vs.
Respondent.
Case No. 15-5528PL
On December 14 and 15, 2015, Administrative Law Judge Lisa Shearer Nelson of the Division of Administrative Hearings (DOAH or the Division) conducted a duly-noticed hearing in Tallahassee, Florida, pursuant to section 120.57(1), Florida
Statutes (2015).
Jack F. Wise, Esquire Department of Health
Howard & Associates, P.A. 2120 Killarney Way, Suite 125
The issue to be determined is whether Respondent violated sections 456.072(1)(v), Florida Statutes (2012-2013), and
458.331(1)(c), Florida Statutes (2014), as alleged in the Second Amended Administrative Complaint, and if so, what penalty should be imposed for his conduct.
On June 26, 2015, Petitioner, Department of Health (DOH or the Department), filed a four-count Second Amended Administrative Complaint against Respondent, Edwardo Williams, M.D., alleging that Respondent committed sexual misconduct with respect to three patients, M.M., S.D.H., and B.G., and pled nolo contendere to a crime directly relating to the practice or the ability to practice medicine. On August 4, 2015, Respondent disputed the allegations in the Second Amended Administrative Complaint and requested a hearing pursuant to section 120.57(1). On October 1, 2015, the matter was referred to the Division for the assignment of an administrative law judge.
and 15, 2015, and proceeded as scheduled. On December 8, 2015, Petitioner filed a Motion in Limine to exclude the expert testimony of Respondent, because he was not identified as an expert during the course of discovery and the Department did not have notice of his intent to appear as an expert witness at the time of his deposition. After a telephone hearing on the motion on December 10, 2015, Petitioner’s motion was denied. However, by Order dated that same day, Respondent was directed to provide
to Petitioner no later than 5:00 p.m. that day all documents upon which Respondent intended to rely in his deposition scheduled for the following day. The Order also indicated that the record for the hearing would be left open in order to allow the Department to depose an expert witness with respect to any expert testimony presented by Respondent and to file any such deposition testimony following the hearing, if necessary.
Ultimately, the issue became moot because at hearing, the undersigned declined to qualify Respondent as an expert. While Respondent was seeking to provide expert testimony in gynecology and the reactions of patients receiving controlled substances for chronic pain, he is not board certified in gynecology, pain management, or the treatment of addiction. He could not name a continuing medical education class that he had attended addressing the issues about which he would speak, and named no particular journal or treatise that assisted him in forming his opinions.
On December 4, 2015, the parties filed a Joint Prehearing Stipulation in accordance with the Order of Pre-hearing Instructions. The Joint Prehearing Statement contained stipulated facts that, where relevant, have been incorporated into the Findings of Fact. At hearing, Petitioner presented the testimony of patient S.D.H. and David Liebert, M.D., and Petitioner’s Exhibits 1 through 10 were admitted into evidence.
Those exhibits included the deposition testimony of M.M., B.G., and Respondent. Florida Administrative Code Rule 64B8-8.001 was also officially recognized at Petitioner’s request. Respondent testified on his own behalf and presented the testimony of Carrie Jenkins, Savannah White, Lourdes Mosely, patient M.W., and Kimberly Austin. No exhibits for Respondent were admitted into evidence.
The three-volume Transcript of the proceedings was filed with the Division on January 4, 2016. At Respondent’s request, the deadline for submitting proposed recommended orders was extended to January 15, 2016. Petitioner filed its Proposed Recommended Order on January 15, and Respondent filed his Proposed Recommended Order on January 18, 2016. No prejudice resulted from the late filing of Respondent’s Proposed Recommended Order, and both submissions have been considered in the preparation of this Recommended Order.
The Department is the state agency charged with regulating the practice of medicine pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. The Board of Medicine is the professional licensing board charged with final agency action with respect to physicians licensed pursuant to chapter 458.
At all times relevant to these proceedings, Respondent has been a licensed physician in the State of Florida, and holds license number ME 50948.
Respondent worked as a family practitioner at the Capital Regional Medical Southwood Office (Southwood) in Tallahassee, Florida, from sometime in 2010 to February 2014.
Patient M.M.
From August 2011 through February 2014, Respondent provided medical care to patient M.M. During a portion of that time, Lourdes Mosely was a physician assistant at Southwood. Ms. Mosely also treated M.M. until Ms. Mosely’s departure from the practice in July 2013.
Respondent treated M.M. for chronic pain related to her back and hip, as well as other issues. She had back surgery in 1999 and had pain related to her back since that time.
