STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 84-4167

) STANLEY MARK DRATLER, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on August 27, 1985, at Tampa, Florida.

APPEARANCES

For Petitioner: Joseph L. Shields, Esquire and

Bruce Lamb, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Paul W. Lambert, Esquire

1114 East Park Avenue Tallahassee, Florida 32301

By Administrative Complaint dated January 16, 1985, the Department of Professional Regulation, Petitioner, seeks to revoke, suspend, or otherwise discipline the license of Stanley Mark Dratler as a medical doctor. As grounds therefor, it is alleged that during the period between July 1982 and January 1983 Respondent undertook the gynecological care and treatment of various female patients, thereby creating a physician-patient relationship; and thereafter, prepared sexual histories on these patients, engaged the patients in sexually- oriented conversations, masturbated these patients, stimulated the patients' breasts, and represented to them that self-stimulation through masturbation and other methods was beneficial and would improve their sex lives. The Administrative Complaint also alleged Respondent employed a non-licensed person to assist him in his practice, requested this employee to assist in the masturbation and the teaching thereof to female patients; and told the employee that he would have to do a complete physical examination on her, including a pelvic examination, before he could prescribe medication for pimples or acne.

The Administrative Complaint contained 27 counts and involved six patients plus the employee. At the beginning of the hearing Petitioner withdrew Counts 9 through 13 and 18 through 21, thereby eliminating the charges involving three patients.

Thereafter, Petitioner called the remaining four complaining witnesses and two expert witnesses, Respondent testified in his own behalf, and five exhibits were admitted into evidence.

Proposed findings have been submitted by the parties. To the extent those proposed findings are included herein they are adopted; otherwise, they are rejected as not supported by the evidence, mere recitation of the testimony of witnesses, cumulative, or unnecessary to the conclusions reached.

FINDINGS OF FACT

1. At all times relevant hereto Stanley Mark Dratler, M.D., was licensed by the Florida Board of Medical Examiners. He completed a four-year residency in obstetrics and gynecology before opening an office in Dade City, Florida, in 1981. He has taken the written portion of the examination for Board certification but, at the time of the hearing, was not aware of the result of that examination.

   
   

2. Patient A visited Respondent July 22, 1982, for a Pap smear which was subsequently followed by a biopsy and hysterectomy on August 18, 1982. Following her release from the hospital, A reported to Respondent's office on August 30, 1982, for her first office checkup following surgery. At this visit Respondent performed a complete physical examination including a pelvic examination, asked A questions regarding her sex life at home, and told her he could show her things that would help her sex life. While examining her and

   discussing her sex life, Respondent applied a Q-tip to various areas outside the vagina and asked A to describe the sensations created thereby.

   
   

3. Some two weeks later A developed back pains, called Respondent's office, and was told to come in the next day. Again, Respondent did a complete examination, including pelvic, used a Q-tip swab to stimulate areas outside the vagina, and told A she needed to know how to masturbate herself and not rely solely upon her husband. During this examination, conducted in an examining room containing only A and Respondent, Respondent masturbated A and had her masturbate herself. When A asked about her back, Respondent told her there was nothing wrong with her back. A denied she ever told Respondent she felt numb between her legs.

   
   

4. In Respondent's testimony he confirmed the August 30 visit to his office by A but claimed she complained of feeling numb between the legs. When he put her in the stirrups for an examination, he found nothing wrong externally and performed a psycho-sexual examination which involved the stimulating of sensitive areas around the vagina with a cotton swab. He denies he ever masturbated A; that at her final visit on October 8, 1982, she again complained of numbness between her legs; his examination, which included the touching of sensitive areas, revealed nothing wrong; and when they returned to his office after the examination she made advances toward him. When he told A he treated her like all other patients, she got mad and stormed out of his office. In Exhibit 3, the patient records of A, the October 8 entry indicated only that A came in complaining of some swelling of the lower extremities, and no problem with that was foreseen. That entry states A would not need to return for another visit before six months unless some other problem developed. In view of the significant differences between the medical record and Respondent's testimony, the testimony of A is the more credible.

