STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 84-2741

)

HENRY J. PETRILLO, D.O. )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a public hearing in the above- styled case on November 15, 1984 in Plant City, Florida.

APPEARANCES

For Petitioner: William M. Furlow

Senior Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Grover C. Freeman and

David P. Rankin FREEMAN & LOPEZ, P.A.

4600 West Cypress, Suite 410

Tampa, Florida 33607

By administrative complaint filed July 1, 1984 petitioner seeks to revoke, suspend or otherwise discipline the license of Henry J. Petrillo as a doctor of osteopathic medicine in the State of Florida. As grounds therefor, it is alleged: (1) that the respondent failed to cause quarterly progress reports from his psychologist to be submitted to the Board of Osteopathic Medical Examiners (Board) or the probation supervisor as required by the Board's order dated February 18, 1982 and thereby violating a lawful order of the Board; (2) the respondent, while examining patient; Angela Turner, kissed her breasts, vagina and lips without her consent and thereby exercised influence within the patient- physician relationship for the purpose of engaging a patient in sexual activity; and (3) the respondent, while examining patient, Angela Turner, kissed her breasts, vagina and lips without her consent and thereby used the patient- physician relationship to induce or attempt to induce the patient to engage in sexual activity outside the scope of generally accepted examination or treatment and thereby committing sexual misconduct in the practice of osteopathic medicine.

In support of the charges, petitioner presented the testimony of Angela Turner, Diane Gossett, Lydia Kiefer, Betty Romona Davis, Geraldine Logsdon and Mavis Vincent. Petitioner's Exhibit No. 1 was received into evidence.

Respondent, Henry J. Petrillo, D.O. testified on his own behalf and presented the testimony of Howard Hunter, Attorney at Law, Vida Petrillo, John Fegal, M.D., Janaee Brown and Juanita Bettis. Respondent's Exhibit Nos. 1 through 8 were received into evidence. A polygraph examination of respondent was offered into evidence by respondent but petitioner objected to its introduction. The polygraph examination was ruled inadmissible and thereupon the respondent proffered the testimony of Sgt. George Moore, Hillsborough County Sheriff's Department and Dudley Dickson, polygraph examiner into the record.

Paragraph 7 and 8 were amended by stipulation to show the correct spelling as Dr. Sidney Merin rather than Dr. Sidney Merin. Paragraph 7 was further amended to show the correct date as March 15, 1984 rather than March 15, 1983.

Arguments by counsel for the parties was heard on respondent's Motion To Strike. A ruling was reserved at that time to allow counsel to submit briefs on the motion. After considering the oral and written arguments of counsel the Motion to Strike is DENIED.

The parties submitted post hearing Proposed Findings of Facts and Conclusions of Law pursuant to Section 120.57 (1)(b)(4), Florida Administrative Code (Supp. 1984). A ruling on each proposed findings of fact has been made either directly or indirectly in this recommended order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found:

1. Respondent, Henry J. Petrillo, D.O., has been licensed to practice osteopathic medicine in the State of Florida since July 1, 1973 and at all times pertinent to these proceedings was licensed by the State of Florida as a Doctor of Osteopath.

   
   

2. The Board entered an order dated February 18, 1982, in a prior unrelated case, placing respondent on probation for a period of two (2) years commencing February 18, 1982 with the condition, among others, that the respondent " . . . shall obtain/continue counseling with a psychiatrist or psychologist and shall cause progress reports to be submitted to the Board or probation supervisor every three (3) months."

   
   

3. In response to that order, respondent began to visit psychologist Sidney T. Merin, Ph.D. for counseling. Dr. Merin submitted progress reports on the respondent to the Board by letter on April 15, 1982, August 5, 1982, October 25, 1982 and January 24, 1983. No progress reports were submitted by Dr. Merin, or any other psychiatrist or psychologist, on the respondent to the Board after January 24, 1983.

