STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-1364

) 81-2631

LOUIS JOHN TSAVARIS, M. D., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, on February 15-16, and April 20-22, 1982, at Tampa, Florida before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: Deborah J. Miller, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

and

Grover C. Freeman, Esquire 4600 West Cypress, Suite 410

Tampa, Florida 33607

For Respondent: William S. Lancaster, Esquire

1715 Tampa Street

Tampa, Florida 33602

and

Frank Ragano, Esquire 620 East Twiggs Street Tampa, Florida 33602

ISSUE

Whether Respondent's license to practice medicine should be suspended or revoked, or the licensee otherwise disciplined, for alleged violations of Chapter 458, Florida Statutes, as set forth in the Administrative Complaint, dated April 17, 1981, and Administrative Complaint, dated September 15, 1981, as

amended on January 15, 1982.

This proceeding commenced with Petitioner's filing of an Administrative Complaint on April 17, 1981, alleging that Respondent should be disciplined under Chapter 458, Florida Statutes, (1975)(1979) as a result of his alleged misconduct in 1974-75 whereby he engaged in sexual intercourse with one Sally Burton which resulted in her pregnancy and subsequent abortion. The Complaint

also contained eleven counts involving the alleged prescribing of Schedule II controlled substances in 1980 by Respondent without a DEA registration certificate authorizing him to do so. Additionally, one count involved the alleged issuance by Respondent of a prescription to himself for a Schedule II controlled substance.

Respondent thereafter requested an administrative hearing pursuant to Section 120.57(1), Florida Statutes, and the case was referred to this Division for appointment of a Hearing Officer. Notice of Hearing was issued on July 14, 1981 for a hearing to be held on September 22-23, 1981 at Tampa, Florida.

Petitioner filed a motion for continuance of the hearing on the ground that a second administrative complaint had been issued against the Respondent on September 16, 1981, and that the two complaints should be consolidated for the purpose of hearing. The motion was granted and the hearing indefinitely continued.

Petitioner filed its Second Administrative Complaint, dated September 15, 1981, with the Division on October 22, 1981, together with a motion to consolidate the two complaints. Respondent requested a Section 120.57(1), Florida Statutes, hearing as to the matters alleged in the complaint. The cases were consolidated by Order, dated November 13, 1981, pursuant to Rule 28-5.106, Florida Administrative Code. Notice of Hearing for the consolidated cases was issued on November 13, 1981 for a hearing to be held on February 15-16, 1982 at Tampa, Florida.

Thereafter, Petitioner moved to amend Counts IV and VI of the Second Complaint and said motion was granted by Order dated February 5, 1982. As amended the Second Complaint alleged violations of Chapter 458, Florida Statutes, during various periods from 1967 to 1981. In general terms, it was alleged that Respondent had provided improper treatment to a patient suffering from alcoholic depression and anxiety, and that he employed the patient as a "co-therapist" in group sessions which had a negative impact on the patient's mental health as well as members of the group. The complaint further alleged that Respondent had engaged in activities of a sexual nature with a female patient, Emily Garrett, in 1968 which resulted in her emotional upset and harm. Finally, discipline was sought against Respondent as a result of his conviction in the Circuit Court of Hillsborough County, Florida on June 10, 1981 of manslaughter pursuant to Section 482.07, Florida Statutes, in connection with the death of Sally Burton.

On February 5, 1982, Respondent filed a Motion for Continuance of the hearing due to a conflict in the schedule of one of his legal counsel, and due to the then pending appeal of Respondent's conviction before the Second District Court of Appeal. The motion was orally denied prior to hearing, but was renewed at the commencement of hearing on February 15, 1982. At that time, Respondent gave consent to the withdrawal of his current counsel, and a conditional appearance was entered by Frank Ragano, Esquire who conditioned such appearance on having an opportunity to familiarize himself with the facts and law of the case. The renewed motion was denied for lack of good cause, but Respondent was afforded the opportunity to proceed with his counsel who was then present, William S. Lancaster, Esquire, during presentation of Petitioner's case, at which time a continuance would be granted to afford additional time for Mr.

