STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 98-0938

)

GUY DURAND, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on October 30, 1998, in Fort Lauderdale, Florida, before Administrative Law Judge Michael M. Parrish of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Carol A. Lanfri, Esquire

Kristina L. Sutter, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Guy Durand, M.D., pro se

Kingston Plaza, Suite 207 8251 West Broward Boulevard

Plantation, Florida 33324-2734 STATEMENT OF THE ISSUES

This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations of misconduct set forth in a three-count Administrative Complaint. The Respondent is

charged with having violated the following statutory provisions: Sections 458.331(1)(j), 458.331(t), and 458.331(1)(x), Florida Statutes.

PRELIMINARY STATEMENT

Following service of the Administrative Complaint, the Respondent timely requested an evidentiary hearing, and the proceeding was duly transferred to the Division of Administrative Hearings for assignment of an administrative law judge. The proceeding was scheduled for hearing in due course. Thereafter, for a variety of reasons, on several occasions the final hearing was continued and rescheduled for a later date. Eventually, the final hearing was conducted in Fort Lauderdale, Florida, on October 30, 1998.

During the course of the final hearing, the Petitioner presented the live testimony of three witnesses. The Petitioner also offered six exhibits, all of which were received in evidence. The Respondent presented the testimony of three witnesses. The Respondent also offered six exhibits, two of which were received in evidence.1

At the conclusion of the hearing, the parties were allowed

20 days from the filing of the transcript within which to file their respective proposed recommended orders. The transcript of the hearing was filed with the Division of Administrative Hearings on December 31, 1998. Thereafter, there were disputes about the accuracy of numerous portions of the transcript of the

final hearing. Telephone conferences were held to discuss the procedure for resolving those disputes. Both parties were also afforded an opportunity to present their views in writing.

Following a review of the entire transcript and consideration of the arguments of all parties, on March 22, 1999, an order was issued addressing all disputes about the transcript and establishing a deadline of April 12, 1999, for the submission of proposed recommended orders. Both parties submitted timely proposed recommended orders. The proposals of both parties have been carefully considered during the preparation of this Recommended Order.2

FINDINGS OF FACT

1. The Respondent is, and has been at all times material to this proceeding, licensed as a physician in the State of Florida, having been issued license number ME 0043763. The Respondent specializes in general medicine and is not board certified.

2. On November 25, 1996, patient A. J., a 28-year-old female, presented to the Respondent for the purpose of having a physical examination performed by a physician. The patient A. J. sought the physical examination for the purpose of complying with requirements of the Immigration and Naturalization Service ("INS"). The patient A. J. brought with her an INS physical examination form. The form included instructions to the person to be examined, as well as instructions to the physician who would perform the examination. The instructions to the person to

   be examined included: "The doctor will examine you for certain physical and mental health conditions. You will have to take off your clothes." The instructions to the physician performing the examination included the following:

   Please medically examine for adjustment of status the individual presenting this form. The medical examination should be performed according to the U. S. Public Health Service "Guidelines for Medical Examination of Aliens in the United States" and Supplements, which have been provided to you separately.

   
   

3. The Respondent was familiar with the INS guidelines for medical examination of aliens in the United States, because he had previously performed such examinations on numerous occasions, and he was a physician who had been approved by the INS to perform such examinations. At the time of the examination of the patient A. J., those guidelines were incorporated in a document titled Technical Instructions for Medical Examination of Aliens in the United States, dated June 1991. At page I-1, the technical instructions included the following in a description of the role of the civil surgeon:

   The civil surgeon is responsible for reporting the results of the medical examination and all required tests on the prescribed forms. The civil surgeon is not responsible for determining whether an alien is actually eligible for adjustment of status; that determination is made by the INS officer after reviewing all records, including the report of the medical examination. (Emphasis added.)

4. At page II-2 the technical instructions included the following description of the required physical examination:

   d. a physical examination, including an evaluation of mental status, sufficient to permit a determination of the presence and the severity of Class A and Class B conditions. The physical examination is to include

   
   

   1. a mental status examination that includes, at a minimum, assessment of intelligence, thought, cognition (comprehension), judgment, affect (and mood), and behavior.

