STATE OF FLORIDA

DIVISION OF ADHINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 90-7906

)

KENT J. NAUMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in the above-styled case on January 2, 1991, in Orlando, Florida, before Joyous D. Parrish, a designated hearing officer of the Division of Administrative Hearings. The parties were represented as follows:

APPEARANCES

For Petitioner: Susan E. Lindgard

Senior Attorney

Department of Professional Regulation

1940 North Monroe Street, Ste. 60

Tallahassee, Florida 32399-0792

For Respondent: Kent J. Nauman, pro se

160-B Springwood Circle Longwood, Florida 32750

STATEMENT OF THE ISSUES

The central issue in this case is whether the Respondent is guilty of the violation alleged in the administrative complaint; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on December 6, 1990, when the Department of Professional Regulation (Department) entered an emergency order of suspension which suspended Respondent's license to practice medicine. Thereafter, the Department filed an administrative complaint which alleged that Respondent was guilty of violating Section 458.331(1)(s), Florida Statutes. More specifically, the administrative complaint alleged that the Respondent is unable to practice medicine with reasonable skill and safety to patients by reason of an illness which is the result of a mental condition. The Respondent has disputed the allegations and requested a review of the Department's decision. The case was forwarded to the Division of Administrative Hearings for formal proceedings on December 7, 1990.

At the hearing, the Department presented the testimony of Roger Goetz, the director of the Physicians Recovery Network, and Neville Marks, a psychiatrist who examined Respondent. The Department's exhibits numbered 1 through 3 were admitted into evidence. The Respondent testified in his own behalf and presented the testimony of Michael Powers. Respondent's exhibits numbered 1 and

2 were admitted into evidence. The transcript of the proceedings was filed on January 15, 1991. The Department submitted a proposed recommended order on January 25, 1991. Specific rulings on the proposed findings of fact are included in the attached appendix.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made:

1. The Department is the state agency charged with the responsibility of regulating the practice of medicine in Florida,

   
   

2. The Respondent is a licensed medical doctor in the State of Florida, having been issued license number ME 0035875.

   
   

3. On or about December 6, 1990, Respondent was employed by a group of family medical centers located in the greater Orlando area. At that time, the Department issued an order of emergency suspension and Respondent's license to practice was suspended.

   
   

4. The order of emergency suspension was based in part on a medical examination performed by Dr. Marks, a psychiatrist.

   
   

5. At all times material to this case, Respondent practiced general medicine in a walk-in clinic setting. Respondent does not currently have hospital privileges but made referrals for areas of treatment requiring specialties (e.g. surgery, psychiatry, OB-GYN).

   
   

6. Respondent is a Christian and believes his religious tenets paramount to other authorities. Respondent and others practicing his faith believe in speaking in tongues and faith healing. Respondent is a member of the Great Commission Army, a faith healing group, having completed that group's requirements for membership which included a training course on how to heal the sick.

   
   

7. Respondent also practices allopathic medicine utilizing the medical skills which he obtained from his formal medical education and training.

   
   

8. In 1987, Respondent was frustrated by his inability to obtain hospital privileges at local Orlando hospitals. In response to an advertisement published in a medical journal, Respondent contacted the Physicians Recovery Network (PRN) for assistance.

   
   

9. Contrary to Respondent's expectations, the PRN did not assist Respondent. According to PRN records, the Respondent was referred to Dr. Robert Fernandez for psychotherapy. Later, the PRN referred Respondent's case to the Department since it was unable to compel Respondent to obtain a mental and physical examination.

10. Respondent did not consider the PRN's efforts to be helpful since he believes Freudian psychology to be contrary to his religious beliefs. Moreover, Respondent does not believe he has a mental impairment requiring treatment.

    
    

11. In 1989, Respondent wrote a letter directed to "Dear Legislator" which outlined Respondent's opinions regarding the medical profession. In summary, Respondent stated the instances he observed which indicate that hospital procedures do not afford constitutional due process to those seeking privileges, fail to require behavior of a righteous manner, and was "systematically wicked."

    
    

12. At some point subsequent to the letter described in paragraph 11, the Department attempted to require Respondent to undergo a psychiatric examination.

    
    

13. Ultimately, a circuit court judge directed Respondent to present for a review. That examination was conducted by Dr. Marks who spoke with Respondent for approximately one hour on November 13, 1990.

    
    

14. Following his examination of Respondent, Dr. Marks completed a written report dated November 23, 1990 which he submitted to the Department. That report stated that Respondent read aloud from the Bible while he waited in the hospital foyer for the appointment, smiled to the point of being jocular despite the seriousness of the examination, spoke in tongues, and was religiously preoccupied. Dr. Marks' diagnosis of the Respondent concluded: axis I- schizophrenia, chronic. No other axis diagnosis was rendered.

