STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KEITH HAYNES, M.D., )

)

Petitioner, )

vs. ) CASE NO. 89-2014F

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on September 5, 1990, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Stephen Mark Slepin, Esquire

SLEPIN AND SCHWARTZ

1114 East Park Avenue Tallahassee, Florida 32301

For Respondent: Mary B. Radkins, Esquire

Department of Professional Regulation

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

Whether or not Respondent initiated disciplinary proceedings against Petitioner without any substantial basis in law and fact.

PRELIMINARY STATEMENT

On April 17, 1989, Petitioner filed a Petition for an Award of Attorney's Fees and Costs with the Division of Administrative Hearings. On April 26, 1989, Respondent filed a motion to dismiss alleging, inter alia, that the Division was without jurisdiction in that the Petition was filed more than 60 days subsequent to the event alleged in the Petition to support jurisdiction. The motion to dismiss was heard and was denied by order of the undersigned. Respondent thereafter filed an interlocutory appeal of the denial which was denied without prejudice for it to seek review upon entry of a final order on April 17, 1990.

Thereafter, the matter was set for final hearing for September 5, 1990, and was heard as scheduled.

At final hearing Petitioner submitted seventeen exhibits which were received in evidence and presented the testimony of three attorney witnesses:

Michael I. Schwartz, Julie Gallagher, and Paul Lambert. Respondent offered two exhibits which were received in evidence at the hearing, a transcript of the hearing on the motion to dismiss and the live testimony of Mrs. Judith Lammert. The transcript of the final hearing was filed September 19, 1990, and the parties submitted proposed final orders on October 3, 1990. Proposed findings which are not incorporated herein are the subject of specific rulings in an Appendix.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the following relevant factual findings:

1. Petitioner, Keith Haynes, M.D., is a resident and licensed physician in Florida.

   
   

2. Respondent, Department of Professional Regulation, is the state agency charged with the regulation of the practice of medicine.

   
   

3. Petitioner was the subject of a disciplinary action initiated by Respondent, in that he was charged, on August 26, 1987, with violating Sections 458.331(1)(j), (t), (q), (m) and (p), Florida Statutes.

   
   

4. Respondent was not a nominal party in these proceedings.

   
   

5. Petitioner is a prevailing small business party within the meaning of Section 57.111(3)(c), Florida Statutes, as evidenced by the fact that Respondent took a voluntary dismissal of the action initiated against Petitioner, without prejudice, on March 8, 1988.

   
   

6. The Attorney's fees and costs which Petitioner seeks in the amount of

   $12,315.28 are reasonable. (Petitioner's Exhibit 2: Prehearing Stipulation, B- 4.)

   
   

7. In January of 1984, an attorney that had been consulted about filing a civil suit against Petitioner filed a complaint with the Respondent against Petitioner on behalf of one of his patients, M.C.

   
   

8. The complaint alleged that Petitioner engaged in homosexual relations with M.C. while he was a minor and who was being treated by Petitioner for psychiatric problems.

   
   

9. On May 10, 1984, the case was considered by a probable cause panel of Respondent. The panel found no probable cause because M.C. would not cooperate with the investigation and all other supporting information had been obtained through the complainant.

   
   

10. On June 15, 1984, M.C. died a suicide.

    
    

11. On the basis of another physician's complaint, a new case against Petitioner (DPR Case No. 0058849) was opened in 1987 referencing the same allegations of sexual conduct as the original (1984) complaint.

12. The investigative report of the 1987 case contained the same material as had been compiled in the other (1984) case, plus additional sworn statements, two depositions from the civil case and medical records from various practitioners.

    
    

13. On August 21, 1987, the case was again presented to the probable cause panel of the Board of Medicine. Present on the panel were Dr. Joseph O'Bryan, chairman and Ms. Sylvia Shorstein. Ms. Lannon, an attorney for the Board of Medicine was also present. Four members of Respondent's staff were present, legal counsels Brookmeyer and Lamb, Ms. Lammert, a paralegal specialist and Christy Dietert, an investigator.

    
    

14. Prior to the probable cause meeting, the investigative report including exhibits and a proposed document recommending the Department's position, were mailed to Dr. O'Bryan and Ms. Lannon on August 3, 1987 and to Ms. Shorstein on August 6, 1987.

    
    

15. Prior to considering the charges filed against Petitioner, Respondent's representatives advised the panel of the procedures for directing inquiries or questions relative to their duties as panel members, interpretations of law or other inquiries concerning the investigation or the recommendation of probable cause to the Respondent.

