STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

OSTEOPATHIC MEDICINE,

Petitioner,

Case No. 20-3806PL

vs.

RICHARD VAN BUSKIRK, D.O.,

Respondent.

/

RECOMMENDED ORDER

Administrative Law Judge Elizabeth W. McArthur of the Division of Administrative Hearings (DOAH) conducted a disputed-fact evidentiary hearing by Zoom conference on December 9 and 10, 2020.

APPEARANCES

For Petitioner: Andrew Perrin, Esquire

Corynn Colleen Alberto, Esquire Department of Health Prosecution Services Unit

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399

For Respondent: Kathryn Hood, Esquire

Stephanie Clark, Esquire Pennington, P.A.

215 South Monroe Street, Suite 200

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether Respondent violated section 456.072(1)(v), Florida Statutes (2018), by engaging or attempting to engage in sexual misconduct.

PRELIMINARY STATEMENT

On May 26, 2020, the Department of Health (Department or Petitioner) filed a one-count Administrative Complaint (Complaint) before the Board of Osteopathic Medicine (Board) against Richard Van Buskirk, D.O. (Dr. Van Buskirk or Respondent), alleging that Respondent violated section 456.072(1)(v) by engaging or attempting to engage in sexual misconduct as defined in section 456.063(1), with then-patient, V.C.

Respondent timely filed an Election of Rights, disputing the allegations of material fact and requesting a disputed-fact evidentiary hearing. The case was referred to DOAH on August 20, 2020, for the assignment of an Administrative Law Judge to conduct the requested hearing.

After scheduling input from the parties, the hearing was initially set for October 28 through 30, 2020, by Zoom conference. On October 14, 2020, the parties filed a Joint Motion for Continuance, which demonstrated good cause and was granted. The hearing was rescheduled for December 9 and 10, 2020, by Zoom conference, and it went forward as rescheduled.

Prior to the final hearing, the parties filed a Joint Pre-hearing Stipulation in which they stipulated to a few statements of fact and law. The parties' stipulations are incorporated below, to the extent relevant.

At the final hearing, the parties offered Joint Exhibit 1, a composite of Respondent's medical records for former patient V.C., which was admitted into evidence.

Petitioner presented the live testimony of V.C.; Maureen Maguire, M.D.; T.B.; and Anthony Davis, D.O., who was accepted as an expert in osteopathic medicine. Petitioner also presented the testimony by deposition in lieu of live

testimony, without objection, of three witnesses who had been subpoenaed by Petitioner but became uncooperative, nonresponsive, and/or unavailable: V.D.; Ofer Nissan, P.T.; and Nicholas McKinnon, M.D. Petitioner's Exhibits 11 through 3, 7, and 9 through 12 were admitted into evidence. These include transcripts of depositions of Respondent (Pet. Ex. 3) and of the three listed witnesses who testified by deposition (Pet. Ex. 7, 9, and 10, respectively).2

Respondent testified on his own behalf and presented the testimony of Amanda Caudill, Deborah McCarthy, and Walter Ehrenfuechter, D.O., accepted as an expert in osteopathic medicine and osteopathic manipulative treatment. Respondent's Exhibits 1 through 4, 9, and 10 were admitted.

At the end of the hearing, the parties were advised of the ten-day timeframe provided by rule for filing proposed recommended orders (PROs), running from the later of the filing of the transcript at DOAH or the close of the evidentiary record by issuance of an order ruling on deposition objections. After discussion, the parties requested an extended deadline of 20 days, which was granted.3

The two-volume Transcript was filed on January 4, 2021. Both parties timely filed their PROs on January 25, 2021 (the 20th day falling on a

1 The version of Petitioner's Exhibit 1 admitted in evidence is a replacement filed on December 14, 2020, after the hearing, implementing the undersigned's rulings on the record at the hearing regarding pages to be included and excluded, and redactions. See Tr. 144-147.

2 The parties were permitted to file written objections to specific deposition questions, answers, and attached exhibits by December 17, 2020, and to file written responses by December 22, 2020, to any objections filed by the other party. Respondent timely filed objections directed to two passages in Mr. Nissan's deposition (Pet. Ex. 9). Petitioner did not file objections or written responses to Respondent's objections. Respondent's objections were ruled on by Order issued December 28, 2020.

3 By agreeing to an extended deadline for post-hearing submissions beyond ten days after the filing of the transcript, the parties waived the 30-day timeframe for issuance of the Recommended Order. See Fla. Admin. Code R. 28-106.216.

Sunday, making the filing deadline the next business day). Both PROs have been carefully considered in the preparation of this Recommended Order.