    
    

15. During the interview with Dr. Marks, Respondent attempted to explain faith healing and how prayer can be utilized to heal the sick. Dr. Marks mistakenly concluded that Respondent utilized faith healing at the clinic were he was employed. The examples of faith healing given by Respondent were not meant to exclude allopathic medical practices. Respondent does not believe one form of healing precludes the use of the other form.

    
    

16. Dr. Marks did not review any of Respondent's medical records nor observe Respondent's treatment of patients at the medical center.

    
    

17. Dr. Marks was not aware of any complaints from patients regarding Respondent's medical treatment of them.

    
    

18. Allegations of malpractice have not been made against Respondent by anyone.

    
    

19. Dr. Marks acknowledged that pastors conduct televised services to heal people and that such activities are not delusional.

    
    

20. Additionally, Dr. Marks acknowledged that speaking in tongues does not, of itself, mean the speaker is out of touch with reality.

    
    

21. Dr. Marks also acknowledged that faith healing and the "American medical standard of treatment" may be compatible.

    
    

22. Mr. Powers, the Respondent's roommate, confirmed that Respondent utilizes "conventional medical treatment" when treating patients as the situation may require. For example, when a baby with an ear infection was presented for faith healing at their home, Respondent immediately prescribed an antibiotic for the child.

23. Respondent is a member of the Orlando Christian Center which is an independent church with 7,000 members and a national television ministry. He participates in church activities, has been trained as a charismatic Christian, and believes his Christian training helps him effectively treat the sick.

    
    

24. According to Respondent, when he treats people in the office he usually does not use Christian faith healing other than the laying on of hands. Because his examination of patients requires that he touch them, Respondent believes that to be an automatic means of putting hands on them without saying a word regarding his religious beliefs. In short, patients receive the benefit of touching without necessarily knowing it.

    
    

25. Respondent does not know of any instance in which he caused injury to a patient or failed to correctly treat them.

    
    

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding.

    
    

27. In accordance with Section 458.331, Florida Statutes, the Department may discipline a licensee for violations of that statute.

    
    

28. Section 458.331(1)(s), Florida Statutes, provides, in part, that a physician may be disciplined for:

    
    

    Being unable to practice medicine with- reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition.

    
    

29. In this case, the Department bears the burden of establishing, by clear and convincing evidence, that the Respondent is not fit to practice medicine by reason of his infirmity. That burden has not been met. The Department has only the benefit of one, one hour examination conducted by Dr. Marks in which he made several erroneous assumptions regarding the Respondent. While it is certain that the Respondent believes in faith healing, there is no evidence from which it could be concluded that Respondent has abandoned the medical training and treatment which allowed his licensure. Moreover, the Department has not established that by practicing his religious beliefs, the Respondent is not fit to practice medicine with reasonable skill and safety to patients. Dr. Marks' opinion to the contrary was based upon the erroneous conclusion that Respondent practices faith healing exclusively. Dr. Marks cited no factual basis for his conclusion that schizophrenia was affecting Respondent's judgment. Dr. Marks did not speak with Respondent's patients nor did he review Respondent's records. Since he spent but one hour with Respondent, it is difficult to conclude anything other than the fact that Respondent is preoccupied by his religious beliefs. That, of itself, does not establish impaired judgment to treat patients.

30. Respondent's conduct may be considered socially rude (reading out loud in a public area), may be perceived to be religiously eccentric (speaking in tongues, quoting the Bible), but to Respondent and members of his faith such conduct is acceptable. The clear and convincing standard governing these proceedings requires more to establish a need to suspend this physician's license.

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED

That the Department of Professional Regulation, Board of Medicine dismiss the administrative complaint against this Respondent and reinstate his license to practice medicine.

DONE and ENTERED this 25th day of February, 1991, in Tallahassee, Leon County, Florida.

Joyous D. Parrish Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1991.

APPENDIX TO CASE NO. 90-7906

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT:

1. Paragraphs 1, 2, 4, 5, 8, 12, 13, and 14 are accepted.

   
   

2. Paragraph 3 is rejected as contrary to the weight of the evidence. It is accepted that following receipt of contact from the Respondent (who was responding to an advertisement) the PPN made the recommendation noted.

   
   

3. Paragraph 6 is rejected as recitation of testimony based upon erroneous factual information.

   
   

4. The first sentence of paragraph 7 is rejected as contrary to the weight of the evidence. The second sentence is accepted as Dr. Marks' statement of fact as he observed Respondent. The last sentence is rejected as contrary to the weight of the evidence. It is clear that Dr. Marks mistakenly concluded Respondent practiced faith healing to the exclusion of allopathic practices.

