A formal administrative hearing in this case was held by video teleconference on August 18, 2009, in Tallahassee and Orlando, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.
For Petitioner: Patrick L. Butler, Esquire
For Respondent: James B. Meyer, Esquire
The issues in this case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
By Administrative Complaint dated February 24, 2009, the Department of Health (Petitioner) alleged that Patrick Gorman, Psy.D. (Respondent), violated Subsection 490.009(1)(r), Florida Statutes (2007), and, by violating Florida Administrative Code Rule 64B-19.0025(1), also violated Subsection 490.009(1)(w), Florida Statutes (2007).1 The Respondent disputed the allegations and requested a formal administrative hearing. By letter dated May 22, 2009, the Petitioner forwarded the matter to the Division of Administrative Hearings.
The hearing was initially scheduled to commence on July 30, 2009; was continued at the request of the parties; and was subsequently scheduled for August 18, 2009. The hearing was transferred to the undersigned Administrative Law Judge on August 5, 2009.
On August 4, 2009, the parties filed a Joint Pre-hearing Stipulation, including a statement of facts that have been incorporated herein as necessary.
At the hearing, the Petitioner presented the testimony of three witnesses and had Exhibits numbered 1 through 8 admitted into evidence. The Respondent testified on his own behalf, presented the testimony of one additional witness, and had Exhibits numbered 1 through 5 admitted into evidence.
The three-volume Transcript of the hearing was filed on October 5, 2009. The Respondent filed a Proposed Recommended Order on October 21, 2009. The Petitioner filed a Proposed Recommended Order on October 26, 2009.
On November 10, 2009, the Respondent filed Exceptions to the Petitioner's Proposed Recommended Order, and the Petitioner filed a Motion to Strike the Respondent's Exceptions and for Sanctions. On November 16, 2009, the Respondent filed a Motion to Withdraw Exceptions. Upon review of the motions, it is hereby ordered that the Petitioner's Motion to Strike and for Sanctions is denied, and the Respondent's Motion to Withdraw Exceptions is granted.
At all times material to this case, the Respondent was licensed as a psychologist by the State of Florida, Department of Health, Board of Psychology, license number PY 4151, with an address of record at 1870 Aloma Avenue, No. 280, Winter Park, Florida 32789.
On September 3, 2006, patient R.F., then a 29-year-old female, arrived at the emergency room (ER) of Winter Park Memorial Hospital (WPMH), with symptoms of severe abdominal pain. She was measured as 66" tall and 97.5 pounds. She required a blood transfusion shortly after her arrival at the ER
and was admitted to WPMH with a diagnosis of anorexia and anemia.
The patient's hospitalization followed several months of digestive illness and weight loss. Despite receiving medical care from a family practitioner, there was no apparent diagnosis of the illness prior to her admission to WPMH on September 3, 2006.
On September 5, 2006, the Respondent received a consultation referral for the patient from her attending physician at WPMH. At the time of the request, hospital staff had been unable to determine a cause for her weight loss and medical condition.
On September 6, 2006, the Respondent met with and interviewed the patient in her room at WPMH. During his interview, he asked questions related to memory, eating habits, body image, and depression.
As part of his consultation with the patient, the Respondent provided three screening tests to her: the Beck Anxiety Inventory (BAI), the Beck Depression Inventory (BDI) and the Eating Disorder Diagnostic Scale (EDDS).
While the patient completed the tests, the Respondent left her hospital room and went to talk with the nursing staff.
The nurses notes in the patient's file reported an episode of vomiting by the patient during her admission. At the
hearing, the patient acknowledged one episode of vomiting at the hospital. There was no evidence that the vomiting incident was a symptom of an eating disorder or an attempt by the patient to "purge."
The nurse’s notes also indicated that the patient's husband had exhibited anger during a hospital visit with the patient, suggesting that there was conflict between the patient and her husband.
The Respondent confirmed the information in the nursing notes during his conversation with the nursing staff.
The Respondent also discussed the patient with her attending physician at WPMH, who acknowledged that no medical explanation for the weight loss had been identified.
After completing his discussions with the nursing and medical staff, the Respondent returned to the patient and assisted her in completing the tests.
