Judges: WILLIAM J. KENDRICK
Agency: Department of Business and Professional Regulation
Latest Update: May 22, 1990
Summary: Department failed to establish that psychiatrist exercised influence within physician-patient relationship to engage patient in sexual intercourse.
84-3552STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )
)
Petitioner, )
)
vs. ) CASE NO. 84-3552
)
EMILIO YERO, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on November 15, 1984, at Miami, Florida.
APPEARANCES
For Petitioner: Joseph L. Shields, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Peter R. Lopez, Esquire
28 West Flagler Street, Suite 202 Miami, Florida 33130
PRELIMINARY STATEMENT
By Administrative Complaint filed with the Division of Administrative Hearings October 10, 1983, Petitioner, Department of Professional Regulation, Board of Medical Examiners, alleges that Respondent, Emilio Yero, M.D., violated
Sections 458.329 and 458.331(x), Fla. Stat., by using the patient-physician relationship to induce his patient (Denise Gibson) to engage in sexual activity,
Section 458.331(1)(k), Fla. Stat., by exercising influence within the patient-physician relationship for the purpose of engaging a patient (Denise Gibson) in sexual activity, and (3) Section 458.331(1)(t), Fla. Stat., predicated on the allegation that Respondent's conduct of engaging in sexual activity with a patient (Denise Gibson) constituted 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.
At the final hearing Petitioner called Hans Steiner--an expert in psychiatry and psychoanalysis, Denise Gibson--complainant, and Respondent, Emilio Yero, M.D., as witnesses. Petitioner offered Exhibits 1 through 4, and they were received into evidence. Respondent testified on his own behalf, and offered Exhibit 1, which was received into evidence.
The transcript of hearing was filed December 10, 1984. At the parties" request an extension of time was given in which to submit proposed findings of fact and conclusions of law. The parties waived the requirement set forth in Rule 28-5.402, F.A.C., that a recommended order be entered within 30 days after the transcript is filed.
Petitioner and Respondent have submitted proposed findings of fact and conclusions of law. The parties' proposed findings and conclusions have been reviewed and considered. To the extent that any proposed findings have not been adopted in this Recommended Order, they have been rejected as being subordinate, cumulative, immaterial, or unnecessary, or as being contrary to the facts as found in this Recommended Order.
FINDINGS OF FACT
Petitioner, Department of Professional Regulation, Board of Medical Examiners, is a state agency charged with regulating the practice of medicine pursuant to Section 20.30, Fla. Stat.
Respondent, Emilio Yero, M.D., is, and was at all times material to this case, a licensed medical doctor in the State of Florida, having been issued license No. ME 0032320.
At all times material hereto, Respondent was employed as a psychiatrist by a health plan provider at 560 Northwest 165 Street Road, Miami, Florida. The health plan, which covered complainant, Denise Gibson, permitted 20 psychotherapy sessions a year.
The Patient-Physician Relationship.
On January 15, 1982, Ms. Gibson underwent her first psychotherapy session with Respondent, and a patient-physician relationship began. There is substantial conflict between the parties regarding the duration of the patient- physician relationship.
The evidence reflects a total of 20 sessions from January 15, 1982 through May 7, 1982. Respondent's progress notes, however, also reflect an office visit on December 14, 1982, following which Respondent made the notation "case closed."
Respondent insists that his last session, in accordance with the 20- session limit imposed by the health care plan, was May 7, 1982, and that the patient-physician relationship terminated on that date. He further insists that the visit of December 14, 1982, was an unannounced visit by Ms. Gibson and that he saw her on that date only as a courtesy.
Ms. Gibson insists that she made approximately 40 visits to Respondent's office from January 15, 1982 through December, 1982. She states she personally paid for three or four of these visits at the front desk, and, on Respondent's advice, avoided the necessity of paying for further visits by advising the receptionist that her "$100 limit was up." No receipts, cancelled checks, or other documentation was offered at final hearing to substantiate her claim.
Hans Steiner, M.D., an expert in psychiatry and psychoanalysis, testified that the patient-physician relationship is primarily a contractual one, to be determined by the agreement of the parties. Dr. Steiner's testimony, therefore, does not help in resolving the conflict in testimony on this issue.
