STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2961

)

MAXIMO G. PEREZ, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before

the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on September 6, 1990, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Bruce D. Lamb, Esquire

730 S. Sterling, Suite 201

Tampa, Florida 33609-4582

For Respondent: Melissa Fletcher Allaman, Esquire

P. O. Drawer 1170 Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

The issue is whether respondent's medical license should be disciplined for the reasons set forth in the amended administrative complaint.

PRELIMINARY STATEMENT

The matter began on March 1, 1990, when petitioner, Department of Professional Regulation, Board of Medicine, filed an administrative complaint charging that respondent, Maximo G. Perez, a licensed medical doctor, had violated Sections 458.329 and 458.331, Florida Statutes in a number of respects. More specifically, it was alleged that while treating a patient between September 1982 and February 1986, respondent engaged in sexual intercourse with the patient, exploited his relationship with the patient for an improper purpose, prescribed inappropriate and excessive amounts of controlled substances, failed to keep written medical records justifying the course of treatment, and failed to practice medicine with the appropriate level of skill, care and treatment required by law. Respondent disputed these allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1989). The matter was referred by petitioner to the Division of Administrative Hearings on May 14, 1990, with a request

that a hearing officer be assigned to conduct a hearing. By notice of hearing dated June 4, 1990, a final hearing was scheduled on August 14, 1990, in Fort Myers, Florida. After an amended administrative complaint was filed, the matter was rescheduled to September 6, 1990, at the same location.

On July 19, 1990, petitioner requested leave to file an amended complaint.

By order dated August 3, 1990, leave to do so was authorized. The amended complaint clarified certain charges and added a new charge concerning respondent's dispensing of medicinal drugs to the patient.

At final hearing petitioner presented the testimony of D. P. (the patient), Dr. Barry D. Zaretzky, an internist, and Dr. Peter J. Spoto, a psychiatrist who was excepted as an expert in psychiatry. Also, it offered petitioner's exhibits

1 - 4. All exhibits were received in evidence. Exhibit 4 is the deposition of Dr. Kenneth L. Sanders, an internist. Finally, petitioner voluntarily dismissed a portion of the charges as reflected in the prehearing stipulation filed by the parties. Respondent testified on his own behalf and presented the testimony of Dr. George Vatakencherry, a psychiatrist accepted as an expert in psychiatry, and Dr. Norman G. Bills, a psychologist accepted as an expert in clinical psychology. In addition, respondent presented the testimony of the following witnesses as mitigation evidence: Herbert Lamar Lacey, Jr., Dr. Jorge Salazar, David C. Schimmell, Gerald M. Ross, Dr. Eileen Schwartz, Dr. Robert Schwartz, Dr. Norman L. Gamse, Dr. H. D. Vogtland, Dr. Ricardo Bendeck, Dr. Jacinto Oliver, Dr. Joaquin Serrano, Dr. Steven Zellner, Dr. Ahmad F. Azam, Dr. Zenaida Javier, Dr. Washington D. Baquero, Dr. Mohammad Rashid, Dr. K.

D. Caanthan, and Dr. Nelson Charles. Affidavits from four other medical doctors were also late-filed by stipulation of counsel. Finally, he offered respondent's exhibits 1 - 4. All exhibits were received in evidence.

The transcript of hearing (two volumes) was filed on September 19, 1990. Proposed findings of fact and conclusions of law were filed by the parties on October 8, 1990. A ruling on each proposed finding has been made in the Appendix attached to this Recommended Order.

During the hearing, respondent moved to strike the testimony of expert witness Spoto on the ground his opinion testimony changed substantially between the time his deposition was taken in August 1990 and final hearing on September 6, 1990,thereby depriving respondent of his discovery rights. A ruling on the motion was reserved and is dealt with in the conclusions of law portion of this recommended order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Background

   
   

   1. At all times relevant hereto, respondent, Maximo G. Perez, was a licensed medical doctor having been issued license number ME 0028193 by petitioner, Department of Professional Regulation, Board of Medicine (Board). He has held his license since 1969. A graduate of a seven year medical school curriculum at Autouncas University in Santo Domingo, respondent immigrated to the United States in 1967 and passed the ECFMG two years later. After working as a staff physician at a hospital in Tennessee for less than a year, in 1970 he began a one-year internship at a Brooklyn, New York medical center. Following completion of his internship, respondent completed a three year

      residency program in adult psychiatry in 1973. Thereafter, he completed a two year residency program in child and adolescent psychiatry. In 1976, Dr. Perez accepted a position as staff psychiatrist at Lee County Mental Health Center, a state institution providing inpatient psychiatric service at the hospital and outpatient evaluations and treatment at the clinic. In August 1977 respondent began his private practice in psychiatry in Fort Myers.

