STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-2051

)

GRAYSON C. SNYDER, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on September 7, 1994, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Francesca Plendl

Attorney At Law

Agency For Health Care Administration 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Michael P. Spellman

Attorney At Law

Post Office Box 1674 Tallahassee, Florida 32302-1674

STATEMENT OF THE ISSUES

The issue for determination is whether Respondent, a licensed physician, committed violations of Chapter 458, Florida Statutes, as alleged in the Administrative Complaint, sufficient to justify the imposition of disciplinary sanctions against his license.

PRELIMINARY STATEMENT

On February 3, 1994, Petitioner issued an Administrative Complaint alleging that Respondent had violated Section 458.331(1)(j), Florida Statutes, by exercising influence within a patient-physician relationship for purposes of engaging a patient in sexual activity; Section 458.331(1)(t), Florida Statutes, through gross or repeated malpractice; and Section 458.331(1)(m), Florida Statutes, by failing to keep written medical records justifying the course of treatment of the patient.

Respondent requested a formal administrative hearing on these charges. Subsequently, the matter was transferred to the Division of Administrative Hearings for conduct of formal hearings pursuant to Section 120.57(1), Florida Statutes.

By motion filed July 1, 1994, Respondent sought the dismissal of count three of the Administrative Complaint, alleging Respondent's violation of Section 458.331(1)(m), Florida Statutes, dealing with maintenance of appropriate medical records. The motion contained no factual assertions by Respondent's counsel that information was available indicating any deficiency in that count of the Administrative Complaint. The motion was denied.

At the final hearing, Petitioner presented the testimony of five witnesses and deposition testimony of one other. Petitioner also presented seven evidentiary exhibits. Respondent presented the testimony of five witnesses, including himself. He offered two evidentiary exhibits. By stipulation of the parties, Count three of the Administrative Complaint, alleging Respondent's failure to keep appropriate medical records in violation of Section 458.331(1)(m), Florida Statutes, was dismissed.

The transcript of the final hearing was filed with the Division Of Administrative Hearings on September 28, 1994.

Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent is Grayson C. Snyder, a licensed physician at all times pertinent to these proceedings, holding medical license number ME 0004035. Respondent's last known address is 635 West Central Avenue, Blountstown, Florida 32424-1909.

   
   

2. Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.165, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 458, Florida Statutes.

   
   

3. At all times pertinent to these proceedings, Respondent was the director of the Calhoun County Public Health Department and the Liberty County Public Health Department. He split his time equally between the two health departments, working at each for two and a half days per week. Respondent saw approximately 16 patients per week in the family planning clinics in the two health departments.

   
   

   Patient S.M.

   
   

4. S.M. was unsure of the date of her examination by Respondent. As conceded by Respondent's proposed finding of fact and corroborated by S.M.'s medical records, S.M. was seen by Respondent at the Blountstown or Calhoun County health department on October 11, 1989. Following a full physical examination by Respondent, inclusive of a pap smear, the nurse left the examination room with the pap smear specimen. Respondent and S.M. were left alone. S.M. was sitting on the examination table with the sheet wrapped around her. Respondent asked S.M. if she "watched dirty movies where people done it like dogs and ate one another." S.M. was discomfited and shocked by the question. Later, after leaving the examination room, she told a nurse at the

   facility that she did not like Respondent. S.M. felt that the nurse did not want S.M. to be heard by any other persons nearby.

   
   

   Patient E.B.

   
   

5. Patient E.B. was seen by Respondent on August 17, 1990, at the Calhoun County Health Department. Following performance of a pap smear procedure, the nurse left the room with the specimen. Respondent touched E.B. between her legs and asked her if she liked sex, how many times a night did she have sex and how many orgasms she had. E.B. was "throwed for a loop" and gave no answer. She had not asked any questions of Respondent to precipitate such sexual inquiries.

   
   

   Patient M.H.A.

   
   

6. On December 13, 1990, Patient M.H.A. was seen by Respondent for a gynecological examination. M.H.A. was 14 years of age at the time. Following departure of the nurse from the examining room with the pap smear specimen, Respondent was left alone with the patient. Respondent asked M.H.A. if her boyfriend had a big penis and if her boyfriend liked her because she had big breasts. Shocked and surprised at these questions, but unsure of their propriety since this was her first gynecological examination, M.H.A. gave Respondent no answer to his questions. Upon the nurse's return to the examination room a short time later, M.H.A. dressed and left the room.

   
   

   Patient R.H.P.

   
   

7. On August 23, 1989, R.H.P. was examined by Respondent. Again, when the nurse left the examination room with the pap smear specimen leaving Respondent alone with the undressed patient, Respondent began asking questions. He asked the female patient if she ever had an orgasm. Being 14 years old, she replied that she didn't know what that was. Respondent asked R.H.P. if she went with her boyfriend for the size of his penis. R.H.P. said no. Respondent left the room, the nurse returned and R.H.P. dressed and left the facility.