      
      

   2. a physical examination that includes, at a minimum, examination of the eyes, ears, nose and throat, extremities, heart, lungs, abdomen, lymph nodes, skin and external genitalia.

      
      

   3. all diagnostic tests required for the diagnosis of the diseases identified as communicable diseases of public health significance and other tests identified as necessary to confirm a suspected diagnosis of any other Class A or Class B condition.

   
   

5. At all times material to this case, for purposes of INS physical examinations, Class A conditions were: Chancroid, Chronic alcoholism, Gonorrhea, Granuloma inguinale, Hansen's disease (infectious), HIV infection, Insanity, Lymphogranuloma venereum, Mental defect, Mental retardation, Narcotic drug addiction, Previous occurrence of one or more attacks of insanity, Psychopathic personality, Sexual deviation, Syphilis (infectious), and Tuberculosis (active). Class B conditions were: Hansen's disease (not infectious), Tuberculosis (not active), and "Other physical defect, disease or disability."

6. At page II-2, the technical instructions clarified that: "The responsibility of the civil surgeon is only to conduct the

   examination and testing required to determine the alien's status regarding Class A and Class B conditions and to complete the medical report form. . . . If the alien needs further evaluation or treatment for conditions not relevant to the medical examination, the physician should advise the alien of this and should make recommendations for appropriate diagnostic evaluation and treatment."

7. The patient A. J. had an appointment for 5:00 p.m. She had requested a late afternoon appointment to minimize the time she would miss from her work. When the patient A. J. arrived at the Respondent's office, the Respondent was the only other person present in the office. During the entire time that the patient

   A. J. was in the Respondent's office on November 25, 1996, the only people in the office were the patient A. J. and the Respondent.

8. Upon her arrival, the Respondent took the patient A. J. to an office, where she filled out some paperwork, including her name, address, and telephone number. The Respondent inquired as to exactly where on her street her residence was located. The Respondent made repeated inquiries about the location of the patient's residence and even asked the patient to draw a map to her residence. The Respondent asked the Patient A. J. if he could stop by her house sometime. The patient A. J. said, "No." The Respondent also asked the patient A. J. if she was married and if her marriage was "real."

9. After finishing the paper work, the Respondent took the patient A. J. into a laboratory room, where he drew blood for two of the tests, and also administered the agent for the skin test for tuberculosis. The Respondent then took the patient A. J. to an examination room, gave her a gown, and instructed her to remove her clothing. The patient A. J. inquired as to whether she should remove her underpants. The Respondent replied, "Only if you want me to do a pelvic." The patient A. J. thereupon told the Respondent that she was due for a PAP test and that she needed birth control pills.

10. The Respondent told the patient A. J. that it would be a good idea for her to start using birth control pills, in case she wanted to do anything while her husband was not around, because the pills would be added protection against pregnancy. The patient A. J. told the Respondent that she did not sleep around, to which he replied, "You can never tell what will happen."

11. During the entire time the patient A. J. was in the Respondent's office, there was music playing in the office. The physical examination included an examination of the patient's breasts. While examining the patient's breasts, the Respondent sang along with the music. The Respondent also commented to the patient A. J. that the singer on the background music, Luther Vandross, was the greatest love song singer of all time.

12. Following the examination that was required by the INS, the Respondent performed an internal pelvic examination of the patient A. J. This was an examination that involved the insertion of instrumentation and the insertion of the doctor's fingers into the vagina of the patient. The Respondent took an excessive amount of time in performing the internal pelvic examination. During the course of the internal pelvic examination, the Respondent told the patient A. J. that she had a heavy discharge. He then proceeded to ask her how often she became sexually aroused and how easily she became sexually aroused.

13. During the course of the internal pelvic examination the patient A. J. became worried and asked the Respondent if the two of them were the only people in the office. The Respondent replied in the affirmative. The patient then began to feel afraid when it was confirmed that she was alone with the Respondent. Her fear arose from the fact that she was alone with a physician who had been making what she considered to be inappropriate comments and questions about her marriage, her affairs, and her sexual arousal.