      Most recently, he has been employed as a staff psychiatrist at Lake Sumter Mental Health Center and Hospital in Leesburg, Florida. However, the charges herein stem from alleged illicit conduct that occurred while respondent was engaged in the private practice of medicine during the years 1983 - 1985.

      
      

   2. In September 1982, D. P., then a thirty-two year old female and briefly hospitalized for anxiety and depression, was referred by her internist to respondent for treatment at the hospital. Regular medical treatment began in June 1983, continued until 1984 and resumed again briefly in 1985. In December 1983 and January 1984, the patient and respondent engaged in sexual intercourse on three occasions. After the doctor-patient relationship ended, D. P. filed a civil action against respondent and eventually obtained a

      $150,000 settlement. She also filed a complaint against respondent with the Board. This resulted in the Board filing an administrative complaint against respondent on March 1, 1990, charging that respondent had violated a number of provisions within Chapter 458, Florida Statutes (1983), now codified as Chapter 458, Florida Statutes (1989). These charges will be dealt with separately below.

      
      

2. The patient and her medical background

1. The patient who filed the complaint against respondent was born on September 14, 1949. She has exhibited a history of anxiety and depression, with instances of abuse of certain drugs and several suicide attempts. The physician who referred D. P. to respondent for psychiatric treatment was Dr. Kenneth L. Sanders, a Fort Myers internist with a specialty in infectious diseases. Doctor Sanders, who gave deposition testimony in this cause, first treated the patient on September 30, 1980, and continues treating her at the present time. As a part of his request in 1980 for prior medical records of

   D. P., Dr. Sanders received a consultation of the patient from another doctor performed in June 1974 which noted that the patient had "possibly migraine-like equivalent" headaches. The prior physician had diagnosed her as having anxiety reaction, acute, possibly situational. Doctor Sanders agreed with this diagnosis and during the course of his treatment of the patient, he found that

   D. P. suffered from anxiety or panic attacks. Indeed, the patient's anxiety worsened while Dr. Sanders treated her and culminated in a panic attack in the doctor's office in March 1983. Three months later, Dr. Sanders referred

   D. P. to respondent for psychiatric treatment. According to Dr. Sanders, the patient has had a history of being anxious and depressed since he first observed her in 1980.

   
   

2. At different times in his treatment of the patient, Dr. Sanders prescribed Tranxene, Valium, Limbitrol, which contains Librium, and Xanax. The last Valium prescription was given to the patient on March 21, 1990. In prescribing Valium, Dr. Sanders was unaware that D. P. had been hospitalized in March 1985 for possible Valium dependency, and the patient did not inform him of this fact.

   
   

3. The patient's abuse of drugs began when she was eleven or twelve years of age. At that time, D. P. ingested a large quantity of over the counter drugs and was hospitalized for a week, first in intensive care, for overdose. Prior

   to her first pregnancy, the patient overdosed on Fastin and alcohol and was hospitalized. She was also hospitalized by Dr. Sanders in September 1982 to assist her in the withdrawal from sympathamimetic amine agents,

   possibly amphetamines. The overdoses at age eleven or twelve and prior to her first pregnancy were characterized as suicide attempts. Such suicidal tendencies, anxiety and depression predated her treatment by respondent.

   
   

4. Doctor Sanders confirmed the patient's history of making multiple somatic complaints, that is, her physical complaints did not have a physical origin but rather a psychological origin.

   
   

5. In June 1983 respondent began his medical treatment of the patient. He had previously seen her in September 1982 when she was hospitalized for withdrawal from sympathamimetic amine agents. During the hospitalization period, respondent visited D. P. twice, at which time he found her to be anxious and depressed.

   
   

   C. Count I

   
   

6. In Count I, respondent is alleged to have prescribed, dispensed, administered, mixed, or otherwise prepared a legend drug, including a controlled substance, other than in the course of his professional practice. To support this allegation, petitioner has charged that respondent prescribed numerous legend drugs, including controlled substances, inappropriately and in excessive and inappropriate quantities. In this regard, and pursuant to petitioner's restrictive amendment, the patient records reveal that, during the course of his treatment of the patient from August 1983 to July 1985, respondent prescribed the following drugs to D.