    
    

16. The probable cause panel members received the material in sufficient time to review the investigative report and the supporting documentation prior to consideration. The panel members, in fact, reviewed the materials prior to the panel meeting. After a discussion of the underlying charges, Dr. O'Bryan questioned paragraph 4 of the proposed Administrative Complaint relating to the alleged improper touching and inappropriate sexual contact outside the normal course of the treatment of a patient. Dr. O'Bryan was curious as to how this could be done within the normal and usual course of a physician's professional practice, whereupon Mrs. Brookmeyer explained to him how it would be appropriate in some instances for a physician to place "hands on" the genital area of a patient for certain diagnosis. Following that discussion, the panel members voted and recommended that probable cause be found with the further suggestion that paragraph 4 of the proposed Administrative Complaint be revised in keeping with their discussion.

    
    

17. The panel recommended that Petitioner be charged, in a five-count Administrative Complaint, with violating Section 458.331(1)(j), by exercising influence within a patient-physician relationship for purposes of engaging a patient in sexual activity; violating Section 458.331(1)(t), by failing to practice medicine with an acceptable level of care, skill, and treatment; violating Section 458.331(1)(q), by prescribing, mixing, administering, or otherwise preparing a legend drug or controlled substance, other than in the course of a physician's professional practice; violating Section 458.331(1)(m), by failing to keep written medical records justifying the course of treatment; and violating Section 458.331(1)(p), by performing unauthorized professional services.

    
    

18. Additionally, Dr. O'Bryan demonstrated his familiarity with the investigative report by suggesting that another named physician, whose statements were a part of the investigative report, be investigated for not reporting his knowledge of the alleged incidents to the Board for consideration of whether disciplinary action was warranted based on Petitioner's acts and/or conduct.

19. The Administrative Complaint, as revised by the probable cause panel's suggestion, was filed on August 26, 1987.

    
    

20. Julie Gallagher, the contract attorney who was assigned to prosecute the case for Respondent, while preparing the case for trial, discovered numerous prosecutorial problems based on her review of the witness statements and the hurdles that she would face getting such statements into evidence since M.C. died a suicide and therefore could not testify. Another witness who was expected to testify concerning Petitioner's incriminating admissions became uncooperative and Ms. Gallagher perceived other impediments that the defense would raise and issues that she would face to successfully prosecute Petitioner based on the Administrative Complaint. Based on this concern, Ms. Gallagher brought those matters to the attention of Ms. Stephanie Daniel, chief medical attorney at the Department of Professional Regulation.

    
    

21. Following Ms. Gallagher's delineation of the issues that she had with continued prosecution of DPR Case No. 0058849, Ms. Gallagher advised Ms. Daniel she should carefully review the evidentiary issues presented which she would face as prosecutor. Ms. Gallagher suggested that additional investigation was warranted and/or additional research was necessary respecting the evidentiary issues. Ms. Gallagher cautioned Respondent that that investigation would be better conducted in-house, rather than doing so at her contract rate. However, she left that decision to Ms. Daniel as to how she cared to proceed. Ms. Daniel, after consideration, retrieved the file from Ms. Gallagher.

    
    

22. On February 18, 1989, the matter was again, at Ms. Daniel's instruction, presented to the probable cause panel of the Board of Medicine, and after extensive discussion of the evidentiary issues, the panel voted to close the case, citing the evidentiary problems raised by Ms. Gallagher.

    (Petitioner's Exhibit 14.)

    
    

23. On April 17, 1989, Petitioner filed his Petition for Attorney's Fees and Costs.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Sections 57.111 and 120.57(1), Florida Statutes.

25. Section 57.111, Florida Statutes, provides in pertinent part: (3)(e) A proceeding is "substantially justified" if

    it had a reasonable basis in law and fact at the time

    it was initiated by the state agency

    (4)(a) Unless otherwise provided by law, an award of attorney's fees and costs shall be made to a prevailing small business party in any adjudicatory proceeding or administrative proceeding pursuant to chapter 120 initiated by a state agency, unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust.

    
    

26. Petitioner is a prevailing small business party and the Petitioner's claim for fees and costs is reasonable for the preparation made in these proceedings. (Prehearing Stipulation.)

27. The Petition for Attorney's Fees and Costs was timely filed with the Division of Administrative Hearings.

    
    

28. At the time that the probable cause panel considered the evidence contained in the investigative file in this case, it considered evidence which, if evidentiary problems could be overcome, one of the key witnesses had not later become uncooperative and the testimony was found credible at final hearing, would establish the violations recommended by the panel when it found probable cause. The probable cause panel's decision was based upon reasonable information which was made after meaningful inquiry. The fact that the prosecuting attorney, in preparing for trial, discovered numerous evidentiary problems plus at least one uncooperative witness which made further prosecution of this case problematic and difficult to prove, does not detract from the original determination of probable cause or that its actions were substantially justified when it initiated the action against Petitioner. Finally, the fact that the original probable cause panel had found no probable cause is not determinative of what the latter probable cause panel should determine where, as here, the second probable cause panel had additional evidence to consider and meaningful consideration was given to that evidence.

