STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )
)
Petitioner, )
)
vs. ) CASE NO. 90-5110
)
SALVADOR S. GINORI, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on August 21, 1991, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: William B. Nickell, Esquire
Senior Attorney
Department of Professional Regulation 1940 North Monroe Street, Suite 60
Tallahassee, Florida 32399-0792
For Respondent: Jerry B. Schreiber, Esquire
19 West Flagler Street Suite 207
Miami, Florida 33130
Dennis E. LaRosa, Esquire 1901 Welby Way
Tallahassee, Florida 32308 STATEMENT OF THE ISSUES
Whether Respondent committed the offenses described in the Amended Administrative Complaint?
If so, what disciplinary action should be taken against him?
PRELIMINARY STATEMENT
On July 3, 1990, the Department of Professional Regulation (Department) issued an Administrative Complaint, the body of which contained the following factual allegations:
Respondent is and has been at all times material hereto a licensed physician in the State of Florida, having been issued license number ME 0013979. Respondent's last known address is 5582 W. Flagler Street, Miami, Florida 33134.
On or about an unknown date in November of 1989, Respondent rendered medical care to patient #1 for, among other things, leg pain.
Respondent removed patient #1's shorts and requested that she remove her panty hose.
While examining patient #1's leg, Respondent moved patient #1's panties away from her thigh so as to expose patient #1's genitals.
Respondent stared at patient #1's genitals commenting that she was the most beautiful woman he had ever seen.
Patient #1 attempted to sit up, but Respondent placed his hand upon her chest, telling her to remain still.
Respondent then requested patient #1 to turn face down onto the examining table.
Upon patient #1's compliance with Respondent's request, Respondent once more attempted to expose her genitals.
Patient # 1 resisted Respondent and put on her clothing in order to leave Respondent's office.
Respondent then took patient #1's face into his hands, told her he loved her, and blew patient #1 a kiss.
It was further alleged in the Administrative Complaint that, by engaging in the foregoing conduct, Respondent violated Sections 458.329, 458.331(1)(j), and 458.331(1)(x), Florida Statutes. Respondent denied these allegations of wrongdoing and requested a formal hearing. On August 17, 1990, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the formal hearing Respondent had requested.
The hearing in this case was initially set for January 10, 1991. At the request of the parties, it was rescheduled for January 25, 1991. On January 23, 1991, the parties requested that the hearing be cancelled and that this matter be held in abeyance pending the Board of Medicine's consideration of a settlement agreement into which the parties had entered. The request was granted. On May 1, 1991, the Department filed a status report notifying the Hearing Officer that the dispute between the parties had not been amicably resolved and that a hearing was therefore necessary. Having received such notification, the Hearing Officer reset the instant matter for hearing for August 21, 1991.
Prior to hearing, the Department amended paragraph 3 of the Administrative Complaint to read as follows:
On or about November 27, 1989 and December 14, 1989 Respondent rendered medical care to Patient #1; the last visit concerned the leg pain of Patient #1.
The amendment was made without any opposition by Respondent. The Department also filed a prehearing motion requesting that the Hearing Officer take official recognition of "(1) Rule 21M, Florida Administrative Code, specifically Rule
21M-20, Disciplinary Guidelines and (2) Respondent's prior disciplinary case." By order issued June 20, 1991, the motion was granted.
At the August 21, 1991, hearing held in this matter, the Department presented the testimony of four witnesses: Thomas Daniels, an investigator with the Department; Dr. Lynn P. Carmichael, a family medicine practitioner and Chairman of the University of Miami's Department of Family Medicine and Community Health, who gave expert testimony; F.E., the patient referenced in the Amended Administrative Complaint; Isaida Gomez, a former employee of Respondent, who was employed by him on December 14, 1989, the date of the incident alleged in the Amended Administrative Complaint; and Sandra Moss, a supervisor in HRS's EPSDT Medicaid program in Dade County, who spoke with F.E. after her visit to Respondent's office on December 14, 1989. In addition to the testimony of these four witnesses, the Department offered six exhibits into evidence, all of which were received by the Hearing Officer.
Respondent took the stand and testified on his own behalf. He also presented the testimony of his wife, who assists Respondent in his practice and was present in his office during F.E.'s visit on December 14, 1989.