Dr. Williams prescribed controlled substances for her chronic pain, which required that she be seen every four weeks. When seen by Ms. Mosely, M.M. also reported gynecological issues, including painful intercourse. However, she did not discuss those issues with Respondent.
M.M. initially saw Dr. Williams when she came to Southwood for treatment, but did not feel especially comfortable with him, so preferred to see Ms. Mosely. She did so until
Ms. Mosely left the practice, at which time she returned to seeing Dr. Williams.
M.M. saw Dr. Williams approximately six times after Ms. Mosely left the practice. During one of the initial visits following Ms. Mosely’s departure, M.M. testified that Respondent
acted inappropriately in that Respondent suggested to M.M. that, in order to address her pain with intercourse, she watch an adult video and insert her fingers into her vagina. M.M. testified that he also suggested that M.M.’s husband could participate and that M.M. could perform oral sex on her husband and allow him to ejaculate into her mouth. She also testified that during a different visit, Dr. Williams suggested that she hang a strap apparatus from the ceiling to elevate her legs during sexual intercourse. Both the suggestions about masturbation and oral sex and the suggestion regarding the strap apparatus were unsolicited and were not given in response to any questions about painful intercourse, as this was a subject M.M. did not discuss with Dr. Williams.
M.M. continued to see Dr. Williams because Tallahassee does not have a significant supply of pain management physicians, and she needed medications for her chronic pain. However, she started having her mother, who was also
Dr. Williams’ patient, accompany her on her visits to Dr. Williams, and her mother attended all but one of her
remaining visits. At some of the visits when her mother accompanied her, toward the end of the visit, Dr. Williams would direct M.M.’s mother to step out of the room. It was after she left the examining room that he would make comments M.M. felt were out of line.
At one other visit toward the end of M.M.’s appointments at Southwood, M.M. testified that as she was preparing to leave the examining room, Dr. William slapped her on the buttocks and suggested that she “twerk” for him.
M.M. considered all of Respondent’s actions described above to be humiliating, inappropriate, and unprofessional, and felt that Respondent had crossed a line with her. She called the receptionist and complained about Respondent’s conduct, and testified that Ms. Jenkins, the medical office coordinator, told her that Dr. Williams was a chauvinist and Ms. Jenkins could not really say anything to him. While M.M. could not recall when she called Ms. Jenkins, Ms. Jenkins testified that she received a complaint from M.M. after Dr. Williams left the practice in February 2014.
Respondent admits that the conduct, if it occurred, would constitute sexual misconduct. He denies that it occurred, however. Instead, he contends that M.M. is not to be believed because her memory of the incidents is not clear and because her
claim is based somehow on a desire to get revenge against him for not continuing to prescribe pain management medications.
The undersigned finds M.M.’s account of the incidents in the Second Amended Administrative Complaint to be sufficiently clear to support the ultimate finding that Respondent committed the conduct about which she complains. It is true that M.M. could not identify the specific dates upon which the incidents occurred, and she candidly admitted that she could not recall the specific dates. However, her testimony was clear and consistent about what happened, and the time-frame in which it happened. She visited the office once monthly because of her pain management medications, and Ms. Mosely left the practice in July 2013. She was equally clear that the first incidence of inappropriate conduct occurred in one of the first visits following Ms. Mosely’s departure, and that she had her mother accompany her after that point to reduce the possibility of the opportunity for such comments. Moreover, Respondent’s claim that M.M. somehow made up these allegations because
Dr. Williams would no longer be prescribing pain management medications, something M.M. adamantly denied, is simply not credible.
While M.M. had complained to the office manager, she did not complain directly to the Department of Health. Rather, she was contacted by a Department of Health investigator in
April 2014, a few months after Dr. Williams was no longer at Southwood. Had M.M. fabricated the story as Dr. Williams claims, it would have made more sense for her to have acted on the complaint independently, as opposed to simply responding to an inquiry by the Department.
Dr. Williams’ actions with respect to M.M. violated the trust that a patient places in his or her physician and constitute sexual activity outside of the scope of the professional practice of medicine.
Patient B.G.
Between approximately September 2012 and
February 2014, patient B.G. was treated at the Southwood office. She was, like M.M., treated by Ms. Mosely until Ms. Mosely’s departure. She was treated at Southwood for a variety of medical conditions which included treatment for chronic pain after a knee replacement surgery that was unsuccessful, and for a herniated disc. At the time of the events in question, B.G. was approximately 63 years old.
