STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2263

)

JOSEFINO P. BARGAS, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings on January 26, 1983, in Gainesville, Florida.

APPEARANCES

For Petitioner: Charlie L. Adams, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: William N. Avera, Esquire

Charles P. Collins, Esquire Post Office Drawer G Gainesville, Florida 32602

This cause was initiated on an Administrative Complaint filed by the above captioned Petitioner on August 5, 1982. That complaint alleges that the Respondent, Josefino P. Bargas, M.D., violated Sections 458.329 and 458.331(k),

1. and (t), Florida Statutes (1981), by committing various acts of sexual impropriety, allegedly prohibited by those sections. Specifically, it is alleged that on approximately April 26, 1982, at the Lancaster Correctional Institution, Trenton, Florida, the Respondent, a licensed physician under contract with that institution, was observed, while performing a medical examination of one inmate, George Daly, to be engaged in fondling, masturbating and engaging in an oral sexual act with that inmate. Count I then alleges that conduct is violative of Section 458.329, Florida Statutes (1981). Count II realleges those factual allegations and charges that the Respondent has also violated Section 458.331(1)(k), Florida Statutes (1981), by "exercising influence within a patient/physician relationship for purposes of engaging a patient in sexual activity." Count III alleges that this conduct is violative of Section 458.331(1)(t), Florida Statutes (1981), as constituting gross or repeated malpractice or the failure to practice medicine with that level of care, skill and treatment recognized by a reasonably prudent similar physicians as being acceptable under similar conditions and circumstances. Count IV alleges, after realleging the same charged operative facts, that Section

   458.331(1)(1), Florida Statutes (1981), was also violated by that conduct in that it constituted deceptive, untrue or fraudulent representations in the practice of medicine, or the employment of a trick or scheme in the practice of medicine.

   
   

   The Petitioner presented four witnesses consisting of H. Edward Sands, inspector and investigator for the Department of Corrections; Officer James Lynn Fales, a Correction Officer II employed by the Department of Corrections; Patricia Sheppard, nursing supervisor at the Lancaster Institution; and Gail Vann, a licensed practical nurse at that institution. The testimony of inmate George Daly was presented by deposition, which was admitted into evidence as Petitioner's Exhibit 2 inasmuch as the deponent was then in prison, residing more than 100 miles from the site of the trial. Page 22, lines 1 through 12, of the deposition were stricken on the basis of relevancy. Page 24, line 3 through 7, were stricken as consisting solely of comment by counsel. Petitioner's Exhibit 1 was admitted to the extent that it is corroborative of Officer Fales' testimony only. Petitioner's Exhibits 3, 3B, 4 and 5 were admitted. The Respondent presented seven witnesses, the seventh being the Respondent himself who elected to testify after being advised of his right to claim the Fifth Amendment privilege and his waiving of that right. Respondent's Exhibits A, B and C were all admitted into evidence.

   
   

   At the conclusion of the evidence, the Respondent moved to dismiss all counts of the Administrative Complaint. In view of the Conclusions of Law reached herein, that motion should be granted in its entirety. At the conclusion of the proceeding, the parties requested the benefit of a transcription of the testimony and requested an extended briefing schedule, concomitantly waiving the requirements of Rule 28-5.402, Florida Administrative Code. Proposed findings of fact and conclusions of law were thereafter timely filed on or before March 31, 1983.

   
   

   The issue in this proceeding concerns whether the Respondent committed the acts charged in the Administrative Complaint, whether those acts constitute violations of the statutory authority upon which the charges are based and which are pled in the Administrative Complaint and, if so, whether disciplinary action with regard to the Respondent's licensure status is warranted.

   
   

   FINDINGS OF FACT

   
   

   1. Josefino P. Bargas, M.D., is a medical doctor licensed and authorized to practice medicine in the State of Florida. The Petitioner is an agency of the State of Florida charged with enforcing the standards of medical practice required of licensed physicians in the State of Florida enumerated in Chapter 458, Florida Statutes (1981), and with regulating the licensure status of medical doctors in the State of Florida.