   P. for anxiety and depression, all of which belong to the benzodiazepine group of anti-anxiety agents and are controlled substances listed in Schedule IV of Chapter 893, Florida Statutes. The drugs are shown by date of prescription, quantity, strength (size), name, number of refills authorized, total number of drugs, and the dates on which the prescriptions were initially filled and then refilled, if applicable, by the patient.

   
   

   Date	Quantity	Size/Drug	Refills	Total	#	of	Date Refills
   8/26/83	100	7.5 mg Tranxene	3	400			8/26/83
   							9/28/83
   							11/30/83
   							1/9/84
   12/2/83	20	30 mg Serax	0	20			12/4/83
   2/2/84	100	5 mg Valium	3	400			2/2/84
   							3/8/84
   							5/16/84
   							6/1/84
   4/27/84	30	.5 mg Xanax	3	120			4/28/84

   6/22/84	100	5 mg Valium	3	400	7/3/84
   					7/26/84
   					8/25/84
   					10/3/84
   12/10/84	100	5 mg Valium	3	400	12/19/84
   					2/7/85
   					3/2/85
   					4/28/85
   					5/13/85
   7/16/85	30	30 mg Serax	0	30	7/16/85
   7/19/85	40	25 mg Librium	1	80	7/19/85
   					8/7/85

   
   

7. Initially, it is noted that Tranxene, Serax, Valium and Xanax are benzodiazepines, which help symptoms of anxiety and tension. The patient had a long history of anxiety and depression, and when the drugs were prescribed by respondent, D. P. was exhibiting rather acute symptoms of anxiety and depression.

   
   

8. As to the prescription for Tranxene, with three refills, given on August 26, 1983, this was written immediately after the patient's discharge from Charter Glade Hospital where she had been under respondent's care for depression. She had been admitted to the hospital on August 20, 1983, at the request of her husband because she was very anxious, apprehensive and suffering from nausea, vomiting, dizziness and weakness. After showing improvement while taking Tranxene in the hospital, the patient was continued on the medication after her discharge. Based on the refill dates shown on the above chart, it is found that the patient was not abusing the medicine. Further, petitioner's expert agreed that the prescription was not inappropriate or excessive. Accordingly, it is found that the drug was properly prescribed in the course of respondent's professional practice.

   
   

9. The prescription for Serax was written on December 2, 1983, before the sexual intercourse that took place at the end of the office visit. It was given to D. P. as a replacement for Tranxene which had been previously prescribed. However, D. P. was also given specific instructions by respondent that she must discontinue taking the Tranxene before beginning the Serax prescription. A second prescription for Serax was written on July 16, 1985. This prescription was written after D. P.'s hospitalization in July 1985 and when she claimed a Xanax prescription written by a second doctor was not working. She was told to discontinue the Xanax before beginning the new drug. Accordingly, it is found these prescriptions were prescribed in the course of Dr. Perez's professional practice.

   
   

10. The patient received prescriptions for Valium on February 2, June 22 and December 10, 1984, with three refills on each occasion. These prescriptions were given to alleviate the symptoms of tension, anxiety and depression caused by family illnesses and deaths she was experiencing at that time. The refill dates do not indicate any abuse of the drug by the patient. Therefore, it is found that the prescriptions were not excessive or inappropriate.

11. The patient was given prescriptions for Xanax and Librium on April 27, 1984 and July 19, 1985, respectively. The first drug was prescribed at a time when the patient's father was living with her and dying of cancer. When the prescription was written, the patient was given specific instructions by respondent not to use any other type of tranquilizer she may have had in her possession. It is noted that the three refills were never used. The second drug was prescribed, with one refill, immediately after her discharge from a hospital in July 1985. Again, the patient was instructed to discontinue her use of Serax before she started the Librium. In both cases, it is found that the drugs were dispensed in the course of Dr. Perez's professional practice.

    
    

12. In addition to the drugs shown in finding of fact 8, respondent prescribed the following medicinal drugs shown below by date, quantity of drug, strength (size) and name of drug, number of refills authorized, total number of drugs authorized and date such prescriptions were initially filled and then refilled, if applicable, by the patient. It is noted that medicinal drugs are legend or prescription drugs and may only be dispensed on a prescription.

