STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 85-2232

)

DONALD H. FOSTER, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

This case was held pursuant to notice on September 19, 1985 in Tampa, Florida by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented on an administrative complaint filed by the Board of Medical Examiners against Donald Foster which alleged generally that Donald Foster had violated Chapter 458, Florida Statutes by improperly exercising undue influence over a patient, making deceptive representations in the practice of medicine and failing to keep records.

APPEARANCES

For Petitioner: Stephanie A. Daniel, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Harry M. Hobbs, Esquire

725 East Kennedy Blvd. Tampa, Florida 33602

Prior to the hearing, Respondent filed a motion to suppress evidence which Respondent asserted had been improperly or illegally seized by the police on September 7, 1984 and which should not be introduced in this case. Evidence was taken on this motion. Tape recordings made on September 7, 1984 of conversations between the Respondent and patient were deemed

admissible because the patient had consented to recording the conversations and had used a recording device to record the conversations. The Respondent raised the issue of the poor quality of the recording and it was ruled that only by listening to the tape could that be assessed, but if the tape was moved into evidence Respondent could raise that objection at which time the matter would be taken under advisement, if the tape was of such poor quality that the whole conversation was not intelligible, it would not be considered. The tape was never tendered into evidence.

Thereafter, the medical records of the Petitioner were deemed admissible because they had been initially requested by the patient who directed the Respondent to give the records to the police on September 7, 1984, and the Respondent had delivered them to the police as requested. Further, the Petitioner consented to the release of the records to the Board of Medical Examiners. Although this release occurred after the Board of Medical Examiners came into possession of the records, it is fully effective because the issue is not one of proper search and seizure but of proper waiver of confidentiality by the patient prior to the public disclosure of the records.

These records were introduced and received.

Respondent also moved for a continuance on the grounds that the commencement of the hearing had been delayed and this would make the presentation of Respondent's character witnesses difficult. Petitioner opposed the continuance because of its difficulty in finding and presenting its primary witness. The motion was denied because Petitioner agreed to take Respondent's witnesses out of order and there was no prejudice to the Respondent in calling his witnesses out of order. Respondent was permitted by stipulation to call his witnesses, all of which were character witnesses, as they arrived and out of order.

ISSUES

By count, the issues are as follows:

Count I - Did Respondent exercise influence within a patient-physician relationship for the purpose of engaging a patient in sexual activity, contrary to Section 458.331(1)(k), Florida Statutes?

Count II - Did the Respondent prescribe, dispense or administer a legend drug or controlled substance other than in

the course of his practice, contrary to Section 458.331(1)(q), Florida Statutes?

Legally, the issue is whether the presumption of impropriety should apply because the drug was alleged to be prescribed inappropriately.

Count III - Did the Respondent violate the statutory in Section 893.05, Florida Statutes to prescribe, dispense and administer a controlled substance in good faith and in the course of his professional practice, and thereby violate Section 458.331(1)(h), Florida Statutes?

Count IV - Did Respondent maintain adequate medical records for his treatment of the patient, contrary to Section 458.331(1)(n), Florida Statutes?

Count V - Did the Respondent fail to practice medicine within that level of care, skill and treatment which is recognized by a reasonably prudent similar medical doctor as being acceptable under similar conditions and circumstances (gross or repeated malpractice), contrary to Section 458.331(1)(t), Florida Statutes?

Count VI - Did the Respondent make deceptive, untrue or fraudulent representations in the practice of medicine, contrary to Section 458.331(1)(1), Florida Statutes?

Count VII - Did the Respondent violate any provision of Chapter 458 or Rule of the Board, and thereby violate Section 458.331(1)(x) Florida Statutes?

After the Petitioner rested its case, Respondent moved for a finding of fact that certain counts were not proven. The motion was granted with regard to Count VI and Count VII for the following reasons:

Count VI - There was no evidence of any deceptive, untrue or fraudulent representations presented.

Count VII - The Board has not charged any violation of the rules. Any violations of Section 458.331, Florida Statutes alleged are punishable in their own right and it is inappropriate to charge Respondent with an added violation of Chapter 458.331(1)(x), Florida Statutes.

