STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

MEDICAL EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 85-1323

) DPR NOS. 0046140 &

RICHARD P. EMERSON, M.D., ) 0045624

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings, on October 25, 1985, at Miami, Florida.

APPEARANCES

For Petitioner: William M. Furlow, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Deborah J. Miller, Esquire

2121 Ponce de Leon Boulevard Suite 450

Coral Gables, Florida 33134

ISSUE

This is a case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that during the course of a doctor-patient relationship the Respondent violated Sections 458.329 and 458.331(1)(k), Florida Statutes, by engaging in sexual misconduct with a patient. The specific factual allegation is that during the course of the doctor-patient relationship the

Respondent fondled the patient's genitals or otherwise engaged in inappropriate sexual contact with the patient.

INTRODUCTION

At the hearing the Petitioner presented the testimony of the patient1 who was alleged to be the victim of the sexual misconduct, the testimony of both of the patient's parents, and the testimony of one of the patient's treating psychiatrists.

The Petitioner also offered into evidence one composite exhibit which was received in evidence over objection.

The Respondent presented the testimony of two witnesses, a medical records custodian and an expert witness in the field of psychiatry. The Respondent did not offer any exhibits in evidence. The Respondent did not personally appear at the hearing and did not testify in his own behalf.

At the close of the hearing the parties elected to order a transcript of the proceedings and requested a 14-day period from the filing of the transcript within which to file their posthearing submissions. The transcript was filed on December 2, 1985, and both parties filed timely posthearing submissions which contained, inter alia, proposed findings of fact. The posthearing submissions of the parties have been given careful consideration in the preparation of this recommended order.

Specific rulings on each of the proposed findings of fact submitted by both parties are contained in the appendix which is attached to and incorporated in this recommended order.

FINDINGS OF FACT

Based on the stipulations of the parties, on the exhibit received in evidence, and on the testimony of the witnesses at the formal hearing, I make the following findings of fact.

1. The Department of Professional Regulation is the state agency charged with regulating the practice of physicians pursuant to Section 20.30, Florida Statutes, and Chapters 455 and 458, Florida Statutes. (Stipulation, Tr. 5)

2. At all times material hereto, the Respondent, Richard

   P.

   Emerson, M.D., has been a licensed physician in the state

   of Florida, having been issued license number ME 0005011. (Pet. Ex. 1, Tr. 40-41, 137-139, 175, 210)2

3. At all times material hereto, the Respondent has held himself out as a psychiatrist. (Pet. Ex. 1, Tr. 45, 139, 155, 175, 210).

   
   

4. The patient whose treatment forms the gravamen of this case is a 26-year-old male with a long history of emotional problems. The patient has had psychiatric problems since he was two and a half or three years old and was diagnosed as autistic at age five. He has since been diagnosed as schizophrenic and paranoid schizophrenic. He has suffered from acute schizophrenia since early childhood. A paranoid schizophrenic is enormously suspicious; he feels that someone is going to harm him. The patient has been hospitalized at least twelve times for treatment of emotional problems. (Tr. 39, 45, 64, 139, 181, 196-197, 200)

   
   

5. The Respondent treated the patient off and on at different times between 1974 and 1984. A patient-physician relationship existed between the Respondent and the patient at all material times. (Tr. 40-41, 137-139)

   
   

6. The patient's medical history has been marked by violent outbursts against family members, including choking his sister. His mother expressed concern that someone was going to get killed. The patient has also experienced hallucinations, delusions, sexual preoccupation, sexual concerns, and sexual gender problems. His illness has included fears that people were out to get him and that people whose conversations he could not clearly overhear were talking about him and plotting against him. (Tr. 74-75, 143-144, 196-197)

   
   

7. On February 21, 1984, the patient was hospitalized under the care of Dr. Joel Grossman. Dr. Grossman observed psychotic symptoms and diagnosed the patient as acutely schizophrenic. Psychosis is a disturbance of thinking, feeling, and behavior in which the individual may confuse his own inner world with the outer world of reality. Acute schizophrenia is an exacerbation of the psychotic symptoms resulting in a change in one's thoughts, feelings and behavior to the extent that the individual experiences difficulty in distinguishing reality from fantasy. An individual suffering from an acute schizophrenic episode, as was the patient in this case at the time of his hospitalization in February of 1984, is less likely to be able to accurately recount the truth and to accurately distinguish between things that really happened and things that are fantasies. (Tr. 181-183, 189-190, 196-197)