B.G. saw Dr. Williams, as opposed to Ms. Mosely, in June 2013. At this visit, B.G. testified that when Dr. Williams came to the examining room, he told her that he thought he would see an older woman, and that she looked younger than he expected. He then asked her about her sex life, which stunned her. B.G. replied that her husband was older, but that their
sex life was fine. Respondent then told her that she needed a “sugar daddy,” and he would be willing to fill that role for her. B.G. understood this comment to have a sexual connotation, and replied that she had never cheated on her husband and did not intend to do so.
B.G. also testified that Dr. Williams referenced an adult website titled adamandeve.com for purchasing sex toys. Dr. Williams’ remarks to B.G. were unsolicited and not associated with any medical problem for which B.G. was consulting with him. She felt his comments were out of line. She did have to return to the Southwood office and see Respondent after the incident because of some serious health conditions she suffered subsequent to the June 2013 visit. However, the incident caused her to lose confidence in Respondent and she began to look for another primary care physician. She also no longer wishes to have a male physician because she no longer feels comfortable doing so.
Respondent admits that the conduct, if it occurred, would constitute sexual misconduct. As with M.M., Dr. Williams believes that B.G. was motivated to make up this story because she was no longer able to obtain pain management medications from him. Dr. Williams’ claim is not credible.1/ Since B.G. stopped seeing Dr. Williams, her new primary care physician has reduced the amount of pain medication she takes to approximately
half of what she was taking when Dr. Williams prescribed controlled substances to her.
Dr. Williams’ actions with respect to B.G. violated the trust that a patient places in his or her physician and constitute sexual activity outside of the scope of the professional practice of medicine.
Patient S.D.H.
Patient S.D.H. was treated at Southwood for a variety of conditions from approximately May 2011 through January 2014. Her husband, B.H., was also a patient of Dr. Williams. Both
S.D.H. and B.H. were treated for chronic pain and both were prescribed narcotics. S.D.H., who is Caucasian, did not see Dr. Williams for gynecological issues.
Normally, S.D.H.’s husband would come with her when she came in for her doctor appointments with Respondent. However, in or about November or December 2013, S.D.H. testified that there was one visit where her husband did not accompany her. S.D.H.’s medical records indicate that she had appointments with Dr. Williams on December 4, 2013, and
January 3, 2014.2/
According to S.D.H., at the relevant appointment, Dr. Williams commented on her appearance, telling her that she used to be a “fine little thing” when she first became his patient, making smacking noises with his mouth. S.D.H.
testified that he went on to tell her that she was trying to change herself to “please a man,” comments which S.D.H. understood to refer to her prior breast augmentation, her weight gain, and her marriage to her husband.
S.D.H. testified that Respondent asked her whether she had ever been with a black man, and if she knew what “they said about black men,” and gyrated his hips in a thrusting manner.
S.D.H. believed this question and accompanying physical movement was an allusion to Respondent’s male anatomy.
S.D.H. became visibly upset and asked Respondent what these comments had to do with her. She was also shaken during the testimony at hearing, which was visibly difficult for her. Respondent told her the conversation was just between the two of them as physician-patient, and that he would hate to see her husband’s care suffer should there be a misunderstanding about the conversation. Respondent again remarked about her breasts and reached over, placed his hands underneath her breasts and lifted them upward. S.D.H. did not give Respondent permission to touch her in this manner, and she was sickened and frightened by his actions. S.D.H. grabbed her patient checkout sheet and left the room.
S.D.H. reported the incident to the office coordinator, and while there is some dispute as to when she reported the behavior, it is undisputed that she in fact did so.
Respondent admits that the conduct, if it occurred, would constitute sexual misconduct. Respondent denied that the events occurred and tried to undermine S.D.H.’s testimony in several ways. First, S.D.H. testified that after this encounter she did not see Dr. Williams for care again. There are medical records for S.D.H. for January 3, 2014, and January 30, 2014. However, the medical record for January 3, 2014, is not electronically signed until April 28, 2014, long after
Dr. Williams left the practice. It is plausible that January 3, 2014, is the date that the incident occurred. The note for January 30, 2014, is a telephone encounter as opposed to an office visit. In any event, her testimony is clear, concise, consistent, and credited.