Ragano to assist in preparing Respondent's defense. Mr. Lancaster requested that he be permitted to withdraw due to his stated inability to fully represent the Respondent at the hearing. Respondent consented to the withdrawal, and declined to proceed in the manner suggested by the Hearing Officer, and

thereupon left the hearing room. Accordingly, the proceeding commenced in the absence of Respondent and his counsel. After the testimony of seven witnesses of Petitioner had been received, Respondent and Mr. Lancaster reentered the hearing room and agreed to participate in the proceeding provided a continuance would be granted at the conclusion of Petitioner's case. Respondent's counsel then cross-examined three of the witnesses who had previously testified.

The hearing was continued on February 16, 1982 until April 20, 1982, and was concluded on April 22, 1982, except for the submission of late-filed exhibits in the form of depositions of four rebuttal witnesses and letter from the Drug Enforcement Administration.

At the hearing, Petitioner presented the testimony of thirteen witnesses, including the Respondent. Respondent called thirty-three witnesses and testified in his own behalf. Petitioner submitted twenty-two exhibits in evidence. Those exhibits which were received provisionally at the hearing are now admitted. Respondent submitted nine exhibits, but withdrew Respondent's Exhibit 3, and Respondent's Exhibit 6 was rejected. Respondent's Exhibit 9 "A Guide for the Individual and Group Psychotherapy" was erroneously stated at the hearing to be Respondent's Exhibit 8, and has been renumbered. Late filed exhibits consisted of a letter from the Drug Enforcement Administration (Respondent's Exhibit 11), and the depositions of Dr. Joseph Lupo (Respondent's Exhibit 8), Shirley Heflin (Respondent's Exhibit 10) Emily Garrett (Petitioner's Exhibit 23), Captain R. W. Poindexter (Petitioner's Exhibit 24), and Janice Simmons (Petitioner's Exhibit 25)

A Proposed Recommended Order filed by Petitioner has been fully considered, and those portions thereof not adopted herein are considered to be unnecessary, irrelevant, or unsupported in law or fact. Respondent has requested that this Recommended Order be delayed pending action by the Supreme Court of Florida on Petition for Writ of Certiorari in the criminal proceeding. This request is denied.

FINDINGS OF FACT

1. Respondent Louis John Tsavaris has been licensed to practice medicine in Florida since August 15, 1956. He received his medical degree at the University of Miami School of Medicine in 1956, interned at the Cornell Medical Center, and attended the University of Michigan where he was an Assistant Resident and Junior Clinical Instructor. He began his practice as a psychiatrist at Tampa in 1962 and has continuously practiced in that capacity. (Testimony of Respondent, Petitioner's Exhibit 19).

   
   

2. Pierce H. Brereton, Jr. became a patient of Respondent in 1967. He was a homosexual who suffered from depression and a severe character disorder, together with an alcohol and drug problem. Brereton had had several prior hospitalizations for schizophrenia. Respondent prescribed Antabuse for the patient to control his drinking, but Brereton discontinued its use after several months. He participated in group therapy sessions conducted by Respondent until 1978 when he terminated his patient relationship. Although Brereton soon resumed his drinking habits after discontinuing Antabuse, he attempted to hide the fact from Respondent. As early as 1974, and off and on throughout the following years, Respondent prescribed Valium for Brereton's depression and anxiety.

3. About 1974, Respondent opened another office in Siesta Key and employed Brereton to run errands and to do janitorial work at that location. Respondent then utilized Brereton as a "co-therapist" in psychiatric group therapy sessions for a fee of approximately $100 per week. Brereton had had no formal training or qualification as a therapist, but several years later commenced graduate courses in Gestalt therapy at the University of South Florida. Another "co- therapist", Kathryn Von Schmidt, who had been a patient of Respondent since 1973, was employed by him to assist at group sessions commencing in 1974. She was unqualified at the time, but received a Master's Degree in Counselling in December, 1975. She continued in her capacity as a co-therapist until the end of 1976. Also, Marian Klein, who held a Master's Degree in Psychology and had been Respondent's patient since 1973, became a co-therapist from 1975 to 1979. Brereton worked as co-therapist with both Von Schmidt and Klein during) the period 1974-1978. Klein found that his ability as a therapist varied from excellent to disruptive. Breretons appearance and general manner improved substantially during the years that he served as a co-therapist. Several of the group patients testified at the hearing that his presence caused a deterioration in their condition because he was unqualified to conduct therapy sessions. However, a number of other patients who attended the sessions seemed unaware that Brereton actually had any kind of "official" capacity, and regarded him merely as loquacious and as a "roll-taker". Respondent was either present or readily available during virtually all of the sessions in which co-therapists were assisting in the conduct of group sessions. Respondent employed Brereton as a co-therapist ostensibly to provide him with a reference for future employment and in the belief that such activity would be therapeutic for him.