14. The internal pelvic examination of the patient A. J. was not required by the INS. The Respondent would not have conducted an internal pelvic examination of A. J. if she had not requested that such an internal examination be performed. The specific reasons for which A. J. requested, and consented to, an

    internal pelvic examination was to have a PAP smear performed and to determine if she had any condition that would contra-indicate the use of birth control pills. The patient A. J. believed that a physician could not, or would not, prescribe birth control pills without first conducting a PAP smear and an internal pelvic examination. The patient was correct in this belief. Acceptable standards of medical practice mandate that a physician perform a PAP smear and conduct an internal pelvic examination prior to prescribing birth control pills to a patient. If the Respondent was not going to perform a PAP smear and was not going to prescribe birth control pills, there was no reason for him to perform an internal pelvic examination of the patient A. J.

15. During the course of the internal pelvic examination, the Respondent did not do a PAP smear of the patient A. J. The Respondent also refused to prescribe birth control pills for the patient A. J. When the patient repeated her request for a prescription for birth control pills, the Respondent replied that he could not prescribe the birth control pills for "personal reasons." When the patient inquired as to what he meant by "personal reasons," the Respondent said that he did not want to establish a doctor/patient relationship with the Respondent "because you can never tell what the future might bring." The Respondent also said to the patient A. J. that "in the future we might get involved," and he went on to explain that if that were to be the case, he could get in trouble if he were to be her

    doctor. The Respondent also told the patient A. J. that she was "too charming" to be his patient, and mentioned again that he didn't want to prescribe the birth control pills for her "because he didn't know if in the future we might have an affair," and for that reason he did not want to get into a doctor/patient relationship with the patient A. J.

16. During a discussion following the examination, the Respondent asked the patient A. J. to return the following Friday (the day after Thanksgiving) to obtain the results of her blood tests and to have her skin test read. The patient told the Respondent she had plans for the long weekend and asked if she could return on Wednesday. The Respondent agreed that she could return on Wednesday. He also inquired about her weekend plans. The patient A. J. told the Respondent that she was going on a fishing trip with a girlfriend. Thereupon the Respondent asked the patient if she would go fishing with him sometime. He went on to mention that someone had given him some new fishing equipment that he had never had a chance to use.

17. When patient A. J. asked how much she owed for the examination, the Respondent replied, "the cost is usually

    $2,000.00, but for you it will only be $120.00."

    
    

18. As the patient A. J. was exiting the Respondent's office, the Respondent followed her out to her car. The patient had not asked the Respondent to escort her to her car and his

    presence made her nervous because she did not know his purpose in following her out to the car.

19. As a result of the Respondent's comments and conduct, the patient A. J., in her words, "felt violated." The patient felt that many of the Respondent's comments and questions were inappropriately personal. She also felt that the Respondent had taken advantage of her by conducting an internal pelvic examination for the purported purpose of performing a PAP smear and determining if there was any condition that contra-indicated her use of birth control pills, and then not performing a PAP smear and not prescribing birth control pills because of the Respondent's interest in the possibility that they might have a future affair.

20. Two days later, on Wednesday, November 27, 1996, the patient A. J. returned to the Respondent's office for the purpose of obtaining the results of the blood tests and to have her skin test read. On this occasion the patient was not alone with the Respondent at any time and she had only minimal contact with him. The Respondent did notice that the patient seemed to have a hostile attitude.

21. On Friday, November 28, 1996, the Respondent called the home telephone number of the patient A. J. The patient was home, but she did not answer the telephone. The Respondent left a message on the patient's answering machine to the effect that he

    was just calling to "touch base" and that he would call her again later. There was no medical purpose for the telephone call.

22. The comments and questions the Respondent made to the patient A. J. regarding such matters as whether her marriage was real, commenting that she was charming, asking her to go fishing with him, suggesting the possibility of a future affair, requesting a map to her house, asking if he could come visit her, and asking about her sexual arousal, all constitute inappropriate and unacceptable conversation by a physician to a patient. Comments and questions of this nature may reasonably be interpreted by the patient as being sexual in nature.

23. It is a departure from accepted standards of medical practice for a physician to perform an internal pelvic examination on a patient without also having a third person in the examination room. A reasonably prudent, similar physician acting under similar conditions and circumstances would not perform an internal pelvic examination on a patient without also having a third person in the examination room.