8. The patient, who is the sole accusing witness in this case, is not a credible witness. His illness interferes markedly with his ability to perceive accurately and to accurately recount the truth. The patient contradicted himself on several occasions during the hearing. He was often reluctant to answer questions. He also admitted during the hearing that he had given false answers to some questions during his deposition just to get the deposition over with. The patient has an admitted tendency to give false answers when he is in a stressful situation. The patient was obviously under a great deal of stress during his testimony at the hearing. (The findings in this paragraph are to an extent based on the entirety of the relevant testimony at the hearing. The

   transcript references which	follow are only examples and are not
   exhaustive. Tr. 55, 57-59,	61-62, 77-85, 89-91, 93, 95, 97-98,
   100, 108, 110-111, 113-118,	122, 132, 125, 135, 181-182, 190,
   196-197, 199, 200-205, 209,	212, 223, 225, 226)

   
   

9. The patient presently suffers from a paranoid type of schizophrenic disorder. He has suffered from this condition for a number of years. The essential features of this disorder include the following: prominent persecutory or grandiose delusions or hallucinations with persecutory or grandiose content. In addition, delusional jealousy is present. Associated features include unfocused anxiety, anger, argumentativeness, and violence. In addition, there may be doubts about gender identity or fear of being thought of as a homosexual or being approached by homosexuals. The impairment in functioning may be minimal if the delusional material is not acted upon since gross disorganization of behavior is relatively rare. Similarly, effective responses may be preserved. Often a stilted formal quality or extreme intensity in interpersonal interactions is noted. (Tr. 196-197, 201-203)

   
   

10. The patient has exhibited signs of having gender identity doubts, fear of being thought of as homosexual, or of being approached by homosexuals. Since 1980 the patient has had fears of being homosexually attacked. In 1974 the patient masturbated himself against the furniture in the Respondent's waiting room while he was alone. It is in 1974 that the patient alleges that the Respondent rubbed or scratched his back with his shirt on at the patient's request in order to relax him; (Tr. 61, 73, 131-132, 196-197)

    
    

11. From approximately January of 1982 until the spring of 1985, the patient and a male friend named Dale engaged in a homosexual relationship. During this three-year period, Dale

    massaged the patient's back on numerous occasions and fondled the patient's genitals on numerous occasions. The patient exhibited his fear of being thought of as homosexual during his testimony at the hearing. He initially denied having had a sexual relationship with Dale and exhibited some confusion regarding the relationship which was clearly sexual in nature. The patient continued to maintain that his relationship with Dale was not sexual in nature, while at the same time admitting that he permitted Dale to fondle his genitals throughout their three-year relationship. (Tr. 78, 84-85, 151)

    
    

12. The patient has also had difficulties with insomnia since 1980 Fears and thoughts of suicide have plagued him. He has had sexual fantasies and fantasies that he was the center of attention. On such occasions, the patient sometimes called the Respondent to talk about his family problems and his concerns and upsets. The patient also called his friend Dale when he was feeling suicidal, fearful, and alone. (Tr. 110-111, 129-130, 148)

    
    

13. The relationship between the patient and his friend Dale bears a striking resemblance to the relationship the patient alleges that he had with the Respondent. Dale massaged the patient's back, the patient called Dale when he was feeling fearful, suicidal, and lonely. Dale picked the patient up in his car and took him places. The patient allowed Dale to fondle his genitals on numerous occasions. The patient and Dale also embraced and kissed. (Tr. 85-86, 88-89, 128-130, 151)

    
    

14. One of the patient's hospitalizations was from June 29 to July 18, 1983. During his testimony he at first insisted that this hospitalization was because of the Respondent and denied it had anything to do with his having broken up with Dale. Later in his testimony the patient admitted that his break-up with Dale was one of the problems that led to his hospitalization. This incident is another manifestation of the patient's confusion between his friend Dale and the Respondent. (Tr. 113, 118)