Respondent also suggested that S.D.H.’s complaint is motivated by a failed drug test in connection with her controlled substances monitoring contract. S.D.H. testified that in an effort to no longer take controlled substances, both she and her husband went to the Leon County Treatment Center and began methadone treatment. Records for S.D.H. from the Leon County Treatment Center notifying the Southwood office of this treatment are in her medical records. She no longer takes controlled substances. Likewise, Respondent’s suggestion that
S.D.H. made up the story in anger over treatment decisions made with respect to her husband is rejected as not credible.
Dr. Williams’ actions with respect to S.D.H. violated the trust that a patient places in his or her physician and constitute sexual activity outside of the scope of the professional practice of medicine.
Respondent’s nolo plea
S.D.H. reported the incident to Carrie Jenkins soon after it happened, but did not immediately report it to anyone else. A few months later, she received a telephone call from an investigator with the Department of Health inquiring about her contacts with Dr. Williams. After “a lot of praying and soul- seeking,” S.D.H. filed a complaint with the Leon County Sheriff’s Office. Based upon her complaint, Dr. Williams was charged with the first-degree misdemeanor of battery on July 24, 2014.
Respondent turned himself in on July 29, 2014, and on March 19, 2015, he entered a plea of nolo contendere to the battery charge in State v. Williams, Case No. 2014-MM-221441 (2d
Jud. Cir. in and for Leon Cnty.). As a result, adjudication was withheld, and Respondent was sentenced to 12 months’ probation,
310 hours of community service, and no contact with S.D.H.
Respondent denied that the incident with S.D.H. occurred. However, Respondent did not present any evidence to explain the circumstances related to the plea.
The plea of battery clearly related to the incident taking place in Respondent’s medical office during the context of an office visit. As such, the plea is clearly directly related to the practice or the ability to practice medicine.
CONCLUSIONS OF LAW
DOAH has jurisdiction of the subject matter and the parties to this action pursuant to sections 120.569 and 120.57(1).
This is a proceeding whereby the Department seeks to revoke Respondent’s license to practice medicine. The Department has the burden to prove the allegations in the Second Amended Administrative Complaint by clear and convincing evidence. Dep't of Banking & Fin. v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 595 So. 2d 292
(Fla. 1987). As stated by the Supreme Court of Florida,
Clear 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 lacking in confusion as to the facts at issue. The evidence must be of such a 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 Henson, 913 So. 2d 579, 590 (Fla. 2005) (quoting
Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).
This burden of proof may be met where the evidence is in
conflict; however, “it seems to preclude evidence that is ambiguous.” Westinghouse Elec. Corp. v. Shuler Bros., 590 So. 2d 986, 988 (Fla. 1st DCA 1991).
Counts I through III of the Second Amended Administrative Complaint charge Respondent with violating section 456.072(1)(v), by engaging in sexual misconduct as defined and prohibited in section 456.063(1). Count IV charges Respondent with violating section 458.331(1)(c). The 2013 codification of the statutory references provides in pertinent part:
456.063 Sexual misconduct; disqualification for license, certificate, or registration.—
(1) Sexual misconduct in the practice of a health care profession means violation of the professional relationship through which the health care practitioner uses such relationship to engage or attempt to engage the patient or client, or an immediate family member, guardian, or representative of the patient or client in, or to induce or attempt to induce such person to engage in, verbal or physical sexual activity outside the scope of the professional practice of such health care profession. Sexual misconduct in the practice of a health care profession is prohibited.
456.072 Grounds for discipline; penalties; enforcement.—
(1) The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
* * *
(v) Engaging or attempting to engage in sexual misconduct as defined and prohibited in s.456.063(1).
458.331 Grounds for disciplinary action; action by the board and department.—
(1) The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):
* * *
(c) Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of medicine or to the ability to practice medicine.
Count I charges Respondent with violating section 456.072(1)(v) as defined in section 456.063(1), by touching and/or slapping M.M.’s buttocks in a manner that constitutes engaging and/or attempting to engage M.M. in physical sexual activity outside the scope of the professional practice of medicine; engaging or attempting to engage M.M. in verbal sexual activity by discussing sex acts and/or masturbation with M.M. outside the scope of the professional practice of medicine; and inducing and/or attempting to induce M.M. to engage in physical sexual activity outside the scope of the professional practice of medicine by directing M.M. to “twerk.”
The Department has established the violation charged in Count I by clear and convincing evidence.