Unless otherwise noted, citations to Florida Statutes are to the 2018 codifications in effect at the time of the conduct alleged to warrant discipline. See McCloskey v. Dep't of Fin. Servs., 115 So. 3d 441 (Fla. 5th DCA 2013).

FINDINGS OF FACT

1. The Department is the state agency charged with regulating the practice of osteopathic medicine and prosecuting disciplinary actions on the Board's behalf, pursuant to section 20.43 and chapters 456 and 459, Florida Statutes.

2. Dr. Van Buskirk is an osteopathic physician. He is licensed to practice osteopathic medicine in the state of Florida pursuant to license number OS 5899, which has been active in good standing for over 30 years. Prior to the Complaint, he had never been disciplined or had a disciplinary action brought against him.

3. V.C. was a patient of Dr. Van Buskirk from December 12, 2017, to August 28, 2018.

4. As reflected in V.C.'s medical records, she sought treatment for chronic and acute pain, primarily in her neck, right upper leg, and right groin. V.C.'s right leg and groin issues caused her pain when walking, weakness on her right side compared to her left, and inability to lay in bed on her right side.

5. V.C. was referred to Dr. Van Buskirk by a patient who had been treated by him and found the treatment helpful.

6. V.C. was treated by Respondent once or twice a month, totaling 13 visits over the nine-and-one-half-month span. At each visit, V.C. first met with an assistant who obtained current information from V.C. regarding her pain issues and medical history/medication. After Respondent reviewed the information, he proceeded to perform osteopathic manipulative treatment on

   
   

   V.C. from the top down, meaning he would start on V.C.'s neck and work his way down. Respondent spent 35 to 45 minutes treating V.C. each visit.

7. V.C.'s 13 appointments with Respondent were on the following dates: December 12 and 22, 2017; January 11 and 30, 2018; February 27, 2018; March 27, 2018; April 17, 2018; May 8 and 29, 2018; July 10 and 31, 2018; and August 14 and 28, 2018.

8. V.C. described Dr. Van Buskirk as completely professional in his treatment of her for the first ten visits, despite providing treatment each time in an admittedly sensitive area, her groin.

9. Respondent's practice is to ask patients to wear comfortable clothing for their treatment visits that will allow him to access the areas needing treatment. V.C., for example, usually was dressed in leggings over underwear and a tee shirt. For some of the visits, Respondent was able to provide the osteopathic manipulation, even to the upper leg and groin area, through the leggings. Sometimes, however, the leggings or their seam placement interfered with his ability to adequately sense the tightness, relaxation, and contraction of muscles in the treatment area. For some visits, then, he asked

   V.C. for permission to go underneath the leggings with one hand, which she gave each time requested. Respondent did so several times during the first ten visits, lifting her leggings at the waistband and putting one hand down above the middle of her thigh between the leggings and V.C.'s panties. V.C. said that each of these times, Respondent was completely professional, never saying or doing anything inappropriate.

10. V.C. also confirmed that Respondent was completely professional on visit ten on July 10, 2018, when her recollection was that she had to remove clothing to provide access for Respondent to administer a cortisone shot in her right upper thigh.

11. V.C.'s eleventh visit was on July 31, 2018. According to V.C., unlike her other visits, she went to this appointment during a lunch break from work, and she was wearing shorts instead of leggings. The shorts were bulky,

    
    

    so she removed them when it came time for her to lie down on the exam table, face up, for her upper leg and groin area treatment.

12. Respondent testified that his consistent office practice is to offer patients scrubs and a chaperone when he requests them to remove articles of clothing for treatment. He recalled having to ask V.C. to remove bulky shorts on one occasion so he could provide treatment to her upper thigh and groin area. Though Respondent did not specifically recall offering her scrubs or offering to have someone else come in the treatment room, his belief was that he acted in accordance with his consistent practice and offered both scrubs and a chaperone. V.C. did not dispute this account.4

13. At the hearing, V.C. testified that she was lying face-up on the exam table, with Respondent standing on her right side at about mid-thigh, so that her hip was to his left and her feet were to his right. From this position, V.C. testified that Respondent abruptly "pulled" or "snapped" her underwear from right to left, exposing her genital area, and rested the heel of his left palm5 on her pubic area, while he massaged her right thigh with his right hand. In describing the positioning of his left hand in more detail, V.C. said that the base of his thumb was on her pubic hair, and the base of his pinky was just above her labia. She said Respondent rested the heel of his left palm on her pubic hair for two to three minutes (but acknowledged that in an earlier recounting of this incident in 2018, her estimate was one to two minutes).