    
    

    Date	Quantity	Size/Drug	Refills	Total	#	Date of Refills
    8/30/83	60	Fiorinal	3	240		8/30/83
    						9/25/83
    						11/1/83
    12/6/83	100	Fiorinal w/Codeine	3	400		12/7/83
    						4/30/84
    						6/15/84
    4/6/84	60	50 mg Sinequan	2	180		4/7/84
    						1/10/85
    						7/19/85
    8/15/84	100	400 mg Meprobamate	2	300		8/15/84
    						11/1/84
    7/16/85	30	Lithobid	0	30		7/16/85
    7/16/84	30	Chlorpromazine	0	30		7/16/85
    7/26/85	10	500 mg Chloral	1	20		7/26/85
    		Hydrate				8/16/85

    
    

13. As to the Fiorinal prescribed on August 30, 1983, with three refills, this was prescribed to treat the patient for migraine headaches, a malady she had long suffered from. A second prescription, including Codeine, and again with three refills, was written on December 6, 1983, after the patient complained of migraine headaches. The evidence reflects that the drug is an appropriate medicine for a person suffering from migraines, and that the amounts prescribed above were not excessive. In addition, the prescriptions were documented in the patient records. Accordingly, it is found

    that both prescriptions were dispensed in the course of respondent's professional practice.

14. On April 6, 1984, respondent prescribed Sinequan, with two refills,

    as treatment for the patient's depression. 1/ The prescription for Meprobamate, with three refills, was given to D. P. after she stated the Valium was not working. This occurred during the terminal illness of her father. The patient was instructed to discontinue the Valium before the new drug was begun.

    Petitioner's expert agreed that this prescription was not excessive or inappropriate. Accordingly, it is found that the drug was properly prescribed in the course of respondent's professional practice.

    
    

15. On July 16, 1985, respondent prescribed two drugs, Lithobid and Chloropromazine, with no refills. The prescriptions were written so that D. P. could continue the medicines she had been successfully taking during her hospitalization at Charter Glade Hospital. Accordingly, it is found the drugs were prescribed in the course of respondent's professional practice.

    
    

16. After D. P. telephoned respondent around July 26, 1985, and said she had not slept in several days, respondent prescribed Chloral Hydrate, a sleeping medication. No refills were authorized. This occurred shortly after the patient's discharge from a hospital and while her father was dying. Petitioner's own expert agreed that the prescription was appropriate. Accordingly, it is found that the drug was properly prescribed in the course of respondent's professional practice.

    
    

17. Finally, on April 23, 1985, respondent prescribed Fastin, a controlled substance, with no refills. This was done after D. P. telephoned respondent and complained of gaining weight due to overeating. Respondent justified this prescription on the ground he knew that the patient would obtain a similar drug from the "black market" if he did not comply with her request, and he only wished to protect her with a legitimate, safely prescribed drug. However, given the patient's prior history of difficulties with this type of medicine,

    of which respondent had knowledge, the prescription is found to be inappropriate and thus not in the course of respondent's professional practice. This is true even though respondent cautioned the patient that she had gotten in trouble using that type of drug in the past.

    
    

18. The issue of whether it was inappropriate for respondent to overlap certain drugs was raised by petitioner. In other words, petitioner contends that it was inappropriate for respondent to prescribe one medication before another had been used up because the patient would then have several in her possession at the same time. It is noted initially that in June 1983 when respondent asked D. P. if she was using any drugs other than that prescribed by him, she denied any such use. Given the patient's repeated history of extreme anxiety, agitation, panic attacks and depression, her high tolerance for medications to treat the same, and her undergoing several family crises during the relevant time period, it is found that the overlapping of certain drugs was not inappropriate or excessive since respondent always instructed the patient to discontinue one drug if another was prescribed. In making this finding, the undersigned has accepted the testimony of Dr. Vatakencherry, an expert

    in psychiatry. Further, this finding is made even though respondent did not record in his records that such advice had been given. The undersigned has also considered the contention that respondent should not have prescribed any medicine to the patient after the sexual encounters occurred. However, the expert who rendered this opinion did not believe this was inappropriate when giving deposition testimony two weeks prior to hearing but reached a different conclusion two weeks later while giving live testimony at hearing.

    This opinion has been rejected as not being credible.

    1. Count II

       
       

19. In the second count, respondent is charged with having exercised influence within a patient/physician relationship for the purpose of engaging a patient in sexual activity. This charge stems from respondent's admission that he had intercourse with the patient on three occasions in December 1983 and January 1984 while the patient was still under his care. In making this allegation, the Board relies upon the statutory presumption that a patient is presumed to be incapable of giving free, full, and informed consent to sexual activity with her doctor.