A timely proposed order was received from the Respondent; a proposed finding was filed late by the Petitioner which was rejected as being filed late. A ruling has been made on the Respondent's proposed finding of fact in the Appendix to the Recommended Order.

FINDINGS OF FACT

1. The Respondent, Donald H. Foster, is a medical doctor licensed by the Florida Board of Medical Examiners and has held license #0006524 since 1955.

   
   

2. Kelly McLean, a/k/a Kelly Carter, is a preoperative transsexual who has taken female hormones since 1982, who dresses as a female, who lives and works as a female, and who will be referred to in the female gender hereafter in this Order. (Testimony of McLean.)

   
   

3. Kelly McLean first saw Respondent in May of 1982 to obtain female hormone shots to maintain female secondary sexual characteristics. McLean had already been obtaining such hormones from other sources prior to seeing Respondent. McLean could not remember many details of the 1982 visit: however, McLean stated that Respondent did not take a complete past history and perform a general physical examination. McLean stated that Respondent did examine her breasts and asked general questions about her condition and the treatment she sought. The Respondent prescribed female hormones for McLean and gave McLean a hormone shot during the 1982 visit. (Testimony of McLean.)

   
   

4. McLean did not continue to see the Respondent because McLean was obtaining hormones for less money from another source. (Testimony of McLean.)

   
   

5. In August 1984 McLean was arrested for solicitation of an undercover police officer to perform a sexual act for $20.00. While being held in an investigative status and prior to being booked, she was approached by Detective Duran to see if she had any criminal intelligence value and was willing to cooperate with the police in criminal investigations in order to seek their recommendation to the State Attorney that the charges against her be reduced. McLean agreed and was placed in contact with Detective Gates. Gates had been surveilling the Respondent since 1976, but did not have an open case file. McLean had advised Detective Duran she had seen Respondent in 1982. McLean was recruited to work an undercover operation against Respondent. (Testimony of McLean and Gates.)

   
   

6. Gates and Duran targeted McLean against Respondent to determine if Respondent was prescribing medications in accordance with ethical and legal standards and requirements. Gates suggested to McLean that she attempt to obtain a prescription for valium and cautioned her not to present a good medical reason. McLean also understood that Duran was seeking evidence of solicitation of sexual favors by the Respondent. Gates and Duran told McLean they would recommend to the State Attorney that her charges be reduced if she would wear a recording/transmitting device, see the doctor, and attempt to get drugs and seek sexual favors. (Testimony of McLean, Gates and Duran.)

   
   

7. McLean agreed, saw the Respondent, the officers recommended reduction of her charges and they were dropped. (Testimony of McLean.)

   
   

8. On September 7, 1984, McLean met with Duran and Gates at approximately 2:00 p.m. at which time they equipped her with a transmitting device. They then took her to the Respondent's medical office where she entered Respondent's office and spoke with the receptionist. She advised the receptionist she had seen the doctor in 1982 and her record was pulled. The receptionist did not take any information from McLean other than her change of address. McLean was placed in an examination room and seen alone by Respondent. (Testimony of McLean.)

   
   

9. Duran and Gates remained outside monitoring and recording the transmissions from McLean's transmitter hidden in her purse. (Testimony of Duran and Gates.)

   
   

10. The Respondent saw McLean and asked why McLean was there. McLean indicated to Respondent that she desired to continue her hormone shots. The Respondent carefully examined McLean's breasts, to include the lymph glands under the arms, and asked McLean about how her treatment was coming. McLean advised Respondent that she was nervous because she had just moved back into the house with her mother who disapproved of her life style and asked for a valium prescription. (Testimony of McLean and Foster.)

    
    

11. After his examination, the Respondent administered an injection of female hormones to McLean and prescribed a female hormone to be taken orally by McLean. The Respondent did not give McLean a prescription of valium at that time. (Testimony of McLean.)