5. Patient E visited Respondent's office September 29, 1982, complaining of bleeding. During this visit a Pap smear was taken, as was a sexual history of the patient. During the pelvic examination Respondent talked to E of areas to stimulate for sexual arousal. With his finger in her vagina, he started to masturbate her and told her she needed to have more orgasms. E acknowledges telling Respondent she had intercourse five or six time per week and was anxious to get pregnant. She does not recall telling Respondent she reached climax only once per week, that her last climax was one week before the visit, or that she experienced pain on deep thrusting. Following this examination, E was given an appointment to return in two weeks, which she cancelled and did not again return to Respondent's office.

   
   

6. Respondent acknowledges that E visited his office as alleged and that he gave her a complete examination including a pelvic exam. He contends the questions regarding her sex history were necessary to ascertain any problems inhibiting E getting pregnant. He denies masturbating E or telling her that masturbation, stimulation, or sexually-oriented conversations were a necessary part of gynecological treatment.

   
   

7. Patient B first visited Respondent November 4, 1982, complaining of a rash in the vaginal area. Respondent obtained a sexual history of B, who at the time of this visit was 16 years old. This revealed B's first sexual encounter occurred at age 12, that she had never experienced orgasm although she had been sexually active. During the pelvic examination Respondent applied a cotton swab to various areas around B's vagina and asked her if it felt good here or there. B was given a prescription for the rash and told to return a week later. When she returned on November 8, B again was undressed for an examination.

   Respondent performed what he described as a psycho- sexual examination on B during which he massaged her breasts, stimulated areas outside the vagina with a cotton swab, and inserted fingers in B's vagina. While this stimulation was going on, B had an orgasm. B had experienced some side effects with the first rash medication and on the second visit Respondent prescribed a different medicine.

   
   

8. B returned for a third visit on November 22, 1982, which she testified was for blood tests only. However, there is some disparity in the testimony and it is more likely that the stimulation and orgasm occurred during the visit on November 22 rather than on November 8. On her final visit, December 6, 1982, B was again examined and testified Respondent fondled her breasts while masturbating her. At this time she had commenced her menstrual cycle but Respondent told her that was all right as he could still examine her. At this final visit Respondent prescribed birth control pills for B.

   
   

9. Respondent acknowledges that B had visited his office four times as she testified and that he gave her the psycho- sexual examination because she had engaged in sex for four years without enjoying it. His questions regarding her sex life was to find out if the rash was related to a sexually transmitted disease. Respondent denies that he fondled B's breasts or masturbated her. Exhibit 4, the medical history of B, confirms the four visits but contains no reference to the psycho-sexual examination Respondent performed. A return visit scheduled for December 22, 1982, was never kept by B. The testimony of B is more credible than that of Respondent respecting his actions with B while she was being examined.

   
   

10. Patricia Cherry worked in Respondent's office as a medical assistant and secretary from July 1982 until January 1983 when she quit to work at Humana Hospital in Dade City. Respondent asked Cherry if she would teach some of his

    patients how to masturbate themselves. She refused by stating she was not interested. Cherry was told by Respondent that he was conducting a survey on human sexuality and each patient would be a part of that survey. On one occasion Respondent asked Cherry to come in one weekend and he would give her Sodium Pentothal. She declined this also. On one occasion she witnessed Respondent administer intravenously a drug to a patient which Respondent said was Sodium Pentothal. Respondent told Cherry that a patient was coming in to be given Sodium Pentothal and had requested Cherry be present while the drug was administered. The patient came in as scheduled and was administered something intravenously while undressed from the waist down. After the IV started, the patient became unconscious on two occasions. During one period while the patient was awake Respondent asked the patient what she thought about oral sex. During one period the patient was unconscious Respondent asked Cherry if she would sexually stimulate the patient. Cherry said no.

    
    

11. Once while a drug salesman was in the office Cherry asked Respondent if he would give her some of the new medicine the salesman was offering for pimples. Respondent told her she should have a pelvic examination to find out if she was through puberty because use of the drug by one not through puberty could cause undesirable side effects. Cherry was 22 to 23 years old at the time, had experienced her menstrual cycle for several years and she declined to be examined. By definition, girls are through puberty when they commence their menstrual cycles.