    
    

20. Respondent's first regular office session with D. P. was on June 17, 1983. He saw her again on June 20 and 23 and July 1, 1983. During a subsequent visit on July 19, 1983, D. P. began speaking about what is classically known as transference. This term is used to explain the feeling a patient develops for her psychiatrist during treatment. It can be positive or negative in the sense that the patient may like (positive) or dislike (negative) the therapist. It is common to have positive transference in a psychiatrist/patient relationship, and it is essential for the patient to get better and to improve. A doctor is not to be faulted for the development of a positive transference. In some cases, the positive transference takes on erotic or sexual overtones. If this occurs, the doctor should try to redirect the patient by explaining transference to the patient, telling the patient such a relationship is impossible, and that the patient may have to get another doctor.

    
    

21. When D. P. first spoke of transference on July 19, respondent explained the meaning of the term to his patient. Even so, on numerous occasions thereafter, D. P. expressed her feelings for respondent, thereby evidencing the formation of a strong, positive transference with erotic and sexual overtones. On each occasion, respondent tried to redirect the patient and explained that such a relationship between them could not work and that she should see another psychiatrist.

    
    

22. During the period from June 17, 1983 until December 2, 1983, a pattern of behavior by the patient began to emerge. On one visit D. P. would be calm, agreeable to treatment suggestions and seeming to improve and then be in crisis, very anxious, panicky and tense on the next visit. Towards the end of this period of time, respondent was becoming confused about the case because of the pattern of slight improvement on one visit and then no improvement on the next visit. Each time respondent would suggest that the patient see another psychiatrist she would refuse and say that she would hurt or kill herself.

    Even so, respondent did not consider D. P. to be a danger to herself or to others.

    
    

23. At the end of a session with respondent on December 2, 1983, D. P. locked the door, told Dr. Perez she did not want to let him out, and started undressing him. At that point, respondent says he "lost (his) character" and had sexual relations with the patient in his office. At hearing the patient acknowledged that respondent did not force her to engage in sexual intercourse, and it is hereby found that her participation in the sexual episode was voluntary on her part. It is also noted that respondent did not initiate the incident and did not plan to have sex with his patient.

    
    

24. Respondent next saw the patient in his office on December 7, 1983. He told her that the relationship was not going to work and that the sexual episode was unfortunate. When respondent next saw the patient in his office on December 15, 1983, he did not allow her to stay for the full hour session and

    told her they could not continue their psychiatrist/patient relationship. Later on that afternoon, D. P. telephoned respondent at his office and insisted on seeing him, saying it was very important and she would "blow up" if he would not see her. Respondent accordingly agreed to see D. P. at his office around 7 or 8 o'clock. At that time, respondent was separated from his wife and was living in an extra room at his office. The two again engaged in sexual intercourse on that evening. However, the patient acknowledged that respondent did not force her to engage in sexual intercourse and Dr. Perez did not initiate the incident nor plan to have sex with the patient when he agreed to see her that evening.

    
    

25. Respondent next saw the patient on December 22 and 28, 1983. On both occasions the patient insisted they continue seeing each other. Respondent told her the sexual relationship was inappropriate and they could not continue to see each other. The patient warned respondent that if he left her, she would hurt herself.

    
    

26. On January 6, 1984, respondent saw D. P. on an office visit. The patient telephoned respondent on the following Friday evening and insisted on seeing him. Respondent told D. P. he could not see her and that their relationship could not continue. After she continued to insist that they meet, respondent agreed to meet her on Saturday at the site of a house he was building. At that meeting, respondent had sexual intercourse with the patient, although at hearing she denied that a sexual encounter occurred on that date. Again, she was not forced to engage in this conduct and respondent did not initiate the incident nor plan to have sex with the patient when he agreed to see her.

    
    

27. Although respondent continued to see the patient on a sporadic basis until August 1984, he repeatedly told her that their behavior was wrong, the doctor/patient relationship must end and she must seek a new therapist. However, the patient was under a great deal of pressure due to a very sick aunt and a father with cancer and needed support, which he tried to provide.

    
    

28. Following her August 15, 1984, office visit, respondent next saw the patient in June 1985 when he admitted her to a local hospital after the patient's husband telephoned respondent saying she was very nervous, upset, hyper, was experiencing nausea, vomiting and panic and was in the need of hospitalization. The patient had threatened to "end it all" if respondent would not be her doctor. Respondent admitted her to Charter Glade Hospital, monitoring her case and treating her with another psychiatrist. Two months later, D. P. agreed to be transferred to the care of Dr. Norman Bills, a Fort Myers clinical psychologist.

