l(1)l), Florida Statutes.
Although Count IV of the Administrative Complaint states the acts alleged constitute a violation of s. 458.33l(1)(l) Florida Statutes, this is obviously a typographical or proofreading error as the facts allege a violation of s.
458.331(1)(c) and not subsection (f) which pertains to deceptive representation in the practice of medicine. The facts alleged fully apprise Respondent of the
charges he is called upon to defend and will be treated as alleging a violation of subsection (c).
At the commencement of the hearing Respondent moved to dismiss the Administrative Complaint on grounds of procedural due process. Although a similar motion was previously denied by Order entered 26 November 1980, a ruling on this motion was reserved to afford Respondent the requested oportunity to submit a brief on this motion. After having reviewed the briefs submitted, the motion to dismiss the complaint is denied. This motion is based upon the dismissal of the initial Administrative Complaint because Petitioner had failed to comply with s. 120.60(6), Florida Statutes. Thereafter, a Second Administrative Complaint was withdrawn by Petitioner and the Third Administrative Complaint was filed. It is upon this complaint that these proceedings were held. Nothing has been presented in Respondent's brief to indicate this earlier Order entered 26 November 1980 to be wrong.
At the hearing Petitioner presented four witnesses, Respondent testified to his mental attitude during the period involved, five witnesses testified in mitigation and seven exhibits were admitted into evidence. Exhibit No. 7 was marked for identification at the request of Respondent but was never offered or admitted into evidence.
Although Respondent testified in his own behalf, he did not testify regarding any of the charges except as they related to his relations with Tana Williams during the period involved. His refusal to answer questions on cross- examination respecting his complicity in the charges in the Administrative Complaint, on grounds of self-incrimination and beyond the scope of his direct examination, was sustained. Respondent's testimony did not rebut the testimony presented by any of Petitioner's witnesses; accordingly, there was no dispute as to the facts here involved.
Richard Stephan Flatt, M.D., Respondent, is licensed by the Board of Medical Examiners, Department of Professional Regulation (Petitioner) as a medical doctor and was so licensed at all times here relevant. Respondent has been a Board certified Dermatologist since 1957 and has practiced Dermatology in Sarasota for some 20 years. He is 54 years old.
Tana Williams was a patient of Respondent in 1971 when he first treated her for warts, and he also treated Ms. Williams' daughter. Afterward she left Sarasota but returned in 1975 or 1976, at which time she was divorced. She visited Respondent's office for treatment of warts on 5 April 1976. Her appointment was near the close of Respondent's office hours. During this visit she told Respondent she was divorced; that she liked older men; and that she would like to see him socially. He suggested she come back to the office after 5:30 p.m. when his nurse normally departed.
Upon her return after 5:30, Respondent and Ms. Williams discussed an arrangement whereby he would contribute $250 per month towards her support and spend weekends at the apartment she would occupy. According to Respondent's testimony, at this time he was going through a mid-life crisis and was delighted with the prospects of being desired by a woman 23 years his junior. Some two weeks later the first weekend was shared.
Although the situation was very satisfactory to Respondent, the $250 per month was insufficient even to pay the rent, let alone satisfy Ms. Williams'
money requirements. Accordingly, Respondent found the liaison was costing more than he could fund from his ready cash.
After the 5 April 1976 visit, Ms. Williams did not again visit Respondent's office, or consider herself Respondent' s patient.
In addition to cash, Ms. Williams also wanted drugs for her nervous condition and Respondent began supplying her with Quaaludes in the latter part of 1978. By 1979, Ms. Williams was psychologically dependent on Quaaludes and was taking 10 to 12 per day. As Respondent became more financially strapped the Quaaludes were provided for the additional purpose of being converted by Ms. Williams into cash to help maintain her life style.
In 1976 Respondent began ordering Quaaludes and Preludin from New York drug houses under his DEA authorization. The Quaaludes started out in quantities of 200 every few months but increased to 1,000 nearly every month by the end of 1979. Most, if not all, of the 11,000 300 mg. Quaaludes Respondent ordered on an Official Order Form for Controlled Substances were given to Ms. Williams. In addition, Respondent ordered Preludin which he also gave to Ms. Williams. Both Preludin and Quaaludes are Class II controlled substances.
Due to Ms. Williams' increasing dependence on Quaaludes, nearly half of these drugs given her by Respondent were taken by her. Petitioner presented no evidence that Preludin was wrongfully prescribed or abused.
During the nearly four years the relationship continued, several interruptions occurred, due largely to Ms. Williams' living with other men, one of whom she married for a short period of about two months. During the periods Ms. Williams was living with other men, she would contact Respondent to continue or renew their liaison and even threatened suicide and to publicize their relationship to his wife if he did not continue to see her. In the latter months of their association, assignations were arranged at motels at which Respondent gave Ms. Williams money and/or drugs in exchange for sex.