   
   

4. Based on Petitioner's Exhibit 1 (letter to respondent from Dr. Merin date stamped received March 25, 1984), Dr. Merin continued to treat respondent until his probation was terminated. But, there was a period of time from January 24, 1983 until November 30, 1983 that respondent did not visit Dr. Merin for counseling. Respondent attended counseling sessions with Dr. Merin on November 30, 1983 and January 9, 1984.

5. Respondent petitioned the Board for early termination of his probation by letter dated February 21, 1983. On June 25, 1983 the Board heard respondent's request. On August 6, 1983 the Board entered its order denying the respondent's "request for termination of probation and full reinstatement of his license to practice osteopathic medicine." The Board's order specifically required that respondent was to "continue to be on probation pursuant to the terms and conditions set forth in the final order dated February 18, 1982."

   
   

6. The evidence indicated that the Board was aware that respondent had completed counseling with Dr. Merin in January, 1984 and had been "discharged" other than for visits on a "as needed" basis. On June 25, 1983, at the time of respondent's hearing on his request for reinstatement of license and termination of probation, over three (3) months had expired since Dr. Merin's last progress report to the Board on the respondent.

   
   

7. Angela Turner was one of respondent's patients. Between May 9, 1983 and July 30, 1983, the respondent saw Angela Turner eight (8) times on a physician-patient relationship. The respondent's medical records and Angela Turner's testimony indicated that she was suffering from a continuing vaginal infection that resulted in a discharge.

   
   

8. Angela Turner's last visit with respondent on July 30, 1983 was for the purpose of bringing in a urine sample for a pregnancy test which respondent had requested on Angela Turner's prior visit of July 26, 1983 and for consultation with respondent as to the results of the pregnancy test.

   
   

9. Upon arriving at the respondent's office on July 30, 1983, Angela Turner submitted the urine sample to Janaee Brown, a nurse in respondent's office. Later, Angela Turner was taken to the examination room by Janaee Brown who inquired as to how Angela Turner was feeling, Angela Turner replied, "that she was feeling a lot better, but she had slight dizziness and she thought her yeast infection might be coming back." Janaee Brown then left Angela Turner in the examination room. At this point, there is conflicting testimony concerning whether Janaee Brown relayed instructions from the respondent for Angela Turner to disrobe from the waist down and provided a gown for this purpose. The more credible evidence is that Janaee Brown did not instruct Angela Turner to disrobe from the waist down and that Janaee Brown did not give Angela Turner a gown or robe for this purpose.

   
   

10. Although there was some evidence that respondent may have deviated, at one time or another, from his office policy of having someone accompany him at all times while consulting with or examining a female patient, the weight of the evidence shows that respondent did have such an office policy and that no exception to that office policy was made during Angela Turner's visit with respondent on July 30, 1983.

    
    

11. Angela Turner's testimony was that respondent came into the room alone, reported a negative pregnancy test, asked how she was feeling, examined her vagina without gloves, or lubricant or device to spread vagina, unbuttoned her blouse and moved her bra and examined her breasts. Respondent then kissed each of her breasts, her stomach, her vagina and tried to kiss her lips but she pushed him away. The respondent denies any impropriety with Angela Turner on July 30, 1983. The weight of the evidence shows that respondent consulted with Angela Turner in the presence of his wife, Vida Petrillo, concerning her pregnancy test, prescribed five (5) douches for vaginal infection and discussed something about abortion.

12. The evidence shows that Angela Turner did mention to Janaee Brown something to the effect that the doctor had done something he shouldn't do and asked if that was office policy, to which Janaee Brown replied "no." The evidence shows that Angela Turner did not appear to be emotionally upset at this time.

    
    

13. Angela Turner paid her bill, picked up her douches and went outside and called her husband who in turn contacted the police.

    
    

14. Counsel for petitioner stipulated that a civil suit for damages had been filed by Angela Turner and her husband against respondent and presently there was an ongoing lawsuit.