The Respondent made no attempt to contact the Respondent's family practitioner to obtain medical history or any other information relevant to her symptoms.
Believing that discussing the situation with the patient's husband would be unproductive, the Respondent made no attempt to talk with the husband. He also made no attempt to talk to any other member of the patient's family.
Following his review of her responses, the Respondent offered a "working" diagnosis of anorexia, depression (NOS), and anxiety disorder (NOS).
The Respondent's diagnosis appears to be based, at least in part, on the fact that no other cause for the patient's deteriorated medical condition had been identified at the time he conducted his evaluation.
The evaluation of the patient performed by the Respondent at WPMH was insufficient to establish a clinical diagnosis of anorexia.
The DSM-IV-TR criteria for establishing a diagnosis of anorexia nervosa include: (a) body weight less than 85 percent of expected, (b) intense fear of gaining weight or with becoming overweight even when underweight, (c) body image distortion and/or related distorted beliefs, and (d) amenorrhea or the absence of at least three consecutive menstrual cycles.
There was no credible evidence that the patient exhibited either the second or third criteria for diagnosis of anorexia nervosa at the time of the diagnosis.
There was no evidence that the patient exhibited an intense fear of gaining weight or with becoming overweight. To the contrary, the patient clearly expressed concern about her weight loss and her physical condition.
There was no evidence that the patient exhibited body image distortion. The patient was aware of her weight loss. Although there was some dispute regarding the extent of weight loss preceding the admission to WPMH, with the patient estimating at 20-to-25 pounds and the mother-in-law estimating as much as 50 pounds, the Respondent had no discussion with the mother-in-law prior to rendering his diagnosis, and there was no indication that the patient's self-report was incorrect.
Additionally, although the patient's responses to the screening tools were indicative of elevated anxiety, the responses were insufficient to distinguish between anxiety related to symptoms of physical disease and anxiety resulting from psychological illness.
The BAI is useful as a screening measure for the severity of anxiety in adults and evaluates physiological and cognitive symptoms of anxiety. The patient's scores on the BAI suggested the presence of anxiety potentially related to physical illness.
The patient's score on the BDI were suggestive of depression potentially related to a physical condition.
The EDDS is a brief self-reporting tool for screening anorexia nervosa, bulimia nervosa, and binge-eating disorder, but is not regarded as a diagnostic instrument.
The Eating Disorder Examination (EDE), a semi- structured interview, was developed to assess the specific psychopathology of anorexia nervosa and bulimia nervosa. The Respondent did not administer an EDE to the patient.
Based on the patient's responses to the screening tests, the Respondent should have continued his evaluation of the patient to confirm his working diagnosis; however, after rendering his working diagnosis, the Respondent conducted no further review and had no intentions of doing so. At the conclusion of his evaluation on September 6, 2007, the Respondent did not anticipate any further interaction with the patient.
Although the Respondent's notes indicate that he performed the evaluation, including testing, the records lack detail sufficient to document the Respondent's inquiry and any analysis resulting in his diagnosis.
There is no narrative or textual documentation of any discussion between the Respondent and the patient as to the patient's medical history.
The Respondent's records fail to reflect any discussion related to the patient's self-image and food other than a score on the EDDS instrument.
There is no documentation within the Respondent's records of any discussion related to the use of laxatives other than a score on the EDDS instrument.
Although at the hearing, the Respondent opined that the patient was unable to verbalize emotions (alexithymia), the Respondent's records do not document the finding.
The Petitioner has asserted that the entire consultation was completed in an hour and 15 minutes and that the patient interview period was not long enough.
The Respondent asserted that, due to the type of referral received, he was required by hospital policy to complete his assessment within a 24-hour period.
The Respondent also asserted that the patient's medical condition did not permit an extended consultation at WPMH on September 6, 2006.
The evidence failed to establish that either hospital policy or the patient's condition precluded the Respondent from conducting additional interviews or tests to confirm his diagnosis.
The Respondent communicated his diagnosis to the patient on September 6, 2006, and recommended admission on a voluntary basis into an eating disorder clinic for further evaluation and treatment after discharge from the hospital. The Respondent believed that the patient concurred with his
recommendation on that date, and he immediately contacted the hospital case managers to begin the process of arranging her admission to the eating disorder clinic.