      
      

   2. The Respondent is a native of the Philippines, receiving his medical training at Manila Central University with his degree being awarded in 1965. Upon arriving in the United States, he passed appropriate examinations and was admitted to internship at St. Vincent's Hospital in Cleveland, Ohio, and at St. John's Hospital in Cleveland, Ohio, for residency. The Respondent later came to Williston, Florida, and passed the appropriate state board examinations and was admitted to general practice and family practice. He has performed medical practice in those areas of practice since 1977, and is on the staff at Williston Memorial Hospital. He entered private practice in Williston in approximately 1978. In his practice in the Williston area, he has performed extensive medical examinations and physicals for school board employees and school students in

      Levy County with no impropriety ever being reported. As pertinent hereto, during the course of his practice, he obtained a contract to provide primary care and physical examinations for the Lancaster Correctional Institute, serving as a physician at that facility two days per week, approximately one hour per day, for several years.

      
      

   3. Pursuant to the direction of Captain H. E. Gamble, the gentleman in charge of security personnel at the Lancaster Institution and Pat Sheppard, a registered nurse supervising the nursing staff, or either of them, Corrections Officer II James L. Fales on several occasions, including but not limited to April 26, 1982, and April 29, 1982, positioned himself in a crawl space above the suspended ceiling directly above the medical examination room of the Respondent at Lancaster Correctional Institution with the purpose of observing the Respondent as he treated various inmates in the course of his medical practice. Although Officer Fales supposedly removed a 12-inch by 18-inch ceiling tile directly over the Respondent's desk or examining table for purposes of making his observations, the Respondent established that the only missing ceiling tile was one in the corner of the ceiling of the examining room which had been removed a substantial period of time prior to the dates pertinent hereto, apparently for the purpose of repair work in the space above the ceiling.

      
      

   4. In any event, it came to pass that on April 26, 1982, with Officer Fales clandestinely observing medical examinations from his post in the ceiling, the Respondent was scheduled by the medical staff (Nurses Vann and Sheppard) to see an inmate by the name of Lopez. The Respondent had seen Lopez on numerous previous occasions and had never determined anything medically wrong with that inmate and had so indicated to Nurse Sheppard and had recorded his impressions on the inmate's medical chart and records. The Respondent believed Lopez to be a malingerer. The Respondent was aware of no medical reason for Lopez being sent to his examining room that morning. At the conclusion of the medical examination of Inmate Lopez, Inmate Lopez revealed to the Respondent that he was a homosexual and he engaged the Respondent in a conversation attempting to "talk out or air his problem." At the conclusion of that conversation, Inmate Lopez attempted to elicit a response from the Respondent by leaning in his direction as if to kiss him. The Respondent did not react to Lopez's actions in any way nor did he solicit them. 1/

      
      

   5. On April 29, 1982, the Respondent's next scheduled visit date to the Lancaster Correctional Institution, Officer Fales was again placed in the ceiling above the medical examination room, supposedly armed with a 35mm Canon AE-1 camera. The Respondent had been scheduled by Nurse Gail Vann, LPN, to perform examinations and/or physicals of three inmates that morning. The Respondent requested the presence and assistance of a member of the nursing staff in the examining room, but was refused. The Respondent made a practice of requesting the presence of a nurse, male or female, in the examining room at all times when he was performing his duties at the institution for, in his own words, "the protection of myself and the inmates." Inmates at the prison customarily have a physical examination once per year. Inmate Daly was due for his physical in approximately March of 1982, as established by Petitioner's own witnesses Nurses Sheppard and Vann. The medical section had been shorthanded since approximately October of 1981, and no physical examinations had been performed since that time. On April 29, however, of the three inmates whom the Respondent saw in his office, only Inmate Daly was there for a physical examination. The other two inmates had legitimate medical complaints. No other inmates were scheduled that day, one of two days per week the doctor visited the institution, for physicals in spite of the fact that no inmates had received

      physicals for the period from October, 1981, to the date when George Daly was sent to the doctor's office.

      
      

   6. The Respondent had seen Inmate Daly approximately 25 times since he began practicing at the institution in November of 1980, and there were 141 medical record entries regarding Inmate Daly since he came to the Lancaster Institution (many of which did not involve visits with the doctor). Nurse Sheppard, Captain Gamble and Nurse Vann had never before scheduled Inmate Daly for a physical with the Respondent, with no other staff present or otherwise, until the date in question. Nurse Sheppard admitted that she contacted Captain Gamble and conferred with him regarding the planned observation of the doctor's activities on the day in question and she and Gamble decided that the clandestine observation would be done that day. Nurse Sheppard supervised all nurses at the institution. She assigned Nurse Vann to assist Dr. Bargas on April 29, 1982, when Dr. Bargas requested that Nurse Vann or another staff member be present in the examining room. Nurse Vann later informed him that she was required to take medication to the confinement building for administration to inmates and refused to assist him on the occasion in question. The evidence does not reflect whether this decision to leave the clinic and perform duties in the confinement building was her own decision or Nurse Sheppard's.