   The record establishes that is not the case. Moreover, the sentence inaccurately over simplifies Respondent's explanation of faith healing.

   
   

5. Paragraph 9 is rejected as contrary to the weight of the evidence.

6. Paragraph 10 is rejected as contrary to the weight of the evidence. Respondent presented testimony of his religious beliefs, how faith healing is not adverse to allopathic medicine, and that members of his faith (like Mr. Powers) believe they are able to heal as a result of their religious training and beliefs. If he suffers from a mental illness, there is no indication that illness has impaired Respondent's ability to correctly treat patients.

   
   

7. Paragraph 11 is rejected as a recitation of testimony.

   
   

8. Paragraph 15 is rejected as argument, irrelevant, or contrary to the weight of the evidence. Respondent's informal presentation was deemed appropriate for a lay litigant given the circumstances of this case. In fact, Respondent's cross examination of Dr. Marks was particularly insightful since it was apparent Dr. Marks had misunderstood many of Respondent's statements during his examination.

   
   

9. Paragraph 16 is rejected as contrary to the weight of the evidence. Respondent attempted to convince the patient referenced that she needed additional testing. When the patient refused testing, Respondent recommended prayer. Eventually, Respondent was able to convince the patient to go to a specialist. The Department has not challenged Respondent's medical records or claimed that he failed to make an appropriate referral.

   
   

10. Paragraph 17 is rejected as contrary to the weight of the evidence.

    
    

11. Paragraph 18 is rejected as argument.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT:

None submitted.

COPIES FURNISHED:

Susan E. Lindgard Senior Attorney

Department of Professional Regulation

1940 North Monroe Street, Ste. 60

Tallahassee, Florida 32399-0792

Kent J. Nauman

l60-B Springwood Circle Longwood, Florida 32750

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Dorothy Faircloth, Executive Director Board of Medicine

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 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.

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

AGENCY FINAL ORDER

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

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICINE

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner, DPR CASE NUMBER: 89-11561 vs. DOAH CASE NUMBER: 90-7906

LICENSE NUMBER: ME 0035895

KENT J. NAUMAN, M.D.,

Respondent.

/

FINAL ORDER

This cause came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)10, Florida Statutes, on April 12, 1991, in Ft. Lauderdale, Florida, for the purpose of considering the Hearing Officer's Recommended Order and Petitioner's Exceptions to the Recommended Order, (copies of which are attached hereto as Exhibits A and B, respectively) in the above-styled cause.

Petitioner, Department of Professional Regulation, was represented by Susan E. Lindgard, Attorney at Law. Respondent was present and participated in the hearing.

Upon review of the Recommended Order, Petitioner's Exceptions, the argument of the parties, and after a review of the complete record in this case, the Board makes the following findings and conclusions.

RULINGS ON EXCEPTIONS

1. Petitioner's Exception No. 1 is rejected on the basis that there is competent substantial evidence to support the finding of fact at issue. (See p.

   73 of the Transcript)

   
   

2. Petitioner's Exception No. 2 is granted on the basis that is argued in the exception. (See Goetz deposition, p. 11)

   
   

3. Petitioner's Exception No. 3 is rejected on the basis that resolution of the issue raised is not material to the resolution of the case. However, it is noted that the word "observed," as used in paragraph 11 of Findings of Fact, should be changed to the phrase "was aware of" to be accurate.

   
   

4. Petitioner's Exception No. 4 is granted in part and rejected in part. It is granted insofar as it states the lack of competent substantial evidence for the Hearing Officer's finding that, "No other axis diagnosis was rendered." In lieu thereof the Board finds that the accurate statement of fact is, "Dr. Marks testified with regard to axis I, II, IV, and V. He ruled out any disorders. The Board finds that Dr. Marks' report was based not only on his examination of Respondent, but also on his review of Respondent's writings. The Board rejects, however, the last sentence of the exception submitted by Petitioner.

   
   

5. Petitioner's Exception No. 5 is granted on the basis that there is no competent substantial evidence to support the Hearing Officer's finding that Dr. Marks' conclusion was mistaken. The Board adopts Petitioner's argument and citations to the record as support for this ruling.

   
   

6. Petitioner's Exception No. 6 is granted to and including the recommendation that the finding of fact in paragraph 22 be rejected, based on the argument and citation in the exception. (See p. 57 of the Transcript). The Board does not adopt the remainder of the last sentence of this exception starting with ". . . and the Board finds Dr. Nauman has delusions about himself.

   . . ."

   
   

7. Petitioner's Exception No. 7 is granted based on the reasons stated therein. The record does not support a finding that Dr. Marks had only the benefit of one, one hour examination or that he made erroneous assumptions.