The Sexual Activity.
While Respondent concedes he had sexual intercourse with Ms. Gibson, their respective testimony is contradictory regarding the date of inception, the duration, and the impetus for their encounter.
Respondent testified that he had sexual intercourse with Ms. Gibson on only three or four occasions between the middle or end of June 1982 and October or November 1982. Respondent further testified that there was no petting or sexual activity between Ms. Gibson and him at his office, his condominium, or any other location except the St. Michelle--a hotel located in close proximity to Respondent's condominium in Coral Gables, Florida.
Respondent further testified that he did not initiate any sexual advances toward Ms. Gibson but succumbed to her "threats." According to Respondent, Ms. Gibson threatened to complain to the American Psychiatric Association, his employer, the Board of Medical Examiners, and to sue him civilly because of his treatment of her condition. According to Respondent, it was, only because of these "threats" that he succumbed and had sexual intercourse with Ms. Gibson.
Ms. Gibson, however, testified that Respondent first made sexual advances towards her at the end of March or early April 1982. At that time, with her permission, Respondent fondled her. Ms. Gibson further testified that she and Respondent first had sexual intercourse the end of May 1982 at her home, during the summer at his office, in August at his condominium, in September or October at the Hotel St. Michelle, and in January 1983 at her apartment.
Ms. Gibson gave a detailed description of Respondent's condominium and testified that she received a watch from Respondent as a Christmas present in 1982. Respondent concedes the accuracy of her description of his condominium, but denies her presence there, and surmises that she "extracted" such detailed information from him. Respondent did not deny the gift.
According to Ms. Gibson, their relationship progressed from a "spontaneous kiss"--"a peck"--to fondling, to sexual intercourse. She testified she made no threats and that Respondent expressed his desire to have sex with her. According to Ms. Gibson, she was in love with Respondent, and the intimacies were a result of that affection.
Ms. Gibson, however, did mail letters to Respondent which could be construed as threats. She insists they were merely expressions of hurt and anger at his lack of acceptance of her.
The Self-Interest of the Parties.
A resolution of the conflicting testimony is further complicated by the self-interest of Respondent and Ms. Gibson as well as Ms. Gibson's mental state. The self-interest of Respondent in these disciplinary proceedings is apparent. Ms. Gibson's self-interest arises by virtue of a current civil action she has pending in the Circuit Court of Dade County, Florida, wherein she seeks to recover compensatory and punitive damages against the Respondent as a
consequence of the intimacies which she alleges occurred during the course of the patient-physician relationship. The complaint Ms. Gibson filed against Respondent with the Hoard of Medical Examiners, and which precipitated the filing of the Administrative Complaint in this action, was filed subsequent to her civil suit.
Ms. Gibson's mental condition is another factor. Ms. Gibson has been diagnosed as a borderline personality. According to Dr. Steiner, people with that diagnosis are fragile (have difficulty) in adjusting to reality or emotional situations. Such personalties may become psychotic under stressful and emotional situations, may suffer aggressive infatuation (pursuit) and are very unlikely to improve with treatment.
Ms. Gibson's mental state was additionally complicated by the phenomenon known as transference which occurred during her treatment by the Respondent. Transference is a term used to describe the development of strong emotional feelings of a patient toward a psychiatrist, feelings which in the past were attached to other people of significance in her lie.
Resolution of the Conflicting Testimony.
The evidence is this case is in irreconcilable conflict as to when the patient-physician relationship terminated and when any sexual intercourse commenced. The absence of any evidence to corroborate Ms. Gibson's testimony or to impeach Dr. Yero's testimony further complicates a resolution of the conflict. Therefore, in conformity with Robinson v. Florida Board of Dentistry,
447 So. 2d 930 (Fla. 3d DCA 1984), the Hearing Officer finds that the Petitioner has failed to establish the patient- physician relationship extended beyond May 7, 1982, and that any sexual intercourse occurred before the termination of that relationship.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
The allegations in this case are that Respondent, Emilio Yero, M.D., violated Sections 453.329, 458.331(1)(k) 458.331(1)(t), and 458.331(1)(x), Fla. Stat. Section 458.329, Fla. Stat., provides:
The physician-patient relationship is founded on mutual trust. Sexual misconduct 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 examination or treatment of the patient. Sexual misconduct in the practice of medicine is prohibited.