    
    

12. Petitioner's two expert witnesses opined that hands-on masturbation of a patient constitutes treatment below generally prevailing standards; constitutes use of fraud, intimidation, or undue influence on a patient; constitutes exercising influence within a patient-physician relationship for purposes of engaging the patient in sexual activity; and constitutes deceptive, untrue or fraudulent representations in the practice of medicine, or employing a trick or scheme which fails to conform to the minimum acceptable standards of the profession. Also, the use of a swab around the genitalia of a female patient to sexually arouse the patient does not conform to the generally prevailing standards of treatment in the medical community. Nor does the use of Sodium Pentothal on a patient in an out-patient setting comply with the prevailing standards. Sodium Pentothal is a drug not normally administered in an out-patient setting where emergency backup procedures are unavailable. Very few gynecologists are sufficiently trained in the use of this drug to safely administer such a drug to a patient and particularly so in an out-patient setting. Research is normally done in an approved academic environment and not by individual practitioners. Respondent denied that he was engaged in the research he told Ms. Cherry he was conducting.

    
    

13. After hearing the testimony of the witnesses, Dr. J. Kell Williams, a Board-certified gynecologist and faculty member at the University of South Florida, opined that Respondent's treatment of the three patients who testified was below acceptable medical standards, constituted use of physician- patient relationships for improper purposes, constituted fraud and deception in the practice of medicine and the employment of a trick or scheme, which fails to comply with the minimum acceptable standards of the medical profession.

    
    

14. Patricia Cherry was never a patient of Respondent. As an employee she was requested to instruct female patients in masturbation, which she declined to do. Respondent also suggested to Cherry that she submit to Sodium Pentothal, which she also declined. Likewise, she declined to allow Respondent to do a complete examination which Respondent insisted was necessary before prescribing medication for her acne. Although Cherry was not a patient, the representations

    regarding a pelvic examination prior to prescribing medication for acne constitutes deceptive, untrue and fraudulent representations in the practice of medicine and fraudulent solicitation of a patient. Absent a medical reason to conduct a pelvic examination, Respondent's insisting on doing so prior to treatment of acne constitutes an attempt to engage the patient in sexual activity.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. Respondent is here charged with violating the provisions of Section 458.331(1), Florida Statutes, which provides the following acts shall constitute grounds for which disciplinary action may be taken:

    
    

    1. Exercising influence within a patient- physician relationship for purposes of engag- ing 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 physician.

    2. Making deceptive, untrue, or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine when such scheme or trick fails to conform to the generally prevailing standards in the medical community.

       * * *

       (t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recog-

       nized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The board shall give great weight to the provisions of s. 765.45 when en- forcing this paragraph.

       * * *

       (x) Violating any provision of this chapter. . . .

       
       

17. Violation of subsection (x) was alleged to result from a violation of Section 458.329, Florida Statutes, by Respondent. This section provides:

    
    

    The physician-patient relationship is founded on mutual trust. Sexual misconduct in the practice of medicine means violation of the physician-patient relationship through which the physician uses said relationship to induce or attempt to induce the patient to engage, or attempt to engage the patient, in sexual acti- vity outside the scope of the practice or the scope of generally accepted examination or treatment of the patient. Sexual misconduct

    in the practice of medicine is prohibited.

    
    

18. No evidence was submitted that Respondent asked any of the patients to masturbate him or that he had sexual intercourse with any of these patients.

19. From the foregoing it is concluded that Respondent violated provisions of Section 458.331(1)(k), (l), (t), and (x), Florida Statutes, under the Findings of Fact above noted. It is

RECOMMENDED that the license of Stanley Mark Dratler, as a physician be suspended for a period of three (3) years.

ENTERED this 20th day of September, 1985, at Tallahassee, Florida.

K. N. AYERS 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 20th day of September, 1985.

COPIES FURNISHED:

Joseph C. Shields, Esquire Bruce D. Lamb, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Paul W. Lambert, Esquire 1114 East Park Avenue Tallahassee, Florida 32301

Dorothy Faircloth, Executive Director Board of Medical Examiners

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred M. Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 84-004167

Orders for Case No: 84-004167