    
    

15. The evidence fails to establish sufficiently that the respondent conducted a vaginal examination on July 30, 1983 or made any sexual advances toward Angela Turner by kissing her breasts, stomach, and vagina or attempting to kiss her lips.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

17. The alleged misconduct of which respondent is accused purportedly violates Sections 459.015(1)(x) [Count I], 459.015(1)(k) [Count II], and 459.014 [Count III], Florida Statutes (1983). The provisions of Section 459.015(1)(k)(x), Florida Statutes (1983) are quoted below:

    
    

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

       (k) Exercising influence within a patient- physician relationship for purposes of engaging a patient in sexual activity. A patient shall be presumed to be incapable of giving free, full, and informed consent to sexual activity with

       his or her physician.

       (x) Violating any provision of this chapter, a rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the board or department.

       
       

18. Additionally, the provisions of Section 459.014, Florida Statutes (1983) are quoted below:

    
    

    The osteopathic physican-patient relationship is founded on mutual trust. Sexual misconduct in the practice of osteopathic medicine means violation of the osteopathic physician-patient relationship through which the osteopathic physician uses said relationship to induce or attempt to induce the patient to engage, or

    to engage or attempt to engage the patient, in sexual activity outside the scope of the practice

    or the scope of generally accepted examination or treatment of the patient. Sexual misconduct

    in the practice of osteopathic medicine is prohibited.

    
    

19. In Count I, the respondent is alleged to have violated a lawful order of the Board previously entered in a disciplinary hearing, and thereby violating Section 459.015(1)(x), Florida Statues (1983) which is grounds for disciplinary action by petitioner. And not as respondent argues, an allegation of probation violation.

    
    

20. The record clearly establishes the fact that respondent violated the Board's Order of February 18, 1982 and August 26, 1983 by his failure to continue counseling with his psychologist, Dr. Merin during the period of time between January 24, 1983 and November 30, 1983 and by his failure to cause progress reports to be submitted to the Board or the probation supervisor during the period of time between January 24, 1983 and February 18, 1984.

    
    

21. Respondent's reliance on the Board's inaction to his apparent violation of the Board's order of February 18, 1982, after Dr. Merin's letter to the Board on January 24, 1983 (Petitioner's Exhibit 1), may be a basis for mitigation of the penalty to be imposed and, particularly, since the Board chose not to address this apparent violation in its order of August 26, 1983. But, such reliance does not excuse the respondent's failure to comply with the Board's order of February 18, 1982. The Board's order of August 26, 1983 was clear on what the Board expected of the respondent in regard to respondent's continued counseling and causing progress reports to be submitted to the Board or probation supervisor.

    
    

22. The petitioner has shown that respondent violated Section 459.015(1)(x), Florida Statutes (1983) by violating the lawful order entered by the Board on February 18, 1982 and August 26, 1983. Accordingly, grounds for disciplinary action have been established.

    
    

23. In Count II, the respondent is alleged to have exercised influence within a patient-physician relationship for purposes of engaging a patient in sexual activity and thereby violating Section 459.015(1)(k), Florida Statutes (1983) which is grounds for disciplinary action by the petitioner.

    
    

24. The finding was that respondent did not kiss Angela Turner on her breasts, stomach, vagina or attempt to kiss her lips in an attempt to engage her in sexual activity. Consequently, there has been no showing of a violation of Section 459.015(1)(k), Florida Statutes, 1983.

    
    

25. In Count III, the respondent is alleged to have used the patient- physician relationship to induce or attempt to induce the patient to engage in sexual activity outside the scope of generally accepted examination or treatment and thereby violating Section 459.014, Florida Statutes (1983).

    
    

26. Since the factual allegations in Count III are the same as in Count II, it cannot be said that the evidence shows a violation of Section 459.014, Florida Statutes (1983) either.

    
    

27. In disciplinary proceedings, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino

v. Department of Health and Rehabilitative Services, 348 So2d 349, (1st DCA Fla. 1977). License revocation proceedings are penal in nature. State ex. rel. Vining v. Florida Real Estate Commission, 281 So2d 487 (Fla. 1973). As such,

"the critical matter in issue must be shown by evidence which is indubitably

`substantial' as the consequences," Bowling v. Department of Insurance, 394 So2d 165, 172 (1st DCA Fla. 1981). Therefore, the evidence which is required to "substantially" support a license revocation must be greater than required to support conventional form of regulatory action. The petitioner has met its burden of proof in Count I that respondent violated Section 459.015(1)(x), Florida Statutes (1983) by violating a lawful order of the Board. However, "substantiality" of the evidence presented by the petitioner in support of the allegations contained in Count II and Count III is diminished by the fact that its main witness, Angela Turner, may be an "interested witness." Robinson v.