    
    

29. The probable cause panel met the standard of meaningful consideration and inquiry set forth in Kibler v. Department of Professional Regulation, 418 So.2d 1081 (Fla. 4th DCA 1982) and its progeny elaborated on in Ramiro J. Alfret and Toledo Realty, Inc. v. Division of Real Estate, 10 FALR 5201 (Fla. DOAH August 1, 1988) affirmed in part, reversed in part and remanded, Department of Professional Regulation v. Toledo Realty, 549 So.2d 715 (Fla. 1st DCA 1989). Given the evidence presented to the panel in the investigative report, the discussion concerning the manner in which the Administrative Complaint was originally drafted and, following discussion by panel members, the revision, the panel members individual consideration of the investigative file which contained sworn statements, depositions, medical records, notes written by the patient and admissions by Petitioner, all leads to the conclusion that this case is not one which is reflective of the "rubber stamping" as described in Kibler, supra, where a one-member panel simply recited a case number and stated whether the charge was sustained. The probable cause panel evaluated all evidence that was provided and it was fairly considered before determining probable cause. The sworn statements and other evidence considered provided substantial justification for the charges. The fact that the prosecutor determined that there were evidentiary issues which would be problematic at trial is not the criteria by which to judge whether there was substantial justification at the time the action was initiated. The agency is not required to show that its decision to prosecute was based on a "substantial probability of prevailing." See, Ashburn v. U.S., 740 F.2d 843, 850 (11th Cir. 1984). To support a probable cause panel's determination, there must be some evidence considered by the panel that would reasonably indicate that the violations alleged had indeed occurred. Kibler, supra. Here, the panel had such evidence and it was meaningfully considered.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petition for Attorney's Fees and Costs be DENIED.

DONE and ENTERED this 30th day of November, 1990, in Tallahassee, Leon County, Florida.

JAMES E. BRADWEll,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 30th day of November, 1990.

COPIES FURNISHED:

Mary B. Radkins, Esquire

Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Stephen Mark Slepin, Esquire SLEPIN & SCHWARTZ

1114 East Park Avenue Tallahassee, Florida 32301

Dorothy Faircloth, Executive Director Florida Board of Medicine

1940 North Monroe Street Tallahassee, Florida 32399-0750

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

================================================================= DISTRICT COURT OPINION

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

IN THE DISTRICT COURT OF APPEAL FOURTH DISTRICT, STATE OF FLORIDA

KEITH HAYNES, M.D., NOT FINAL UNTIL TIME EXPIRES TO

FILE REHEARING MOTION AND, IF

Appellant, FILED, DISPOSED OF.

vs. CASE NO. 91-0023

DOAH CASE NO. 89-2014F

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICINE

Appellee.

/ Opinion filed September 11, 1991.

Appeal from the Department of Professional Regulation, Board of Medicine. Stephen Marc Slepin of Slepin & Slepin, Tallahassee, for appellant.

Michael A. Mone and Lisa S. Nelson, Assistant General Counsel, Department of Professional Regulation, Tallahassee, for appellee.

PER CURIAM.

Dr. Haynes appeals from an order denying his petition for attorney fees and costs associated with his defense of a complaint filed against him by the Department of Professional Regulation.

Section 120.59(2), Florida Statutes (1989), provides:

If in accordance with agency rules, a party submitted proposed findings of fact or filed any written application or other request in

connection with" the proceeding, the order shall include a rule upon each proposed finding and a brief statement of the grounds for denying the application or request.

Dr. Haynes submitted proposed findings and proposed opinion with his petition. However, the hearing officer failed to rule upon each of the proposed findings and did thereby fail to follow the requirements of the mentioned statute. We remand to the trial court with instructions to enter an amended order containing a ruling upon each of Dr. Haynes' proposed findings. See Kinast v. Department of Professional Regulation 458 So.2d 1149 (Fla. 1st DCA 1984) and Pelham v. Superintendent of the School Board of Wakulla County, 436 So.2d 951 (Fla. 1st DCA 1983).

We do not agree with Dr. Haynes that the hearing officer used an improper standard of proof in deciding the case.

We remand for further proceedings consistent herewith.

DOWNEY and POLEN, JJ., and WALDEN, JAMES H., Senior Judge, concur.