      
      

   7. On April 28, 1982, Nurse Vann "wrote-up" George Daly's forthcoming visit to the Respondent for the next morning on April 29, 1982. On that medical history form she did not indicate any symptoms he was suffering or any reason for the appointment. The doctor arrived at his clinic at approximately 9:00 on the morning of April 29, 1982. He requested Nurse Vann to assist him and she informed him that she had to go to the confinement building to administer medication and that "Mrs. Sheppard is not here." The doctor proceeded with his first two patients, one of whom requested treatment for venereal warts. Nurse Vann did the pre-visit "work-up" on all three patients and knew the complaint of the first patient. The Respondent was unable to treat that patient because he required the assistance of a nurse in order to do so. Nurse Vann, knowing the required treatment for that patient, was, however, unavailable for assisting the Respondent for that or any other patient that day. The second patient merely required medication to relieve the symptoms of a cold. The third patient was George B. Daly. When ready to see the third patient, George Daly, he again asked for help from Mrs. Vann, who had not left the clinic as yet. She however insisted on leaving for the confinement unit. The Respondent does not know how Daly got into his examination room. The chart given him, or history form, indicated no symptoms and Daly, when asked by the Respondent, did not reveal any symptoms, he merely said "they sent me here." The Respondent was not supplied the entire physical examination and medical history form along with Daly's visit. There was no medical history form in Daly's file when Respondent got it upon seeing Daly in his office.

      
      

   8. In any event, although the Respondent did not ask him to disrobe, Daly had already removed his shirt so the Respondent checked his ears, nose, throat and lungs in a routine manner as in any physical examination. The Respondent then turned around to look at his file, telling Daly he could get dressed. When he turned to look at Inmate Daly again, Daly had lowered his pants and displayed his erect penis to the Respondent and demanded that the Respondent perform an oral sexual act for him. The Respondent repeatedly refused. At that point, George Daly grabbed the Respondent's head and attempted to force him into performing such an act, which the Respondent successfully resisted. At that point Captain Gamble, the head of security, burst through the door saying that other officers had told him that "this was consensual." The Respondent denied it and has vigorously denied that ever since.

   9. The Respondent was detained for some three hours at the prison and made to wait until a Department of Corrections investigator came to the facility to interview him, during which time he was allowed to consult his lawyer. The reason for his detention has not been disclosed. George Daly was immediately removed from the examining room when Captain Gamble and others burst in and that same day, was transferred to another facility of the Department of Corrections in Indian River County. Shortly after his transfer to that other facility, George Daly was awarded work-release privileges.

      
      

   10. As found previously, Officer Fales was in the ceiling observing through the hole where the ceiling tile was removed during the encounter between the Respondent and George Daly. The ceiling tile, however, had been removed sometime previously back in the corner of the room and Officer Fales was not located directly above the desk or examining table and the Respondent's back was to him during that observation (contrary to his testimony). Even had the Respondent placed his mouth in contact with the sexual organ of the inmate, George Daly (as Fales maintained), Fales would not have been able to see nor take pictures of that actual contact. Officer Fales represented that he took six pictures with a Canon AE-1 35mm camera, each picture accompanied by the ignition of the flash attachment of the camera. Officer Fales maintained that he observed no reaction to the sound of the camera and the flash of light by the occupants of the room below him. Neither Officer Fales nor the Petitioner produced any pictures of such activity at the hearing, Officer Fales merely representing that the supposed pictures had failed to develop properly.

       
       

   11. Only Nurse Sheppard and Captain Gamble were aware of Officer Fales being in the ceiling observing the Respondent. The Respondent was aware that Nurse Sheppard and Captain Gamble were involved in a close personal relationship prior to the time of the April 29, 1982, incident, her marriage later being dissolved. He observed Nurse Sheppard and Captain Gamble in intimate physical contact (holding hands, embracing) both in the clinic, where Captain Gamble's duties did not require him to be, in a local shopping mall, as well as at Cedar Key. Nurse Sheppard was aware that the Respondent knew of her relationship with Captain Gamble. It is accordingly found that the testimony of Officer Fales and Nurse Sheppard regarding their suspicions of the Respondent's reported homosexual activity as being a basis for their conducting the observation of the Respondent and George Daly on April 29, 1982, and the circumstances of that observation is not credible.