    
    

    1. Count III

       
       

29. Count III of the amended complaint alleges that respondent "engaged in sexual misconduct in the practice of medicine by using the physician-patient 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."

    
    

30. The findings of fact used in the preceding count are equally applicable to this charge and will be used in determining whether such a violation occurred.

    1. Count IV

    
    

31. The next count alleges that respondent "failed to keep written medical records justifying the course of treatment of the patient including, but not limited to, the following: the Respondent failed to note numerous prescriptions in Patient #1's medical records: the records fail to justify the long term prescribing of medicinal drugs; the records contain no justification for prescribing Fastin; the records are insufficient to allow even Respondent to monitor the patient's drug therapy."

    
    

32. The medical records of patient D. P. reveal that respondent did not record the following prescriptions in his progress notes:

    
    

    12/2/83 Serax 0 refills

    2/2/84 Valium 3 refills 4/6/84 Sinequam 2 refills 4/27/84 Xanax 3 refills

    12/10/84 Valium 3 refills

    
    

    Respondent conceded that he had neglected to note those prescriptions in his records but stated it was inadvertent. He noted that some of the prescriptions were requested by telephone, and because at that time he was working part time at two mental health centers besides his office practice, he inadvertently neglected to record the prescriptions in the records. Even so, by failing to record those prescriptions, respondent did not maintain adequate medical records as required by law.

    
    

33. As to the allegation that respondent's records failed "to justify the long term prescribing of medicinal drugs", it is found that by virtue of the lack of records noted in the preceding finding of fact, they were deficient in that they did not enable him to properly and adequately monitor the patient's drug therapy.

    
    

34. The amended complaint also makes an allegation that "the records contain no justification for prescribing Fastin". That drug contains phentermine, a controlled substance listed in Schedule IV of Chapter 893, Florida Statutes, and has anorexiant appetite suppressant effects. The drug was prescribed for D. P. on April 23, 1985, after D. P. telephoned respondent and asked for the prescription because her father was dying of cancer and she was overeating and getting extremely overweight. Respondent cautioned the patient that she had gotten into trouble with that type of drug in the past but nonetheless wrote her a prescription for thirty pills to keep her from purchasing a weight reduction pill on the black market. Although his progress notes indicate that the drug was prescribed, there are no other entries indicating the patient's symptoms or the like. Therefore, while respondent's verbal explanation may have been a valid reason for prescribing the drug, it is found that the written records contain no justification for that action.

    
    

35. Finally, the allegation is made that "the records are insufficient to allow even Respondent to monitor the patient's drug therapy." In this regard, it is found that to the extent respondent failed to record his prescribing of drugs on five occasions as noted in finding of fact 34, the records are deficient in this limited respect.

    1. Count V

       
       

36. The final count charges that respondent "failed to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances." In this regard, both parties presented expert testimony on this issue. As might be expected, the experts reached sharply different conclusions as to whether respondent met the statutory standard of care. In resolving this issue, the undersigned has accepted the more credible testimony which is embodied in the finding below.

    
    

37. The testimony of the Board's expert, Dr. Peter J. Spoto, a practicing psychiatrist in Clearwater, is accepted to the extent that Dr. Spoto found respondent's sexual involvement with his patient, inappropriate prescribing of Fastin on one occasion, and failure to keep adequate medical records as described in findings of fact 34 - 37 to be a deviation from the standard of care expected of a psychiatrist. Testimony that respondent's sexual episodes rose to the level of gross malpractice is not accepted.

    
    

    1. Mitigating Evidence

    
    

38. The Board's rule setting forth suggested penalties to be imposed on licensees for violating chapter 458 contains a number of factors to be taken into account in determining an appropriate penalty. One such factor is the exposure, if any, of the patient to injury, physical or otherwise, as a result of the questioned treatment. After the patient was referred by respondent to Dr. Bills, and respondent acknowledged to Dr. Bills that he had been sexually involved with her, Dr. Bills saw D. P. for seven office visits.

    In Dr. Bills' opinion, the patient consented to having sex with respondent, and the sexual relationship between respondent and D. P. had a very minimal effect on her. He also expressed the opinion that the patient's prognosis was very poor because she was not motivated to really help herself and she continued to seize upon drugs. The patient refused to follow Dr. Bills' advice and suggestions and eventually refused to return for follow up appointments. The testimony of Dr. Bills is deemed to be credible and is hereby accepted.