24. It is a departure from accepted standards of medical practice for a physician to perform an unnecessary internal pelvic examination on a patient. A reasonably prudent, similar physician acting under similar conditions and circumstances would not perform an unnecessary internal pelvic examination on a patient.

    CONCLUSIONS OF LAW

    
    

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

26. In a proceeding of this nature, proof greater than a mere preponderance of the evidence must be submitted. Clear and convincing evidence is required. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); McKinney v. Castor, 667 So. 2d 387, 388 (Fla. 1st DCA 1995); Tenbroeck v. Castor, 640 So. 2d 164, 167 (Fla. 1st DCA 1994); Nair v. Department of Business and Professional Regulation, 654 So. 2d 205, 207 (Fla. 1st DCA 1995); Pic N' Save v. Department of Business Regulation, 601 So. 2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation, 592 So. 2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So. 2d 500 (Fla. 3d DCA 1991); Pascale v. Department of Insurance, 525 So. 2d 922 (Fla. 3d DCA 1988); Section 120.57(1)(h), Florida Statutes. ("Findings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute.").

27. "'[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the

    witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. 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.'" In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v.

    Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

28. The disciplinary action taken against the licensee may be based only upon those offenses specifically alleged in the administrative complaint. See Cottrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996); 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).

29. In determining whether Section 458.331(1), Florida Statutes, has been violated in the manner charged in the administrative complaint, one "must bear in mind that it is, in effect, a penal statute. . . . This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

30. At all times material to this proceeding, Section 458.331(1), Florida Statutes, included the following as grounds for which disciplinary action could be taken against a licensed physician:

    (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.

    
    

    ***

    
    

    (t) Gross or repeated malpractice or the failure 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.

    
    

    ***

    
    

    (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 of the department.

    
    

31. At all material times, Section 458.329, Florida Statutes, read 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.

32. At all material times, Section 458.305, Florida Statutes, included the following definition: "'Practice of medicine' means the diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical or mental condition."

33. At all material times, Rule 64B8-9.008, Florida Administrative Code, included the following:

    1. Sexual contact with a patient is sexual misconduct and is a violation of Sections 458.329 and 458.331(1)(j), Florida Statutes.

    2. For purposes of this rule, sexual misconduct between a physician and a patient includes, but it is not limited to:

       1. Sexual behavior or involvement with a patient including verbal or physical behavior which

          1. may reasonably be interpreted as romantic involvement with a patient regardless of whether such involvement occurs in the professional setting or outside of it;

          2. may reasonably be interpreted as intended for the sexual arousal or gratification of the physician, the patient or any third party; or

          3. may reasonably be interpreted by the patient as being sexual.

       2. Sexual behavior or involvement with a patient not actively receiving treatment from the physician, including verbal or physical behavior or involvement which meets any one or more of the criteria in paragraph (2)(a) above and which

       1. results from the use or exploitation of trust, knowledge, influence or emotions derived from the professional relationship;

       2. misuses privileged information or access to privileged information to meet the physician's personal or sexual needs; or

       3. is an abuse or reasonably appears to be an abuse of authority or power.

    3. Sexual behavior or involvement with a patient excludes verbal or physical behavior

       that is required for medically recognized diagnostic or treatment purposes when such behavior is performed in a manner that meets the standard of care appropriate to the diagnostic or treatment situation.

    4. The determination of when a person is a patient for purposes of this rule is made on a case by case basis with consideration given to the nature, extent, and context of the professional relationship between the physician and the person. The fact that a person is not actively receiving treatment or professional services from a physician is not determinative of this issue. A person is presumed to remain a patient until the patient-physician relationship is terminated.

       ***

       
       

       (7) A patient's consent to, initiation of, or participation in sexual behavior or involvement with a physician does not change the nature of the conduct nor lift the statutory prohibition.