    
    

    
    

    4 Petitioner's Proposed Recommended Order (PRO) contains a number of inaccurate citations to the record evidence. For example, Petitioner proposed findings of fact to the effect that on July 31, 2018, Respondent neither offered a chaperone nor had one present, and that Respondent did not offer surgical scrubs to V.C. (Pet. PRO at 3, ¶¶ 4, 6). None of the record citations offered as support for these two proposed findings contain testimony that Respondent did not offer a chaperone or that Respondent did not offer scrubs to V.C. Instead, they contain Respondent's testimony that he believes he acted in accordance with his consistent office practice to make both of those offers that day, and V.C.'s testimony that there was not a chaperone in the room and that she took off her bulky shorts and lay down on the exam table (wearing a tee shirt and panties). V.C. did not testify that she was not offered a chaperone or scrubs.

    
    

    5 V.C. did not use the word "heel," but said "this part" of the palm, while pointing to the lower part of the palm above the wrist, which is the heel.

    
    

14. V.C.'s description, though very detailed, is physically impossible in a number of respects, and as such, cannot be credited. To begin with, it is difficult to envision V.C.'s panties being "pulled" from right to left by someone standing on her right side. That would entail twisting the pulling hand to grasp the panties with the fingers and pull the panties to the side away from where the person is standing. Assuming the left hand were used to "pull" the panties from right to left, would that hand have remained holding the panties on the left side so as to expose V.C.'s pubic area? If so, it is difficult to imagine how the heel of the left palm could have rested on V.C.'s pubic hair. Further complicating the picture described by V.C., for the base of the left thumb to be at the top of the resting palm on V.C.'s pubic hair, with the base of the pinky at the bottom where the pubic hair ends, just above the labia, that left hand would have to contort 180 degrees from where the panties had been pulled (to the left side of V.C.'s pubic area). For the heel of the left palm to be resting on V.C.'s pubic area, with the base of the thumb high and the base of the pinky low, the fingers of the left hand would be pointed to V.C.'s right side at about the right upper thigh, rather than on the left side of her pubic area.6

15. The physical impediments fare no better if one were to assume that the panties were pulled left to right by Respondent's right hand. The problem is that with Respondent standing on Petitioner's right side, it is impossible to envision either left or right hand "pulling" panties away from right to left. And neither scenario supports V.C.'s description of what happened after the panties were pulled from right to left, leaving her exposed. V.C.'s description

    
    

    6 Apparently recognizing the flaw in V.C.'s detailed description, Petitioner recharacterized V.C.'s testimony, suggesting that V.C. testified it was the base of Respondent's right thumb that was at the top on her pubic hair, with the base of his right pinky at the bottom just above her labia. (Pet. PRO at 3, ¶ 7). But that is not what V.C. said. She clearly was describing the positioning of Respondent's left hand. And, although Petitioner's version would help with this particular physical difficulty, it does not square with V.C.'s testimony that while the heel of Respondent's left palm rested on her pubic area, with base of thumb at the top and base of pinky below, Respondent put his right hand on her right upper thigh and started massaging her leg.

    
    

    of what Respondent did with his left hand defies physics. But V.C. also said that while the heel of Respondent's left hand rested on her pubic area, Respondent put his right hand on V.C.'s right thigh and began massaging her leg. With both of Respondent's hands now occupied on V.C.'s right side (heel of left palm resting on pubic area, base of left thumb high, base of left pinky low, fingertips at about V.C.'s upper right thigh; right hand on right upper thigh massaging her leg), neither hand could have been holding V.C.'s panties to the left side of her pubic area so as to keep her exposed.

16. While V.C. described Respondent's pulling or snapping of her panties from right to left to expose her, followed by him resting the heel of his left palm on her pubic hair while he massaged her right thigh with his right hand, she could not recall whether, when, or how her panties returned to their rightful position. But elastic on panties makes a snapping sound when it returns into position after having been displaced. If V.C.'s panties had been pulled to the side exposing her pubic area, one would expect a "snapping" sound when the panties were released and the elastic would snap back into place. V.C.'s description did not seem to add up for this reason, too.

17. V.C. said that she did not react to Respondent's actions by saying or doing anything, such as expressing her discomfort or distress, or stopping the treatment session early. Instead, V.C. said that she was in shock, so that after the one-to-two or two-to-three minute left heel-of-palm rest on her pubic hair, Respondent completed his regular course of treatment for another five or more minutes. V.C. acknowledged that Respondent never said anything inappropriate to her at any point.

18. Respondent flatly denied V.C.'s account of inappropriate moving of her panties or inappropriate touching of her pubic area. According to Respondent, he never moved V.C.'s panties, but instead, provided the same osteopathic manipulation to her upper leg and groin area as he had at every other visit, except this time V.C. had removed her bulky shorts, while remaining covered

    
    

    by her panties. Respondent never observed any discomfort or distress by V.C.; and, as she acknowledged, she never expressed discomfort or distress.

