STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL, ) REGULATION, BOARD OF MEDICINE, )
)
Petitioner, )
)
vs. ) CASE NOS. 87-1882
) 87-4157
BELTRAN J. PAGES, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a final hearing in the above-styled matter was held on January 26 and 27, 1988, in Miami, Florida, before Joyous Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:
APPEARANCES
For Petitioner: William O'Neil, Esquire
Jon King, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
For Respondent: Harry D. Dennis, Jr., Esquire
1401 East Atlantic Boulevard Pompano Beach, Florida 33060
BACKGROUND AND PROCEDURAL MATTERS
On April 1, 1987, the Department of Professional Regulation (Department) filed an Administrative Complaint (#70999) against Beltran J. Pages, M.D., and alleged two counts of improper conduct. Count One, claimed the Respondent had violated Section 458.331(1)(k), Florida Statutes, by exercising influence for purpose of engaging a patient in sexual activity. Count Two alleged Respondent had violated Section 458.331(1)(t), by gross or repeated malpractice or the failure to practice medicine with that level of care, skill and treatment which is recognized by reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The Election of Rights filed by Respondent on April 17, 1987, denied the allegations of fact contained in the Administrative Complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes.
A second Administrative Complaint (#30291) filed by the Department on August 24, 1987, charged the Respondent with three counts of improper conduct. Count One claimed the Respondent had violated Section 458.331(1)(j), Florida Statutes, by exercising influence within a patient-physician relationship for purpose of engaging a patient in sexual activity. Count Two claimed Respondent
had violated Section 458.331(1)(k), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine. Count Three maintained Respondent had violated Section 458.331(1)(t), Florida Statutes, by gross and repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by reasonably prudent similar physician as acceptable under similar conditions and circumstances. The Election of Rights filed by Respondent relating to the second Administrative Complaint, disputed the allegations of fact and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes.
The cases were forwarded to the Division of Administrative Hearings for formal proceedings, and on October 15, 1987, an order was entered consolidating the cases for hearing purposes.
At the final hearing, the Department presented the testimony of Beltran Pages, Major H. J. Siegel, Jolene Stratton, Hans-Ueli Steiner, Pat Harrington, Christie Dietert and Lynn DeGrado. Petitioner's exhibits 1-4 were admitted into evidence. The Respondent testified on his own behalf and offered the testimony of Lesley Zajac. Respondent's exhibit 1 was admitted into evidence.
During the course of the hearing, the undersigned reserved ruling on several motions. Such motions have been fully addressed in Orders issued concurrent with this Recommended Order.
After the hearing, the parties were granted ten days from the filing of the transcript within which to file their proposed findings of fact and conclusions of law together with any argument or brief. For reasons unknown to the undersigned, portions of the transcript were filed on April 14, 1988. On April 26, 1988, an Order was entered requiring the parties to submit their proposed recommended orders together with brief in support thereof no later than 5:00 p.m., May 16, 1988. Due to an error in the Clerk's office, the entire transcript was not furnished to the undersigned until the week of May 6, 1988.
The Department submitted a proposed recommended order which included proposed findings of fact. Specific rulings on the proposal are included in the attached Appendix. Respondent filed a proposed order which did not include proposed findings of fact. Accordingly, no rulings are included in the Appendix.
However, both of the proposals submitted have been carefully considered in the preparation of this Recommended Order.
ISSUE
The central issue in these cases is whether Respondent is guilty of the violations alleged in the Administrative Complaints; and, if so, what penalty should be imposed.
FINDINGS OF FACT
Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact:
Petitioner, Department of Professional Regulation, Board of Medicine, is the state agency charged with regulating the practice of medicine in Florida.
Respondent, Beltran Pages, M.D., was, at all times material hereto, a physician licensed to practice medicine in the State of Florida having been issued license number ME0036079.
Respondent is a board certified psychiatrist who has practiced in the Palm Beach County area since July, 1981. Respondent left private practice in September, 1985, and is currently employed at the South Florida Evaluation and Treatment Center, an HRS facility for the criminally insane.
During the period February, 1982 through September, 1982, Respondent treated Lynn Harrington (now Lynn DeGrado) at his Boca Raton office which was located in the Weir Plaza Building. This office space was shared with a Dr. Cohn.
The Boca Raton office consisted of a waiting area, a hallway with bathroom, and two physician offices. The walls in this facility were not sound proof and noises could be heard, if not distinguished, between the rooms.
Mrs. Harrington had a regular Tuesday appointment at 10:00 a.m. During these weekly visits Mrs. Harrington discussed her marital difficulties with Respondent. One of the problems was an affair Mrs. Harrington was having which she did not want to abandon.