    
    

12. Hormone injections for pre-operative transsexuals are accepted treatment during the period in which the male is adapting to life as a female prior to surgery. However, this is generally done in conjunction with psychiatric or psychological counseling as part of an overall process culminating in surgery. Because of the various health care needs of the transsexual and serious consequences of hormone therapy, various specialists may treat the patient under the leadership of one of the physicians. There is no evidence that Respondent administered hormones to McLean as part of an overall treatment regime to include counseling and planned surgery initiated by Respondent or another physician. However, there are many transsexuals who cannot afford the treatments, counseling and surgery which are quite expensive. Many transsexuals are limited to continued hormone treatments which are frequently obtained from persons other than physicians. Hormone injections can cause serious side effects and should not be prescribed without full patient history, careful workup and continued screening. (Testimony of Foster and Neufeld.)

    
    

13. The Respondent did not perform the workup required of the prudent, reasonable medical doctor under similar circumstances prior to prescribing female hormones for McLean. (Testimony of McLean, Foster and Neufeld.)

    
    

14. On September 7, 1985 at approximately 5:15 p.m. McLean returned to Respondent's office. Conflicting testimony was received on whether the Respondent made sexual advances to McLean or whether Respondent offered to supply valium to McLean in return for sexual favors. McLean was under significant pressure to obtain data for the Tampa Police Department or face trial for prostitution. Gates targeted McLean against Foster who Gates had had under investigation since 1976 without an open file. Also, Duran's special interest in vice matters was known to McLean. Conversely, Respondent has a very clear and special interest in this case. Although Respondent prescribed valium to McLean at this second visit, the testimony of McLean is rejected as it relates to overt sexual conduct or advances by Dr. Foster in return for a valium prescription. (Testimony of Foster and McLean.)

    
    

15. Transsexuals suffer frequently from anxiety. McLean specifically reported problems with anxiety and requested a prescription for valium for relief of this problem. Valium is a Class IV controlled substance which is frequently prescribed for the relief of anxiety. The prescription of this medication for

    McLean by Respondent was appropriate and for the benefit of the patient's condition. (Testimony of McLean and Foster.)

    
    

16. The records of McLean kept by the doctor were taken by the officers on the night of September 7, 1984 without a warrant. McLean asked the doctor to give her records to the police, which he did. The entries are sparse and do not reflect weight, blood pressure, pulse rate or respiration. There is no evidence of a patient history being taken in either 1982 or 1984. Although Respondent had no opportunity to make any entries regarding the prescription of valium to McLean in the records, the absence of any 1982 data indicates Respondent failed to record basic patient data. Respondent testified he did inquire about basic data of all his patients. Testimony of McLean, Gates, Foster and Duran.

    
    

17. Although the Board's expert testified that he would not examine a transsexual without a female nurse present, and that to do so violated the accepted standards of practice, the Respondent testified he was unaware of any accepted protocol regarding decorum applicable to how transsexuals should be examined. Clearly this case reveals the potential dangers of not having a third person present when examining a transsexual; however the expert's opinion appeared to be a personal one, no authority having been cited for the practice of treating a transsexual as a female patient. (Testimony of Neufeld and Foster.)

    
    

    CONCLUSIONS OF LAW

    
    

18. The Board of Medical Examiners is charged by Chapter 458, Florida Statutes, with the regulation and discipline of medical doctors. This order is entered pursuant to Section 120.57(1), Florida Statutes.

    
    

19. There is no evidence that Respondent used his position and the patient/doctor relationship for the purpose of engaging a patient in sexual activity as alleged in Count I. The testimony on Count I is conflicting. The Respondent says nothing occurred. McLean says the Respondent fondled her and suggested that he could take care of her bill and prescription for valium in exchange for sexual favors. Neither witness is without an interest in the case. McLean undertook this activity under threat of imprisonment and Respondent is under threat of losing his license. There is no extrinsic evidence of sexual misconduct. Considering specifically the credibility of the witness McLean, the charge is not proven.