    
    

15. The patient has a hostile or acrimonious attitude toward both the Respondent and the Respondent's son. He feels that they are both "sick." (Tr. 122-123)

    
    

16. The most logical explanation of the basis for the patient's allegations against the Respondent is that the allegations result from the patient's fantasies and delusions about the nature of his relationship with the Respondent. The

    patient is a severely disturbed schizophrenic who distorts what he perceives. His allegations are fantasies that are nothing more than the ramblings of a very seriously psychotic individual. The patient built up a sexual delusional system about the Respondent which manifested itself as early as the 1974 masturbation incident. There is also a transference situation in which the patient has confused the nature of his relationship with his friend Dale with the nature of his relationship with the Respondent. In sum, the allegations are most likely a fabrication from the patient's insanity. (Tr.

    197, 199-203, 204-205, 211-212)

    
    

    CONCLUSIONS OF LAW

    
    

    Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law.

17. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this case. Sec. 120.57(1), Fla. Stat.

    
    

18. Both parties have directed argument to the issue of whether the evidence in this case is sufficient to support a finding that the Respondent is currently licensed. For reasons which are summarized in footnote 2, I have found that the evidence is sufficient to support such a finding.

    
    

19. It is a well-settled proposition of law that in a case of this nature the burden of proof lies with the Petitioner, and upon a failure of proof the Administrative Complaint must be dismissed. Because of the lack of credibility of the only witness who testified from personal knowledge that the Respondent engaged in a prohibited act, there is a fundamental failure of proof of an essential allegation. And because the proof here does not even reach the preponderance of the evidence level, there is not need to address here the issue of whether cases like Bowling3 or Robinson4 require some higher level of proof.

    
    

20. The Respondent argues that it is appropriate for the finder of fact in a case of this nature to draw an inference of guilt from the failure of the Respondent to testify at the hearing and at least deny the allegations under oath. Without question, there is a certain logic to the Respondent's argument in this regard--a logic which is very tempting to the finder of fact. But it must nevertheless be remembered that there are many reasons other than guilt which may motivate a Respondent

    not to testify. And it must also be kept in mind that the Vining5 right to silence would become a very illusory right indeed if it could only be exercised at the risk of an inference of guilt by failing to speak up. It seems clear to me from Vining that the Petitioner must prove up its case without any help from the Respondent, and that the Respondent's failure to be of assistance to the prosecutorial effort cannot give rise to an inference of guilty as charged.

    
    

21. Each party presented an expert witness to express an opinion on the subject of whether the patient was telling the truth when he made his allegations of sexual misconduct against the Respondent. Both opinions were a bit "tainted" by extraneous considerations one more so than the other. The testimony of Dr. Grossman, a subsequent treating psychiatrist, was tainted to some extent by the considerations addressed in Robinson.6 Dr. Grossman's opinion was also tainted by certain hearsay information which he described as follows:

    
    

    In addition I had been told about three or four months earlier by another physician about certain behavior on Dr. Emerson's part at the hospital at which he was practicing. In light of what I had heard earlier I gave more credence to . . . [the patient's] story than I might otherwise have. (Tr. 189)

    
    

22. The testimony of Dr. Afield, the Respondent's expert, was also arguably tainted, but to a lesser degree. Prior to preparing for his testimony, Dr. Afield was advised by counsel for Respondent that the Respondent was "not guilty"-of the charges against him. Dr. Afield had also heard from contact with other psychiatrists that the Respondent enjoyed a reputation as one of "the best child psychiatrists in Miami." However, a significant difference in the extent to which the "taints" may have affected the opinions of the experts is that Dr. Grossman admits that the hearsay information he had received about the Respondent caused him to give more credence to the patient's story, while Dr. Afield was firm in his assertion that his opinion was unaffected by what he had heard about the Respondent's reputation.7

23. More important than the matter of whether either of the expert witnesses believed or disbelieved the patient's story is the fact that both expert witnesses were in substantial agreement as to the nature of paranoid schizophrenia and as to

    the fact that a person suffering from paranoid schizophrenia is subject to hallucinations, fantasies, and delusions and is also subject to confusing those hallucinations, fantasies, and delusions with reality and ending up not knowing which is which.