       
       

   12. The Respondent has never, throughout his professional career, had any suggestion of homosexual involvement or other sexual misconduct in the course of his practice (or otherwise) attributed to him. His medical practice has been consistently characterized by a high degree of professional skill, care and concern for his patients, as well as personal integrity.

       
       

   13. Accordingly, it is found that Inmate Daly, who was present in the examining room on the day in question for reasons known only by Captain Gamble, Nurse Sheppard, Officer Fales or Nurse Vann, made a homosexual advance to the Respondent, in which the Respondent did not participate, which he successfully resisted and which was not due to any suggestion or solicitation by the Respondent whatever.

       CONCLUSIONS OF LAW

       
       

   14. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding, pursuant to Section 120.57(1), Florida Statutes (1981).

       
       

   15. The Respondent has been charged with violation of Subsections 458.329 and 458.331(1)(k), (1) and (t) , Florida Statutes (1981).

       
       

   16. The Respondent's Motion to Dismiss the entire Administrative Complaint should, in view of the above Findings of Fact and the Conclusions of Law below, be granted and the Administrative Complaint should be dismissed in its entirety.

       
       

   17. Count I of the Administrative Complaint is predicated on Section 458.329, Florida Statutes (1981), which contains a general prohibition of sexual misconduct in the practice of medicine. There is no disciplinary action or penalty expressed related to that general prohibition. Section 458.329 is followed by Section 458.331 - "Grounds for Disciplinary Action; Action by the Board." That section reads as follows:

       
       

       1. The following acts will constitute grounds for which disciplinary actions specified in sub- section (2) may be taken: . . .

          
          

          There then follow twenty-nine separate offenses, one of which is the offense charged at Section 458.331(k) concerning exercising influence within a patient/physician relationship for the purpose of engaging a patient in sexual activity. The Legislature in setting forth twenty-nine specific violations which can be the subject of sanction by the Board of Medical Examiners would have included 458.329 within its terms if it had chosen to do so and a reasonable interpretation of Section 458.329 indicates that Section 458.329 is simply a general prohibition against sexual activity in the practice of medicine which lacks specific sanction of its own for its violation. The case of Thayer

          v. State, 335 So.2d 815, discusses the legal maxim expressio unius est exclusio alterius as follows:

          
          

          It is, of course, a general principle of statutory construction that the mention of one thing implies the exclusion of another;

          expressio unius est exclusio alterius. Hence, where a statute enumerates the things on which it is to operate, or forbids certain things, it is ordinarily to be construed as excluding from its operation all those not expressly mentioned. (at 817)

          
          

          See also, Rebick v. Burdine's and Liberty Mutual Insurance Company, 417 So.2d 284; Vieza v. Pan American/National Airlines, Inc., 392 So.2d 920; Ideal Farms Drainage District v. Certain Lands, 19 So.2d 234. Since a violation of Subsection 458.331(1)(x)(reference violation of any of the provisions of this chapter) has not been charged, it must be concluded therefore that Count I must fail as being not included in a specific offense subject to sanction as defined by Section 458.331(1).

          
          

   18. Count III is predicated on Section 458.331(1)(t), Florida Statutes (1981), in which count it is alleged that the Respondent violated that Subsection by committing gross or repeated malpractice or failed to practice

       medicine with that level of care, skill and treatment recognized by reasonably prudent similar physicians as being acceptable under similar conditions and circumstances. It is obvious that there is no preponderant evidence in this record, much less clear and convincing evidence, that the practice of the Respondent in providing his care, skill and treatment to his patients was anything but professionally competent and appropriate. Doctors Grooms, McCoy, Mr. E. T. Usher, Nurse June Bagosta, Nurse Kingsly and Mr. Floyd Miller, all have experience as patients or as relatives of patients of the doctor or as professional associates and all established his professional ability and skills to be of the highest order and established that he enjoys the highest regard among his peers, including doctors and patients. Even Nurse Shepard, testifying for the Petitioner, acknowledged that the Respondent's practice from a skills and competency point of view was without fault. The Respondent's witnesses also established beyond doubt his personal integrity as perhaps best expressed by Nurse Kingsly who stated that she "admires a doctor who has time for his family." There has simply been no evidence to establish that the Respondent has committed the professional errors or omissions charged under aegis of Section 458.331(1)(t) and Count III should be dismissed.