19. V.C. described her own uncertainty at the time as to whether what she perceived had been a mistake or an accident. She never said anything to Respondent or to his staff after the treatment session. She went to the receptionist desk, paid, and scheduled her next appointment for two weeks later, on August 14, 2018.

20. V.C.'s testimony was inconsistent regarding whether she spoke with anyone about the July 31, 2018, treatment session between that day and her next appointment. She testified that she did not report the incident to anyone during the two weeks after the treatment session on July 31, 2018. But she also said that she spoke with her friend, T.B., for whom she works, that afternoon (July 31, 2018) when she returned to work, because, according to V.C., she was visibly distressed and T.B. asked her what was wrong.

21. Petitioner offered T.B.'s testimony at the hearing to corroborate V.C.'s testimony. However, T.B. testified that he had a conversation at work with

    V.C. "in approximately November" 2018 that he initiated, not because he had observed V.C. in obvious distress, but because her performance was off that day. To explain why her performance was "off," she told T.B. she was upset because she had an experience at the doctor's office that was bothering her. She gave little detail, saying only that the doctor had touched her inappropriately. According to T.B., "she did say that it wasn't sex, that it was just inappropriate touching." (Tr. 120).

22. V.C. had been seeing a psychiatrist for medical management of depression and insomnia. At her appointment on August 3, 2018, three days after the July 31 treatment session with Respondent, V.C. did not mention any incident to her psychiatrist.

23. V.C. went to her next appointment with Respondent on August 14, 2018. She did not say anything to Respondent or his staff regarding the July 31 treatment session. Respondent provided the same osteopathic

    
    

    manipulative treatment he had performed the previous 11 visits. V.C. testified that Respondent was completely professional in both actions and words during the August 14 treatment session. After the session, she paid and scheduled her next appointment for August 28, 2018.

24. V.C. went to the August 28 treatment session wearing leggings and a tee shirt. Respondent provided the same osteopathic manipulative treatment he had performed the previous 12 visits. When he started the treatment to her upper thigh and groin area, he was having difficulty sensing a particular tendon in the lateral groin area, to the right side of her groin. He requested permission to put one hand underneath her leggings, as he had previously done for some of the treatments to this area, and she gave her permission as she had previously.

25. Respondent testified that when he went to lift up V.C.'s leggings at the waistband, he accidentally lifted both her leggings and her panties, sliding his hand down towards her right thigh to position his sensing finger on the tendon to the right side of her groin. He did not realize that he had accidentally lifted her panties too until he put his palm down to sense the tendon just to the right of her groin, a little to the left of her right hip bone, and he felt skin under his palm instead of the cloth of her panties. He immediately started removing his hand.

26. At the same time Respondent realized his palm had come to rest on V.C.'s skin, V.C. realized the same thing. She immediately said, "I am not comfortable with this." Respondent had already begun removing his hand as

    V.C. spoke.

27. At the hearing, V.C. described this incident the same as Respondent did, with one exception. According to V.C., Respondent lifted her leggings and underwear with his right hand, then slid his left hand down the center, and that his palm came to rest on her pubic area, with his middle finger extending to where the pubic hair ends, just above her labia. She agreed that Respondent's palm made contact with her for just an instant. She said that as

    
    

    soon as she felt the contact, she spoke up and he immediately removed his hand.

28. Respondent emphatically denied that he made contact with V.C.'s genitals or pubic area. He described with great specificity exactly where he had put his hand, and why. For the work he was trying to perform on V.C.'s lateral groin, he was trying to sense a tendon located about one to one and one-half inches to the left of V.C.'s right hip bone (on the front part of the pelvis), at about belt-line (perhaps a low-slung belt). At that location, his hand was four inches to the right of the middle of the pubic bone, which is where his hand would have been according to V.C.'s description. Respondent's detailed explanation, which he demonstrated during the hearing, was credible and is credited.

29. Other than V.C.'s one statement—"I am not comfortable with this"— she said nothing to Respondent about the incident. V.C. did not stop the treatment session early. Instead, Respondent completed the osteopathic manipulative treatment.

30. V.C. acknowledged that Respondent never said anything inappropriate or unprofessional during the August 28 treatment session or at any previous session.

31. V.C. testified that after the treatment session, she did not say anything to staff about the incident, but paid and ran out of the office.7 When she got to her car, she telephoned Maureen Maguire, who is her friend and, also, her gynecologist. V.C. testified that she told Dr. Maguire about the incident that had just occurred, and about the earlier incident. V.C. recalls Dr. Maguire telling V.C. about a similar incident she had experienced when she was going to a massage therapist.