    
    

24. While I am not as confident as is Dr. Afield that the patient's allegations are totally fictitious products of a deranged mind, I am confident that that is the most likely case and am also confident that the patient is a totally unreliable witness and that the most that can be said on the basis of his uncorroborated testimony is maybe it happened and maybe it did not happen.8 Without corroborating evidence, it is as likely that the acts alleged did not happen as it is that they did. This quality of proof is simply insufficient to support a finding of fact in a case of this nature.

RECOMMENDATION

On the basis of all of the foregoing it is recommended that the Board of Medical Examiners enter a final order dismissing the Administrative Complaint against Dr. Richard P. Emerson for failure of proof.

DONE AND ORDERED this 30th day of December, 1985, at Tallahassee, Florida.

MICHAEL M. PARRISH, 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 30th day of December, 1985.

ENDNOTES

1/ Throughout this recommended order I have purposely avoided mention of the names of the patient who is the alleged victim in this case, as well as the names of his parents, in order to spare them any further unnecessary publicity. The use of the term "the patient" in this recommended order refers to the

patient specifically named in paragraphs 3 and 4 of the Administrative Complaint. The patient and his parents have problems enough without the added inconvenience which might flow from further publicity when this recommended order is eventually published.

2/ The finding that the Respondent is licensed as a physician in this state is a finding that might best be described as "just barely" proved. Petitioner's Exhibit 1, standing alone, is insufficient to prove that Respondent is presently licensed as a physician in this state because certain portions of the affidavit that make up the first page of that exhibit consist of hearsay statements which would not be admissible over objection in a court and because the information in the nine pages of copies of records that comprise the remainder of the exhibit fail to contain any information about the Respondent's licensure status beyond the year 1969. Nevertheless, I am of the view that the admissible information contained in Petitioner's Exhibit 1, when considered along with the testimony of several witnesses to the effect that the Respondent has continued to practice medicine in this state, is sufficient to constitute competent substantial evidence that the Respondent is still licensed to practice medicine in this state--but just barely sufficient.

3/ Bowling v. Department of Insurance, 394 So. 2d 165 (Fla. 1st DCA 1981).

4/ Robinson v. Florida Board of Dentistry, Dept. of Professional Regulation, 447 So. 2d 930 (Fla. 3d DCA 1984).

5/ State ex ref. Vining v. Florida Real Estate Commission, 281 So. 2d 47 (Fla. 1973).

6/ Robinson v. Florida Board of Dentistry, Dept. of Professional Regulation, 447 So. 2d 930 (Fla. 3d DCA 1984).

7/ Although the record does not reflect exactly what kind of hearsay about the Respondent was recounted to Dr. Grossman, that hearsay clearly involved allegations of specific instances of behavior by Dr. Emerson. Rumors involving specific instances of alleged behavior are more likely to color an opinion than are more general comments such as those which were heard by Dr.

Afield.

8/ The problems associated with reliance upon the testimony of witnesses suffering from mental disorder, including paranoid

schizophrenia, are discussed in United States v. Lindstrom, 698 F.2d 1154 (llth Cir. 1983). Most of these problems were also addressed by the testimony of Dr. Afield.

APPENDIX

The following are my specific rulings on each of the proposed findings of fact submitted by the parties. Further explication of the basis for some of the more critical rulings may be found in the footnotes to the findings of fact and in the discussion of the issues in the conclusions of law portion of this recommended order.

Rulings on Petitioner's proposed findings:

The substance of all of the findings proposed by paragraphs

1 through 4 of the Petitioner's proposed findings is included in paragraphs 2 through 5 of the findings of fact in this recommended order.

Paragraph 5 of the Petitioner's proposed findings is rejected as contrary to the greater weight of the evidence. Further explication on the basis for rejecting this proposed finding may be found in some of the additional findings of fact regarding the credibility of the patient and in the discussion of the issues in the conclusions of law portion of this recommended order.

