STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, ) BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6252

)

ANAND LATTANAND, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on April 19, 1994, in Tampa, Florida.

APPEARANCES

For Petitioner: Steve Rothenburg, Esquire

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Veronica E. Donnelly, Esquire

J. B. Donnelly, Esquire GREENE, DONNELLY, SCHERMER,

TIPTON & MOSELEY

100 North Tampa Street, Suite 2825 Tampa, Florida 33602

STATEMENT OF THE ISSUE

The issue in this case is whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint filed September 20, 1993, the Department of Business and Professional Regulation, Board of Medicine, alleged that the Petitioner had committed sexual misconduct in the practice of medicine.

The Petitioner requested a hearing. The matter was referred to the Division of Administrative Hearings which scheduled the proceeding.

At the hearing, the Petitioner presented the testimony of one witness and had one exhibit admitted into evidence. The Respondent presented the testimony of one witness, testified on his own behalf, and had one exhibit admitted into evidence.

A transcript of the hearing was filed. Both parties filed proposed recommended orders. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. The Department of Professional and Business Regulation, Board of Medicine, (Petitioner) is the state agency with responsibility for regulation of licensed medical practitioners in the State of Florida.

   
   

2. Anand Lattinand, M.D., (Respondent) is and at all times material to this case, has been a board certified Dermatologist and a licensed physician in the State of Florida holding license number ME0034105, and located at 3450 East Fletcher Avenue, Tampa, Florida 33613.

   
   

3. The Respondent first met A. L. (patient), a male, upon examination in July, 1992 for a lesion on the left axilla and anterior chest. Upon the initial examination, the Respondent learned that the patient, a retired lawyer, was a charter boat operator.

   
   

4. The Respondent diagnosed the lesion as an inflamed seborrheic keratosis and applied liquid nitrogen, causing the lesion to blister and peel off.

   
   

5. An appointment made for December 1992, was cancelled by the patient.

   
   

6. On or about May 6, 1993, the patient, then 61 years old, presented to the Respondent with complaints of a rash on his chest. Upon examination, the Respondent noted that the rash also appeared on the patient's back and arms.

   
   

7. The Respondent performed a dermatological examination on the patient to determine the cause of the rash.

   
   

8. In addition to the rash, the examination revealed redness and papules (bumps) on the patient's skin. Although the patient indicated to the Respondent that the rash did not itch, the skin rash was excoriated and ulcerated, indicating that it was being scratched. Some of the papules exhibited a "lichenified" appearance.

   
   

9. The Respondent requested that the patient undress so that a full body exam could be performed.

   
   

10. Further examination revealed that the papules extended to the patient's hips and upper buttocks and on the lower legs. Such papules can be indicative of scabies, insect bites, disseminated herpes simplex or seborrheic dermatitis.

    
    

11. The patient is a nudist. The patient did not tell the Respondent about his sun exposure. Such sun exposure may result in appearance of papules on parts of the body. The Respondent was not aware of the patient's nudist activities.

12. Based on the Respondent's suspicions about the origin of the rash, further diagnostic inquiry warranted a complete genital examination. The Respondent requested and obtained the patient's consent for the genital examination.

    
    

13. A standard dermatological genital examination includes the touching of the penis and testicles of a male patient. The scrotum is examined for eczema. The skin of the penis is manipulated. The penis is squeezed and the urethra is examined for evidence of discharge.

    
    

14. The Respondent put gloves on his hands and performed the genital examination. As the examination progressed, the Respondent informed the patient of the purpose for the procedure.

    
    

15. The exam revealed no scabies or insect bites. There was no discharge present. There was no genital indication of herpes simplex or dermatitis.

    
    

16. Despite the absence of genital symptoms, the Respondent was unable to rule out disseminated herpes simplex as the cause for the existing skin condition. Accordingly, the Respondent inquired into the patient's marital status and sexual habits.