Additionally, he offered six exhibits into evidence, all of which were received by the Hearing Officer. At the conclusion of the evidentiary portion of the hearing, the Hearing Officer advised the parties on the record that proposed recommended orders had to be filed no later than 35 days following the Hearing Officer's receipt of the transcript of the hearing.
On September 3, 1991, Respondent filed a written motion requesting that the Hearing Officer recommend dismissal of the Amended Administrative Complaint on the ground that the probable cause panel which authorized its filing was not properly constituted and, in considering Respondent's case, did not act in the manner prescribed by law. The Department filed a response in opposition to this motion on September 13, 1991. On September 26, 1991, Respondent filed a reply to the Department's response.
On October 16, 1991, Respondent timely filed a proposed recommended order. The proposed findings of fact set forth in this proposed recommended order have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.
On October 24, 1991, Respondent filed a motion requesting an extension of time to file his proposed recommended order. By order issued October 28, 1991, the motion was granted and Respondent was given until 20 days from the date of the order to file his proposed recommended order. To date, Respondent has not filed a proposed recommended order.
FINDINGS OF FACT
Based upon the record evidence, the following Findings of Fact are made:
Respondent is now, and was at all times material hereto, a physician authorized to practice medicine in the State of Florida under license number ME 0013979.
F.E. and her young daughter are former patients of Respondent.
They visited Respondent's office on November 27, 1989, and again on December 14, 1989.
The November 27, 1989, visit was uneventful.
During her December 14, 1989, visit, F.E. complained that she had been experiencing pain on the right side of her body behind her knee and in the groin area.
Respondent requested that F.E. lower her pantyhose and lie on her back on the examining table. F.E. complied with Respondent's request.
Respondent proceeded to examine F.E. He tracked, by both visual inspection and palpation, the saphenous vein on the right side of F.E.'s body. The saphenous vein runs from near the knee to around the groin area, where it meets the femoral vein.
F.E. still had on her panties. Respondent therefore had to lift up the leg of the panties in order to observe and feel the area around the upper terminus of her saphenous vein. F.E. tried to sit up when Respondent did this, but Respondent restrained her and told her that she needed to remain still inasmuch as the examination was not completed.
Thereafter, Respondent had F.E. turn over on her stomach and, from this different vantage point, proceeded to again track F.E.'s right saphenous vein employing the same technique he had used previously.
Following the completion of the examination, F.E. pulled up her panty hose and got off the examining table. She then engaged in conversation with Respondent, who was filling out her chart.
Respondent diagnosed Respondent's condition as a mild form of phlebitis in her right saphenous vein. He told her to wrap her leg and to take two Advil tablets four times a day to reduce the inflammation in the vein.
Following her exchange with Respondent, F.E. retrieved her daughter and left the office.
Respondent's examination of F.E. on December 14, 1989, itself was in accordance with generally accepted medical standards. 1/
During the examination, however, when Respondent was inspecting the area around F.E.'s groin, he inappropriately remarked in Spanish to F.E., who is Spanish-speaking, that she was the prettiest woman in the world, or words to that effect. This made F.E. feel uncomfortable. She thought that Respondent wanted "some sort of romance." Respondent, though, said nothing else, nor did
he engage in any conduct, during his encounter with F.E. that day to indicate that this was his intention.
Sometime after F.E.'s visit to Respondent's office on December 14, 1989, the Department received a complaint concerning Respondent's behavior toward F.E. that day.
The Department investigated the complaint. Following the completion of the investigation, it prepared and submitted to a probable cause panel of the Board of Medicine a written investigative report.
The probable cause panel met on June 22, 1990, to consider whether there was probable cause to bring formal charges against Respondent. In attendance at the meeting were probable cause panel members Dr. Robert Katims, who chaired the meeting, and Dr. Marilyn Wells.
Prior to their vote, Katims and Wells took part in discussion regarding the case. They both indicated during the discussion that they had reviewed the investigative materials with which they had been provided by the Department.
Following the conclusion of the discussion, Katims and Wells both voted to find probable cause.
Thereafter, an Administrative Complaint was issued against Respondent.
CONCLUSIONS OF LAW
The Board of Medicine (Board) is statutorily empowered to take disciplinary action against a physician licensed to practice medicine in the State of Florida based upon any of the grounds enumerated in Section 458.331(1), Florida Statutes.
