vs. ) CASE NO. 78-797
FAHMY M. RISK, M. D., )
Respondent. )
A hearing was held in thc above captioned matter, after due notice, at Fort Myers, Florida, on August 22, 1978, before the undersigned Hearing Officer.
For Petitioner: Richard C. McFarlain, Esquire
For Respondent: James A. Franklin, Jr., Esquire
Whether disciplinary action should be taken against Respondent for alleged violation of Section 458.1201(1)(m) Florida Statutes, as set forth in Petitioner's complaint.
Respondent Fahmy M. Rizk is a physician licensed in the State of Florida who engages in the general practice of medicine at Fort Myers Beach, Florida. (Testimony of Respondent)
During the fall of 1976, Joyce Weidner, Cape Coral, Florida, who was then twenty years old, was a patient of Respondent. Although she could recall making six office visits, Respondent's records reflect that only four were made during the months of October and November, 1976. On October 14, she first saw Respondent with complaints of pain in her left chest area when swallowing. At that time, she told him that she had epilepsy and was taking Dilantin for that condition. Respondent determined that she was suffering from gastritis and prescribed medication. On her next visit, Respondent prescribed a course of treatment for acne that was present on the patient's face, chest and back. During a subsequent visit on November 2, 1916, presumably to check the progress of the acne treatment, Mrs. Weidner returned to Respondent's office at which time he took her into an examining room and instructed her to disrobe. She did so and covered herself with a sheet until he returned. He proceeded to place
her feet in stirrups on the examining table and conduct an internal pelvic examination with no one else in the room. He pressed her abdomen and asked her if she suffered any pain there, and she answered in the affirmative. She asked him if anything was wrong and he said something "vague" about her kidneys.
After the examination, he asked her to return in two weeks.
On November 16, she returned and again he told her to disrobe when in the examining room. He remained in the room while she did so and gave her nothing to cover herself with at this time. The door was closed and no one was present in the room except the patient and Respondent. Respondent again conducted an internal examination, but did not wear a rubber glove on his hand. After inserting his finger into her vagina, be then proceeded to rub her clitoris and to hold and "roll" the nipple of each breast in turn with the fingers of his other hand. During this time, he asked her if she enjoyed sexual relation with her husband and whether she desired to climax more or less often. During the examination, she had expressed concern to Respondent that her nipples might be abnormally large. While holding the right nipple, Respondent said words to the effect that her nipples would be very nice for a man to suck. At some time during the examination, Respondent may have asked her if she ever had any discharge from the nipples. After the examination was concluded, Mrs. Weidner dressed and left the office. She thereafter reported the incidents to the Lee County Medical Association who advised her to contact Petitioner. She thereafter filed a complaint with Petitioner in December, 1976 Mrs. Weidner made her complaint because she believed that Respondent's conduct toward her was unethical and "very degrading." (Testimony of Weidner, Respondents' Exhibit 5)
Respondent's office records concerning Mrs. Weidner do not disclose that Respondent conducted a pelvic examination during the November 2 visit. His notes concerning the November 16 visit reflect that he had observed that her nipples were more prominent than usual and examined them with his fingers to see if there was any discharge. He also recorded that she said her mother has the same form of nipples and asked him in an emotional state if he found any abnormalities but that he assured her they were normal. His records show that he examined her vagina, cervix and ovaries and found them to be normal. (Respondent's Exhibit 3)
Respondent denied in his testimony that he had given Mrs. Weidner an internal examination of her female organs during the November 2 visit. However, he testified that during the course of his treatment for her acne, he had observed that she had abnormal nipples, and he was concerned about the possibility of cancerous tumors in the breast because acne is sometimes a symptom of such a condition. He therefore examined her breasts during the November 16 visit in order to determine if there was any discharge from the nipples. Since she was concerned about the shape of her nipples and those of her mother, and due to her history of epilepsy, he did not wish to upset her regarding the possibility of tumors. To reassure her, he told her that her nipples would be very nice for her children to suck and also that her husband would be happy to suck them. He claimed that he wore a rubber glove on his right hand when examining her vagina, but no glove on the other hand which was on the abdomen. He denied touching her clitoris during the examination. Although he concede that he had asked if she had a normal sex life to determine if she ever had bleeding or pain, he denied that he had asked her if she enjoyed having sex with her husband. He admitted that there was no third person in the room during the November 16 examination of Mrs. Weidner. Respondent further acknowledged that he had been sent a letter by Petitioner after the Weidner complaint concerning examinations of female patients, and that he had written to the executive director of Petitioner stating that he would not perform any