Mrs. Harrington did not find her husband sexually attractive and, while she hoped the sessions with Respondent would enable her to rehabilitate her marriage, the Harringtons eventually divorced.
During the latter months of the marriage, Pat Harrington became aware of his wife's infidelity. Mr. Harrington felt that Respondent had misrepresented progress being made to save the Harrington marriage. Mr. Harrington amended his petition for dissolution of marriage to claim Mrs. Harrington was an unfit mother.
In a sworn statement taken October 27, 1982, Mrs. Harrington claimed she and Respondent had had sexual relations during the course of her treatment. This sworn statement was given in connection with a settlement of the dissolution issues. The statement was not to be used in court since the parties had resolved all their differences regarding the children.
Later, Mr. Harrington sued Respondent in a civil suit for damages in connection with the claimed sexual conduct. This suit was later dismissed by the court.
During the course of treatment with Mrs. Harrington, Respondent had many frank, open conversations of a sexual nature with her. These conversations included discussions of Mrs. Harrington's affair and her fantasies. During this time the Respondent did not engage in sexual intercourse with Lynn Harrington.
Mrs. Harrington's testimony that she and Respondent had engaged in sexual intercourse was not credible. Mrs. Harrington was unable to describe with any detail any incident or time during which such conduct occurred.
During the period June, 1983 through November, 1984, Respondent treated Lorry Thomas at his Delray Beach office on Linton Boulevard. The walls in Respondent's Delray Beach office were sound proof.
Lorry Thomas came to Respondent with a history of depression. In addition to prescribing medications for her, Respondent saw Mrs. Thomas on a weekly basis. During these sessions Respondent and Mrs. Thomas engaged in frank, open discussions of a sexual nature.
These discussions led to further activities which ultimately resulted in Respondent and Mrs. Thomas engaging in sexual intercourse.
The Respondent engaged in sexual intercourse with Lorry Thomas during the time she was being treated as his patient.
Following the sessions with Respondent, Lorry Thomas would often emerge to the outer office in a rumpled, upset condition. This condition was observed by Respondent's receptionist/secretary, Jolene Stratton.
When Mrs. Thomas determined she could not continue as both a patient and a lover, she elected to cancel appointments in an effort to continue seeing Respondent.
During the course of her treatment with Respondent, Mrs. Thomas was married and living with her husband, Mike. When Mike was transferred to California, Mrs. Thomas moved there also but continued written or telephone communications with Respondent.
In December, 1984, Lorry Thomas went to see a clinical psychologist in Santa Clara, California, named Jean Bayard. Mrs. Thomas complained of a despair in her life and an uneasy feeling regarding her marriage. During the course of her discussions with Dr. Bayard, Mrs. Thomas disclosed her past sexual relationship with Respondent.
On one occasion Respondent "made a pass" at and kissed Ms. Stratton. This incident occurred when they were viewing pictures in a magazine featuring nude females.
Respondent's denial of the sexual relationship with Lorry Thomas was not credible.
It is improper for a physician to engage in sexual intercourse with a patient during that patient's treatment. Such conduct is contrary to acceptable standards for psychiatrists.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
The correct standard for the revocation of a license, as in the case at issue, is that the evidence must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). The Ferris court agreed with the district court in Reid v. Florida Real Estate Commission, 188 So.2d 846, (Fla. 2d DCA 1955), that:
The power to revoke a license should be exercised with no less careful circumspection than the original granting of it. And the penal sanctions should be directed only toward those who by their conduct have forfeited their right to the privilege, and then only upon clear and convincing proof of
substantial causes justifying the forfeiture.
This elevated standard is necessary to protect the rights and interests of the accused where the proceedings implicate the loss of livelihood. Ferris at 295. This standard has been applied in the case at issue.
Section 458.331(1)(k), Florida Statutes, provides:
The following acts shall constitute grounds which the disciplinary actions specified in subsection (2) may be taken:
* * *
(k) Making deceptive, untrue or fraudulent representations In the practice of medicine or employing a trick or scheme in the practice of medicine.
Section 458.331(1)(j), Florida Statutes, provides:
The following acts shall constitute grounds which the disciplinary actions specified in subsection (2) may be taken:
* * *
(j) Exercising influence within a patient-physician relationship for purpose 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.
Section 458.331(1)(t), Florida Statutes, provides:
The following acts shall constitute grounds which the disciplinary actions specified in subsection (2) may be taken:
* * *
(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 Section 768.45 when enforcing this paragraph. As used in this paragraph, "repeated practice" includes, but is not limited to, three or more claims for medical
malpractice within the previous 5- year period resulting in indemnities being paid in excess of
$10,000 each to the claimant in a judgment or settlement and which incidents involved negligent conduct by the physician. As used in the paragraph, "gross
practice" 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," shall not be construed so as to require more than one instance, event, or act.
