STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3029

)

LEON L. SHORE, D.O., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in the above-styled case on May 26, 1988 in Fort Lauderdale, Florida. Thereafter, the parties filed Proposed Recommended Orders which were considered in preparation of this Recommended Order. Proposed findings which are not incorporated herein are the subject of specific rulings in an Appendix attached hereto.

APPEARANCES

For Petitioner: David A. Corden, Esquire

320 S.E. 9th Street

Fort Lauderdale, Florida 33316

For Respondent: David G. Vinikoor, Esquire

420 Southeast 12th Street

Fort Lauderdale, Florida 33316 ISSUE PRESENTED

The issue presented for decision herein is whether or not Dr. Leon L. Shore (Respondent) committed an assault upon a patient Jacob Kantor, during the practice of osteopathic medicine, knowingly concealed information relating to a violation of Chapter 459, Florida Statutes, and willfully made a false oath or affirmation when an oath or affirmation was required by Chapter 459, Florida Statutes.

PRELIMINARY STATEMENT AND BACKGROUND

The alleged assault which is at issue occurred on August 13, 1984. On July 24, 1985, a closing order was entered by the probable cause panel for the Board of Osteopathic Medical Examiners, initially dismissing the subject complaint upon a finding that there existed no competent substantial evidence of a violation of the Osteopathic Medical Practices Act. This matter was thereafter reopened and an Administrative Complaint was filed April 8, 1987. The complaint consisted of four counts as follows:

Count one charged Respondent with failing to practice osteopathic medicine with an acceptable level of care, skill and treatment in violation of section 459.015(1)(y), Florida Statutes, Chapter 86-290, Laws of Florida.

Count two charged Respondent with making a false statement under oath in an official proceeding in violation of section 837.02(1), Florida Statutes and section 459.015(1)(g), Florida Statutes, Chapter 86-290, Laws of Florida.

Count three charged Respondent with concealing information relating to violations of Chapter 459, Florida Statutes and willfully making a false oath or affirmation when required to do so by that chapter, in violation of sections 459.13(2)(a) and (b), Florida Statutes, Chapter 86-290, Laws of Florida.

Count four charged Respondent with making a deceptive, untrue or fraudulent representation in the practice of osteopathic medicine in violation of section 459.015(1)(n), Florida Statutes, Chapter 86-290, Laws of Florida.

At the final hearing, Petitioner presented the testimony of Debbie Lombardo and Barry Goldberg, two former employees of Respondent, both of whom had been discharged by Respondent subsequent to the incident at issue and prior to the hearing herein. Petitioner also presented the testimony of Dan O'Connell, an investigator employed by Petitioner, who conducted the initial investigation of Respondent and Barry Goldberg in November, 1984.

Respondent testified on his own behalf and elicited the testimony of a former patient, Archie Page, who claimed to have witnessed the incident at issue as well as James Golden, an investigator employed by Petitioner. Respondent introduced three exhibits which were received in evidence.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings:

1. At all times material hereto, Respondent was an osteopathic physician licensed by the State of Florida having been issued License Number OS 0016000.

   
   

2. In August, 1984, one Jacob Kantor was a regular patient of both Respondent and Dr. Barry Goldberg, a chiropractor employed by Respondent. Kantor periodically came to the office for chiropractic therapy with Dr. Goldberg and for medical examination and treatment by Respondent. Kantor often showed up at Respondent's office without an appointment.

   
   

3. On August 13, 1984, Jacob Kantor came to Respondent's medical office and discussed with Dr. Goldberg whether he could obtain reimbursement for a bill Kantor had paid to another chiropractor. Goldberg advised Kantor that, as an HMO patient, procedurally he should have first sought a referral to another chiropractor before obtaining services from a chiropractor, not affiliated with Respondent's practice, when he wished to be reimbursed by Respondent. Goldberg suggested that he talk with Respondent who perhaps would make an exception to the usual procedure in this instance. Kantor did not ask for medical treatment from Respondent on that visit although he did speak with Respondent about getting reimbursed for the fees he paid to an unaffiliated chiropractor.

   
   

4. Respondent explained to Kantor that he was not entitled to reimbursement for chiropractic treatment received from chiropractors not

   associated with his office without his prior approval. Respondent then terminated the conversation with Kantor and proceeded to an examination room to treat a female patient. Kantor followed Respondent into the examination room and insisted upon continuing the conversation concerning the reimbursement.