further such examinations without the presence of a third person. (Testimony of Respondent, Petitioner's Exhibit 1. Respondent's Exhibit 3)
There are some endocrine hormonal causes for acne and one of these could be ovarian tumors which are hormonally active. (Testimony of Howington)
It is found that although there was sufficient medical justification for Respondent to examine Mrs. Weidner's breasts and perform a pelvic examination on November 16, 1976, there was no such justification for his improper and suggestive remarks as related by the patient and admitted in part by Respondent. Neither was there any valid medical reason for rubbing her clitoris with his hand. Mrs. Weidner's recitation of the events that transpired while under Respondent's care are accepted as fact and Respondent's denials are not deemed credible. Although Mrs. Weidner's testimony concerning the number of office visits was imprecise, there is no dispute that she visited Respondent on November 2 and 16, 1976, when the improper acts occurred.
On July 14, 1977, Mrs Maureen Abel, than twenty-five years old, of Fort Myers, Florida, became a patient of Respondent for treatment of a chronic skin rash. The rash was present on her chest, arms, back and stomach. During that visit, Respondent took her into his examining room with no one else present, had her pull down the top of her garment and examined the rash with a magnifying glass. He asked her if she had a problem with nervousness and she replied in the negative. During the course of further questioning, she informed him that she normally ha irregular menstrual periods. She also told him that she had a prescription for medicine from another doctor which she took when several months elapsed without a menstrual period. Respondent told her that she should be on birth control pills to regulate her period and that that would control the rash. He told her to return in ten days when he would get her started on birth control pills. He further prescribed medication for the rash.
She returned on July 23 and informed Respondent that she thought she might be pregnant because he had not had a regular period and was feeling nauseous. He took her into the examining room, told her to take her clothes off and lie on the table. She did so, but there was no robe or other covering for her body. Respondent, with no third party present, examined her breasts stomach, and proceeded to perform a pelvic examination. He said that everything was normal and she did not appear to be pregnant, but had indigestion which was causing the nausea. He prescribed medication for the indigestion, gave her a four month supply of birth control pills, and told her to return in a month.
On August 26, Mrs. Abel returned and told Respondent that her rash had not gone away and that she was still feeling somewhat sick. She also told him that she had taken the birth control pills but did not have a period, and was having a vaginal discharge which caused itching and concerned her. She informed him that she was gaining weight, and he said that she should go on a strict diet. He then escorted her to the examining room and closed the door. No one else was present in the room. He told her to take her clothes off and, as she did so, he took each piece of clothing and hung it on the back of a door. He told her to lie down on the examining table and, after she did so, he examined her breasts and stomach. He then "fluffed up" her pubic hair with his fingers and told her he was going to give her an internal examination. He placed her feet in the stirrup which were too far apart and caused some pain to her left leg. He did not adjust the stirrups, but massaged her left leg and the pain disappeared. He then put on rubber gloves and did an internal examination. During the course of the examination, he told her that he felt something there and wanted to take a culture. She agreed and he proceeded to insert an
instrument into her vagina for this purpose. After taking the specimen and discarding the instrument, he began examining her vulva area with his fingers telling her that she was very inflamed and infected. He began rubbing the vulva area and, while doing so, told her that she was very dirty there and that she should use a mixture of peroxide and water every night to clean the area. She was insulted at this comment. He continued rubbing this area and she asked him if he knew what he was doing. He replied that he was checking for inflammation. Respondent then started rubbing her clitoris and asked her what kind of orgasms she had and if they were rapid or slow. She informed him that she was able to control herself and then told him that he was hurting her in order to get him to cease his actions. He then took her legs out of the stirrups, rubbing his hand on her left leg, up her left side to the stomach, over her breasts and to her left cheek which he patted several times. She saw his face coming towards her and jumped up and got off the table. He then grabbed her by her left arm and pulled her over by the scales, telling her that he wanted to weigh her, and directed her to stand on the scales. She did so and then dressed and left the office after paying Respondent's wife, his receptionist, the charge of $43.00.