Where the disciplinary action sought is the revocation or suspension of the physician's license, the proof establishing the physician's guilt must be clear and convincing. See Section 458.331(3), Fla. Stat.; Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Pascale v. Department of Insurance, 525 So.2d 922 (Fla. 3d DCA 1988). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).
Furthermore, the disciplinary action taken may be based only upon the offenses specifically alleged in the administrative complaint. See Kinney v. Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).
In addition, the administrative complaint must have been issued in accordance with the probable cause requirements prescribed by statute and rule. See Kibler v. Department of Regulation, 418 So.2d 1081 (Fla. 4th DCA 1982).
Section 455.225, Florida Statutes, requires that "[t]he determination as to whether probable cause exists shall be made by a majority vote of a probable cause panel of the board" and that the panel "shall be composed of board members, but not more than one of the panel members shall be a lay member."
Rule 21M-18.006, Florida Administrative Code, reiterates the "majority vote" requirement of Section 455.225, Florida Statutes. In addition, it provides, among other things, that "[e]ach probable cause panel shall be composed of three members, one of whom may be a past board member who is not currently appointed to the board and one of whom shall be a lay member of the board."
Under both Section 455.225, Florida Statutes, and Rule 21M-18.006, Florida Administrative Code, the probable cause panel must do more than simply "rubber stamp" the recommendation made by the Department. It is required to engage in an evaluative process and may find probable cause only if the evidence it has considered reasonably indicates that the violations alleged have actually occurred. See Kibler v. Department of Professional Regulation, 418 So.2d at 1084.
In his motion to dismiss, Respondent alleges that the probable cause panel in the instant case was not convened in accordance with Rule 21M-18.006, Florida Administrative Code, because it was comprised of two, not three, board members, neither of whom was a layperson. The argument is unpersuasive.
"Rule 21M-18.006(2) . . . does not say that a probable cause panel must meet as three members, but only that a panel be 'composed' of three members," one of whom must be a layperson. Department of Professional Regulation v. Schoen, 11 FALR 812, 827 (Board of Medicine 1988). The evidence is insufficient to establish that the probable cause panel in the instant case was not so composed. Respondent has merely shown that only two of the panel members attended the probable cause panel meeting. Inasmuch as they both voted to find probable cause, the absence of the third member of the panel was inconsequential, even if that panel member was a layperson. There simply must be a "majority vote of a probable cause panel" to find probable cause. A unanimous vote is not required. Moreover, there is no statutory or rule requirement that the lay member of the panel participate in the probable cause panel meeting and cast a vote.
In view of the foregoing, the instant Amended Administrative Complaint should not be dismissed on the ground that the probable cause panel in this case was improperly convened.
The further allegation is made in Respondent's motion to dismiss that the two members of the probable cause panel who did attend the meeting failed to engage in the required evaluative process before finding probable cause. The evidence, however, demonstrates otherwise. It establishes that both panel members considered the investigative report and discussed its contents prior to determining that there was probable cause in the instant case.
In view of the foregoing, the instant Amended Administrative Complaint should not be dismissed on the ground that the probable cause panel in the instant case did not base its finding of probable cause upon an adequate consideration of evidence. See Kibler v. Department of Professional Regulation, 418 So.2d at 1084.
The instant Amended Administrative Complaint charges that disciplinary action should be taken against Respondent because, during F.E.'s visit to his office on December 14, 1989, he engaged in conduct that violated Section 458.329, Florida Statutes, and thus Section 458.331(1)(x), Florida Statutes, as well, in addition to Section 458.331(1)(j), Florida Statutes.
Section 458.329, Florida Statutes, provides as follows:
The physician-patient relationship is founded on mutual trust. Sexual misconduct in the practice of medicine means violation of the physician-patient relationship through which the physician uses said relationship to induce or attempt to induce the patient to engage, or 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.
Sexual misconduct in the practice of medicine is prohibited.
Section 458.331(1)(j) and (x), Florida Statutes, provide as follows:
The following acts shall constitute grounds for which disciplinary actions specified in subsection (2) may be taken:
* * *
(j) Exercising influence within a patient- physician relationship for purposes of engaging a patient in sexual activity. A patient shall be presumed to be incapable of giving free, full, and informed consent to sexual activity with his physician.
* * *
(x) Violating any provision of this chapter, a rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena.