The above-noted provisions have been in effect, in substance, at all times material to the allegations in the Administrative Complaints.
With regard to the Administrative Complaint (#30291), Respondent is hereby found not guilty of Counts One, Two, and Three. The alleged victim, Lynn Harrington, was not credible. She had a bona fide self-interest in pursuing her claims against Respondent. The charges relating to this complaint have not been proven by clear and convincing evidence.
With regard to the Administrative Complaint (#70999) Respondent is found guilty of Counts One and Two. The testimony of Lorry Thomas was corroborated by Jolene Stratton and Dr. Jean Bayard. Respondent's testimony, in contrast, was defensive and evasive. The recollection of detail, in addition to the consistency of her story, made Lorry Thomas a more credible source. Accordingly, the Department has proven these violations by clear and convincing evidence.
In formulating the recommendation found herein, consideration has been given to Respondent's present work. Since Respondent admitted that sexual intercourse with a patient in treatment would be contrary to good psychiatric practice, and since Respondent has left private practice, it would appear that the proposed penalty would be sufficient to protect public interests. Further, the Department did not offer testimony regarding an appropriate penalty in this case.
Rule 21M-20.001(2), Florida Administrative Code, entitled Disciplinary Guidelines provides, in pertinent part:
VIOLATION RECOMMENDED RANGE OF PENALTY
Exercising Influence (j) From one (1) year sus- to engage patient in pension to revocation or
sex. denial, and an administrative fine from $250.00 to $5,000.00
* * *
Deceptive, untrue, (k) From probation to revo- or fraudulent represen- cation or denial, and an tations in the practice and administrative fine from of medicine. $250.00 to $5,000.00.
* * *
(t) Malpractice (t) From two (2) years probation to revocation or denial, and an administrative fine from $250.00 to
$5,000.00.
Rule 21M-20.001(3), Florida Administrative Code, entitled Aggravating and Mitigating Circumstances provides:
[Based upon consideration of aggravating and mitigating factors present in an individual case, the Board may deviate from the penalties recommended above. The Board shall consider as aggravating or mitigating factors the following:
Exposure of patient or public to injury or potential injury, physical or otherwise: none, slight, severe, or death;
Legal status at the time of the offense: no restraints, or legal constraints;
The number of counts or separate offenses established;
The number of times the same offense or offenses have previously been committed by the licensee or applicant;
The disciplinary history of the applicant or licensee in any jurisdiction and the length of practice;
Pecuniary benefit or self-gain inuring to the applicant or licensee;
Any other relevant mitigating factors.]
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:
That the Department of Professional Regulations, Board of Medicine enter a Final Order dismissing Administrative Complaint (#30291), Case No. 87-4157. It is further recommended that a final order be entered finding Respondent guilty of the violations alleged in the Administrative Complaint (#70999) , Case No.
87-1882, imposing an administrative fine in the amount of $5000, suspending Respondent's license for six months, and placing Respondent on probation for a period of two years with appropriate supervision and restriction, and requiring such continuing education programs as the Board may deem appropriate.
DONE and RECOMMENDED this 31st day of May, 1988, in Tallahassee, Florida.
JOYOUS D. PARRISH
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-1182, 87-4157
Rulings on Petitioner's Proposed Findings of Fact:
Paragraphs 1, 2 and 3 are accepted.
Paragraph 4(a) is rejected as argumentative.
Paragraph 4(b) is rejected as argumentative.
To the extent paragraph 5 finds Respondent and Lorry Thomas engaged In sexual Intercourse during the time she was in treatment such paragraph is accepted. Otherwise, the paragraph is rejected as unsupported by the record ("wide variety of sexual activity") or argumentative.
Paragraph 6 is rejected as contrary to the weight of the evidence.
Paragraph 7 is rejected as contrary to the weight of the evidence.
With regard to paragraph 8, only to the extent that Respondent and Lorry Thomas engaged in sexual intercourse during the time she underwent treatment is the paragraph accepted. As a matter of law, there would be a presumption she was not consenting. Otherwise, paragraph 8 is rejected as contrary to the evidence.
COPIES FURNISHED:
William O'Neil, Esquire Jon King, Esquire Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Harry D. Dennis, Jr., Esquire 1401 East Atlantic Boulevard Pompano Beach, Florida 33060
Dorothy Faircloth, Executive Director Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Issue Date | Proceedings |
---|---|
May 31, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
Issue Date | Document | Summary |
---|---|---|
Aug. 19, 1988 | Agency Final Order | |
May 31, 1988 | Recommended Order | Board of Medicine established Respondent was guilty, proving he had sexual intercourse with a patient during treatment. Conduct is contrary to acceptable standards. |