32. At the hearing, Dr. Maguire confirmed that V.C. called after the second incident to tell her about both incidents. V.C. told Dr. Maguire that

    
    

    7 Respondent's staff credibly disputed V.C.'s claim that she ran out of Respondent's office.

    V.C. did not show any sign of distress.

    
    

    the first time, Respondent "was doing a manipulation in her groin area and that his hand went where it should not have gone." (Tr. 107). V.C. told her she went back to give Respondent another chance because she had come to love and trust him, "and it happened again but it was even more aggressive of hand in the wrong place, like down her underwear exactly, on the second time." (Tr. 108). Dr. Maguire testified that V.C.'s description gave her the impression that the first time, Respondent's hand ended up in the wrong place on top of V.C.'s clothing, because V.C. made a point of saying the second time his hand went under her underwear.

33. Dr. Maguire said that V.C. was upset, so she tried to talk V.C. through it by sharing the "similar" incident that happened to her with a massage therapist. Dr. Maguire said she told V.C. that her biggest regret was that she had done nothing about it. As a result of her experience, she urged V.C. to report the incidents. Dr. Maguire said that V.C. was looking to her for advice, asking how to go about reporting it. Dr. Maguire gave V.C. a couple of suggestions, telling her she should report the incidents to law enforcement and the Department.8

34. V.C. testified that she also disclosed the August 28 incident to V.D., a friend of her son's who was living in her house temporarily while between leases. According to V.C., when she got home that day, V.D. saw her distress and asked her what was wrong, so she told him about the incidents, and he offered his sympathy and attempted to comfort her.

35. V.D.'s testimony by deposition was offered in evidence by Petitioner to corroborate V.C.'s testimony regarding her disclosure to him. V.D. confirmed that he found V.C. distressed one day and asked her what was wrong. He said V.C. described a single incident in which her doctor touched her vagina inappropriately. V.C. also told V.D. that after the inappropriate touching, the

    
    

    8 V.C. first testified that she recalled Dr. Maguire urging her to report the incidents, but that Dr. Maguire did not know how V.C. should proceed. V.C. later testified that she does not recall even discussing the subject of reporting the incidents with Dr. Maguire.

    
    

    doctor "made a comment to her about, like, having a hard time resisting her and not being able to control himself around her. Something to that effect." (Pet. Ex. 7, p. 15-16). V.D. later clarified that he did not recall the exact wording used by V.C. to describe what the doctor had said to her, "but it was something to the effect of that he had desired her for a while, or that he had a hard time resisting her. Basically saying that—justifying what he—the assault by saying, I'm physically or sexually attracted to you, is the effect of what he said to her."9 (Pet. Ex. 7, p. 21-22).

36. V.D. testified that V.C. asked him what she should do, and they discussed reporting the incident to law enforcement. V.C. told him she intended to report it to the police, and later told him that she had reported it.

37. V.C. did not report the incident(s) to the police or to the Department or Board. She explained that she felt guilt and shame, and did not want to relive the incidents as she would have to in order to report it. She blamed the incidents on intensification of "crying jags" that she had experienced before. She also blamed the incidents for a return of insomnia, which she said she had gotten under control.

38. On October 12, 2018, V.C. told her psychiatrist, Dr. McKinnon, about the incidents during her regular appointment with him. His notes reflect some inconsistencies in the details of the incidents.10 Following her disclosure, Dr. McKinnon's notes reflect that he told V.C. he had to report the

    
    

    9 Even though Petitioner offered V.D.'s deposition testimony into evidence, Petitioner did not ask its witness, V.C., to address V.D.'s testimony regarding the provocative statements V.C. attributed to Respondent. Instead, V.C. admitted at the hearing that Respondent made no inappropriate or unprofessional statements that day or any other day.

    
    

    10 For example, Dr. McKinnon's notes reflect that V.C. told him that when Respondent put his hand under her leggings and panties on August 28, she immediately stopped the examination and left the office. At the hearing, V.C. did not dispute whether the notes accurately reflected what she told Dr. McKinnon. Instead, V.C. attempted to reconcile the discrepancy, suggesting the version in the notes was virtually the same as what happened because she "stopped [Respondent's] hand from being there, and then left the office a couple of minutes later." (Tr. 85). V.C.'s attempt to smooth over this discrepancy was unpersuasive. The notes also reflect that V.C. told Dr. McKinnon that she had consulted with an attorney who would not take her case. At the hearing, V.C. said that she did not recall telling

    Dr. McKinnon that, but she did not deny that the statement was true.

    
    

    incidents to the Florida Board of Medicine, and that she should report the matter to law enforcement or another attorney to explore her legal rights.