In addition to supplying Ms. Williams with drugs obtained on Official Order Forms, Respondent also wrote prescriptions in Ms. Williams' name, in the names of his children, or in the name of a fictitious person. Those prescriptions written in names other than Ms. Williams, Respondent took to Wallpole's Pharmacy personally and picked up the drugs. By this procedure from late 1978 through 1979 Respondent acquired an additional 1,249 300-mg. Quaaludes, 150 Preludin Endurettes, and 100 Preludin tablets which he gave to Ms. Williams.
Using a confidential informant, the Sarasota police made two controlled buys of Quaaludes from Ms. Williams and on one of these occasions the informant was wired for sound so his conversations with Ms. Williams could be monitored. With information received from the confidential informant and a surveillance of Ms. Williams' residence, the police became aware that Respondent was Ms. Williams' supplier of drugs.
On the morning of 8 February 1980, Ms. Williams was arrested at her home on charges of possession and sale of controlled substances. After being advised of her rights, she was taken down to the State Attorney's office where she was told that she could get up to 10 years in prison for possession and sale of drugs, but that if she cooperated with the police in their case against Respondent, the State Attorney's office would recommend probation rather than jail when she was sentenced.
Prior to the arrest of Ms. Williams the Sarasota Police, state and federal drug authorities were aware of Respondent's involvement and were investigating. Respondent, too, was aware of his increasing vulnerability to criminal prosecution and requested a pharmacist to pass the word to the proper authorities that he would like to surrender his DEA certificate, under the authority of which he ordered controlled substances.
On February 12, 1980 federal, state and local authorities, armed with information that Respondent had ordered some 11,000 Quaaludes from three New York drug companies during the period from 1976 to the present, visited Respondent's office, told him he was suspected of narcotics violation, read him his rights and asked to see his records. Respondent cooperated fully with the authorities and presented his records which confirmed that Respondent could not account for more than 10,600 Quaaludes during the period from 1976 to the date of the inspection.
Respondent made a voluntary statement to the police in which he acknowledged many of the facts noted above. He also voluntarily surrendered his narcotics license.
On 22 May 1980, Respondent pleaded guilty in the Circuit Court in and for Sarasota County of two counts of possession of methaqualone and two counts of sale of methaqualone. Adjudication of guilt was withheld, but the Court sentenced Respondent to probation for a period of three years and a $5,000.00 fine on each of the two counts of possession and sale.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
Under Count I, Respondent is charged with violation of ss. 458.1201(1)(h), Florida Statutes (Supp. 1978), and 458.329, Florida Statutes (1979), which provide respectively:
Engaging in any unethical, deceptive, or deleterious conduct or practice harmful to the public, in which proceeding proof of actual injury need not be established.
The physician-patient relationship is founded on mutual trust. Sexual misconduct in the practice of medicine shall mean violation of the physician-patient relationship through which the physician uses said relationship to induce or attempt to induce the patient to engage, or to engage or attempt to engage the patient, in sexual activity outside the scope of the practice or the scope of generally accepted examination or treatment of the patient.
Sexual misconduct in the practice of medicine is prohibited.
By engaging in sexual relations with Tana Williams Respondent is alleged to have violated the above-quoted statutory provisions. It is noted that the unethical conduct proscribed in s. 458.1201(h), Florida Statutes (Supp.
1978), is conduct in the course of the physician's professional practice. That was hardly the case here. While the more explicit 1979 provision is more nearly in accord with the facts here presented, that section, too, has not been proven. This latter provision requires the physician-patient relationship to be a contributing factor in Inducing the patient's consent for such sexual misconduct to constitute the offense here proscribed. It is clear that at the time the sexual relations between Respondent and Ms. Williams commenced, she was not a patient of Respondent nor did she visit his office for treatment during the nearly 4 years this relationship continued. In 1978, Respondent gave Ms.
Williams a prescription for Vira A, an ointment used to treat herpes, and in 1979 he wrote her a prescription for birth control pills. While it can be said that each of these treatments created a physician-patient relationship, these treatments were not a factor in their personal relationship and had no bearing on this relationship.
From the evidence presented, it is clear that the trust inherent in a physician-patient relationship had no part in the genesis of the liason between Respondent and Ms. Williams. While the fact that Respondent is a physician may have made him more attractive to Ms. Williams than he might have been had he occupied a less noble profession, this fact certainly did not lead to the wrongful use of influence derived from the physician-patient relation that is proscribed by this statute. Since the physician-patient relationship did not exist, Respondent must be found not guilty of Count I.
Counts II and III relate to violations of ss. 358.1201, Florida Statutes (Supp. 1978) and 358.331, Florida Statutes (1979) in the obtaining and dispensing of controlled substances.