    
    

20. The Respondent is charged with prescribing drugs other than in the course of professional conduct. The real issue here is whether the presumption of inappropriateness should be applied. Section 458.331(1)(q), Florida Statutes, provides that if it is shown that drugs were prescribed, dispensed and administered inappropriately, excessively, or in inappropriate quantities, it is presumed this was not in the course of professional conduct. There is no evidence of excessive or inappropriate quantities being prescribed by Respondent for McLean. The only issue is whether the administration of the drugs was inappropriate. Thus, "appropriate" as it is used in this section, refers to proper chemical use of a drug. (The "appropriateness" of treatment as it relates to quality of care is addressed by Chapter 458.331(1)(t), Florida Statutes, by the failure to practice with that level of care, etc.) Respondent prescribed both hormones and valium to McLean to treat McLean's transsexualism and anxiety. These drugs were appropriate to the patient's presenting problem. These prescriptions were in good faith and in the course of Respondent's practice. Violation of Section 458.331(1)(q), Florida Statutes, as alleged in Count II and Sections 893.05 and 458.331(1)(h), Florida Statutes, as alleged in Count III were not proven.

    
    

21. The Respondent failed to maintain a patient history and other information sufficient to form a basic record for Respondent's hormone therapy of McLean. The lack of entries in the records regarding the valium prescription is discounted because of the seizure of the records immediately after the prescription was written. The Respondent did violate Section 458.331(1)(n), Florida Statutes, as alleged in Count IV.

    
    

22. By initiating hormone therapy without the appropriate history and examination and without provision for counseling and surgical consultations, Respondent did not practice with the degree of care, skill and treatment recognized by prudent, similar physicians as being acceptable under similar conditions and circumstances. There is no evidence that the Respondent did this on any other occasion. There is no evidence of repeated violation. Respondent violated Section 458.331(1)(t), Florida Statutes, as alleged in Count V.

RECOMMENDATION

Having found the Respondent guilty of violating Section 458.331(1)(t), Florida Statutes, it is recommended he be fined

$1,000.00 and be required to attend twenty-five (25) hours of

continuing education. Having found Respondent guilty of violating Section 458.331(1)(n), Florida Statutes, it is recommended he be fined $1,000.00 and be required to attend twenty-five (25) hours of continuing education.

DONE AND ORDERED this 30th day of October, 1985 in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN: Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, FL 32301

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 30th day of October, 1985.

COPIES FURNISHED:

Stephanie A. Daniel, Esq. Department of Professional

Regulation

130 N. Monroe Street Tallahassee, FL 32301

Harry M. Hobbs, Esquire 725 East Kennedy Blvd. Tampa, FL 33602

Dorothy Faircloth Executive Director

Board of Medical Examiners Old Courthouse Square Bldg.

130 N. Monroe Street Tallahassee, FL 32301

Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, FL 32301

Salvatore A. Carpino General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, FL 32301

APPENDIX

The proposed findings submitted by the Respondent were read, considered and the following action was taken with regard to them:

Proposed Findings Recommended Finding or Other Disposition

Paragraph #1 Paragraph #16 Portions rejected as conclusion of law and irrelevant.

Paragraph #2 Paragraph #3

Paragraph #3 Paragraph #14 and #15

Paragraph #4 Paragraph #10

Paragraph #5 Paragraph #16

Paragraph #6 Paragraph #2

Paragraph #7 Paragraph #14 and #15

Paragraphs #9, 10, Rejected as conclusion

11 and 13 of law.

Paragraph #12 Paragraph #16

Paragraph #14 Not at issue. Rulings were made prior to taking testimony regarding the admissibility of evidence. Rejected as irrelevant to issues.

Paragraph #15 See comments, Paragraph #14 above.

Paragraph #16 See comments, Paragraph #14 above.

Paragraph #17 Rejected as irrelevant to issues presented.

Paragraph #18 Paragraph #5

Paragraph #19 Paragraphs #5, 6 and 7

Paragraph #20 Contrary to more credible evidence.

Paragraph #21 Paragraph #15

Paragraph #22 Rejected as irrelevant.

Paragraph #23 Rejected as irrelevant.

Docket for Case No: 85-002232

Orders for Case No: 85-002232