39. Dr. McKinnon's notes contradict V.C.'s testimony about the effect of the incidents on her insomnia and crying jags. As of October 12, 2018, V.C. reported that, overall, the medications previously prescribed by

    Dr. McKinnon for management of her depression and insomnia had been helpful. In particular, V.C. reported that the dosage of one medication, which she "continues to take" twice a day, had effectively "reduced her crying spells[.]" (Pet. Ex. 1, p. 1). V.C. had been seeing Dr. McKinnon for medication management of depression and insomnia since well before the incidents, and the October 12, 2018, notes, addressing her positive progress since her previous appointments (the most recent of which was August 3, 2018), do not support her testimony that these conditions had been under control before the incidents or that they worsened because of the incidents.

40. After the October 12, 2018, visit, Dr. McKinnon reported what V.C. had told him about the incidents to the Department, which began an investigation. The Department also reported the incidents to the Sarasota Police Department which conducted an investigation, but no charges resulted.

41. V.C. also told her long-time physical therapist, Ofer Nissan, about one or both incidents, possibly close in time to her visit to Dr. McKinnon. V.C. said that she told him about the incident(s) because he had been treating her for a long time and had always been appropriate. Mr. Nissan's deposition was offered by Petitioner in lieu of live testimony, because Mr. Nissan had become uncooperative after being subpoenaed to testify at the hearing and had stopped responding to calls by Petitioner's counsel.

42. Mr. Nissan testified that V.C. told him Respondent touched her private area in an inappropriate way while he was working on her right inner thigh. When asked if V.C. had used the phrase, "private area," Mr. Nissan responded: "She used the word 'vulva.'" (Pet. Ex. 9, p. 18). When asked

    
    

    whether V.C. said whether there was inappropriate touching or penetration, Mr. Nissan responded: "She said penetration."11 (Pet. Ex. 9, p. 25).

43. Despite what Mr. Nissan said he was told by V.C., he did not report the incident(s). He acknowledged that "Dr. Van Buskirk is a doctor with a lot of respect in this town. … I respect the doctor. I respect his reputation."

    (Pet. Ex. 9, p. 20).

44. V.C. acknowledged at the hearing that she has retained lawyers to represent her, and they have prepared a complaint for damages against Respondent. Although V.C. acknowledged "there is a money component," she testified that that was not her priority; she just wants to hold him accountable.

45. V.C. told her friend, T.B., for whom she works, something very different. T.B. described a conversation with V.C. in which she told him the incident12 had been reported to the police and asked him what he thought would happen. T.B. told her that if it was true, Respondent would probably end up in jail. V.C. responded that she would just rather have a monetary settlement. At the hearing, T.B. said he found V.C.'s comment strange: "I personally felt that that was a motivation beyond justice." (Tr. 123).

46. At the hearing, Petitioner presented the expert testimony of Anthony Davis, D.O., to offer the opinion that if V.C.'s statements are believed, then Respondent had committed inappropriate touching of V.C.'s genitalia, an act that was outside of the scope of practice of osteopathic medicine. At the same time, he acknowledged that the examination and treatment of V.C. performed by Respondent on July 31 and August 28, 2018, were required based on V.C.'s presenting complaints, and were justified by the medical records.

    
    

    
    

    11 Even though Petitioner offered Mr. Nissan's deposition testimony into evidence, Petitioner did not ask its witness, V.C., to address the inconsistencies in Mr. Nissan's testimony regarding what V.C. told him.

    
    

    12 T.B. said that in 2018, V.C. only told him about a single incident. T.B. testified that V.C. called him one week before the hearing to tell him (for the first time) that there had been two incidents, and also to tell him that she was filing a civil lawsuit against Respondent.

    
    

47. Dr. Davis also offered his view that there was no sexual misconduct in this case, either outside the standard of care or by not acting in accordance with governing medical statutes and rules. He testified that Respondent did not use the patient/physician relationship to engage in sexual activity outside the scope of practice.

48. Respondent presented the expert testimony of Walter Ehrenfeuchter,

    D.O. Like Dr. Davis, he was qualified as an expert in osteopathic medicine. But Dr. Ehrenfeuchter was also qualified in the additional area of osteopathic manipulative treatment, a specialty area that is particularly germane here, since Dr. Van Buskirk's practice has focused exclusively on osteopathic manipulative treatment for the last 12 years.

49. Like Dr. Davis, Dr. Ehrenfeuchter reviewed V.C.'s patient records and the allegations raised. He also reviewed deposition testimony of Dr. Davis, V.C., and Respondent. Dr. Ehrenfeuchter went far beyond Dr. Davis's fairly conclusory opinions, by going into compelling detail, in both his testimony and illustrative exhibits, to explain the treatment techniques employed by Respondent in treating V.C., the challenges working in delicate physical areas to address V.C.'s specific complaints, and the related standards of care implicated in this case. Dr. Ehrenfeuchter's detailed presentation fully supported his overall opinions that Respondent's actions in examining and providing osteopathic manipulative treatment to V.C. were appropriate and within the scope of practice.