   
   

4. Brereton testified that his drinking had continued during the years when he was employed by Respondent, and that Respondent frequently drank alcoholic beverages with patients, including Brereton, before and after therapy sessions. He claimed that Respondent frequently came to his (Brereton's) residence with a bottle of liquor which they drank. The weight of the evidence shows that Brereton hid his drinking from Respondent and other patients, and that they were virtually unaware of his continuing alcohol problem. Respondent occasionally would join a group for dinner at a restaurant and have a drink with them, but did not make a practice of it. The evidence is insufficient to show that he either drank frequently with Brereton or otherwise made liquor available to him. In 1978, Brereton became irrational and abusive and came to therapy sessions on occasion when he had been drinking. At such times, Dr. Klein would send him home. She finally informed Respondent about his actions on one occasion. Respondent then warned Brereton of the dangers of taking Valium when he had been drinking. The patients in the groups were aware of his drinking in 1978 and were disturbed by his conduct.

   
   

5. Brereton had considered Respondent to be "as infallible as the Pope" during his early years as a patient, but after the death in 1975 of Cassandra "Sally" Burton, who had been another of Respondent's patients, and Respondent's subsequent indictment for her death with consequent publicity of that fact, Brereton harbored hostile feelings against Respondent. He has filed a malpractice suit against Respondent and urged other patients to do so.

   
   

6. Expert opinion holds that, although a "co-therapist" or other assistant at group therapy sessions should have appropriate credentials in counselling or psychology, an unqualified patient's presence in come leadership capacity would not necessarily impair his or her mental health, or that of the other patients if the group is structured with a qualified therapist or psychiatrist present at the sessions. It is found that insufficient evidence has been presented to establish that Brereton's activities as a co-therapist had a negative or

   deleterious impact on either his mental health or that of other patients. (Testimony of Respondent, Brereton, Crumpler, Speck, Ramirez, Burdette, Gonzalez, Stenberg, Prince, Adams, Putney, Melton, Albano, Brown, Barker, Burns, Von Schmidt, Buckman, Wheatley, Silverman, Jones, Carlton, Gardner, Arrifaht, Lancaster, Klein, Petitioner's Exhibits 4-5, 7-8).

   
   

7. In 1962, Emily Garrett, then approximately 15 years old, became a patient of Respondent for several months. She suffered from depression and was autistic. She returned for treatment with Respondent in 1965 or 1966 and continued as a patient until 1970. She testified by deposition at the hearing that on either April 6 or 13, 1968, Respondent requested that she come in his office after a group therapy session where he proceeded to unbutton her blouse and fondle her breasts, and sought to have her perform an oral sex act upon him. She claimed that her depression was increased as a result of Respondent's sexual advances, thus precipitating a suicide attempt on April 19th by taking a large quantity of Valium prior to a group therapy session. After the session, when Respondent learned of her ingestion of the drug, he had several of the group members take her to the hospital where her stomach was pumped out. She returned home and then took some other drugs and was returned to the hospital where she remained for several days. Garrett further testified that on May 28, 1968, Respondent again fondled her breasts in his office after a group session had terminated.

   
   

8. Garrett continued as Respondent's patient until October, 1970 when she changed psychiatrists and became a patient of a Dr. Vesley. This was due to the fact that she was unable to continue private sessions with Respondent because he was commuting between Tampa and New Jersey in order to teach at a medical college. In April, 1981, she became aware of publicity surrounding Respondent and voluntarily contacted Petitioner's investigators, at which time she related to them her allegations concerning Respondent's misconduct. Although she testified that she had told her sister about the incidents several years after they had occurred, and had also related them to Dr. Vesley, neither of those individuals testified at the hearing. Garrett testified that she did not report or otherwise complain about Respondent at an earlier time because of her feelings of dependence and sense of loyalty to him.

   
   

9. Respondent denied Garrett's allegations and claimed that she had come to his office several times after her discontinuance as a patient and wanted him to become romantically involved with her.

   
   

10. Although experts in the field of psychiatry agree that it is clearly unethical and a deviation from acceptable standards of practice for a psychiatrist to have sexual contact with a patient, it is also common for female patients to fantasize about their relationships with their psychiatrist. It would be unusual for a patient to continue treatment with a psychiatrist after he had committed a sexual assault against her.