At the hearing, the patient testified that she did not believe she had an eating disorder or any psychological issue related to her hospitalization at WPMH and that she did not agree with the Respondent's recommendation that she voluntarily enter an eating disorder clinic after discharge.
On September 7, 2006, the Respondent was advised by an urgent telephone call from a WPMH nurse that the patient was attempting to leave the hospital against the advice of her physicians. At the request of the nurse, the Respondent returned to WPMH and met with the patient and her mother-in-law.
The mother-in-law was dissatisfied with the hospital's failure to determine a medical cause for the patient's illness.
The mother-in-law believed that the WPMH staff was intent on discharging the patient to an eating disorder clinic and was refusing to perform additional diagnostic testing.
The mother-in-law had discussed the matter with the family physician and was convinced that leaving the hospital and proceeding through the family physician would result in additional testing. Accordingly, the mother-in-law was encouraging the patient to leave the hospital.
The Respondent discussed the situation with the attending physician and received confirmation that no further medical tests were planned.
After talking to the attending physician, the Respondent attempted to convince the patient and her mother-in- law that potentially serious medical risks were presented by removing the patient from the hospital at that time. Based on the patient's condition at the time of her arrival to the ER, the Respondent's concern was reasonable.
After failing to convince the patient and her mother- in-law that the patient's health was at risk, the Respondent determined that the patient met statutory criteria for an involuntary "Baker Act" commitment to the hospital.
The Respondent believed that the patient was leaving the hospital against medical advice, that the patient would not stay in the hospital voluntarily, that the patient was not able to care for herself, and that no appropriate caretaker was available.
At the hearing, the patient testified that she was willing to remain at the hospital for further medical testing; however, the evidence suggests that, because no further medical tests were planned, the patient was in the process of leaving WPMH against medical advice.
Based on the patient's condition upon her arrival at the ER and the fact that no medical cause or treatment had been identified for her illness, it is reasonable to presume that she was incapable of caring for herself on September 7, 2006.
Although the mother-in-law was insistent that she could care for the patient in her home, it is unlikely that adequate care outside a medical setting was available to the patient at that time, given the condition of the patient upon her admission to the ER.
The Respondent implemented the Baker Act commitment with the agreement of the patient's attending physician. The Respondent informed the patient and her mother-in-law of the action, and then the Respondent left the hospital.
On September 9, 2006, the patient was administered a colonoscopy at WPMH and was subsequently diagnosed with Crohn's disease, a condition for which medical treatment was available.
On September 12, 2006, the Respondent had a follow-up consultation with the patient at WPMH. The Baker Act commitment was not renewed.
On September 14, 2006, the patient was discharged from
WPMH.
After the discharge, the patient continued to receive
medical treatment for Crohn's disease, and her health began to
improve, including reduction of symptoms and appropriate weight gain.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2009).
The Petitioner is the state agency charged with regulating the practice of psychology. § 20.43 and Chapters 456 and 490, Fla. Stat. (2006).
The Petitioner has the burden of proving by clear and convincing evidence the allegations against the Respondent set forth in the Administrative Complaint. Department of Banking
and Finance v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Clear and convincing evidence is that which is credible, precise, explicit, and lacking confusion as to the facts at issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of conviction, without hesitancy, as to the truth of the allegations. Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
Section 490.009, Florida Statutes (2006), provides, in relevant part, as follows:
490.009 Discipline.--
(1) The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):
* * *
(r) Failing to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance, including the undertaking of activities for which the licensee is not qualified by training or experience.
* * *
(w) Violating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto.
The evidence establishes that the Respondent violated Subsection 490.009(1)(r), Florida Statutes (2006), by conducting an inadequate psychological evaluation of the patient and rendering an erroneous diagnosis of anorexia nervosa.
Florida Administrative Code Rule 64B19-19.0025 provides as follows:
64B19-19.0025 Standards for Records.
To serve and protect users of psychological services, psychologists’ records must meet minimum requirements for chronicling and documenting the services performed by the psychologist, documenting informed consent and recording financial transactions.
