vs. ) CASE NO. 82-2264
Respondent. )
Pursuant to notice, a hearing was held in this matter before Arnold H. Pollock, Hearing Officer with the Division of Administrative Hearings, in Orlando, Florida, on April 13 and July 18, 1983. The issue for consideration was whether Respondent's license to practice medicine in Florida should he disciplined because of alleged instances of improper physician-patient conduct as set out in the Administrative Complaint.
For Petitioner: Charlie L. Adams, Esquire
In an Administrative Complaint filed on July 28, 1983, Respondent is alleged to have exercised influence within a patient-physician relationship for the purposes of engaging a patient in sexual activity; of having been involved in sexual misconduct with a patient in violation of Section 458.329, Florida Statutes (1981); and with incompetence, all in violation of various subsections of Section 458.331(1) Florida Statutes (1981) Respondent, on August 11, 1982, submitted an Election of Rights form in which he disputed the allegations and requested a formal hearing.
At the hearing, Petitioner presented the testimony of Dr. James J. Schoeck, Debra H. Mitchell, Georgia S. Fields, Patricia M. Bowman and John P. Spanogle, and introduced Petitioner's Exhibits 1 and 2. Respondent called Alana J. Hutter, Catherine L. Griffin and Rebecca Sue Vega, as well as testifying in his own behalf, and offered Respondent's Exhibits A, B and C.
At all times pertinent to the issues heard at this hearing, Respondent was licensed to practice medicine in the State of Florida under License No. ME- 0022000 and was in practice in Orlando.
Respondent is Dr. Mario Vega.
Dr. James J. Schoeck, a physician practicing in Orlando, was, during 1980, Chairman of the Board of Censors of the Orange County Medical Society (OCMS). In that capacity, he had occasion to contact Respondent based on a letter from Dr. Alberto Herran, Chairman of the Patient Review Committee, founded on a grievance letter from a former patient of Respondent, Debra Mitchell. Ms. Mitchell had complained that she had gone to see Respondent on a medical matter and he had given her a 20-minute pelvic examination without wearing a surgical glove and without a nurse present. Since this was the Respondent's first reported offense allegation, Dr. Schoeck merely discussed the situation with him and got his side of the story, to the effect that a female employee was just down the hall during the examination and nothing out of the ordinary was done. No further action was taken by the OCMS as a result of this. It is not a unique type of complaint for the OCMS which, upon investigation, finds most to be unfounded.
Debra Hall Mitchell saw Respondent in his office on September 19, 1980, because she was having a pain in her lower abdominal area, thought she might have an infection of some kind, and wanted it checked. When she got to the office, the only people there were Respondent and his wife, who after weighing her and doing the preliminary activities, took her into an examining room and asked her to disrobe and don a paper examining gown. When Respondent came in, he asked her to lie down on the examining table and asked what her problem was. Ms. Mitchell told him about the pain she was having. At that point, she thought it odd that there was no nurse present in the room with them, but because she had a strong trust in doctors, she did not worry about it.
The pelvic examination took approximately 20 minutes with Respondent having the fingers on one hand in her vagina while he pushed on her abdomen with the other hand. When he was finished, he had her stand in front of him with her back to him and examined her vagina with her standing up, again using his other hand to push on her stomach, from time to time asking her if what he was doing hurt her. During the course of the examination, because it took as long as it did, Ms. Mitchell became alarmed and asked Respondent if anything was wrong. He replied that one of her ovaries was enlarged, but not to worry about it. When she got off the table, it was then she noticed that Respondent was not wearing any surgical gloves. She is not sure if he began the pelvic examination by using any type of instrument.
After completing the examination, Respondent told Ms. Mitchell to get dressed and left the room. After she was dressed, he came back in, told her he did not find anything except for a slightly enlarged ovary, gave her a prescription for an antibiotic, and requested she come back in a week. When she stopped at the front desk, she did not say anything to the lady there, the Respondent's wife, because she was embarrassed. She merely did the necessary administrative things, including making another appointment and arranging for payment by Medicaid and left.