Count II charges Respondent with the same statutory violation as Count I, but with respect to S.D.H., by touching, grabbing, and/or shaking S.D.H.’s breasts in a manner that constitutes engaging and/or attempting to engage S.D.H. in physical sexual activity outside the scope of the professional practice of medicine, and engaging and/or attempting to engage
S.D.H. in verbal sexual activity by making sexually suggestive remarks to S.D.H. outside the scope of the professional practice of medicine.
The Department has established the violation charged in Count II by clear and convincing evidence.
Count III charges Respondent with the same statutory violation as Count I, but with respect to B.G., by engaging and/or attempting to engage B.G. in verbal sexual activity by discussing sex and/or sex toys with B.G. outside the scope of the professional practice of medicine, and inducing or attempting to induce B.G. to engage in physical activity outside the scope of the professional practice of medicine by offering to serve as B.G.’s “sugar daddy.”
The Department has established the violation charged in Count III by clear and convincing evidence.
Count IV of the Second Amended Administrative Complaint charges Respondent with violating section 458.331(1)(c), by being convicted or found guilty of, or
entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of medicine or the ability to practice medicine.
In this case, Respondent pled nolo contendere to the crime of battery, which the evidence established occurred in an examining room during the course of treatment of a patient. In Ayala v. Department of Professional Regulation, 478 So. 2d 1118,
1118 (Fla. 1st DCA 1985), the First District considered a prior iteration of section 458.331(1)(c), and held that the Board of Medicine could consider the nolo contendere plea as evidence of a conviction for purposes of chapter 458, but that the Respondent could assert his or her innocence of the underlying charges by explaining the reasons and circumstances surrounding the plea. The current language of section 458.331(1)(c) is now in line with the language interpreted in McNair v. Criminal Justice Standards and Training Commission, 518 So. 2d 390, 391
(Fla. 1st DCA 1987), in which the same court observed that “the plea itself creates noncompliance.”
Respondent did not present any evidence to explain the circumstance of his plea, but disputed the underlying factual basis of the charge. However, as detailed in the Findings of Fact, Respondent’s claim that he did not commit the acts leading to the criminal charge is rejected. The Department has
established the violation charged in Count IV by clear and convincing evidence.
The Board of Medicine has adopted Disciplinary Guidelines to place licensees and members of the public on notice of the range of penalties normally imposed for violations of chapters 456 and 458, as well as the rules adopted pursuant thereto. Fla. Admin. Code R. 64B8-8.001. For a violation of section 456.092(1)(v), the guideline penalty as it existed in 2013 and 2014, when these violations took place, is from one year suspension, followed by a period of probation and a reprimand, and an administrative fine of $5,000, to revocation or denial of licensure and an administrative fine of $10,000. For a violation of section 458.331(1)(c), the guideline penalty is from probation to revocation and a fine ranging from $1,000 to $10,000, to revocation or denial of licensure and a fine of
$10,000.
In this case, Respondent has been found guilty of four separate violations, all of which include revocation as a possible minimum penalty.
The undersigned is mindful that Respondent has a long and distinguished career in a difficult field. There were several witnesses who testified positively of the kindness and professionalism Respondent has exhibited. However, in each of the three instances at issue, the confidence of the patients was
irretrievably broken, to the point that each patient now has concerns about seeing a male health care provider. Respondent abused a confidential relationship in a manner that cannot be
countenanced.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Medicine issue a final order finding that Respondent violated sections 456.072(1)(v) and 458.331(1)(c) as alleged in Counts I through IV of the Second Amended Administrative Complaint. It is further recommended that the Board revoke Respondent’s license to practice medicine; impose an administrative fine in the amount of $15,000, and impose costs of investigation and prosecution.
DONE AND ENTERED this 4th day of March, 2016, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2016.
1/ Not only is the claim not credible, but it makes little sense to the undersigned. The patients all testified that they were unhappy that they would be required to seek a pain management doctor, simply because there are not many such specialists in the area. However, making up a complaint such as the ones at issue in this proceeding, would not make getting their medications any easier. Moreover, in each case, while the patients complained to staff about Dr. Williams’ behavior, they did not initiate the complaint against Dr. Williams with the Department.
2/ S.D.H. was not absolutely sure of the dates, but remembered that there were holiday decorations in the office when this incident occurred. It is possible, given that detail, that the visit could have been either December 4, 2013, or January 3, 2014, immediately after the holidays.
Jack F. Wise, Esquire Department of Health
Phillip Timothy Howard, Esquire Howard & Associates, P.A.
Nichole C. Geary, General Counsel Department of Health
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.