    
    

11. It is found that insufficient credible evidence has been presented to establish that Respondent committed the acts alleged by Garrett. (Testimony of Garrett (Depositions-Petitioner's Exhibits 17-18, 23), Respondent, Gonzalez, Warren, Afield, Gardner).

    
    

12. Cassandra "Sally" Burton became a patient of Respondent in 1974. He diagnosed her condition as paranoid schizophrenia in partial remission with a drug addiction problem. She had previously been treated by psychiatrists and had been hospitalized. She had been a patient of Dr. Joseph Lupo, a Tampa psychiatrist, in 1969 when she was 18 years old. His tentative diagnosis of her

    condition was depression. After several months treatment in the fall of 1969, he admitted her to the psychiatric unit of Tampa General Hospital in January, 1970 based on her stated intention to commit suicide by overdosing on medication. He found her to be manipulative in her personal relationships and seductive in nature. She was discharged from the hospital after six days confinement at the insistence of her father. Dr. Lupo recommended to him at the time that she be continued in psychotherapy because she needed long-term treatment. She had shown signs of a manic depressive disorder. Such a disorder is a form of psychosis, which means loss of touch with reality and disorganization of thoughts, with impaired judgment. Based on psychological testing and observation, Dr. Lupo found that she was inclined to dramatize events in order to get attention, or as a manner of looking for help and being rescued. It was his opinion that she was capable of fabricating a story about having sexual intercourse, or a sexual affair with her treating psychiatrist.

    
    

13. At the time that Burton became Respondent's patient, she told him that she had had syphilis and herpes. He treated her for gonorrhea and referred her to a gynecologist. In 1972, she had been hospitalized for several weeks for herpetic vaginitis.

    
    

14. In August, 1974, Respondent referred the patient to Dr. Lawrence H. Ricker, a clinical psychologist, for testing and evaluation. He found that she was sexually disturbed with a severe personality disorder involving hysterical personality with underlying paranoid schizophrenic tendencies. His recommendation was a conservative therapeutic approach which considered her to be psychotic with support reality testing in the present rather than exploring the past. He further found that she had a propensity for self dramatization and tended to exaggerate, which exhibited a need for attention.

    
    

15. Cassandra Burton was employed with A law firm as a legal secretary in Tampa in the fall of 1974. According to Jennifer Ross, a fellow employee, Respondent telephoned Burton at her office several times a week at which times they discussed when they were next going to see one another. The only time Ross saw Respondent and Burton together was at a dinner party at Ross' boy friend's house. On that occasion, Respondent and Burton arrived separately.

    
    

16. Two of Respondent's former patients testified that they had had sexual relations with Burton. In one of these instances, the patient met Burton at Respondent's office and she asked him to take her home. This occurred about December, 1974. The other patient testified that he had observed her in bed with other men on several occasions.

    
    

17. On March 5, 1975, Dr. Charles Mastin of Indian Rocks Beach performed an abortion on Burton. Respondent accompanied her to Mastin's office. After the abortion was performed, Burton embraced Respondent and they left the office together.

    
    

18. The last charge made to Burton by Respondent's office for professional services was in December, 1974. Although she did not thereafter participate in group therapy sessions, Respondent's office records show that she made approximately 51 telephone calls to Respondent at his office from December, 1974 through April, 1975. On one occasion, she was involved in an automobile accident and came to Respondent's office where he examined her and referred her to an orthopedist.

19. On April 19, 1975, at 11:24 p.m. Deputy Sheriff William Daggett of the Hillsborough County Sheriff's office was dispatched to assist fire and rescue personnel at Burton's residence in the Castellano Apartments. When he arrived at the apartment, rescue personnel were working on Cassandra Burton who was unconscious. Another Deputy Sheriff and Respondent were also present. Daggett proceeded to obtain information concerning the matter from Respondent, who was not under suspicion at the time. Respondent said that Burton had called him at 10:50 p.m., and told him that she had fallen down in the bathroom and was not feeling well. At that point, according to Respondent, the phone went dead as if it had been dropped. He decided to go to her apartment and arrived there about

    25 minutes later, after stopping to purchase and eat an ice cream cone. He related that when he arrived at the apartment he found Burton sitting in a chair with the telephone cord around her throat area and that he could not tell whether she was breathing. He then called fire/rescue for assistance and commenced giving her artificial respiration. Respondent told Deputy Sheriff Daggett that although he had been Burton's doctor approximately a year before, he was presently seeing her only socially.