    Ultimate findings of fact

50. Even if V.C.'s testimony were fully credited, Dr. Van Buskirk did not engage in or attempt to engage in sexual misconduct. He did not engage or attempt to engage in verbal or physical sexual activity with V.C. He did not induce or attempt to induce V.C. to engage in sexual activity. V.C.'s testimony, if credited, went no further than to suggest passive momentary resting of a palm or part of a palm on V.C.'s pubic area in the course of providing osteopathic manipulative treatment to V.C.'s painful groin.

    
    

51. For many reasons, though, V.C.'s testimony cannot be credited. Her testimony lacked credibility, clarity, and consistency. The details she described were confused or contrived in many respects. The testimony of Petitioner's other witnesses, offered for the purpose of demonstrating consistency in V.C.'s statements from July 2018 through the hearing, instead demonstrated glaring inconsistencies on material points. The best that could be said about V.C.'s overall testimony is that V.C. may have been influenced by what others told her, starting with Dr. Maguire sharing her "similar" experience of realizing that she had been violated, such that V.C. built up in her own mind the belief that she, too, was violated. Yet V.C.'s embellishments, as described by the "corroborating witnesses," to V.D. (inventing verbal come-on statements of a sexual nature) and to Ofer Nissan (changing her allegation to inappropriate touching of her vulva and adding penetration) suggest the possibility of a more purposeful nefarious intent to spin a tale to try to capitalize financially.

52. Respondent's testimony that he did not touch V.C. inappropriately was more credible than V.C.'s testimony, and is credited.

53. Dr. Ehrenfeuchter's expert opinion that Respondent's examination and treatment of V.C. was appropriate, supported by the medical records, and within the standard of care and scope of appropriate osteopathic manipulative treatment practice was well-supported, more persuasive than Dr. Davis's opinion (to the extent it was inconsistent), and is credited.

    
    

    CONCLUSIONS OF LAW

54. DOAH has jurisdiction over the subject matter of this proceeding and the parties thereto. §§ 120.569 and 120.57(1), Fla. Stat. (2020).

55. By its Complaint, Petitioner charged Respondent with one count of violating section 456.072(1)(v), which provides:

    
    

    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).

       
       

56. Section 456.063(1) defines "sexual misconduct" as follows:

    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.

    
    

57. A proceeding to suspend or revoke a license, or to impose other discipline upon a licensee, is penal in nature. State ex rel. Vining v. Fla. Real Estate Comm'n, 281 So. 2d 487, 491 (Fla. 1973). Petitioner therefore bears the burden of proving the charges against Respondent by clear and convincing evidence, as the parties acknowledged at the outset of the hearing. Fox v. Dep't of Health, 994 So. 2d 416, 418 (Fla. 1st DCA 2008) (citing Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996)).

58. As stated by the Florida Supreme Court:

    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 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 Henson, 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz v. Walker, 492 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., Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991).

59. Penal statutes must be construed in terms of their literal meaning and words used by the Legislature may not be expanded to broaden the application of such statutes. Elmariah v. Dep't of Bus. & Prof'l Reg., 574 So. 2d 164, 165 (Fla. 1st DCA 1990); Griffis v. Fish & Wildlife Conserv. Comm'n, 57 So. 3d 929, 931 (Fla. 1st DCA 2011); Beckett v. Dep't of Fin. Servs., 982 So. 2d 94, 100 (Fla. 1st DCA 2008). "No conduct is to be regarded as included within a penal statute that is not reasonably proscribed by it; if there are any ambiguities included, they must be construed in favor of the licensee." McClung v. Crim. Just. Stds. & Training Comm'n, 458 So. 2d 887, 888 (Fla. 5th DCA 1984).

60. The allegations of fact set forth in the Complaint are the grounds upon which this proceeding is predicated. Trevisani v. Dep't of Health, 908 So. 2d 1108 (Fla. 1st DCA 2005) (administrative complaint charged physician with a failure to create medical records; proof of a failure to retain medical records cannot support a finding of guilt); see also Cottrill v. Dep't of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996). Furthermore, due process prohibits the Department from taking disciplinary action against a licensee based on matters not specifically alleged in the charging instrument, unless those matters have been tried by consent. See Delk v. Dep't of Prof'l Reg., 595

    So. 2d 966, 967 (Fla. 5th DCA 1992).

