place between the doctor and patient. 4/ They work through this transitional process together. It does not occur at any

    particular moment of time; the manner and length of time required will depend on the circumstances of the case--such as the condition of the patient, and nature of the doctor-patient relationship. When a patient suggests ending the psychotherapeutic relationship, the psychiatrist's task is to be supportive and allow the patient to work through the process. Not infrequently, the desire to end psychotherapy is influenced by the patient's mental or emotional illness. (Testimony of Hamilton, Holzberg, Shellow.)

    
    

16. Under the circumstances of this case, the manner in which SOLLOWAY attempted to abruptly terminate his psychiatrist- patient relationship with Miss Lerner deviated from and breached the prevailing and accepted psychiatric standard of care and practice in his community. SOLLOWAY recognized, prior to May 16, that he was losing his objectivity toward Miss Lerner and that he was experiencing subjective feelings toward her. He was reciprocating her "transference" with his own "counter-transference"; nonetheless, instead of working through with his patient an acceptable termination of their relationship, he used her consent to termination as an opportunity to act out his "counter-transference" --by engaging in sexual activity with her. SOLLOWAY has admitted that his attempt to terminate the relationship was ineffective:

    
    

    Dr. Nixon: "I can understand that at the time your judgement was clouded by the counter-trans- ference. As you look back on it do you believe now that treatment can--that a doctor-patient relationship can be terminated where there is such a transference and counter-transference

    in that fashion?"

    
    

    Dr. Solloway: "No, obviously not. "

    (Pg. 62, P.E. 9.)

    
    

    (Testimony of Hamilton, Shellow, Holzberg; P.E. 4, 9.)

    
    

17. SOLLOWAY's attempted termination of his psychiatrist- patient relationship with Miss Lerner on May 16, 1977, deviated from the accepted standard, and was not effective. By his subsequent acting out of his own counter-transference toward Miss Lerner, he sexually exploited his patient to gratify his own needs. Such conduct by SOLLOWAY was unethical, unprofessional, and deviated from the prevailing and acceptable practice in the field of psychiatry. His actions caused Miss Lerner a lengthy period of anxiety, and it

    will be difficult for her to reestablish a relationship with another psychiatrist which is necessary for effective treatment. (Testimony of Hamilton, Holzberg, Shellow, Lerner; P.E. 4, 9.)

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes (1979)

    
    

19. The DEPARTMENT may discipline a licensed physician who has been found guilty of, among other things:

    
    

    "(m) Being guilty of immoral or unprofes- sional conduct, incompetence, negligence, or willful misconduct. Unprofessional con- duct shall include 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 . . ." 458.1201(1)(m), Florida Statutes (Supp. 1978)

    
    

    In 1979, the legislature enacted a comprehensive revision of the Medical Practice Act, which established among other things, the following ground for disciplinary action:

    
    

    "Gross or repeated malpractice or the fail- ure to practice medicine with that level of care, skill, and treatment which is recog- nized by reasonably prudent similar physi- cians as being acceptable under similar conditions and circumstances. The Board shall give great weight to the provisions of Section 768.45 when enforcing this

    paragraph." Section 458.331(1)(t) , Florida Statutes (1979).

    
    

20. Here, the burden falls upon the DEPARTMENT to affirmatively present a preponderance of evidence in support of its charges against SOLLOWAY. See Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977)

1. Count 1: Termination and Sexual Activity with Patient. The DEPARTMENT has established by a preponderance of evidence that SOLLOWAY violated Sections 458.1201(1)(m), Florida Statutes (Supp. 1978), and 458.331(1)(t), Florida Statutes (1979). By his actions in attempting to terminate his psychiatrist-patient relationship with Miss Lerner, and, then, sexually exploiting her to gratify his own needs, he engaged in unprofessional conduct, incompetence, negligence, and willful misconduct. Furthermore, he failed to conform to the prevailing medical practice in the field of psychiatry, and failed to practice medicine with that level of care, skill, and treatment recognized by reasonably prudent similar physicians as being acceptable under similar conditions.

   
   

2. Count II: Transcription of Drugs. Insufficient evidence was presented to establish that SOLLOWAY's prescription of drugs to Miss Lerner

   violated Sections 458.1201(1)(m), Florida Statutes (Supp. 1978), and 458.331(1)(t), Florida Statutes (1979). The expert testimony was indefinite and equivocal on whether his prescriptions constituted a breach of the prevailing standard of care, or were simply inappropriate medical judgment. It must be concluded that SOLLOWAY, therefore, is not guilty of this specific charge.