Florida Board of Dentistry, 447 So2d 930 (3rd DCA Fla. 1984). Petitioner has failed to meet its burden of proof that respondent violated Sections 459.015(1)(k), or 459.014, Florida Statutes (1983). Accordingly, petitioner has failed to establish grounds for disciplinary action in Count II and Count III of the administrative complaint.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent be found not guilty of the violation of Sections 459.015(1)(k), and 459.014, Florida Statutes (1983) and that Count II and Count III be DISMISSED. It is further RECOMMENDED that respondent be found guilty of violating a lawful order of the Board in violation of Section 459.O15(1)(x), Florida Statutes (1983). For such violation, considering the mitigating circumstances surrounding the violation, it is RECOMMENDED that the Board issue a letter of Reprimand to the respondent.

Respectfully submitted and entered this 1st day of May, 1985, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 1st day of May, 1985.

COPIES FURNISHED:

Mr. Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Ms. Dorothy Faircloth Executive Director Osteopathic Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

William M. Furlow, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Grover C. Freeman and David P. Rankin

FREEMAN & LOPEZ, P.A.

4600 West Cypress, Suite 410

Tampa, Florida 33607

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AGENCY FINAL ORDER

=================================================================

DEPARTMENT OF PROFESSIONAL REGULATION BEFORE THE BOARD OF OSTEOPATHIC MEDICAL EXAMINERS

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

CASE NOS. 0041226

vs. 0046319

DOAH CASE NO. 84-2741

HENRY J. PETRILLO, D.O.,

Respondent.

/

FINAL ORDER

Respondent, Henry J. Petrillo, D.O., holds Florida license No. 000003350 as an osteopathic physician. Petitioner filed an administrative complaint seeking suspension, revocation, or other disciplinary action against the license.

Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A recommended order has been forwarded to the board pursuant to s. 120.57(1), F.S. it is attached to and made a part of this order.

The Board of Osteopathic Medical Examiners met on June 15, 1985, in Miami, Florida, to take final agency action. The Petitioner was represented by William

N. Furlow, Esquire. The Respondent was present and represented by Grover C. Freeman, Esquire. The board has reviewed the entire record in the case.

The board adopts the findings of fact and conclusions of law of the recommended order. The board specifically rejects the penalty, recommended by the hearing officer, a reprimand, as not being significant enough in light of the findings of fact and conclusions of law.

Wherefore, it is hereby ORDERED that Respondent pay an administrative fine of $1,000.00 within 30 days of the filing of this order and be placed on probation for two years, during which time Respondent shall appear quarterly before the board and shall obtain counseling from a licensed psychologist or psychiatrist who shall forward quarterly progress reports to the board for its review.

In addition, during the period of the probation, Respondent shall refrain from violating any applicable federal or state laws, rules, regulations of the board, or the terms and conditions of this order. Violation of this order may result in suspension or revocation of Respondent's license. This order takes effect upon filing.

This order may be appealed by filing notices of appeal and a filing fee, as set out in Section 120.68(2), F.S., and Florida Rules of Appellate Procedure 9.110(b) and (c), within 30 days of the date of filing.

DONE AND ORDERED this 1st day of July, 1985.

BOARD OF OSTEOPATHIC EXAMINERS

James H. Taylor, D.O., Chairman

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to Mr. William M. Furlow, Esquire, Department of Professional Regulations, 130 N. Monroe Street, Tallahassee, Florida, 32301 and to Mr. Grover C. Freeman, Esquire, 4600 W. Cypress Street, Suite 410, Tampa, Florida 33607 this 10th day of July, 1985.

Docket for Case No: 84-002741

Orders for Case No: 84-002741