   
   

8. L.H. is the mother of Patient R.H.P and Patient M.H.A. At final hearing, L.H. related that M.H.A. told her the questions asked by Respondent during the child's examination. Patient R.H.P. confirmed to her mother that she had been asked similar questions. L.H.'s testimony is credible and corroborative of her daughters' testimony with regard to Respondent's conduct.

   
   

   Respondent

   
   

9. Respondent is 74 years of age and has dedicated his professional career to the practice of medicine in the Blountstown area. As a matter of routine, Nurses Pratt and Johnson left Respondent alone with his female gynecological patients at the times in question in these proceedings when they left the examination room with specimens destined for laboratory analysis.

   
   

10. While she never heard Respondent ask inappropriate questions, Nurse Pratt admits that some patients informed her that they were uncomfortable with examination by Respondent and never wanted to be examined by him again. Respondent's denial that he asked the questions about which his patients testified, is not credited.

    
    

11. As established by the testimony of Elga White, M.D. and Harvey Gardy, M.D., experts testifying on behalf of Respondent and Petitioner, respectively, the questions posed by Respondent to the four patients which form the subject of

    this proceeding were inappropriate in the absence of initiation of such sexual inquiries by the patients.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. Petitioner bears the burden of proof of the charges set forth in the Administrative Complaint in this case. Since a final determination of Respondent's culpability could result in the revocation of Respondent's license, the proof that Respondent has committed those violations must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

14. In addition to count three for which all parties agree should be dismissed, there are two remaining counts in the Administrative Complaint filed in this case. Count one alleges Respondent exercised influence within a patient-physician relationship for purposes of engaging the patient in sexual activity, a violation of Section 458.331(1)(j), Florida Statutes. The patients accounts' of Respondent's posing of inappropriate questions of a graphically sexual nature are candid and credible. Petitioner has proven count one of the Administrative Complaint in this case by clear and convincing evidence.

    
    

15. As alleged in count two of the Administrative Complaint, Respondent's inappropriate behavior in the examining room also constitutes practice below the standard of care, skill and treatment recognized by a reasonably prudent similar physician as acceptable under similar conditions and circumstances, a violation of Section 458.331(1)(t), Florida Statutes. Respondent's failure to have a female attendant present during his presentation of sexually graphic questions to the sheet draped patients, some of very tender years, following their examinations also demonstrates Respondent's guilt of this count of the Administrative Complaint.

RECOMMENDATION

Based on the foregoing and in accordance with Petitioner's penalty guidelines set forth in Rule 61F6-20.001, Florida Administrative Code, it is hereby

RECOMMENDED that a Final Order be entered finding Respondent guilty of the violations alleged in counts one and two of the Administrative Complaint and imposing discipline upon Respondent's license as follows:

1. Imposition of an administrative fine of $5,000.

   
   

2. Suspension of Respondent's license to practice medicine for a period of not less than six months with reinstatement upon satisfaction of conditions to be imposed by the Board of Medicine.

   
   

3. Imposition of a probationary period of two years following reinstatement with probationary conditions to be determined by the Board of Medicine, inclusive of a condition that Respondent have a female attendant present at all times when he is with a disrobed female patient in an examining room.

DONE AND ENTERED this 31st day of October, 1994, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 31st day of October, 1994.

APPENDIX

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's Proposed Findings.

1.-13. Adopted in substance, but not verbatim.

Respondent's Proposed Findings.

1.-6. Adopted.

7.-16. Rejected, unnecessary.

17. Incorporated by reference.

18.-20. Rejected, unnecessary, with exception of last sentence of proposed finding #20, which is not supported by weight of the evidence. Pratt did receive complaints from patients about inappropriate questions. See, Tr.153.

21. Rejected, subordinate to HO findings.

22.-27 Rejected, unnecessary and subordinate to HO findings. 28.-29. Adopted.

30.-38. Rejected, subordinate to HO findings.

39. Adopted.

40.-47. Rejected, subordinate to HO findings.

1. Adopted.

2. Rejected, unnecessary.

50.-54. Rejected, subordinate to HO findings.

55.-64. Rejected, argumentative, credibility with regard to the comments made to R.H.P. clearly sides with R.H.P. Proposed findings are subordinate to HO findings.

65.-72. Rejected, subordinate to HO findings, argument. 73.-74. Rejected, unnecessary.

75.-77. Rejected, argument.

78.-82. Rejected, subordinate to HO findings.

COPIES FURNISHED:

Michael P. Spellman, Attorney at Law

P. O. Box 1674

Tallahassee, FL 32302-1674

Francesca Plendl, Senior Attorney D B P R

1940 N. Monroe St., Ste. 60

Tallahassee, FL 32399-0792

Jack McRay, General Counsel Department of Professional Regulation The Northwood Centre, Suite 60

1940 N. Monroe St. Tallahassee, FL 32399-0750

Marm Harris, Executive Director Board of Medicine

Department of Professional Regulation The Northwood Centre

1940 N. Monroe St. 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: 94-002051

Orders for Case No: 94-002051