A few days later she cancelled payment on the check, but nevertheless made a claim to her insurance carrier for this amount. She thereafter sought the advice of another physician on September 22, 1977, who told her she was 16 weeks pregnant. She delivered the baby on March 10, 1978. Mrs. Abel was upset and angry that Respondent had "played" with her "private area." (Testimony of Abel, Respondent's Exhibits 5, 7-9)
Respondent testified that at no time did Mrs. Abel complain of nausea or raise the possibility that she was pregnant, nor did he perform an internal examination of her on July 23. His office records for that date merely reflect that she had gas and indigestion and that he prescribed contraceptive pills. He further testified that on the August 26th visit, she complained of heavy discharge and itching of her genitals and that his internal examination on that date revealed the existence of a malodorous discharge with inflamed internal vaginal walls, and that he took a sample for culture and sensitivity. His office notes support testimony in this respect. Respondent maintained that his wife was present in the examining room to assist him in taking the specimen for laboratory analysis. She corroborated his testimony in this regard. He denied weighing the patient, advising her to use peroxide for the discharge, or rubbing her leg while in the stirrup. He further denied hanging up her clothes prior to the examination, or touching her abdomen, breast and cheek at the end of the examination. He conceded that he told her she was and showed her the speculum covered with discharge and told her to smell it because it had a bad smell and was a very bad infection. He further denied rubbing her clitoris and testified that this would have been impossible to do because she was so inflamed. He did, however, examine the vulva area for she presence of infection. He testified that it was necessary to open the vulva with one hand while inserting the speculum with the other in order to avoid taking hair with the speculum which would hurt the patient, but that he did not make the movement with his hand on her pubic hair as recounted by Mrs. Abel. Laboratory examination of the vaginal discharge sample revealed the presence of escherichia coli. (Testimony of Respondent, supplemented by Respondent's Exhibit 6, Testimony of M. Rizk)
It is found that although there was sufficient medical justification for Respondent to perform pelvic examinations of Mrs. Abel on July 23 and August 26, 1977, there was no justification for his improper and suggestive remarks as related by the patient nor was there any valid medical reason for rubbing her clitoris. Mrs. Abel's recitation of the events that transpired while under Respondent's care are accepted as fact. Respondent's denials and the testimony of his wife supporting such denials in part are not deemed credible. Neither
are Respondent's office records considered reliable or worthy of supporting Respondent's denials of improper conduct as described by Mrs. Abel.