Records for chronicling and documenting psychologists’ services must include the following: basic identification data such as name, address, telephone number, age and sex; presenting symptoms or requests for
services; dates of service and types of services provided. Additionally, as applicable, these records must include: test data (previous and current); history including relevant medical data and medication, especially current; what transpired during the service sessions; significant actions by the psychologist, service user, and service payer; psychologist’s indications suggesting possible sensitive matters like threats; progress notes; copies of correspondence related to assessment or services provided;
and notes concerning relevant psychologist’s conversation with persons significant to the service user.
Written informed consent must be obtained concerning all aspects of services including assessment and therapy.
A provisionally licensed psychologist must include on the informed consent form the fact that the provisional licensee is working under the supervision of a licensed psychologist as required by Section 490.0051, F.S. The informed consent form must identify the supervising psychologist.
Records shall also contain data relating to financial transactions between the psychologist and service user, including fees assessed and collected.
Entries in the records must be made within ten (10) days following each consultation or rendition of service. Entries that are made after the date of service should indicate the date the entries are made, as well as the date of service.
The evidence establishes that by violating Florida Administrative Code Rule 64B-19.0025(1), the Respondent also violated Subsection 490.009(1)(w), Florida Statutes (2006). The
Respondent's documentation of his consultation with the patient failed to meet the minimal standards for recordkeeping applicable to this case.
Florida Administrative Code Rule 64B19-17.002 sets forth relevant disciplinary guidelines. The penalty for violations of Subsections 490.009(1)(r) and 490.009(1)(w), Florida Statutes, is the same, ranging from a reprimand and
$1,000 fine to revocation and a fine up to $10,000.
Florida Administrative Code Rule 64B19-17.002(2) provides as follows:
Based upon consideration of aggravating and mitigating factors present in an individual case, the Board may deviate from the penalties recommended above. The Board shall consider as aggravating or mitigating circumstances the following:
The danger to the public;
The length of time since the date of violation;
The number of complaints filed against the licensee;
The length of time the licensee has practiced without complaint or violations;
The actual damage, physical or otherwise, to the patient;
The deterrent effect of the penalty imposed;
The effect of the penalty upon the licensee’s livelihood;
Any efforts the licensee has made toward rehabilitation;
The actual knowledge of the licensee pertaining to the violation;
Attempts by the licensee to correct or stop violations or refusal by the licensee to correct or stop violations;
Related violations found against the licensee in another state including findings of guilt or innocence, penalties imposed and penalties served;
Any other mitigating or aggravating circumstances that are particular to that licensee or to the situation so long as the aggravating or mitigating circumstances are articulated in the Board’s final order.
There have been no prior disciplinary actions taken against the Respondent.
Although the patient was clearly displeased by having been the subject of an involuntary commitment, the fact remains that the patient was in the process of leaving the hospital against the advice of physicians and that a test performed during the period of her commitment resulted in an apparently accurate diagnosis of the illness. Accordingly, the patient suffered no actual harm by the actions of the Respondent or his misdiagnosis of her illness.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a
final order finding Patrick Gorman, Psy.D., in violation of Subsections 490.009(1)(r) and 490.009 (1)(w), Florida Statutes (2006), and imposing a penalty as follows: a reprimand and an administrative fine of $1,000.
DONE AND ENTERED this 11th day of December, 2009, in Tallahassee, Leon County, Florida.
WILLIAM F. QUATTLEBAUM
Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 2009.
1/ The Administrative Complaint filed by the Petitioner against the Respondent alleged that the events set forth herein occurred in 2007 and cited Florida Statutes (2007) as the basis for the disciplinary action. The Respondent's Response to the Administrative Complaint specifically stated that there was no dispute as to the dates alleged within the complaint. However, in the Joint Pre-hearing Stipulation, the parties stated that the events occurred in 2006. At the commencement of the hearing, the Administrative Law Judge granted the Petitioner's Motion for Official Recognition of the relevant portions of the 2006 Florida Statutes.
Patrick L. Butler, Esquire Department of Health
James B. Meyer, Esquire
Josefina M. Tamayo, General Counsel Department of Health
Susie K. Love, Executive Director Board of Psychology
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.
