STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

) DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 88-5122

) JIMMY MAXWELL CARTER, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tallahassee, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on August 22, 1990. The Division of Administrative Hearings received the hearing transcript on August 29, 1990.

The parties filed proposed recommended orders on September 18, 1990. The attached appendix addresses proposed findings of fact by number.

APPEARANCES

For Petitioner: Wellington H. Meffert, II, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

For Respondent: Thomas F. Woods, Esquire, and

Alex Barber, Esquire

Gatlin, Woods, Carlson & Cowdery 1709-D Mahan Drive

Tallahassee, FL 32308 STATEMENT OF THE ISSUES

Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?

PRELIMINARY STATEMENT

By administrative complaint dated October 3, 1988, petitioner alleged that respondent, after being licensed as a physician in Florida, was on active duty in the United States Army, when "[o]n or about December 11, 1984 the Department of Army acted upon Respondent's license for possible suggestive acts with female patients and possible neglect of patients . . . . [and] the Credentials Committee of the U.S. Army Aeromedical Center recommended that Respondent be limited to treating male patients; undergo complete psychiatric evaluation . . . [and] complete a course of specified reading in medical ethics and morals"; that "[o]n or about May 30, 1985, the Commander of the U.S. Army Aeromedical Center

approved the limited restoration of Respondent's clinical privileges to treat female patients in the presence of a chaperone"; that "[o]n or about August 31, 1985, the Respondent resigned from the United States Army with the aforementioned limitations intact"; and that, "based on the foregoing, Respondent is in violation of Section 458.331(1)(b), Florida Statutes, by having a license to practice medicine . . . acted against . . . by the licensing authority of any State, Territory or Country."

In response to respondent's request for formal administrative hearing, the Department of Professional Regulation forwarded the matter to the Division of Administrative Hearings for hearing, in accordance with Section 120.57(1)(b)3., Florida Statutes (1987).

Concluding that "Section 458.303(1)(c), Florida Statutes (1987) [providing that "458.331 . . . shall have no application to . . . (c), Commissioned medical officers of the Armed Forces of the United States . . . while on active duty"], limits Section 458.331(1)(b) and (2), Florida Statutes (1987), so as to preclude [this] prosecution," a recommended order of dismissal was entered on January 12, 1989, on respondent's motion to dismiss. But the Board of Medicine entered an order on April 13, 1989, "determin[ing] that the Conclusions of Law of the Hearing Officer are incorrect" and remanding for further proceedings.

By appellate proceedings instituted on April 28, 1989, respondent sought a court order reversing the Board's order of remand. But these efforts proved unavailing, Carter v. Department of Professional Regulation, Board of Medicine, 550 So.2d 494 (1st DCA 1989) rev. den. 560 So.2d 232 (Fla. 1990), and the matter was scheduled for final hearing on August 22, 1990.

FINDINGS OF FACT

1. At all pertinent times respondent Jimmy Maxwell Carter has been licensed as a physician in Florida. He holds Florida license No. ME 0039791. Also licensed to practice medicine in Alabama, Maryland and North Carolina, he has never been involved in disciplinary proceedings in those states.

   
   

2. An ophthalmologist, respondent is on staff at three hospitals in Alabama, and was at all pertinent times. At none of those hospitals have his privileges ever been suspended or curtailed in any way.

   
   

3. Although married to somebody else, respondent had an affair with a woman on the staff of Lyster Army Hospital at Fort Rucker, Alabama, in 1984. (Two years later, after a divorce, he married the woman, who is still his wife.)

   
   

4. During this period of personal turmoil, on December 11, 1984, one Colonel Jenkins, his commanding officer, temporarily suspended respondent's medical privileges. After an evidentiary hearing the following spring, a majority of an army credentials committee found, among other things, that respondent was

   
   

   guilty of immoral conduct unbecoming a Medical Corps Officer in conducting a romantic relationship with a married female dependent employee in the department chaired by him, including pursuing said conduct in hospital spaces and in full view of patients and staff.

   d. LTC Carter spent one half to one-hour per day with Mrs. . . . thereby detracting from good patient care as evidenced by short clinical notes, incomplete examinations and failure to exercise good judgment. . . .

   
   

   Adverse patient impact resulted particularly as it conflicted with the Practitioner's other duties.

   
   

   f. . . . [A]ttention to Mrs. . . . delayed or interfered with expedient care of outpatients . . .

   although evidence of patient harm or adverse surgical outcome was not apparent. Petitioner's Exhibit No. 1.

   
   

   On account of its findings, the credential committee recommended, on April 18, 1985, that respondent's practice be limited to adult males, that he undergo psychiatric evaluation, and that he complete a course of specified readings in medical ethics and morals.

   
   

5. On May 30, 1985, after a psychiatric evaluation, respondent's clinical privileges were restored, with restrictions requiring female patients be chaperoned. In August of 1987, the army fully restored respondent's clinical privileges.

   
   

   CONCLUSIONS OF LAW

   
   

6. Since the Department of Professional Regulation referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1989), and thereafter remanded the case for hearing as required by court order, "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1989).

   
   

7. License revocation proceedings have been said to be "'penal' in nature." State ex rel. Vining vs. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz vs. Florida Real Estate Commission, 289 So.2d

   391 (Fla. 1974); Bach vs. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979) (reh. den. 1980). Strict procedural protections apply in disciplinary cases, and the prosecuting agency's burden is to prove its case clearly and convincingly. Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987).

   See Addington vs. Texas, 441 U.S. 426 (1979); Ferris vs. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); Anheuser-Busch, Inc. vs. Department of Business Regulation,

   393 So.2d 1177 (Fla. 1st DCA 1981); Walker vs. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid vs. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966). A licensee's breach of duty justifies revocation only if the duty has a "substantial basis," Bowling vs. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981) in the evidence, unless applicable statutes and rules create a clear duty, which the evidence shows has been breached.

   
   

8. In deciding Carter v. Department of Professional Regulation, Board of Medicine, 550 So.2d 494 (1st DCA 1989) rev. den. 560 So.2d 232 (Fla. 1990), the court necessarily held that proof of the allegations of the administrative complaint would amount to proof of a basis for disciplinary action, in the present case. Subsequently, petitioner did adduce clear and convincing proof of the facts pleaded in the administrative complaint.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That petitioner reprimand respondent.

DONE and ENTERED this 1st day of November, 1990, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1990.

APPENDIX

Petitioner's proposed findings of fact Nos. 1 through 8 have been adopted, in substance, insofar as material.

Respondent's proposed findings of fact Nos. 1 through 10 have been adopted, in substance, insofar as material.

Copies furnished:

Wellington H. Meffert II, Esquire Department of Professional

Regulation

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Thomas F. Woods, Esquire Alex Barber, Esquire

GATLIN WOODS CARLSON & COWDERY

1709-D Mahan Drive Tallahassee, Florida 32308

Dorothy Faircloth, Executive Director Florida Board of Medicine

Department of Professional Regulation

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS: ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 88-005122

Orders for Case No: 88-005122