The evidence was unrebutted that Respondent gave Quaaludes to Ms. Williams not in the course of his medical practice, that he obtained these drugs by use of the Official Order Form and by writing prescriptions in the names of his children and of fictitious persons, and that he thereby violated the Medical Practices Act as alleged. During the nearly four year period in which this liaison continued, Respondent provided Ms. Williams with some 12,000 Quaaludes to satisfy her dependence on the drugs and to sell the balance in order to maintain a certain life style. These drugs were used by Respondent in his relationship with Ms. Williams as a substitute for money. The net result would be the same had Respondent sold the drugs himself and given the money to Ms. Williams instead of giving her the drugs to sell.
Without his license to practice medicine, Respondent would not be authorized to write prescriptions for controlled substances or to order them on an Official Order Form. The same laws that authorize a physician to obtain drugs require him to properly dispense those drugs and to account for all drugs received. In obtaining these drugs for an illegal purpose Respondent made false representations in the practice of medicine.
Count IV charges Respondent violated s. 458.331, Florida Statutes (1979), which lists acts constituting grounds for disciplinary action against a physician's license. These include:
(1)(c) Being convicted or found guilty, regardless of adjudication, of
a crime in any jurisdiction which directly relates to the practice of medicine or to the ability to practice medicine. Any plea
of nolo contendere shall be considered a conviction for purposes of this chapter.
The evidence is unrebutted that Respondent pleaded guilty to two counts of possession and sale of methaqualone (Quaaludes). Section 893.13, Florida Statutes (1979), makes possession or sale of a controlled substance a felony of the second degree.
As noted above, without his license to practice medicine, Respondent could not have written prescriptions for drugs or obtained them on an Official Order Form. Accordingly, the offense for which he was convicted and sentenced related to the practice of medicine.
A plea of guilty differs in purpose and effect from a mere admission or an extra judicial confession; it is itself a conviction; and like a verdict of a jury, it is conclusive. Tolar v. State, 196 So.2d 1 (Fla. 4th DCA 1967).
Respondent contends that since adjudication was withheld he has not violated the statute above quoted and cites Holland v. Florida Real Estate Commission, 253 So.2d 914 (Fla. 2d DCA 1977), and Rifkin v. Florida Real Estate Commission, 345 So.2d 349 (Fla. 4th DCA 1977), to support this position. Holland differs in two material respects from the instant case. First, in Holland, the Respondent pleaded nolo contendere; here, Respondent pleaded guilty. Second, and more important, in Holland, the statute authorizing disciplinary action against a license required a finding the licensee had been guilty of a crime. Since adjudication of guilt had been withheld, the Court found that statutory requirement not satisfied. The Rifkin Court's language at
p. 916 that
In the eyes of the law a person is not deemed to have committed a crime until an adjudication of guilt has been entered against him.
must be read in the light of the provisions of s. 475.25(1)(e) Florida Statutes, there involved which differs materially from s. 458.331(1)(c) which is here involved. This latter statute authorizes disciplinary action against a licensee who has "been convicted or found guilty, regardless of adjudication." Section 475.25(1)(e) did not so provide.
The plea of guilty is a confession of guilt of the highest order, and authorizes the imposition of the sentence as upon the verdict of guilty. 9 Fla Jur Crim Law 358. In Boyd v. State, 255 So.2d 705 (Fla. 4th DCA 1971), the Court held no error in accepting the defendant's plea of guilty without undertaking an investigation as to the existence of a factual basis for the guilty plea since all that is required under state practice is that the Court determine that the plea is made voluntarily with understanding of the nature of the charge. At his court proceeding on 22 May 1980, Respondent was represented by counsel and obviously fully understood the nature of the charges against him and perhaps pleaded guilty in exchange for a recommendation of no prison sentence.
From the foregoing it is concluded that Respondent is not guilty of Count I and is guilty of Counts II, III and IV as alleged.
Respondent contended that his misuse of his narcotic license stemmed from his entering a mid-life crisis in which he was feeling depressed and
inadequate. The idea that he was desired by a younger woman did wonders for his ego but led to these disciplinary proceedings.
Physicians are given considerable authority in obtaining and administering controlled substances. With that authority comes commensurate responsibility that the authority not be abused. I would find little difference whether Respondent misused this authority to satisfy his sexual needs, financial needs, or for any other licit or illicit purpose. There is little practical difference in the results which follow the unlawful dispensing of controlled substances, whether they be dispensed with venality or naivety. In either case, dangerous drugs are made available to persons not authorized to have them and who, experience demonstrates, are likely to abuse the use of these drugs. It is to prevent this abuse and to protect the welfare of society that the drug control laws are enacted.
On the other hand, the evidence shows Respondent to be a competent and capable dermatologist with the capacity to help people by using the training and skills he possesses.
The offenses of which Respondent has been found guilty in these proceedings are very serious. Surrendering his narcotic license only makes it impossible for Respondent to prescribe or order controlled substances and again commit offenses similar to those here involved; it does little to deter others from committing a similar offense. Respondent is undoubtedly contrite, as well he should be. His conduct has caused considerable anguish to himself and to his family and caused damage to his reputation that will take time to repair. After considering all of these factors and the age of Respondent, It is