    
    

39. At hearing the patient stated she suffers from headaches and stomach problems at the present time. An internist, Dr. Barry Zaretzky, confirmed that D. P. was first diagnosed as having colitis in January 1985. Colitis is a benign inflammation of the surface lining of the colon. In August 1985 a gastroscopy performed by Dr. Zaretzky revealed the patient had chronic gastritis. Another examination performed in May 1990 revealed ulcers in the lower portion of her stomach, and she now suffers from chronic peptic ulcer disease, a permanent condition. However, Dr. Zaretzky expressed the opinion that with proper treatment D. P. will get better and there is nothing wrong with her of a serious nature. In addition, Dr. Sanders' deposition testimony established that D. P.'s headache and colitis conditions predated her treatment by respondent. Accordingly, it is found that there is a lack of clear and convincing evidence to establish that the emotional and medical problems suffered by D. P. were caused or exacerbated by her treatment by respondent or the sexual relationship between them. In making this finding, it is noted that during this same period of time, the patient was experiencing a number of family crises caused by the terminal illnesses of her father and a close aunt.

40. There is no evidence that respondent's license has ever been disciplined by the Board or that he has engaged in this type of conduct with other patients. Except for this isolated incident which occurred almost seven years ago, respondent's record as a medical doctor is unblemished. Moreover, at the time of the offense, there were no legal restraints on respondent's legal status. Finally, respondent did not realize pecuniary gain by virtue of his conduct. Indeed, he has suffered substantial monetary losses through the closing of his private practice as a result of the notoriety of this matter and the settlement of D. P.'s civil malpractice action for $150,000.

    
    

41. Respondent was described by a wide array of witnesses, all of whom were aware of these charges, as being a competent physician who is highly respected by his professional peers and employers both before and after the D.

    P. incident. These character witnesses included nineteen Fort Myers area medical doctors as well a number of health care administrators. Respondent is now employed in the public sector by a mental health hospital in Lake County.

    He is the first child and adolescent psychiatrist employed by that

    facility, and its administrator said it would take at least six months to find anyone who would replace him. Of all the physicians at that facility, respondent is the physician in whom the medical director places the greatest trust. Respondent desires to continue in his present employment and has no intentions of returning to private practice.

    
    

    CONCLUSIONS OF LAW

    
    

42. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1989).

    
    

43. Because respondent's professional license is at risk, petitioner is obligated to prove the allegations in the administrative complaint, as amended, by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

44. By clear and convincing evidence, the Board has proven that respondent prescribed Fastin, a controlled substance, on one occasion in an inappropriate manner. This in turn constitutes a violation of subsection 458.331(1)(q). The remainder of the allegations in Count I should be dismissed. The Board has also proven that respondent twice exercised influence with a patient for the purpose of engaging a patient in sexual activity in violation of 458.331(1)(j). In so concluding, the undersigned has considered the facts that the patient acknowledged that she was not forced by respondent to engage in the sexual acts, and respondent did not initiate the incidents nor plan on having sex with his patient. However, the law provides that "a patient shall be presumed to be incapable of giving free, full, and informed consent to sexual activity with (her) physician." While respondent overcame the statutory presumption as to the first encounter on December 2, 1983, by continuing thereafter to maintain the doctor-patient relationship, respondent was using that relationship in an illicit manner. Therefore, a violation of the statute occurred on December 15, 1983, and on one occasion in January 1984. The same conclusion must be reached with respect to Count III. The Board has further established by clear and convincing evidence that respondent did not record five prescriptions in the progress notes (see finding of fact 34), and to that extent, the records were deficient and did not allow respondent to adequately monitor the patient's condition. There was also a lack of documentation to justify the prescription for Fastin written on April 23, 1985. These shortcomings constitute a violation of subsection

    458.331(1)(m). All other allegations in Count IV should be dismissed. Finally, the Board has established that respondent violated subsection 458.331(1)(t) by failing to conform to the minimum standard of care expected of a psychiatrist by engaging in sexual relations with the patient and by failing to keep adequate medical records to the extent described above. In all other respects the complaint must fail.