    
    

17. Inquiry into the sexual habits of the patient was medically appropriate given the nature of the suspected origin of the condition. Beyond mere herpes simplex, the Respondent was concerned about the possibility of AIDS and its related impact on the progression of herpes simplex.

    
    

18. The patient appeared to be uncomfortable with the questioning. The Respondent had doubts as to the credibility of the information being provided and so discontinued the questioning. The examination was concluded.

    
    

19. Unable to specifically identify the cause of the condition, the Respondent provided the patient with two ointments intended to treat the rash. The patient dressed, paid for the examination and left the Respondent's office.

    
    

20. Based on the testimony of the patient, the Petitioner alleges that, without the patient's consent, the Respondent fondled the patient's genitals with his ungloved hands to the point when the patient's penis became erect, and that the Respondent then requested that the patient masturbate while the Respondent watched. The Petitioner asserts that the patient declined the masturbation request, but permitted the Respondent to complete the exam. Apparently, the patient made no objection to the alleged fondling until he was asked to masturbate.

    
    

21. Based on the presentation and demeanor of the patient-witness at hearing, the testimony of the patient is not credible. The evidence fails to establish the allegations of the Administrative Complaint.

    
    

22. The Respondent denies that the examination was performed ungloved, that he manipulate the patient's penis to erection or that he requested that the patient masturbate. The testimony of the Respondent is credited.

    
    

23. The greater weight of the evidence establishes that under the circumstances, the genital examination was properly performed and is an appropriate method of attempting to diagnose the cause of the skin rash from which the patient suffered.

    CONCLUSIONS OF LAW

    
    

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

    
    

25. The Respondent is charged with violation of Section 458.331(j), Florida Statutes, which provides that a physician may not exercise influence over a patient for the purposes of engaging a patient in sexual activity.

    
    

26. Petitioner has responsibility for disciplinary action taken against licensed physicians. The burden of proof is on the Petitioner to establish the truthfulness of the allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). In this case, the burden has not been met.

    
    

27. The evidence in this case establishes that the patient presented with symptoms indicative of scabies, insect bites, disseminated herpes simplex or seborrheic dermatitis. The Respondent appropriately attempted to identify the cause of the rash. Based on a suspected possible diagnosis of disseminated herpes simplex, a genital examination was warranted and, with the patient's consent, was performed correctly .

    
    

28. The patient testified that the Respondent, after manipulating the patient's penis to erection, requested that the patient masturbate. According to the patient, the request was denied, the examination continued to conclusion, the patient paid for the Respondent's services and left the office. The testimony of the patient is not credited.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional and Business Regulation, Board of Medicine, enter a Final Order dismissing the Administrative Complaint filed in this case.

DONE and RECOMMENDED this 8th day of June, 1994, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

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 8th day of June, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6252

To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties.

Petitioner

The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

5-8. Rejected, contrary to the greater weight of credible and persuasive evidence.

9-10. Rejected, unnecessary.

11. Rejected, contrary to the greater weight of credible and persuasive evidence.

12-14. Rejected, unnecessary.

Respondent

The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

3-4. Rejected, irrelevant, unnecessary.

7. Rejected, unnecessary.

9. Rejected as to whether patient would be aware of visual examination, unnecessary.

12. Rejected, unnecessary.

23. Third and fourth sentences are rejected, unnecessary.

27. Rejected, subordinate.

30. Rejected, unnecessary.

COPIES FUIRNISHED:

Dr. Marm Harris, Executive Director Board of Medicine

Department of Business

and Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, FL 32399-0792

Jack McRay

Acting General Counsel Department of Business

and Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, FL 32399-0792

Steve Rothenburg, Esquire Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0750

Veronica E. Donnelly, Esquire

J. B. Donnelly, Esquire GREENE, DONNELLY, SCHERMER,

TIPTON & MOSELEY

100 North Tampa Street, Suite 2825 Tampa, Florida 33602

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 ten 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: 93-006252

Orders for Case No: 93-006252