Section 458.331, Fla. Stat., provides in pertinent part:
The following acts shall constitute grounds for which the disciplinary action specified in (2) may be taken.
* * *
(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 physician.
* * *
(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.
* * *
(x) Violating any provision of this chapter, a rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the department.
Respondent asserts that the absence of a patient- physician relationship at the time of the sexual activity in question precludes a finding that he committed any offense. Petitioner's proposed recommended order tacitly concedes Petitioner's assertion.
Although it is axiomatic that statutes authorizing the disciplining of a license to practice a profession must be strictly construed, since they are penal in nature, the Hearing Officer declines to adopt the narrow construction advocated by Respondent.
Section 458.331(1)(k), Fla. Stat., condemns a physician who exercises influence within the patient-physician relationship for the purpose of engaging a patient in sexual activity. A violation of that section can result even if the sexual activity occurred subsequent to the termination of the patient- physician relationship. It is the influence which is exercised upon the patient during the relationship, to engage in sexual activities, not when the sexual activities occur, which is the operative factor. Similarly, Section 458.329, Fla. Stat., prohibits the use of the relationship to induce the patient to engage in sexual activity outside the scope of the practice. It is the use of the patient-physician relationship, the special trust and confidence which has developed, to induce the patient to engage in sexual activity--not when the sexual activity occurs--which is again the operative issue.
Viewing the evidence in the light most favorable to Respondent, it is apparent he first had sexual relations with Ms. Gibson within six weeks of her last visit. The question then is whether such sexual intercourse resulted from
influence exercised within the patient-physician relationship for the purpose of, or the use of the physician-patient relationship to induce the patient to, engage in sexual activity.
Dr. Yero admittedly diagnosed Ms. Gibson as a borderline personality. Ms. Gibson had a poor self-image, was a dependent personality, was fragile in her adjustment to reality and emotional situations, and could become psychotic under stressful or emotional situations. During the course of the patient- physician relationship Ms. Gibson suffered transference and, consequently, had a strong emotional attachment to Dr. Yero, which she perceived as reciprocal. Notwithstanding the fact that he was fully cognizant of her condition, and recognized that the cause of her emotional attachment was grounded in the patient- physician relationship, Dr. Yero concedes he had sexual intercourse with Ms. Gibson. The cause-effect of the patient- physician relationship and the sexual intercourse which ensued is apparent.
Although the cause-effect of the patient-physician relationship and the sexual intercourse is clear, a violation of Sections 455.329, 458.331(1)(x) and 455.331(1)(k), Fla. Stat., requires proof of intent. Sections 455.329 and 455.331(1)(x) condemn Respondent's actions only if he used the physician- patient relationship to induce Ms. Gibson to engage in sexual activity. Section 458.331(1)(k), Fla. Stat., condemns his actions only if he exercised his influence for the purpose of engaging her in sexual activity.
A resolution of the intent issue suffers the same deficient record as other issues presented. On the one hand any sexual intercourse between Ms. Gibson and Dr. Yero occurred six weeks following the termination of the patient- physician relationship. While not dispositive of the intent issue, the fact Dr. Yero did not engage in sexual intercourse with Ms. Gibson at an earlier date certainly militates against the existence of the requisite intent. Further, Ms. Gibson concedes that their intimacies were the natural result of her affections-
- however they may have arisen. On the other hand, Dr. Yero's explanation that he "succumbed" to Ms. Gibson's demands for sexual intercourse, because of her threats to "expose him, borders on the incredulous for a psychiatrist. Further, Respondent's recognition that the cause of Ms. Gibson's emotional attachment was grounded in the patient-physician relationship, and that their intimacies flowed from that relationship, smacks of impropriety. But while Respondent's actions smack of impropriety and indifference, they are nevertheless as easily characterized as the actions of a weak man as those of an intentional seducer.