   Respondent escorted Kantor out of the room and closed the door. Kantor persisted and re-entered the room, again interrupting Respondent's intended examination of the female patient and was, for a second time, escorted by Respondent out of the examining room.

   
   

5. Debbie Lombardo, a medical assistant whose employment was terminated by Respondent five days after the alleged incident, recalled Kantor's repeated interruption of Respondent's attempt to examine the female patient. Respondent touched or pushed Kantor which resulted in his (Kantor) losing his balance and falling backwards inside the doorway of an adjoining room. Lombardo assisted Goldberg in picking up Kantor from the doorway that he fell into in losing his balance.

   
   

6. Dr. Goldberg did not see what caused Kantor to lose his balance but he did observe Kantor back-pedalling out of an examination room, through the hallway, into an adjoining room and ultimately landing against the back wall of that room. Goldberg assisted Kantor in getting up from the floor. Lombardo was in another room assisting with a patient at that time.

   
   

7. Kantor, who did not testify at the Final Hearing, alleged in his initial written complaints to the Petitioner that he did not fall but instead fell into the arms of Dr. Goldberg. To the contrary, both Goldberg and Lombardo denied that Goldberg prevented Kantor from falling after he lost his balance.

   In his statement to Investigator O'Connell during 1984, Kantor again stated that when he lost his balance, he was caught by Goldberg who prevented him from falling.

   
   

8. Respondent denied pushing or otherwise attempting to strike or threaten Kantor.

   
   

9. Archie Page, a former patient of Respondent, witnessed the incident in August, 1984. Page observed that Kantor appeared mad and taunted Respondent while Respondent was trying to restrain and calm him down. Page observed Goldberg coming out of his office, putting his arms around Kantor and taking him toward the waiting room following the incident, all in an effort to put him at ease. Page denied that Respondent pushed Kantor or that Kantor was ever on the floor. 1/

   
   

10. Resolution of the issue, concerning an alleged battery, although not charged in the complaint, requires a credibility choice between Respondent, his former patient Archie Page and Respondent's two previous employees, Debbie Lombardo and Barry Goldberg. The testimony of former patient Archie Page appears more credible as he has no personal interest in the outcome of the proceedings, his testimony was direct and he appeared most credible during the hearing.

    
    

11. Three months after the subject incident, investigator O'Connell went to the offices of Respondent to investigate the incident and interviewed Respondent and Goldberg. During that interview, Goldberg, who was not under oath, stated that Jacob Kantor needed a lot of help as he had a bad psychological problem. Referring to the alleged incident of August 13, 1984, Goldberg stated that, "its possible that I may have seen (Kantor) that day but I don't recall it, and I'd certainly remember seeing him if I was supposed to have

    seen Dr. Shore strike him. Nothing of this sort ever took place to my knowledge." (T-page 121, lines 14 through page 122, line 17.)

    
    

12. Goldberg testified under oath at a deposition in a related civil case that he did not have to lie to the DPR agent because the subject did not come up. Goldberg further testified at final hearing herein that he told the truth when questioned during the course of that deposition.

    
    

13. Goldberg again testified under oath at the trial of the related civil case that he did not lie to the DPR agent and that he did not even discuss the incident with the agent.

    
    

14. Goldberg, under oath at final hearing herein, again initially testified that he did not discuss the incident with the DPR agent. Finally, Goldberg claimed that he lied by means of withholding information from the DPR agent and that he did so because Respondent threatened to hurt him if he did not lie to DPR's agent. 2/ Respondent did not strike, threaten to, or attempt to strike Kantor at anytime on August 13, 1984. Kantor, as testified by all witnesses, was a demanding and overbearing patient who would show up at Respondent's office, without an appointment and would demand treatment whenever he showed up. Within one week after the subject incident, Kantor came back to Respondent's office seeking treatment for an abrasion and a cyst and wanted a referral to a proctologist. Respondent made the referral and had no further contact with Kantor. Such actions by Kantor is not indicative of a patient who was the subject of an assault and battery at the hands of Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

17. The authority of the Petitioner is derived from Chapter 459, Florida Statutes.

    
    

18. Respondent, a licensed osteopathic physician, is subject to the disciplinary provisions of Chapter 459, Florida Statutes.