However, as she began telling her friend about what happened on the way home, she got more and more upset; and when she arrived home, she called a
female doctor friend of hers who advised her to write to the Medical Society, which she did, but not until two months later. Also, she discussed the situation with a couple of her very closest friends during this period to get advice on what to do about this situation. She neither had the prescription given her by Respondent filled, nor went back to see him again. Several weeks later, when her condition had worsened, she went to see another physician.
On April 16, 1982, Georgia S. Fields, 17, went to the Respondent's office to get her birth control pills. She had been to see him four or five times previously, having been taken there initially by her mother, who was also Respondent's patient. When she entered his examining room, Respondent asked her to sit down and asked how her mother was. Then, according to the witness, he had her stand up, and, sitting to the side of her, unzipped her dress and checked her breasts. He then ostensibly pulled her underpants down below her knees and massaged her clitoris for about 10 minutes, during which time he said nothing to her. He then reportedly examined her vagina and told her she was dry.
After these activities went on for a while, according to the witness, he then moved her chair behind her and brushed his lips, like a light kiss, across her shoulder. With that, the witness called an immediate halt, at which point the Respondent pulled her panties back up, wrote out her prescription and returned to his office while she went up to the desk. According to the witness, this was unusual, as he usually would accompany her to the desk. Ms. Fields, feeling quite upset about this situation, told the lady at the desk what had happened and refused to pay the bill. When she got home that day, Ms. Fields told her mother what ostensibly had happened and, on the next morning, reported it at the police department.
Ms. Fields, as was stated above, has seen Respondent on several different occasions going back to early 1981. Though she denies having had any type of vaginal discharge, she admits to several infections, and her medical records indicate she was treated on various occasions for vaginal discharge. Ms. Fields also states she came in on the day in question only to get a refill on her birth control pills, yet both Respondent's testimony and his patient notes clearly reflect that she complained about low back pain resulting from an injury at work and requested information about a possible disability.
Catherine Lynn Griffin, Ms. Fields' cousin, recalled a conversation she had with her shortly after Ms. Fields' last visit to Respondent. At that time, Ms. Fields stated she was angry with Dr. Vega because he would not give her a statement regarding her work. Ms. Fields indicated at the time that she had filed a complaint against the doctor, although she would not say why. She was heard to state at that time words to the effect that "I'll either get some money from him, or he'll lose his license."
Coincidentally, Ms. Fields' medical records on file at her work place, Disneyworld, reflect that on June 1, 1982, somewhat over a month after her last visit to Dr. Vega's office, she was seen in the Disney doctor's office complaining of pain in the low back area resulting from pushing a wheelbarrow up a hill while at work in the landscaping department on May 28, 1982. At that time, the doctor put her on light duty for one week. She was seen again in follow up on June 8 and June 22. There is no evidence of any permanent injury.
About three weeks after the alleged incident, on April 16, 1982, Ms. Fields' mother came into Respondent's office and apologized to Mrs. Vega, who
was working there at the time, saying that she knew her daughter's allegations were not true. Mrs. Fields is still currently a patient of Respondent.
Respondent denies any impropriety with Ms. Fields on this or any other occasion. While admitting he did not have a witness in the room while examining Ms. Fields, he states there was no need to do so because there was no pelvic examination conducted. He contends that the visit concerned itself with the birth control pills he prescribed, discussion of resolved prior vaginal discharge problems and continuation of discussion regarding a certification of Ms. Fields' mother as an alcoholic, which he refused to do. The main purpose of the visit related to an examination of her back concerning her request for a disability certificate for work. He also refused to give her the certificate.
Dr. Vega also referred to his admitted failure to use gloves, which other evidence showed is sometimes the case with other doctors as well. Both the presence of a witness and the use of gloves are protection for the physician, not the patient. The first protects against unwarranted allegations of improper conduct, and the second, while admittedly protecting the patient from possible infection by the hands of the doctor, equally as important and more likely, protects the doctor from contamination by his patient.