In response to hypothetical questions posed to Petitioner's medical experts, it was their opinion that the actions of Respondent with respect to both Mrs. Weidner and Mrs. Abel constituted immoral and unprofessional conduct and failed to conform to the standards of acceptable and prevailing medical practice in the community. The hypothetical questions were based on the words and actions of Respondent as described in the testimony of Mrs. Weidner and Mrs. Abel. It was the opinion of one expert, however, that Respondent's failure to diagnose Mrs. Abel's pregnant condition did not constitute unprofessional conduct under the circumstances. Respondent's motion to strike the testimony of these exerts based on the fact that they had reviewed summaries of Petitioner's prehearing investigation of the patients' complaints was denied because both experts testified in response to facts contained solely in the hypothetical questions and did not independently rely upon additional facts contained in the investigative reports. (Testimony of Howington, Purvis)
Respondent practiced medicine Egypt for approximately twenty-five years. He came to the United States in 1971 and served as medical director of a state hospital in Kansas for approximately three and one-half years. He came to Florida some two years ago, and after being licensed in the state, started to practice in the Fort Myers area in June of 1976. A number of his former patients have written to him expressing gratitude for his professional services. (Testimony of Respondent, Respondent Exhibit 10)
CONCLUSIONS OF LAW
Petitioner's complaint charges Respondent with immoral and unprofessional conduct in violation of subsection 458.1201(1)(m), Florida Statutes, in two counts which refer to the two patients in question. That statutory provision provides pertinently as follows:
458.1201 Denial, suspension, revocation of license; disciplinary powers.
The board shall have authority. . . to discipline a physician licensed under this chapter or any antecedent law who, after hearing, has been adjudged . . . guilty of any of the following:
* * *
(m) Being guilty of immoral or unprofessional conduct . . . . Unprofessional conduct shall include any departure from, or the failure
to conform to the standards of acceptable and prevailing medical practice in his area of expertise as determined by the board, in which proceeding actual injury to a patient need not be established when the same is committed in the course of his practice, whether committed within or without this state.
The above statutory definition of the term "unprofessional conduct" has been judicially interpreted succinctly as follows: "The prescription is against poor medical practice as measured by the prevailing standards of good practitioners." Lester v. Dept. of Prof. and Occ. Regulations, 348 So.2d 923
(Fla. 1st DCA 1977). Here, the allegations against the Respondent arose as a result of his professional relationship with two patients. Although the evidence does not establish that he failed to provide proper treatment for the ailments of those patients, it does show clearly that he went beyond the bounds of necessity in providing such treatment whereby fear, apprehension and mental anguish here inflicted upon them. His failure to provide a sheet or other garment to cover the body on several occasions during physical examinations and his failure to have a third party present in the closed examining room at those times reflects a decided insensitivity to the normal apprehensions experienced by female patients in such obviously embarrassing situations. Respondent was probably justified in performing pelvic examinations of the patients based on their complaints and other factors that he had observed. His manipulation of the nipples of Mrs. Weidner's breasts and his handling of Mrs. Abel's vulva area reasonably can be seen as necessary for diagnostic purposes. However, Respondent's actions in rubbing the clitoris of each patient and his inquiries concerning orgasms and sexual satisfaction certainly were not required for medical purposes. It is therefore apparent, as opined by experts in the medical community, that he so departed from the standards of acceptable and prevailing medical practice as to constitute unprofessional conduct.
In like manner, Respondent's above-described course of conduct must be characterized as immoral" in that it departed from accepted community and social standards of decency and proper behavior. It is particularly reprehensible in that it occurred during the course of professional treatment. Respondent thereby abused the trust which the public places in a medical practitioner and took advantage of the situation created by the physician-patient relationship.
In assessing a penalty, note is taken of Respondent's many years of professional practice and the fact that the patients in question were not of tender year and suffered no direct, adverse physical consequences from their unfortunate experiences. For these reasons, license revocation" is not deemed to be required. However, Respondent's actions are considered sufficiently serious to warrant suspending his license to practice medicine for a period of two years.
That Petitioner suspend the license of Respondent to practice medicine for a period of two years pursuant to subsection 458.1201(3)(a)4, Florida Statutes, for violation of subsection 458.1201(1)(m), Florida Statute.
DONE and ENTERED this 18th day of September, 1978, in Tallahassee, Florida.
THOMAS C. OLDHAM
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Richard C. McFarlain
A. Russell Bobo
James A. Franklin, Jr. Post Office Box 280
Ft. Myers, Florida 33902
George S. Palmer, M.D. Executive Director