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

APPENDIX TO THE FINAL ORDER

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

State of Florida Sharyn L. Smith

Division of Administrative Hearings Director The DeSoto Building, 1230 Apalachee Parkway Ann Cole Tallahassee, FL 32399-1550 Clerk (904) 488-9675 . SunCom: 278-9675

June 22, 1992

Dorothy Faircloth, Executive Director Florida Board of Medicine

Northwood Centre - Suite 60 1940 North Monroe Street Tallahassee, Florida 32399

Re: DOAH Case No. 89-2014F - Keith Haynes, M.D. v. Department of Professional Regulation, Board of Medicine

Dear Ms. Faircloth:

Enclosed please find a copy of the Appendix to the Final order entered herein and which addresses the relevant issues raised in the remand of this matter to the Division of Administrative Hearings. The Final order now complies with the provisions of Section 120.59(2), Florida Statutes (1989).

JAMES E. BRADWELL

Hearing officer

JEB:bdg Enclosure

cc: Stephen Mark Slepin, Esguire Mary B. Radkins, Esguire Jack McRay, Esquire

APPENDIX Case No. 89-2014F

Rulings on Petitioner's proposed findings of fact:

Petitioner's proposed findings are contained on pages 7-24 of its proposed final order. Pages 7-21 contain 34 unnumbered paragraphs which, for the most part, recite the chronology of events which took place prior to the time that the matter was considered by the Respondent's Probable Cause Panel. The proposed findings are, in large part, a recitation of the testimony of several expert witnesses, the introductory procedural aspects of the case, including identification of documentary evidence with very little, in the form of proposed facts which would be necessary for the undersigned to adopt or specifically rule upon inasmuch as such proposed findings are not probative of the ultimate issue, i.e., whether or not Respondent properly considered the materials during the Probable Cause Panel meeting, and whether or not such consideration satisfied the requisite requirement that a meaningful consideration of the complaint allegations were considered by the Probable Cause Panel members, without regard to whether or not they could substantially or otherwise prevail on a trial of the merits in this case. Since the facts, as found, demonstrate that there was, in fact, a meaningful consideration in keeping with the Kibler v. Department of Professional Regulation, 418 So.2d 1081 (Fla. 4th DCA 1982) and its progeny, such material was regarded for what it was, simply background and other conclusionary findings which were specifically rejected as not being probative of the issues. Respecting the remaining numbered allegations commencing on page

21 of the proposed final order, it is specifically found: Paragraph 1, adopted as appropriate, Paragraph 9, Final order. Paragraph 2, adopted as modified, Paragraph 10, Final order. Paragraph 3, rejected, unnecessary.

Paragraph 4, rejected, unnecessary.

Paragraph 5, rejected as contrary to the weight of evidence and specific findings contained in Paragraphs 14-18, Final Order.

Paragraph 6, adopted as modified, Paragraph 19, Final Order. Paragraph 7, adopted as modified, Paragraphs 20-22,

Final Order.

Paragraphs 8 thru 12, rejected as unnecessary and/or not probative of the issues posed.

Paragraphs 13 and 14, adopted as modified, Paragraph 22, Final order. Rulings on Respondent's proposed findings of fact:

Respondent's proposed findings are substantially adopted and incorporated in the Final Order filed herein.

================================================================= DISTRICT COURT OPINION

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

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT JULY TERM 1991

KEITH HAYNES, M.D., NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION

Appellant, AND, IF FILED, DISPOSED OF

vs. CASE NO. 91-0023

DOAH CASE NO. 89-2014F

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICINE,

Appellee.

/ Opinion filed September 11, 1991

Appeal from the Department of Professional Regulation, Board of Medicine. Stephen Marc Slepin of Slepin & Slepin, Tallahassee, for appellant.

Michael A. Mone and Lisa S. Nelson, Assistant General Counsel, Department of Professional Regulation, Tallahassee, for appellee.

PER CURIAM.

Dr. Haynes appeals from an order denying his petition for attorney fees and costs associated with his defense of a complaint filed against him by the Department of Professional Regulation.

Section 120.59(2), Florida Statutes (1989), provides:

If in accordance with agency rules, a party submitted proposed findings of fact or filed any written application or other request in connection with the proceeding, the order shall include a rule upon each proposed finding and a brief statement of the-grounds for denying the application or request.

Dr. Haynes submitted proposed findings and proposed opinion with his petition. However, the hearing officer failed to rule upon each of the proposed findings and did thereby fail to follow the requirements of the mentioned statute. We remand to the trial court with instructions to enter an amended order containing a ruling upon each of Dr. Haynes' proposed findings. See Kinast v. Department of Professional Regulation, 458 So.2d 1149 (Fla. 1st DCA 1984) and Pelham v. Superintendent of the School Board of Wakulla County, 436 So.2d 951 (Fla. 1st DCA 1983).

We do not agree with Dr. Haynes that the hearing officer used an improper standard of proof in deciding the case.

We remand for further proceedings consistent herewith.

DOWNEY and POLEN, JJ., and WALDEN, JAMES H., Senior Judge, concur.

Docket for Case No: 89-002014F

Orders for Case No: 89-002014F