    
    

19. Petitioner has the burden of demonstrating, by clear and convincing evidence, that Respondent violated various statutory provisions as alleged in the Administrative Complaint filed herein. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

20. Count One of the Administrative Complaint charges Respondent with having violated section 459.015(1)(y), Florida Statutes, by alleged gross or repeated malpractice or a failure to practice osteopathic medicine with that level of care, skill and treatment which is recognized by reasonably prudent osteopathic physicians as being acceptable under similar conditions and circumstances. The basis for this charge is the incident with Jacob Kantor on August 13, 1984. An assault is an intentional, unlawful offer of corporal injury to another by force, or force unlawfully directed toward the person of another, under such circumstances as to create a fear of imminent peril, coupled with the apparent present ability to effectuate the attempt. A battery consists of the intentional infliction of a harmful or offensive contact on the person of

    another. Sullivan v Atlantic Federal Savings and Loan Association, 454 So.2d (4th DCA, 1984). A push or shove of another may constitute a battery, but may not constitute an assault. Lay v. Creamer, 411 So.2d 1347 (1st DCA, 1982).

    Petitioner failed to demonstrate by clear and convincing evidence that Respondent committed an assault. Although contradictory testimony of an alleged battery was elicited, Petitioner failed to demonstrate by clear and convincing evidence that said battery occurred during the practice of osteopathic medicine which is defined by section 459.003(3), Florida Statutes, as the "diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical or mental condition. . ." Contrawise, the testimony indicated that the subject incident occurred when Kantor was at Respondent's office to discuss reimbursement for a fee he paid to another physician and not for medical treatment. Moreover, Page's testimony, which is credited herein, indicates that Respondent neither assaulted nor committed a battery upon Kantor.

    
    

21. Count two of the Administrative Complaint charges Respondent with violating section 459.015(1)(g), Florida Statutes, by having allegedly testified falsely under oath in an official proceeding, contrary to section 837.02(1), Florida Statutes. Petitioner failed to present evidence that Respondent testified under oath at any official proceeding, and moreover, no testimony that he did so falsely even if the investigation is considered an "official proceeding". Respecting the testimony concerning the alleged false statement by witness Goldberg which related to an interview by Petitioner's investigating agent, Goldberg was not under oath.

    
    

22. Count three of the Administrative Complaint charges Respondent with having violated section 459.015(1)(cc), Florida Statutes, by allegedly having made a willfully false oath and/or having knowingly concealed information relating to a violation of Chapter 86-290, Laws of Florida. Insufficient evidence was offered to establish that Respondent made any statement under oath or that he concealed information relating to a violation. Moreover, there was no testimony that any alleged statement by Respondent was false. Petitioner failed to carry its burden of proof on that issue.

    
    

23. Count four of the Administrative Complaint charges Respondent with having violated section 459.015(1)(n), Florida Statutes, by allegedly having made deceptive, untrue, or fraudulent representations in the practice of osteopathic medicine or employing a trick or scheme in the practice of osteopathic medicine. Petitioner failed to elicit any testimony that either of the incidents which are the subject of this complaint occurred in the practice of osteopathic medicine since neither of the incidents relate to the diagnosis, treatment, operation or preparation of any human disease, pain, injury, deformity or other physical or mental condition. Petitioner therefore failed to present competent and substantial evidence upon which a conclusion could be made that Respondent violated the above-referred section as alleged.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:

Petitioner enter a Final Order dismissing the Administrative Complaint filed herein in its entirety.

DONE and ORDERED this 28th day of October, 1988, in Tallahassee, Florida.

JAMES E. BRADWELL

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 28th day of October, 1988.

ENDNOTES

1/ At final hearing herein, although there was contradictory testimony concerning an alleged unlawful touching or battery, no testimony was elicited concerning Kantor being in fear of an imminent battery, i.e., there was no testimony of an assault.

2/ Goldberg's testimony on this point is contradictory to his earlier testimony and is not worthy of belief. It is not credited.

COPIES FURNISHED:

David A. Corden, Esquire

320 South East 9th Street

Fort Lauderdale, Florida 33316

David G. Vinikoor, Esquire

420 South East 12th Street Fort Lauderdale, Florida 33316

Bruce D. Lamb General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Rod Presnell, Executive Director Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-003029

Orders for Case No: 87-003029