61. Petitioner did not prove the allegations in the Complaint. V.C.'s testimony, by itself, did not produce in the mind of the undersigned a firm belief or conviction, without hesitancy, as to the truth of the allegations

    
    

    sought to be established. Instead, her testimony lacked clarity and persuasiveness (such as by describing the scenario on July 31, 2018, in ways that are physically impossible). Further, the testimony offered by Petitioner by witnesses who would corroborate V.C.'s statements to them after the alleged incidents instead resulted in a number of significant inconsistencies. Petitioner never confronted these glaring inconsistencies, and, instead, ignored them and maintained that all of these witnesses "recalled having similar conversations" about the alleged incidents with V.C. (Pet. PRO at 6,

    ¶ 18). V.D.'s description of his conversation with V.C., wherein V.C. said Respondent told her he was unable to resist her after touching her vagina, was not similar to V.C.'s testimony or to the testimony of the other "corroborating" witnesses. Ofer Nissan's testimony that V.C. told him Respondent touched her vulva in an inappropriate way and there was penetration was not similar to V.C.'s testimony or to V.D.'s account of his conversation with V.C. Having put the testimony of these witnesses in the record, Petitioner could not simply ignore these significant conflicts. Left unaddressed, they undermine Petitioner's attempt to prove that what V.C. described at the hearing was true.

62. Even if V.C.'s account at the hearing of what occurred on July 31, 2018, and August 28, 2018, were credited, Petitioner would not have proven sexual misconduct as defined in section 456.063(1). V.C.'s account of the incidents, if accepted, would fall well short of the mark necessary to prove that Respondent engaged or attempted to engage in, or induced or attempted to induce V.C. to engage in, "verbal or physical sexual activity" as required for the charged violation.

63. The Complaint does not allege any attempted verbal or physical sexual activity, or any attempt to induce V.C. to engage in verbal or physical sexual activity. The Complaint does not allege any actual verbal sexual activity. V.C.'s account of the incidents at the hearing likewise did not claim that Respondent attempted verbal or physical sexual activity, attempted to induce

    
    

    V.C. to engage in verbal or physical sexual activity, or actually engaged in verbal sexual activity. Instead, both the Complaint allegations and V.C.'s testimony at hearing were that, on two occasions, Respondent's hand or part of a hand rested inappropriately on V.C.'s genital area (which V.C. clarified at hearing was her pubic area, above her labia). For these to constitute a violation of the statute charged, they would have to be considered actual physical sexual activity. The descriptions by V.C. at the hearing fell short of the mark of demonstrating actual physical sexual activity.

64. That V.C.'s description of the alleged incidents would fall short of the mark to prove the charged violation, if credited, makes the contradictory testimony by V.D. and Mr. Nissan all the more troubling. Touching V.C.'s vagina, followed by the sort of sexually-charged confession that V.C. attributed to Respondent, according to V.D., would transform the tenor of the alleged incidents to suggest sexual activity. But V.C. admitted at the hearing there were no inappropriate statements by Respondent, on August 28, 2018, or on any other day, and she did not claim that Respondent had touched her vagina. V.D.'s testimony, left unexplained, instead undermines the perception of V.C.'s allegations, raising questions about her own motives and credibility, if she invented this sexually-charged come-on. So, too, touching of V.C.'s vulva in an inappropriate way and committing penetration, as Ofer Nissan said he was told by V.C., would transform the alleged incidents into ones involving actual physical sexual activity. But V.C.'s testimony at the hearing was devoid of any suggestion that her vulva was touched, much less that there was penetration. Mr. Nissan's contrary testimony, left unexplained, undermines the perception of V.C.'s allegations, raising questions about her own motives and credibility.

65. The clear, convincing, and credible evidence fails to establish that Respondent violated section 456.072(1)(v). Instead, the evidence established that Respondent did not engage in or attempt to engage in sexual misconduct, as defined in section 456.063(1).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Osteopathic Medicine, issue a final order determining that Respondent, Richard Van Buskirk, D.O., is not guilty of a violation of section 456.072(1)(v), Florida Statutes (2018), and dismissing the Administrative Complaint.

DONE AND ENTERED this 24th day of February, 2021, in Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

Administrative Law Judge 1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings this 24th day of February, 2021.

COPIES FURNISHED:

Andrew Perrin, Esquire Department of Health Prosecution Services Unit

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399

Corynn Colleen Alberto, Esquire Department of Health Prosecution Services Unit

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399

Kathryn Hood, Esquire Pennington, P.A.

215 South Monroe Street, Suite 200

Tallahassee, Florida 32301

Stephanie Clark, Esquire Pennington, P.A.

215 South Monroe Street, Suite 200

Tallahassee, Florida 32301

Kama Monroe, JD, Executive Director Board of Osteopathic Medicine Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C-06 Tallahassee, Florida 32399-3257

Louise St. Laurent, General Counsel Department of Health

4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399

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: 20-003806PL

Orders for Case No: 20-003806PL