Petitioner's burden of proof was that of "clear and convincing evidence." See Reid v. Florida Real Estate Commission, 188 So. 2d 846 (Fla. 2d DCA 1966). The evidence presented was not "clear and convincing," nor did it approach the level of "competent substantial evidence" required by Section
120.57. See Robinson v. Florida Hoard of Dentistry, 447 So. 2d 930 (Fla. 3d DCA 1984); Howling v. Department of Insurance, 394 So. 2d 165 (Fla. 1st DCA 1981). By failing to prove circumstantially or otherwise the requisite intent by Dr. Yero to use his influence or the patient-physician relationship for the purpose of engaging Ms. Gibson in sexual activity, Petitioner has not satisfied its burden of proof. Therefore, Petitioner has failed to establish a violation of Sections 458.329, 458.331(1)(x), or 458.331(1)(k), Fla. Stat.
The final charge leveled against Respondent is for a violation of Section 458.331(1)(t), Fla. Stat., predicated on the allegation that by engaging in sexual activity with Ms. Gibson he was guilty of gross or repeated malpractice or a failure to practice medicine with that degree of care, skill, and treatment which is recognized by a reasonably prudent similar physician as
being acceptable under similar conditions and circumstances. Essentially, this is a charge of negligence. Unlike a charge of violating Section 458.331(1)(k), Fla. Stat., which requires no proof of a standard of care, a charge under Section 458.331(1)(t), Fla. Stat., necessarily requires evidentiary proof of some standard of professional conduct as well as a deviation there from. Purvis
v. Department of Professional Regulation, So. 2d (Fla. 1st DCA 1984), op. filed 11/16/84. While Respondent's actions may appear improper, Petitioner failed to offer any evidence regarding a standard of conduct or any deviation therefrom. Consequently, Petitioner has failed to establish a violation of Section 458.331(1)(t). 1/
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administrative Complaint filed against Respondent,
Emilio Yero, M.D., be dismissed with prejudice.
DONE AND ENTERED this 11th day of February, 1985, at Tallahassee, Florida.
WILLIAM J. KENDRICK
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 11th day of February, 1985.
ENDNOTE
1/ Parenthetically, s. 458.329, Fla. Stat., also requires proof of a standard of conduct and any deviation therefrom. Petitioner also failed to establish a violation of s. 453.329, Fla. Stat., since Petitioner failed to establish a standard of conduct and any deviation therefrom.
COPIES FURNISHED:
Joseph L. Shields, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Peter R. Lopez, Esquire
28 West Flagler Street, Suite 202 Miami, Florida 33130
Dorothy Faircloth, Executive Director Board of Medical Examiners
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Fred M. Roche, Secretary
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
================================================================= AGENCY FINAL ORDER
================================================================= BEFORE THE BOARD OF MEDICAL EXAMINERS
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
vs. DPR Case No. 0047186
DOAH Case No. 84-3552
EMILIO YERO, M.D., License No. ME 00 3230
Respondent.
/
FINAL ORDER OF THE BOARD OF MEDICAL EXAMINERS
This cause came before the Board of Medical Examiners (Board) pursuant to Section 120.57(1)(b)(9), Florida Statutes, on April 13, 1985, in Kissimmee, Florida for the purpose of considering the hearing officer's Recommended Order (a copy of which is attached hereto) in the above-styled cause. Petitioner, Department of Professional Regulation, was represented by William A. Furlow, Esquire; Respondent, Emilio Yero, M.D., was present and represented by Peter R. Lopez, Esquire.
Upon review of the Recommended Order, the argument of the parties, and after a review of the complete record in this case, the Board makes the following findings and conclusions.
FINDINGS OF FACT
The Board accepts and adopts as its own the findings of fact set forth in the Recommended Order of the Hearing Officer with the exception of those set forth in paragraph 19. The Board finds that there is a lack of competent substantial evidence to support the finding rejected. In lieu of that sentence, the Board adopts the following finding:
However, the uncontroverted evidence is that Ms. Gibson saw Dr. Yero at his office on December 14, 1982 and it was on that date that her case was marked "closed" by the Respondent. Thus, it is clear that
Respondent's own records establish that the physician-patient relationship did not terminate until at least December, 1982.