       
       

34. Count One of the Administrative Complaint charges the Respondent with having violated Section 458.331(1)(j), Florida Statutes. In this regard it is asserted in the Administrative Complaint that:

    The Respondent is guilty of violating Section 458.331(1)(j), Florida Statutes, by exercising influence within a patient- physician relationship for purposes of engaging or attempting to engage the patient into sexual activity outside the scope of the generally accepted examination or treatment of the patient as follows:

    1. without another female present.

       
       

    2. Performing an unnecessary and prolonged pelvic examination on AJ under the ruse of doing a pap smear and prescribing birth control pills then failed to do the pap smear or prescribe the birth control pills.

       Consequently, there was no purpose in conducting a pelvic exam on AJ.

       
       

    3. Exhibiting verbal and physical behavior toward patient AJ that were reasonably interpreted by AJ as being sexual by:

    1. Asking Patient AJ if she had a "real" marriage.

    2. Telling AJ she is too charming to be his patient.

    3. Indicating to Patient AJ she needed birth control pills suggesting AJ may want to participate in extra-marital sex.

    4. Inquiring as to the exact location of Patient AJ's home and requesting the patient draw him a map to her home.

    5. Asking Patient AJ if he could visit her home.

    6. Asking Patient AJ if he could go along on a fishing excursion she had planned with a female friend over Thanksgiving weekend.

    7. Walking Patient AJ to her car when she did not request him to do so causing Patient AJ to feel uncomfortable.

    8. Attempting to contact patient AJ at her home.

35. The violation charged in Count One of the Administrative Complaint has been proved by clear and convincing evidence. The Respondent's conduct described in the findings of fact, above, is a classic example of the type of conduct that is prohibited by Sections 458.329 and 458.331(1)(j), Florida Statutes, as interpreted by Rule 64B8-9.008, Florida Administrative Code. Accordingly, the Respondent should be found guilty of the violation charged in Count One of the Administrative Complaint.

36. In reaching the foregoing conclusion, the Respondent's arguments regarding the absence of a patient-physician relationship have not been overlooked. The Respondent argues

    that in this case there can be no violation of Section 458.331(1)(j), Florida Statutes, because an essential element of a violation of that statutory provision is the existence of a "patient-physician relationship." The Respondent argues that he never had such a relationship with the patient A. J., because the patient came to his office for the sole purpose of having him perform an INS-required physician examination. In this regard, the Respondent argues that the performance of such an examination does not give rise to a "patient-physician relationship." The argument fails because the matter has been recently resolved otherwise by an appellate court. In Agency for Health Care Administration, Board of Medicine v. Philip William Lortz, M.D., DOAH Case No. 96-0793, 1996 WL 1060225 (Fla. Div. Admin. Hrgs.),

    the administrative law judge concluded: "Respondent established a physician/patient relationship with A. S. when he agreed to review the medical examination form and perform the physical examination in his home."3 This conclusion was adopted in the final order of the Board of Medicine. This conclusion was also quoted and affirmed when the Lortz final order was appealed sub nom Lortz v. Department of Health, 700 So. 2d 383 (Fla. 1st DCA 1997). The first three counts in the Lortz administrative complaint charged violations of subsections (j), (t), and (x) of Section 458.331(1), Florida Statutes. With regard to those counts, the appellate court in Lortz concluded:

    We affirm the order under review to the extent it determines appellant [Dr. Lortz]

    guilty of offenses charged in the first three counts. . . . The first three counts hinged on whether or not a physician-patient relationship existed between appellant and a twenty-two year old college student, A. S. Competent, substantial evidence in the record supports the hearing officer's finding that a physician-patient relationship did exist, a finding the Board of Medicine adopted in its final order.

37. Here, as in the Lortz case, upon the Respondent's agreement to perform a physical examination of the patient A. J., a patient-physician relationship was established. That patient- physician relationship lasted at least until the Respondent had fulfilled all of his obligations regarding the examination and the preparation of all of the required reports related to the examination.

38. Count Two of the Administrative Complaint charges the Respondent with having violated Section 458.331(1)(t), Florida Statutes. In this regard it is asserted in the Administrative Complaint that "Respondent is guilty of violating Section 458.331(1)(t), Florida Statutes, by failing 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 by" reason of the same conduct described in Count One (quoted above).