   
   

3. The DEPARTMENT argues that SOLLOWAY's misconduct is sufficiently grievous to warrant permanent revocation of his license to practice medicine, with provision for reapplication when he is able to show sufficient rehabilitation. The primary purpose of the regulation of physicians is to protect the public from incompetent and unscrupulous practitioners. In this case, no evidence was introduced to show that SOLLOWAY has engaged in prior misconduct or abuse of his patients, or that he is, generally, an incompetent psychiatrist. On the other hand, he clearly sexually exploited his patient, Miss Lerner, to gratify his own needs. At the time, she continued to be inflicted with a serious personality disorder and was experiencing transference toward her psychiatrist. SOLLOWAY recognized this, but instead of using it as a therapeutic tool for her benefit, he misused it for his own purposes. It was he who suggested termination of the doctor-patient relationship on May 16, 1977; immediately following this suggestion, and her agreement, he sexually used his patient. At hearing, SOLLOWAY showed no remorse or understanding of the wrongfulness of his action. In light of the foregoing, it is concluded that a one-year suspension of his license is appropriate. Such a penalty would impress upon him the seriousness of his misconduct and thus ensure that other patients will not be subjected to similar misconduct in the future.

   
   

4. The DEPARTMENT moved for an award of expenses and attorney's fees incurred by it in proving facts which SOLLOWAY refused to admit as true in response to the DEPARTMENT's request for admissions. See Section 120.58(1)(a), Florida Statutes (1979); Fla. R. Civ. P. 1.280(b), 1.370(a), and 1.380(c). Due to the penal nature of this proceeding, it would be unjust to penalize the Respondent for his failure to admit the truth of facts which formed the basis of the charges against him. The DEPARTMENT's motion for expenses is, therefore, denied.

   
   

5. To the extent the DEPARTMENT's proposed findings of fact are not incorporated herein, they are rejected as unsupported by a preponderance of the evidence, or unnecessary to determination of the issues presented.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That the DEPARTMENT suspend Respondent Michael L. Solloway's license to practice medicine, License No. 11845, for a period of one (1) year.

DONE AND ENTERED this 12th day of November, 1980, in Tallahassee, Florida.

R. L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 12th day of November, 1980.

ENDNOTES

1/ Petitioner's and Respondent's Exhibits will be abbreviated as "P.E. " and "R.E. ", respectively.

2/ Although Miss Lerner testified otherwise, it is concluded that the consistent prior testimony of SOLLOWAY concerning these two discussions is persuasive. Miss Lerner displayed an observable bias and hostility toward SOLLOWAY which affects her credibility.

3/ Although Miss Lerner testified that this discussion did not occur until after sexual intercourse, SOLLOWAY's prior testimony, supported by Shellow, is considered persuasive.

4/ This finding is determined from the testimony of Drs. Holzberg, Shellow, and Hamilton. Conflicting testimony was given by two other psychiatrists: Stanley Hanna, M.D., and Michael I. Rose, M.D. Their view was that acceptable psychiatric practice allowed termination of the patient relationship to take place instantly and abruptly--at the moment both parties mutually agree. Sexual activity would then be permissible immediately thereafter. Such a view of the psychiatrist's obligation toward his patient is unreasonably restrictive, and could lead to exploitation of female patients by weak or unscrupulous psychiatrists. The deep and intimate nature of the psychiatrist-patient relationship has lead to sexual abuse of patients--a matter of some concern to the profession. See "The Song is Ended But the Malady Lingers On: Legal Regulation of Psychotherapy," 22 St. Louis U.L.J. 519 (1979) . Interestingly, the 1979 Florida Legislature enacted Section 458.331(1)(k), Florida Statutes, which creates a statutory presumption that a patient is incapable of giving free, full, and informed consent to sexual activity with her doctor.

COPIES FURNISHED:

Roy L. Glass, Esquire The Whitehouse

203 North Gadsden Street Tallahassee, Florida 32301

Mallory Horton, Esquire Concord Building

66 West Flagler Street Miami, Florida 33131

Docket for Case No: 80-000076

Orders for Case No: 80-000076