The proof adduced at hearing is insufficient to establish that, in his dealings with F.E. on December 14, 1989, Respondent engaged in sexual misconduct in violation of the foregoing statutory provisions as alleged in the instant Amended Administrative Complaint.
The evidence reveals that Respondent's examination of F.E. was in accordance with generally accepted medical standards. While he did lift up the leg of F.E.'s panties and thereby did "expose [her] genitals," it was necessary for him to do so in order to complete his examination of F.E.
Furthermore, at no time during her visit to his office that day did Respondent "[take F.E.'s] face into his hands, [tell] her he loved her, and [blow her] a kiss" as charged in the instant Amended Administrative Complaint.
The only thing that Respondent did or said during the visit that was of questionable propriety was to remark, while inspecting the area around F.E.'s groin, something to the effect that she was the prettiest woman in the world. While this remark may have been ill-advised, the evidence does not demonstrate that it was made for the purpose of inducing F.E. to engage in sexual activity. Respondent neither did nor said anything else during the visit to suggest that such was his motive or intent. Accordingly, as thoughtless and insensitive as
the remark may have been, it has not been shown that its utterance constituted a violation of either Section 458.329, Florida Statutes, (and therefore, derivatively, Section 458.331(1)(x), Florida Statutes) or Section 458.331(1)(j), Florida Statutes, given the Department's failure to establish that the remark was the product of an effort on Respondent's part to have F.E. participate in sexual activity.
In view of the foregoing, the instant Amended Administrative Complaint should be dismissed in its entirety on the ground that the proof is insufficient to establish that Respondent committed the offenses described therein.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the Board of Medicine enter a final order dismissing the instant Amended Administrative Complaint in its entirety.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of December, 1991.
STUART M. LERNER
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 5th day of December, 1991.
ENDNOTES
1/ The Department's own expert so testifed at hearing.
2/ While Respondent may have asked Isaida Gomez to testify on his behalf, the evidence is insufficient to establish that he asked her to give testimony that he knew to be false.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-5110
The following are the Hearing Officer's specific rulings on the findings of fact proposed by the Department:
Rejected because it is more in the nature of a statement of the law, albeit a correct one, than a finding of fact.
First sentence: Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order; Second sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: Rejected because it is contrary to the greater weight of the evidence; Second sentence: Accepted and incorporated in substance.
6-11. To the extent that these proposed findings suggest that Respondent exposed and "stared" at F.E.'s genitals without medical justification, they have been rejected because they are contrary to the greater weight of the evidence.
Otherwise, they have been accepted and incorporated in substance.
To the extent that this proposed finding suggests that
F.E. "resisted" sexual advances made by Respondent, it has been rejected because it is contrary to the greater weight of the evidence.
Accepted and incorporated in substance.
Rejected because it is not supported by the greater weight of the evidence. 2/
Rejected because it is more in the nature of a statement of the law, albeit a correct one, than a finding of fact.
Rejected because it is contrary to the greater weight of the evidence.
Rejected because it is more in the nature of a conclusion of law than a finding of fact.
COPIES FURNISHED:
Arthur Skafidas, Esquire
Department of Professional Regulation 1940 North Monroe Street, Suite 60
Tallahassee, Florida 32399-0792
Jerry Schreiber, Esquire
19 West Flagler Street Suite 207
Miami, Florida 33130
Dennis E. LaRosa, Esquire 1901 Welby Way
Tallahassee, Florida 32308
Dorothy Faircloth, Executive Director Board of Medicine
Department of Professional Regulation 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. SOME AGENCIES ALLOW A LARGER PERIOD OF TIME 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.