    
    

20. A few days after Burton's death, Respondent called Jennifer Ross and said that he wanted to explain what had happened to Sally Burton. He told her that she had died from fibrillation of the heart, which was connected with some diuretic pills that she had been taking. Ross asked him if her death had anything to do with the abortion and he said "no". He asked her not to mention the abortion or his "relationship" with Burton to the police.

    
    

21. On June 25, 1975, Respondent was indicted in the Hillsborough County Circuit Court for the premeditated murder of Cassandra (sic) Ann Burton, a/k/a Sally Burton, on April 19, 1976, by strangling her to death by means unknown, contrary to Florida Statutes, 782.04. On June 10, 1981, Respondent was found guilty of the crime of manslaughter and sentenced to imprisonment for fifteen years.

    
    

22. Respondent testified at the hearing that he had terminated his physician-patient relationship with Burton in December, 1974 when he determined that she was seriously ill, not functioning well in group therapy, and needed long-term treatment. He recommended that she secure inpatient treatment and suggested that she see Dr. Arturo D. Gonzalez for this purpose. However, she did not wish to do so. On several occasions in 1975, Respondent let Burton borrow his car while he was out of state. He conceded that he had seen her after terminating her as a patient and decided to talk to her on occasions. He testified that he had induced her to attend a Bible class that he had been attending since the early 60's and that he would speak to her briefly once a week before the class. He denied ever having sexual intercourse with her and said that one of the reasons for his terminating her as a patient was due to the fact that she had vaginal herpes, which was always contagious in his opinion, and that he had had to treat several of his male patients who had been involved with her for urethral discharge. He claimed that she would pick up these patients at his office, and take them home with her.

    
    

23. Respondent further testified that although he had arranged for Burton's abortion and accompanied her to the doctor's office for that purpose, he had not caused the pregnancy and did not pay for the abortion. Periodically in the past, he had referred patients who became pregnant to physicians in the locality for abortions and maintained an office file listing physicians who performed this procedure.

24. Respondent testified that on the evening of April 19, 1975, he was conducting a group therapy session in his office and finished about 10:50 p.m. He later received several telephone calls from Burton from which he gained the impression that she might have taken some medication and could be physically ill, or that she was trying to get him over to her place to try to seduce him. He asked another patient, Christine Carlton, to accompany him to Burton's apartment to ascertain her condition, but she declined to go with him at that time. Respondent testified that he had asked Burton to call a cab or an ambulance, but she insisted that he come over to her apartment, stating that she was "too dizzy" to drive out herself. He testified that he then proceeded to her apartment after stopping to buy an ice cream cone, since he had not eaten all day. He did not believe there was a genuine emergency because of Burton's history of "rescue" fantasies and, in any event, thought he would have several hours if she had actually taken an overdose of drugs. When he arrived at Burton's apartment, he found her in a chair facing the door, and she did not respond to his greeting. He saw blueness in her legs and took her pulse, and patted her on the face. He picked her up, put her on the couch and checked her corneal reflex, and then started artificial respiration. He called the emergency squad while administering artificial respiration. He testified that when he heard the approaching sirens of the rescue squad, he went out on the apartment landing and saw a man ducking behind the bushes. He also testified that he had seen someone running down the stairs when he first arrived at the apartment. He denied strangling Burton.

    
    

25. Dr. Joan Wood, Deputy Chief Medical Examiner for the Sixth Judicial Circuit, testified that, although the medical examiner, Dr. Feegel, had originally determined that Burton's death was caused by strangulation, he modified his opinion in his testimony at Respondent's trial to include the possibility of accidental death. Dr. Wood has reviewed all of the medical reports concerning thee deceased, and is of the opinion that the pathological studies and reports are insufficient upon which to determine the cause of death within a reasonable medical certainty.

    
    

26. As a result of the foregoing findings, the following additional findings are made:

    
    

27. Insufficient competent evidence was presented to establish that Respondent had a sexual relationship with Cassandra Burton and that he caused her pregnancy. Although the evidence shows that Respondent's association with Burton was of such a nature as to greatly exceed the bounds of a normal psychiatrist-patient .relationship, it was generally in keeping with his compulsive personality which, as described by Dr. Warren, the examining psychiatrist, involved a tendency to try and please women, particularly hysterical ones. Other expert and lay testimony showed him to be an individual who became excessively involved with his patients.