39. The violation charged in Count Two of the Administrative Complaint has been proved by clear and convincing evidence. It is clear from the evidence in this case that the conduct of the Respondent described in the findings of fact,

    above, is a departure from accepted standards of medical practice and demonstrates a failure 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. Accordingly, the Respondent should be found guilty of the violation charged in Count Two of the Administrative Complaint.

40. Count Three of the Administrative Complaint charges the Respondent with having violated Section 458.331(1)(x), Florida Statutes. In this regard it is asserted in the Administrative Complaint that, by reason of the same conduct described in Count One of the Administrative Complaint, the Respondent has violated Rule 64B8-9.008, Florida Administrative Code, thereby violating Section 458.331(1)(x), Florida Statutes.

41. The violation charged in Count Three of the Administrative Complaint fails because it is founded upon an erroneous interpretation of Rule 64B8-9.008, Florida Administrative Code. The cited rule is not a rule that can be violated because the rule does not, in and of itself, require any specific conduct or prohibit any specific conduct. Rather, it merely interprets and provides guidance regarding the requirements and prohibitions of Sections 458.329 and 458.331(1)(j), Florida Statutes. Accordingly, the violation charged in Count Three of the Administrative Complaint should be dismissed.4

RECOMMENDATION

On the basis of all of the foregoing it is RECOMMENDED that a final order be issued in this case to the following effect:

1. Dismissing the charge in Count Three of the Administrative Complaint;

2. Concluding that the Respondent has violated Sections 458.331(1)(j) and 458.331(1)(t), Florida Statutes, as charged in Counts One and Two of the Administrative Complaint, and

3. Imposing a penalty for those violations consisting of

(a) a letter of reprimand, (b) an administrative fine in the amount of $5,000.00, (c) suspension of the Respondent's license for a period of one year, and (d) placement of the Respondent on probation for a period of one year immediately following the period of suspension, with probation terms to be established by the Board of Medicine. Further, during the period of suspension, the Respondent should be required to attend courses to be determined by the Board of Medicine covering the subject matters of the patient-physician relationship and medical ethics.

DONE AND ENTERED this 15th day of June, 1999, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1999.

ENDNOTES

1/ Rulings on all of the exhibits offered at the final hearing are memorialized in the transcript.

2/ The Respondent's post-hearing submission included three main parts; a part titled "Closing Arguments," a part titled "Proposed Recommended Order," and a part titled "Exhibits and Photographs." The first two parts have been carefully considered during the preparation of this Recommended Order. The third part has not.

The third part consists of photographs and copies of documents, most of which were not offered or received in evidence at the final hearing. The photographs and copies of documents submitted for the first time after the close of the evidentiary hearing are not authorized by statute or rule and are not matters which can be relied upon as a basis for fact-finding. Accordingly, they have been ignored. (Consideration has, of course, been given to the few documents in the Respondent's post-hearing submission that were received in evidence at the hearing.)

3/ The findings of fact in the Lortz recommended order reveal that the patient in that case had not previously been a patient of Dr. Lortz, and that the sole medical reason for which she went to see Dr. Lortz was to have him perform a physical examination and fill out a medical examination form that the patient needed in order to travel to Australia. With respect to the nature of the relationship between the patient and the physician, the facts in the Lortz case are remarkably similar to the facts in this case.

4/ The facts proved in this case, like the facts in the Lortz case, are sufficient to establish a violation of Section 458.331(1)(x), Florida Statutes, by reason of violation of Section 458.329, Florida Statutes, as was charged in Count Three of the Lortz case. However, Count Three of the administrative complaint in this case makes no mention of Section 458.329, Florida Statutes.

COPIES FURNISHED:

Carol A. Lanfri, Esquire Kristina L. Sutter, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

Guy Durand, M.D.

Kingston Plaza, Suite 207 8251 West Broward Boulevard

Plantation, Florida 33324-2734

Tanya Williams, Executive Director Board of Medicine

Department of Health 1940 North Monroe Street

Tallahassee, Florida 32399-0750

Pete Peterson, General Counsel Department of Health

Bin A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701

Angela T. Hall, Agency Clerk Department of Health

Bin A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 98-000938

Orders for Case No: 98-000938