In light of Respondent's own admission to the existence of a sexual relationship with Ms. Gibson prior to December 1982, the Board finds that there was sexual activity between Ms. Gibson and Dr. Yero while the physician- patient relationship was in existence.
CONCLUSIONS OF LAW
The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.
The Board rejects the Conclusions of Law by the Hearing Officer as not being in accord with the facts as found by the Board.
The allegations in this case are that Respondent, Emilio Yero, M.D., violated Sections 458.329, 458.331(1)(k), 458.331(1)(t), and 458.331(1)(x), Fla.Stat. Section 458.329, Fla. Stat., provides:
The physician-patient relationship is founded on mutual trust. Sexual misconduct 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 examination
or treatment of the patient. Sexual misconduct in the practice of medicine is prohibited.
Section 458.331, Fla.Stat., provides in pertinent part:
The following acts shall constitute grounds for which the disciplinary action specified in (2) may be taken.
* * *
(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 physician.
* * *
(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.
* * *
(x) Violating any provision of this chapter,
a rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the department.
At all times pertinent to the allegations, Denise Gibson was a patient of Respondent. In light of that, the legal issue of whether sexual activity which occurs after the physician-patient relationship terminates need not be ruled upon in this case. When the sexual relationship occurs during the physician-patient relationship, it is clear that sexual misconduct in the practice of medicine as that term is used in Section 458.329, Florida Statutes, has occurred.
Similarly, when the sexual relationship occurs while there is a physician-patient relationship between the participants, it is clear that the physician has violated Section 458.331(1)(h), Florida Statutes, by exercising influence within the patient-physician relationship for purposes of engaging a patient in sexual activity. Given the legislature's clear provision that the patient is incapable of giving free, full, and informed consent to such sexual activity, the only reasonable interpretation of the statute is that if sexual activity occurs during the existence of a patient-physician relationship, the responsibility for that activity must rest squarely on the shoulders of the physician.
No violations were found as to Sections 458.331(1)(t) and 458.331(1)(x), Florida Statutes.
DISPOSITION
In light of the Board's Findings of Fact and Conclusions of Law, the Hearing Officer's recommendation that the Administrative Complaint against Respondent be dismissed with prejudice is rejected and a penalty appropriate to the findings and conclusions must be assessed.
THEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:
That Respondent shall be, and hereby is, REPRIMANDED.
Respondent's license to practice medicine shall be suspended for a period of three months.
Respondent's license shall be placed on probation for a period of two years subject to the following terms and conditions:
Respondent shall make semi-annual appear- ances before the Board.
Respondent waived confidentiality on the record with regard to investigative reports prepared by the Department during the probation period.
This Order takes effect upon filing.
Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this final order by filing one copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one copy of
a notice of appeal with the District Court of Appeal within thirty days of the date this order is filed, as provided in Chapter 120, Florida Statutes, and the Florida Rules of Appellate Procedure.
DONE AND ORDERED this 17th day of June, 1985.
BOARD OF MEDICAL EXAMINERS
J. DARRELL SHEA, M.D. Chairman
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by certified mail to EMILIO YERO, M.D., 110 Salamanco #307, Coral Gables, Florida 33134 and PETER R. LOPEZ, Esquire, 28 West Flagler Street, Suite 202, Roberts Building, Miami, Florida 33130 and by regular United States mail to WILLIAM J KENDRICK, Hearing Officer, Division of Administrative Hearings, Oakland Building, 2009 Apalachee Parkway, Tallahassee, Florida 32301; and by hand delivery to WILLIAM M. FURLOW, Esquire, Department of Professional Regulation, 130 North Monroe Street, Tallahassee, Florida 32301, at this day of 1985.
Docket for Case No: 84-003552
Orders for Case No: 84-003552
| Issue Date |
Document |
Summary |
|
Jun. 17, 1985 |
Agency Final Order
|
|
|
Feb. 11, 1985 |
Recommended Order
|
Department failed to establish that psychiatrist exercised influence within physician-patient relationship to engage patient in sexual intercourse.
|