    
    

28. At the time of the death of Cassandra "Sally" Burton on April 19, 1975, for which Respondent was thereafter found guilty of manslaughter, Respondent was acting in the role of a psychiatrist or physician, as evidenced by the deceased's request to him for medical assistance and his attempted response thereto in such capacity. (Testimony of Respondent, Burdette, Freeman, Daggett, Ross, Adams, Wood, Silverman, Jones, Carlton, Mezrah, Thomas, Gardner, Ricker, Petitioner's Exhibits 12-16, 21, Respondent's Exhibits 4-5, 8).

29. It was the practice of Respondent to have his secretary, Jean Jones, prepare his yearly applications to the Drug Enforcement Administration, Department of Justice, for renewal of his registration to dispense controlled substances pursuant to Federal law and regulation. She customarily prepared the application which was signed by Respondent and, in years prior to 1980, he had obtained registration to dispense Schedule II through V controlled substances. His application for renewal of registration which expired on November 30, 1979 was prepared by a different secretary due to Jones' absence, and the application signed by Respondent inadvertently reflected a request for renewal of authority to dispense only Schedule III and IV substances. Respondent was unaware that his registration renewal did not include authority to dispense Schedule II drugs. During the period March 6 through October 31, 1980, Respondent prescribed Class II controlled substances without proper registration to Lileen Dunn for Mepergan Fortis and Percodan, Anne Pizzo for Dexedrine, William Gray for Ritalin, Nick Douzanis for Desoxyn, Patty Crist for Amytal, Elio Alvarez, Jr. for Quaaludes, John Adams for Dexedrine, Harold Wyatt for Quaaludes, Karen Berrian and Janet Anifant for Dexamyl. On October 2, 1980, Respondent prescribed Noctec for himself which was filled at a Tampa pharmacy. Noctec is a Schedule IV controlled substance. Thomas Rowley had taken his wife to Respondent for treatment in the summer of 1980 and such treatment continued into December of that year. Although Respondent had provided Rowley with some samples of Noctec for his wife, and prescribed medicine for her in Rowley's name to prevent Mrs. Rowley from taking an overdose of medicine, Rowley had never received or obtained Noctec on a prescription which named Respondent as the patient. Respondent's registration to dispense controlled substances has included Schedule II drugs for 1981 and 1982. (Testimony of Jones, Dodd, Paige, Rowley, Petitioner's Exhibits 1-3, Respondents Exhibits 2, 7).

    
    

30. Respondent's driver's license was suspended for driving infractions in October, 1976 and reinstated in June, 1978. After Respondent returned a car he had borrowed from a patient, Pierce Brereton found a Florida driver's license in the glove compartment in the name off Albert Bela Klein, but bearing a photograph of Respondent. Kein had died on June 24, 1972, but records of the Department of Highway Safety and Motor Vehicles show that three speeding Violations were charged against his license in 1977-78. (Testimony of Brereton, Petitioner's Exhibits 9-11)

    
    

31. Pursuant to an Order issued by the Secretary, Department of Professional Regulation, on June 11, 1981, under subsection 458.331(1)(s), Florida Statutes, Respondent submitted to a psychiatric evaluation by Dr. George L Warren of Clearwater, Florida during the period July 31--August; 17, 1931. In addition, psychological testing of Respondent was performed by Dr. Richard N. Fran on August 7, 1981 As a result of the examination and testing, Dr. Warren concluded that Respondent suffered from a mild degree of impairment, most likely due to alcohol abuse which had caused some degree of brain damage, and a compulsive personality disorder. However, he did not feel that Respondent was suffering from a sufficient mental or emotional impairment which would adversely impact on his ability to practice medicine with reasonable skill and safety to patients. When he testified at the hearing, Dr. Warren disclosed that Respondent had contacted him the night before and disclosed that he had "borrowed" a driver's license during the pendency of criminal charges against him. Respondent had not disclosed this information to Warren during the previous psychiatric examination Dr. Warren testified on direct examination that the possession and use of the false driver's license by Respondent constituted antisocial behavior and than as a result of Respondent's disclosure, he would modify his opinion to find that Respondent was not able to practice medicine with skill and safety to patients. However, upon cross-examination, he stated

    that that fact alone would not change his opinion, but that he would have to reevaluate the case based on the factual correctness of matters contained in various hypothetical questions posed to him which were based upon the other charges in the Administrative Complaints. (Testimony of Warren, Petitioner's Exhibit 22, Respondent's Exhibit 1).