Paragraph 6 of the Petitioner's proposed findings is rejected as not supported by credible competent substantial evidence. Further explication of the basis for rejecting these proposed findings may be found in some of the additional findings of fact regarding the credibility of the patient and in the discussion of the issues in the conclusions of law section of this recommended order.

Rulings on Respondent's proposed findings:

Paragraph 1 of the Respondent's proposed findings is rejected as contrary to the greater weight of the evidence. (See paragraph 2 of the findings of fact in this recommended order and footnote 2 to this recommended order.)

The substance of paragraph 2 of Respondent's proposed findings is accepted with minor changes in the dates to conform

to the greater weight of the evidence. (See paragraph 5 of the findings of fact in this recommended order.)

The substance of paragraph 3 of Respondent's proposed findings is accepted with minor changes. (See paragraph 4 of the findings of fact in this recommended order.)

The substance of paragraph 4 of Respondent's proposed findings is accepted. (See paragraphs 4 and 6 of the findings of fact in this recommended order.)

The substance of paragraph 5 of Respondent's proposed findings is accepted with the deletion of minor editorial comments. (See paragraph 7 of the findings of fact in this recommended order.)

The substance of paragraph 6 of Respondent's proposed findings is accepted. (See paragraph 8 of the findings of fact in this recommended order.)

Paragraph 7 of Respondent's proposed findings is rejected as findings of fact because it constitutes argument or explication of the reasons for making findings and does not for the most part constitute proposed findings. To the extent it does propose findings they are subordinate and/or unnecessary.

The first two sentences of paragraph 8 of Respondent's proposed findings are rejected as unnecessary editorial comment leading up to the basis for making a finding of fact. The last three sentences of this paragraph are accepted as accurate descriptions of features of the patient's condition. (See paragraph 9 of the findings of fact in this recommended order.)

The substance of paragraph 9 of Respondent's proposed findings is accepted. (See paragraph 10 of the findings of fact in this recommended order.)

The substance of paragraph 10 of Respondent's proposed findings of fact is accepted. (See paragraph 11 of the findings of fact in this recommended order.)

The substance of the first seven lines of paragraph 11 of Respondent's proposed findings of fact is accepted. (See paragraph 12 of the findings of fact in this recommended order.) The last twelve lines of paragraph 11 of Respondent's proposed findings are rejected as irrelevant and unnecessary in view of

other findings of fact and in view of the ultimate finding regarding the credibility of the patient.

Paragraph 12 of Respondent's proposed findings is rejected as findings of fact because it does not constitute proposed findings. Rather it is an unnecessary repetition of portions of the testimony which were not credited.

The substance of paragraph 13 of Respondent's proposed findings of fact is accepted. (See paragraph 13 of the findings of fact in this recommended order.)

The substance of paragraph 14 of Respondent's proposed findings of fact is accepted, with the deletion of certain unnecessary details and editorial comments. (See paragraphs 14 and 15 of the findings of fact in this recommended order.)

The first sentence of Paragraph 15 of the Respondent's proposed findings is rejected as unnecessary to the resolution of the issues in this case. The remainder of that paragraph is rejected as constituting argument instead of proposed findings of fact.

Paragraph 16 of the Respondent's proposed findings is rejected as constituting argument instead of proposed findings.

Paragraph 17 of the Respondent's proposed findings is rejected as constituting argument instead of proposed findings.

Paragraphs 18, 19, 20, and 21 of the Respondent's proposed findings are for the most part rejected as findings of fact because they are either subordinate or they constitute argument or explication of reasons for making other findings of fact.

These paragraphs are for the most part addressed to arguments on the ultimate issue of whether the patient is or is not a credible witness, an issue which has already been resolved by other findings of fact.

COPIES FURNISHED:

William M. Furlow, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Deborah J. Miller, Esquire 2121 Ponce de Leon Boulevard Suite 450

Coral Gables, Florida 33134

Dorothy Faircloth, Executive Director Board of Medical Examiners

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 85-001323

Orders for Case No: 85-001323