| Issue Date | Proceedings |
|---|---|
| Dec. 05, 1991 | Recommended Order sent out. CASE CLOSED. Hearing held 8/21/91. |
| Oct. 28, 1991 | Order sent out. (RE: Respondent's motion for extension of time, granted). |
| Oct. 24, 1991 | (Respondent) Motion For Extension of Time in Which to File Proposed Recommended Order filed. |
| Oct. 16, 1991 | (DPR) Proposed Recommended Order filed. (From William Nickell) |
| Sep. 26, 1991 | (Respondent) Reply to Petitioners Response to Motion to Dismiss filed. |
| Sep. 18, 1991 | Transcript of Proceedings filed. |
| Sep. 13, 1991 | (Petitioner) Response to Motion to Dismiss filed. |
| Sep. 03, 1991 | (Respondent) Motion to Dismiss filed. |
| Aug. 21, 1991 | CASE STATUS: Hearing Held. |
| Aug. 19, 1991 | (Petitioner) Motion in Limine filed. (From William Nickell) |
| Aug. 13, 1991 | (Petitioner) Prehearing Stipulation filed. |
| Aug. 08, 1991 | (Petitioner) Notice of Intent to Use Respondent's Prior Acts filed. (From William B. Nickell) |
| Aug. 08, 1991 | (Petitioner) Notice of Second Submission of Discovery filed. (From William B. Nickell) |
| Jul. 24, 1991 | Notice of Serving Answer to Respondent's Discoveries filed. (from William Nickell) |
| Jul. 08, 1991 | (Petitioner) Reply Regarding Official Recognition filed. (From William Nickell) |
| Jun. 27, 1991 | Notice of Service of Interrogatories w/Interrogatories; Supplement Response to Respondent to Petitioner's MOtion to Take Official Recognition; Notice to Produce filed. (from Dennis E. LaRosa) |
| Jun. 21, 1991 | Order sent out. (petitioner's request that official recognition be taken of certain matters GRANTED) |
| Jun. 21, 1991 | Order sent out. (petitioner's motion DENIED) |
| Jun. 12, 1991 | Motion to Preserve Testimony by Deposition filed. (From William Nickell) |
| May 21, 1991 | Notice of Serving Prior Discipline filed. (From William B. Nickell) |
| May 17, 1991 | (Respondent) Response of Respondent to Motion to Take Official Recognition filed. |
| May 15, 1991 | Notice of Appearance filed. (From Dennis E. LaRosa) |
| May 10, 1991 | Motion to Take Official Recognition w/exhibit-A filed. (From William Nickell) |
| May 06, 1991 | Notice of Hearing sent out. (hearing set for Aug. 21, 1991; 8:30am; Miami) |
| May 01, 1991 | (Petitioner) Status Report filed. (From William B. Nickell) |
| Jan. 24, 1991 | Order of Abeyance (Parties to advise HO by May 3, 1991, whether case is resolved or should be set for hearing) sent out. |
| Jan. 23, 1991 | (Petitioner) Motion For Order of Abeyance filed. (From William B. Nickell) |
| Jan. 03, 1991 | (DPR) Notice of Taking Deposition filed. (from William B. Nickell) |
| Dec. 19, 1990 | Order (Case in Continuance) sent out. (hearing rescheduled for Jan. 25, 1991: 8:30 am: Miami) |
| Dec. 17, 1990 | Order (Respondents Motion for Continuance DENIED) sent out. |
| Dec. 17, 1990 | Notice of Serving Petitioner's First Set of Request for Admissions, Request for Production of Documents and Interrogatories to Respondent filed. |
| Dec. 14, 1990 | Joint Motion to Continue Final Hearing Scheduled For January 10, 1991filed. (from J. B. Schreiber) |
| Dec. 11, 1990 | (DPR) Notice of Substitution of Counsel; Petitioner's Response to Respondent's Request For Production & attachments filed. (From William Nickell) |
| Nov. 08, 1990 | (Respondent) Request to Produce filed. (From Jerry B. Schreiber) |
| Oct. 23, 1990 | (Petitioner) Notice of Serving Answers to Respondent's Interrogatories to Petitioner w/Interrogatories to Petitioenr filed. (From Richard Grumberg) |
| Oct. 05, 1990 | (DPR) Notice of Substitution of Counsel filed. (From Stephanie Daniel) |
| Sep. 18, 1990 | Notice of Hearing sent out. (hearing set for Jan. 10, 1991: 8:30 am:Miami) |
| Sep. 05, 1990 | (Petitioner) Response to Initial Order filed. (from |
| Sep. 04, 1990 | Notice of Service of Interrogatories to Defendant & Interrogatories to Petitioner filed. (from Jerry B. Schreiber) |
| Aug. 23, 1990 | Initial Order issued. |
| Aug. 17, 1990 | Administrative Complaint; Election of Rights; (DPR) Notice of Appearance (from C. Dickinson) filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 25, 1992 | Agency Final Order | |
| Dec. 05, 1991 | Recommended Order | Probable cause panel not improperly impanelled, nor did it inadequately consider evidence of case; Doctor not guilty of sexual misconduct. |