    
    

32. Respondent has been treated by a psychiatrist during the past year and, in his opinion, Respondent is a highly intelligent, well qualified psychiatrist who is competent to practice his profession. Additionally, several psychiatrists who have known Respondent in the past are of the same opinion. (Testimony of Afield, Gardner, Silverman, Thomas, Respondent's Exhibit 9).

    
    

    CONCLUSIONS OF LAW

    
    

33. Petitioner has the burden of proving its charges against Respondent. License revocation proceedings are penal in nature, and the "critical matters at issue must be shown by evidence which is indubitably as 'substantial' as the consequences." Bowling v. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981)

    
    

34. Based on the foregoing Findings of Fact, Counts I through III of Petitioner's Administrative Complaint, dated April 17, 1981, alleging various violations of Chapter 458, Florida Statutes, based on Respondent's alleged sexual intercourse with Sally Burton during the course of a physician-patient relationship, which resulted in her pregnancy and subsequent abortion on March 15, 1975, have not been established and should be dismissed.

    
    

35. Counts III through XIV of Petitioner's Administrative Complaint, dated April 17, 1981, alleged separate violations of subsection 458.331(1)(h), Florida Statutes (1979) in failing to perform a statutory or legal obligation placed upon a licensed physician. The alleged failure in each instance is Respondent's issuance of prescriptions for Schedule II controlled substances at divers times from April through July, 1980 without authority under his federal registration certificate to prescribe such substances during that time, therefore violating Chapter 21 CFR Section 1301.21. The evidence shows that Respondent issued the prescriptions in question for Schedule II drugs, and that his federal registration certificate then in force did not provide authority to prescribe such substances. Although Petitioner did not request that official recognition be taken of Chapter 21, CFR, Section 1301.21 or otherwise present any evidence as to the contents of that federal regulation, the other evidence presented clearly establishes the requirement of federal authorization to prescribe a particular schedule of controlled substances. Respondent, having failed to obtain the necessary authority, committed technical violations of the Florida statutory provision in question, as alleged in the Administrative Complaint. However, it is concluded from the evidence that Respondent's failure was caused by his simple negligence in failing to check the proper block on the application filed with the federal authorities. No evidence was presented that the prescriptions were issued for an improper purpose, or that Respondent could not have obtained authority to prescribe Schedule II controlled substances for the period in question.

    
    

36. Count XV of the Administrative Complaint dated April 17, 1981, alleges that, on October 2, 1980, Respondent issued a prescription to himself for Noctec, 500 mg., 30 tablets, which was a Schedule II controlled substances as defined by Chapter 893, Florida Statutes, and that therefore Respondent had violated subsection 458.331(1)(r), Florida Statutes, in prescribing, dispensing, or administering a drug appearing on a schedule set forth in Chapter 893,

    Florida Statutes, to himself. Noctec is a Schedule IV rather than Schedule II controlled substance under Chapter 893, Florida Statutes. Nevertheless, subsection 458.331(1)(r), Florida Statutes provides for discipline against a physician who prescribes to himself any medicinal drug appearing on any schedule set forth in Chapter 893. The evidence establishes that Respondent issued the prescription as described in Count XV to himself on October 2, 1980 and that said prescription was filled at Tony's Forest Hill Pharmacy, Tampa, Florida.

    The facts are therefore sufficient to establish a technical violation of the statute.

    
    

37. Counts I through III of Petitioner's Administrative Complaint, dated September 15, 1981, concern alleged derelictions of Respondent in connection with his patient, Pierce H. Brereton. Count I alleges that Respondent failed to practice medicine with proper care in his treatment of Brereton in 1967 and for an undisclosed period thereafter, in violation of subsection 458.1201 (1)(m), Florida Statutes (1975), and as substantially reenacted in subsection 458.331(1)(t), Florida Statutes 1979). The count alleges improper conduct on Respondent's part in not prescribing Antabuse for Brereton's alcoholic depression, when Respondent was well aware of Brereton's resumption of drinking, but nevertheless prescribing Valium for him, and further providing him with alcoholic beverages. On the contrary, the evidence disclosed that Brereton had discontinued the Antabuse shortly after having been placed on it by Respondent, and that he thereafter hid his drinking from Respondent and others until some time in 1978 when another employee informed Respondent that Brereton had been drinking. At that time, Respondent warned Brereton about continuing the use of Valium while drinking alcoholic beverages. The evidence further showed that, although Respondent may have had a social drink with a group of patients at dinner on occasion, insufficient evidence was presented to show that he supplied Brereton with alcoholic beverages. Accordingly, it is concluded that Count I of the Complaint has not been established, and should be dismissed.