   
   

8. Petitioner's Exception No. 8 is granted for the reasons stated therein.

   
   

9. Petitioner's Exception No. 9 is rejected on the basis that it is not supported by the record.

   
   

10. Petitioner's Exception No. 10 is granted based on the reason stated therein and the Board's rulings on the preceding exceptions.

FINDINGS OF FACT

1. Findings of fact set forth in the Recommended Order are amended to conform with the rulings on Petitioner's Exceptions and, as amended, are approved and adopted and incorporated herein.

   
   

2. There is competent substantial evidence to support the findings of fact of the Board.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.

   
   

2. The conclusions of law set forth in the Recommended Order are rejected and the following conclusions of law are adopted in lieu thereof:

   
   

   1. Pursuant to FLA.STAT. Section 458.331(2)(1989), the Board of Medicine is empowered to revoke, suspend or otherwise discipline the license to practice medicine of any physician found guilty of the acts enumerated in FLA.STAT. Section 458.31(1) (1989).

      
      

   2. Disciplinary action may be taken pursuant to FLA.STAT. Section 458.331(1)(s) (1989):

      
      

      Being unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any

      mental or physical condition. In enforcing this paragraph, the department shall

      have, upon a finding of the secretary

      or his designee that probable cause exists to believe that the licensee is unable

      to practice medicine because of the reasons stated in this paragraph, the authority to issue an order to compel a licensee to submit to a mental or physical examination by physicians designated by the department.

      
      

   3. In a disciplinary action such as this proceeding, the burden is on the Petitioner to establish the facts upon which its allegations of misconduct are based. Petitioner must prove its allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d (Fla. 1987).

      
      

   4. The Administrative Complaint alleges that Respondent violated FLA.STA. Section 458.331(1)(s) (1989), by being unable to practice medicine with reasonable skill and safety to patients by reason of his mental impairment, ie. Axis 1 Schizophrenia- Chronic.

      
      

   5. FLA.STAT. Section 458.331(1)(s) (1989) is considered a rehabilitative statute which does not deal with an issue of guilt or innocence, but is limited to determinations of fitness to practice medicine. Boedy v. Dept. of Professional Regulation, 463 So.2d 215 (Fla. 1985).

      
      

   6. Clear and convincing evidence was presented indicating that the Respondent suffers from a mental illness, specifically Axis 1 Schizophrenia- Chronic.

      
      

   7. Clear and convincing evidence was presented to establish that Respondent is unable to practice medicine with reasonable skill and safety to patients by reason of illness as a result of a mental condition in violation of FLA.STAT. Section 458.331(1)(s) (1989).

3. There is competent substantial evidence to support the conclusions of law of the Board.

DISPOSITION

Upon a complete review of the record in this case, the Board determines that the disposition recommended by the Hearing Officer be rejected because of the Board's changes in the findings of fact and conclusions of law.

Specifically, the Board has found a violation of Section 458.331(1)(s), Florida Statutes. As to the issue of penalty, great weight should be given to the fact that the Respondent's mental illness can adversely affect his judgement when rendering health care services to the public. The penalty should protect the public from an impaired practitioner. Further, great weight should be given to the fact that FLA.STA. Section 458.331(1)(s)(1989) is rehabilitative in nature and not penal.

WHEREFORE,

IT IS HEREBY ORDERED AND ADJUDGED that

Respondent's license to practice medicine in Florida is SUSPENDED until such time as he appears before the Board and demonstrates that he can practice medicine with skill and safety to patients, the criteria for determining practice which is skillful and safe to patients to be determined by the Board of Medicine. Such demonstration shall include, but not be limited to, evidence that Respondent has entered into and is in compliance with a contract with the Physicians Recovery Network. Upon termination of the suspension of Respondent's license to practice medicine, Respondent's license to practice medicine in the State of Florida shall be placed on PROBATION for a period of at least two years, subject to the terms and conditions to be set at that time.

This order takes effect upon filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 26th day of April, 1991.

BOARD OF MEDICINE

ZACHARIAH P. ZACHARIAH, M.D. CHAIRMAN

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 DEPARTMENT OF PROFESSIONAL REGULATION 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 THIRTY (30) DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Kent J. Nauman, M.D., 160-B Springwood Circle, Longwood, Florida 32750, by U.S. Mail to Joyous D. Parrish, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; and by interoffice delivery to Larry G. McPherson, Jr., Acting Chief Medical Attorney, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399- 0792 at or before 5:00 P.M., this day of May, 1991.

DOROTHY J. FAIRCLOTH

Docket for Case No: 90-007906

Orders for Case No: 90-007906