Ms. Fields was, at the time of the alleged incident, under 18 years old. She dropped out of school in the ninth grade. She has been described in her medical records as having acne, unpleasant odors from the vaginal area, cervical and vaginal discharges secondary to poor hygiene habits, oily seborrhea and halitosis.
Considering the inherent probabilities and improbabilities of the evidence presented, and the permissible influences to be drawn therefrom, the evidence fails to establish sufficiently that this Respondent conducted a vaginal examination on this occasion or made any sexual advances toward Ms. Field by kissing her shoulders.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
The alleged misconduct of which Respondent is accused purportedly violates Sections 458.331(1)(k) [Count I], 458.331(1)(h) [Count II], and 458.331(1)(t) [Count III] , Florida Statutes (1981). These provisions are quoted below:
The following acts shall consti- tute grounds for which the disciplinary actions specified in subsection (2) may be taken:
(h) Failing to perform any statu- tory or legal obligation placed upon a licensed physician.
(k) Exercising influence within a patient-physician relationship for purposes of engaging a patient in sexual activity. A patient shall be presumed to be incapable of giving
free, full, and informed consent to sexual activity with his or her physi- cian.
(t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The board shall give great weight to the provisions of s. 768.45 when enforcing this paragraph.
In Count I, the Respondent is alleged to have exercised influence within a patient-physician relationship for purposes of engaging a patient in sexual activity.
The evidence indicates Respondent examined Ms. Fields without an attendant present. This may be an unwise practice, but it is not a violation of the statute. The evidence also indicates the Respondent examined her on several occasions without a glove, although it was not sufficient to establish that this happened on August 16, 1982. Even had it happened, however, by itself, this practice, while also unwise, does not constitute a violation of the statute.
Had Respondent, even with a gloved hand, inserted his fingers into Ms. Fields' vagina and kissed her on the shoulder while rubbing her clitoris, then a violation would clearly be shown. However, this is not the case here. The finding was that Respondent did not kiss Ms. Fields' shoulders in an attempt to engage her in sexual activity. Consequently, there has been no showing of a violation of Section 458.331(1)(k).
Section 458.329, Florida Statutes (1981) states:
The physician-patient relationship is founded on mutual trust. Sexual mis- conduct in the practice of medicine means 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 exami- nation or treatment of the patient.
Sexual misconduct in the practice of medicine is prohibited.
Since a finding was made that there was no sexual misconduct, it cannot be said that the evidence shows a violation of Section 458.331(1)(h), either.
Finally, the same factual allegations are charged as a failure to practice with that level of care, skill and treatment as is considered acceptable under the circumstances by a reasonably prudent similar physician.
Here, the evidence shows not only that Dr. Vega examined a female patient without an attendant present, but that he conducted vaginal examinations without wearing a glove. As was stated, supra, these practices are undoubtedly unwise for numerous reasons, and the evidence shows that Ms. Fields was not the only female patient so examined. The other complaint was disposed of by a cautionary discussion. It is, indeed, unfortunate that the Respondent failed to heed this prior advice. Nonetheless, failure to heed advice does not, in this case, constitute impropriety so as to constitute a violation of this statutory provision.
License revocation proceedings are penal in nature. State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973). As such, "the critical matters in issue must be shown by evidence which is undoubtedly as 'substantial' as the consequences. Bowling v. Department of Insurance, 394 So.2d 165, 172 (1 DCA Fla. 1981). Therefore, the evidence which is required to "substantially" support a license revocation must be greater than that required to support conventional forms of regulatory action. In this instance, Petitioner has failed to meet its burden of proof. Accordingly, grounds for disciplinary action have not been established.
That Petitioner dismiss the Administrative Complaint herein. RECOMMENDED this 17th day of August, 1983, in Tallahassee, Florida.
ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1983.
Charlie L. Adams, Esquire Ms. Dorothy Faircloth
Department of Professional Executive Director Regulation Board of Medical Examiners
130 North Monroe Street Department of Professional Tallahassee, Florida 32301 Regulation
Mr. Fred Roche Secretary