    
    

45. In the recent case of Ong v. Department of Professional Regulation, Board of Dentistry, 15 FLW D2127, 2128 (Fla. 5th DCA 1990), the court cautioned that "all evidence relied upon in support of mitigation should be part of the record hearing." In this vein, respondent presented testimony from numerous health care administrators and physicians attesting to respondent's character, skill, and reputation. In addition, four affidavits were offered to corroborate that testimony. Rule 21M- 20.001, Florida Administrative Code (1989) sets forth the suggested penalties to be imposed on licensees who violate the Medical Practice Act. Section (3) thereof provides that certain aggravating and mitigating circumstances be taken into account in determining an appropriate penalty. They include:

    
    

    1. Exposure of patient or public to injury or potential injury, physical or otherwise:

       none, severe, or death;

    2. Legal status at the time of the offense:

       no restraints, or legal constraints;

       The number of counts or separate offenses established;

       (d) The number of times the same offense or offenses have previously been committed by the licensee or applicant;

       The disciplinary history of the applicant or licensee in any jurisdiction and the length of practice;

       1. Pecuniary benefit or self-gain inuring to the applicant or licensee;

       2. Any other relevant mitigating factors.

       
       

46. The mitigating evidence submitted by respondent reflects that the patient did not suffer injury, physical or otherwise, by virtue of respondent's conduct; the established offenses all stem from the treatment of one patient almost seven years ago; respondent has an otherwise unblemished record as a physician since 1969; and respondent has suffered substantial pecuniary loss as the result of this incident, including the loss of his private practice and the payment of a $150,000 judgment to the patient. It is also noted that he is still held in high esteem by his professional peers and he now performs exemplary service to the public at a mental health clinic. Therefore, the penalty recommended below is considered to be appropriate.

    
    

47. Respondent's motion to strike the testimony of Dr. Spoto is denied. However, in assessing his credibility, the undersigned has taken into account the material change in testimony given by the witness.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsections

458.331(1)(j), (m), (q) and (t), Florida Statutes (1989) and that his license be suspended for one year, of which all shall be stayed except for thirty days and that he be placed on probation for four years.

DONE and ENTERED this 9th day of November, 1990, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1990.

ENDNOTE

1/ In his proposed recommended order, respondent contended there was no evidence that Sinequan was a legend drug for which a violation of chapter 458 could be cited. However, respondent stipulated that all drugs listed in finding of fact 14 were prescribed, and admitted that all were medicinal drugs and that medicinal drugs are legend drugs that may be dispensed only by prescription. Accordingly, no further proof is required. A similar contention as to two other medicinal drugs is likewise rejected.

1. Partially adopted in findings of fact 8 and 14.

2. Partially adopted in finding of fact 20.

3. Partially adopted in finding of fact 34.

4. Rejected as being a conclusion of law.

5. Partially adopted in findings of fact 25 and 26.

6. Partially adopted in finding of fact 28.

7. Rejected as being a conclusion of law.

8. Partially adopted in finding of fact 32.

9. Partially adopted in finding of fact 33.

10. Partially adopted in finding of fact 39.

11. Rejected as being contrary to the evidence. 33-34. Partially adopted in finding of fact 41.

Respondent:

1. Partially adopted in findings of fact 7 and 9.

2. Partially adopted in finding of fact 20.

3. Partially adopted in finding of fact 9.

4. Rejected as being unnecessary.

1. Rejected as being unnecessary.

2. Partially adopted in finding of fact 30.

3. Partially adopted in finding of fact 8.

4. Partially adopted in finding of fact 10.

5. Partially adopted in finding of fact 11.

6. Partially adopted in finding of fact 12.

7. Partially adopted in finding of fact 13.

8. Partially adopted in finding of fact 11.

9. Partially adopted in finding of fact 13. 52-53. Partially adopted in finding of fact 15. 54-55. Partially adopted in finding of fact 16.

1. Partially adopted in finding of fact 17.

2. Partially adopted in finding of fact 18.

3. Partially adopted in finding of fact 9.

4. Partially adopted in finding of fact 19.

5. Partially adopted in findings of fact 10-19. 61-62. Partially adopted in finding of fact 20.

63-65. Partially adopted in findings of fact 33-37. 66-68. Partially adopted in finding of fact 40.

69-71. Partially adopted in finding of fact 41.

1. Partially adopted in findings of fact 3-6.

2. Rejected as being unnecessary.

74-83. Partially adopted in findings of fact 40-43.

Note - Where a finding of fact has been partially adopted, the remainder has been rejected as being unnecessary, irrelevant, cumulative, subordinate, or not supported by the evidence.

COPIES FURNISHED:

Bruce D. Lamb, Esquire

730 South Sterling Avenue, Suite 201

Tampa, FL 33609-4582

Melissa Fletcher Allaman, Esquire

P. O. Drawer 1170 Tallahassee, FL 32302

Kenneth E. Easley, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

Dorothy Faircloth, Executive Director Board of Medicine

1940 North Monroe Street Tallahassee, FL 32399-0750

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. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN 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: 90-002961

Orders for Case No: 90-002961