       
       

   19. Count IV charges the Respondent with committing a deceptive, untrue or fraudulent representation in the practice of medicine or employing a trick or scheme in the practice of medicine, citing Section 458.331(1)(l). This allegation is simply not supported by the evidence. Indeed it may be that the Respondent has been the victim of a trick or scheme perpetrated on him in his practice of medicine. Even Inmate Daly, in his deposition, acknowledged that the Respondent told him that he could get dressed prior to the homosexual advance involved in this incident, which was clearly perpetrated by Daly. The evidence establishes that the Respondent was aware of a clandestine personal relationship between Captain Gamble and Nurse Sheppard, who knew of his awareness and who initiated the posting of Officer Fales in the ceiling. Additionally, on two successive visits made by the Respondent to the Lancaster Correctional Institution for the care of patients, the Respondent was scheduled by Nurse Sheppard or those under her direction to see Inmates Daly and Lopez, both of whom had known homosexual inclinations and which inclinations were strongly suspected by the Lancaster staff, on both of which occasions these two persons had placed Officer Fales in the ceiling for observation. The Respondent, on April 29, 1982, attempted on more than one occasion to have a nurse present during his examination and treatment of his scheduled patients to no avail. This is totally inconsistent with any premeditation on his part to employ a trick or scheme for his personal gratification, thus Count IV must fail as not being supported by the evidence.

       
       

   20. Count II, charging that the Respondent exercised influence within a patient/physician relationship for purposes of engaging a patient in sexual activity, in violation of Section 458.331(1)(k), has not been proven. There is no question, given the evidence and the above Findings of Fact, that the incident which occurred between the Respondent and Inmate George Daly on April 29, 1982, was initiated by Inmate Daly and that he was the aggressor in the incident. The Respondent clearly refused and resisted Daly's homosexual advance and continued to resist until Captain Gamble and others burst into the room and took Inmate Daly away. Respondent vigorously asserted that Inmate Daly demanded that he "suck it." Inmate Daly, at his deposition, stated that he could not remember whether he said that or not, and the only other witness, Officer Fales, gave no testimony that he was able to hear anything that was being said in the room below his observation post. The evidence clearly does not support the Petitioner's allegation that the Respondent either engaged or attempted to engage a patient in sexual activity. Although Officer Fales testified that the

Respondent fondled Daly's sexual organ, thighs, and engaged in oral sexual contact with Daly, Officer Fales' testimony is tainted by his assertion that he took six pictures with a camera equipped with a flash some four to five feet from the inmate and the doctor and that they were unable to observe or gave no reaction to the flash of light or the sound of the camera, and by his assertion that he did not produce the pictures at the hearing because they "failed to develop properly." These considerations, coupled with the manner and motives in which Officer Fales' observation from the ceiling was initiated and conducted, render his testimony, as well as that of Nurse Sheppard, not credible and it is not accepted. Thus, Count II must fail as not supported by the evidence and the Respondent is concluded not to have exercised influence within a patient/physician relationship for purposes of engaging a patient in sexual activity.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is therefore

RECOMMENDED:

That Counts I, II, III, and IV be dismissed and that no disciplinary action is warranted nor should be taken against the Respondent.

DONE and ENTERED this 23rd day of June, 1983, in Tallahassee, Florida.

P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 1983.

ENDNOTE

1/ Although evidence was adduced regarding this April 26, 1982, "incident" with regard to Inmate Lopez, there is no charge in the Administrative Complaint related to any incident or activities on the date of April 26, 1982, nor any alleged violations of the provisions of Chapter 458 with regard to Inmate Lopez. Therefore, since the Administrative Complaint has not charged any violations with regard to this incident, it cannot serve as the basis for a prosecution in this proceeding and is disregarded by the Hearing Officer. Parenthetically, it should be pointed out that no violation was established in connection therewith as corroborated by the Petitioner's own witness, Officer Fales.

COPIES FURNISHED:

Charlie L. Adams, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

William N. Avera, Esquire Charles P. Collins, Esquire Post Office Drawer G Gainesville, Florida 32602

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Dorothy Faircloth, Executive Director Board of Medical Examiners

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-002263

Orders for Case No: 82-002263