    
    

38. In Count II Petitioner seeks to discipline Respondent for failure to practice medicine properly due to the alleged detrimental impact on Brereton's mental health and that of other patients by reason of his activities as a "co- therapist" employed by Respondent in group therapy activities. As heretofore found, insufficient evidence was presented at the hearing to establish that Brereton's activities in the above respect impaired Brereton's mental health or that of other patients. The count therefore should be dismissed.

    
    

39. Count III charges that, by permitting Brereton to act as a co- therapist, Respondent violated subsection 458.1201(1)(j), Florida Statutes (1977) and subsection 458.331(1)(g), Florida Statutes (1980) in aiding, assisting, procuring, or advising an unlicensed person to practice medicine contrary to Chapter 458, Florida Statutes or to a rule of the Department or Board. It is also alleged that Respondent violated subsection 458.331(1)(w) Florida Statutes (1980) in delegating professional responsibilities to a person whom he knew, or had reason to know, was not qualified by training, experience or licensure to perform them. Inasmuch as the evidence showed that Brereton participated in Respondent's group therapy sessions as a co-therapist only until 1978, Respondent cannot successfully be charged under subsection 458.331 (1)(w), Florida Statutes, which did not become effective until 1980, and was not a substantial reenactment of any prior statute. However, based on the evidence presented at the hearing, it has been established that Respondent employed and permitted Brereton, an unlicensed and unqualified individual, to assist him in the practice of medicine in the treatment of mental conditions of patients during group therapy sessions.

40. Count IV of the Administrative Complaint, dated September 15, 1981, as amended, and Count V, deal with allegations that Respondent made sexual advances to Emily Garrett in 1968 which, in part, led to subsequent suicide attempts by the patient. It has previously been found that insufficient evidence was presented at the hearing to support the factual allegations set forth in these counts. These counts should therefore be dismissed.

    7

41. Count VI of the Administrative Complaint, dated September 15, 1981, as amended, alleges that a physician-patient relationship existed between Sally Burton and Respondent on April 19, 1975, and that on June 10, 1981, Respondent was found guilty in the Hillsborough County Circuit Court of manslaughter in connection with her death. This count therefore seeks to discipline Respondent under subsection 458.331(1)(c), Florida Statutes (1980), which reads as follows:

    
    

    458.331 Grounds for Disciplinary Action; Action by the Board.

    1. The following acts shall constitute grounds for which the disciplinary action specified in subsection (2) may be taken:

    * * *

    (c) Being convicted or found guilty, regardless of adjudication of a crime in any jurisdiction which directly relates to the practice of medicine or to the ability to practice medicine. Any plea of nolo contendere shall be considered a conviction for purposes of this chapter.

    
    

    The circumstances surrounding Respondent's actions with respect to Cassandra "Sally" Burton on April 19, 1975 show that his subsequent conviction of manslaughter in connection with her death arose out of his admitted response to her telephone calls requesting medical assistance from him. It is therefore concluded that the crime for which he was convicted directly related to the practice of medicine and to Respondent's ability to practice medicine.

    Consequently, grounds for discipline have been established under subsection 458.331(1)(c), Florida Statutes.

    
    

42. In view of the foregoing established grounds for discipline, it is concluded that revocation of Respondent's license to practice medicine is appropriate and warranted.

RECOMMENDATION

That Petitioner Board of Medical Examiners revoke the license of Respondent Louis J. Tsavaris to practice medicine pursuant to Chapter 458, Florida Statutes.

DONE and ENTERED this 6th day of August, 1982, in Tallahassee, Florida.

THOMAS C. OLDHAM

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1982.

COPIES FURNISHED:

Deborah J. Miller, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Grover C. Freeman, Esquire 4600 West Cypress, Suite 410

Tampa, Florida 33607

William S. Lancaster, Esquire 1715 Tampa Street

Tampa, Florida 33602

Frank Ragano, Esquire 620 East Twiggs Street Tampa, Florida 33602

Dorothy Faircloth Executive Director

Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

Michael Schwartz, General Counsel Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-001364

Orders for Case No: 81-001364