STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )
)
Petitioner, )
vs. ) CASE NO. 87-3635
)
MELVIN WISE, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, on November 21-22, 1988 and March 9, 1989 in Miami, Florida. A transcript of the proceedings has been filed, and both parties have filed proposed findings of fact and conclusions of law. Rulings on proposed facts are made in the appendix to this Recommended Order.
APPEARANCES
For Petitioner: William O'Neil, Esquire
Jonathan Ring, Esquire Dorothy Hawks, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
For Respondent: Mark P. Lang, Esquire
20 North Orange Avenue, Suite 707 Post Office Box 2127
Orlando, Florida 32802-2127 BACKGROUND
An Administrative Complaint was filed against Dr. Wise on May 22, 1987, which was amended on July 13, 1987 and July 27, 1988. The complaint alleged violations of the Medical Practice Act in the care of a patient. A second amended Administrative Complaint made allegations about additional patients.
ISSUE
The issue is whether Dr. Wise abused his position as a treating psychiatrist for five young women by using his influence over them to engage in sexual relationships with them in violation of Section 458.331(1)(k), Florida Statutes, (1979), [now codified as Section 458.331(1)(j), Florida Statutes (1987)] and whether he is therefore guilty of unprofessional or immoral conduct in violation of Section 458.1201(1), Florida Statutes, (1969) [now codified as Section 458.329, Florida Statutes, (1987)]. If Dr. Wise is guilty of any of these activities, he would also be guilty of violating Section 458.331(1)(x),
Florida Statutes (1987), which proscribes the violation of any portion of Chapter 458. Sexual misconduct with patients would also constitute gross or repeated malpractice, which is forbidden by Section 458.331(1)(t), Florida Statutes (1987).
PROCEDURAL MATTERS
At the Final Hearing, the Department presented testimony from five former patients of Dr. Wise; Father Francis Flynn, Ph.D.; Edward Rappaport, Ph.D.; and Raquel Blizzard. It also offered the deposition testimony of Dr. Peter Shea.
Department's Exhibit's 1 and 3 were admitted into evidence but Exhibit 2 was rejected.
Dr. Wise presented the testimony of Stefanie Bender Hartin, Patricia Kolski, James N. Sussex, M.D. and the testimony of Dr. Wise. Exhibits 1-12 were received in evidence, including the deposition testimony of Barbara Epstein and James F. Kennedy, Ph.D.
FINDINGS OF FACT
At all times material to the Administrative Complaint, Dr. Wise has been a licensed medical doctor, holding license ME0008520. He has been licensed in Florida since 1957 and practices in the area of Adult and Child Psychiatry in Miami. He has been a board certified psychiatrist in since 1965.
Patient L. H.
From July 1969 through April 1971, Dr. Wise treated L.H, who was 21 years of age. When she began treatment, she was experiencing panic attacks and had other problems resulting from sexual molestation as a child, rape, alcoholism, and family problems. At first she had visited Dr. Wise weekly, but toward the end of her 1 1/2 years of therapy, she saw him every other week.
L.H. alleges that shortly before she terminated her treatment with Dr. Wise she had a severe panic attack which caused her to telephone Dr. Wise, who then offered to provide therapy at Dr. Wise's apartment. When she arrived, she says Dr. Wise was in his bathrobe, took her to the bedroom, told her to place her hand on his penis and had sexual relations with her. She also maintains that Dr. Wise saw her on one other occasion in his office, when no sex occurred.
L. H. said nothing about Dr. Wise's conduct at the time the incident was to have taken place. Fourteen years later, L.H. was seeing a psychologist in St. Louis, Missouri, Dr. Gertrude Williams. In the course of therapy with Dr. Williams, L.H. stated that she had sexual intercourse with Dr. Wise while she was his patient. This disclosure to Dr. Williams is consistent with the testimony L. H. gave at the final hearing. In October of 1985, L.H. filed a complaint against Dr. Wise with the South Florida Psychiatric Society alleging sexual misconduct, but after a two-day hearing a panel of twelve doctors found against L.H. and in favor of Dr. Wise. The testimony of L. H. was no more persuasive in this case than it was before the Psychiatric Society. In October, 1985, L.H. also filed a complaint which the Department investigated, but found the charges unsubstantiated. No disciplinary action was initiated against Dr. Wise at that time.
The evidence in the instant case with respect to the allegations of misconduct by Dr. Wise with L.H. was not clearly convincing or persuasive.
Patient S.P.
Dr. Wise treated S.P. from July, 1980 through July, 1981 at his office in Miami. She was then approximately 19 years old and had complaints of nervousness, insomnia and hyperventilation. She saw Dr. Wise approximately two times per week (on Tuesdays and Thursdays) for therapy. Although originally seen in the morning, her appointments were changed to late in the afternoon.
S.P. alleges that within two months after beginning treatment, while she was sitting on the couch during a therapy session, Dr. Wise got up from another couch, sat down next to her and began to kiss her. She also alleges that during subsequent visits Dr. Wise had sexual intercourse with her. S.P. filed a civil lawsuit for malpractice against Dr. Wise alleging the same sexual misconduct alleged here as the basis for her damage claim. After a jury trial, the jury returned a verdict in favor of Dr. Wise.
S.P.'s marriage failed while she was seeing Dr. Wise. She had often stayed out late, and told her husband that she was at therapy sessions with Dr. Wise. It is not clear whether these late night absences from home were actually the result of appointments with Dr. Wise or were the result of other appointments which she justified to her husband by claiming they were appointments with Dr. Wise. After terminating treatment with Dr. Wise, S.P. began seeing a Roman catholic priest who was also trained as a counselor. She told him that she had been seeing a local psychiatrist who, after a few sessions, had engaged in sexual intimacy with her. After moving back to her mother's home due to her breakup with her husband, S.P. also told her mother that she and Dr. Wise had been sexually intimate. These statements by S. P. were consistent with her testimony at final hearing; that the testimony is consistent, however, does not make it persuasive.
Taken as a whole, the evidence that Dr. Wise may have engaged in a sexual relationship with S. P. is not clearly convincing.
Patient L. M.
Dr. Wise treated L.M. during the period from late 1972 through February of 1973. She was sixteen years old and was seeking to improve her relationship with her parents. She alleges that during one of her early visits Dr. Wise questioned her about the pimple on her forehead, and asked whether she had pimples on any other area of her body. She says she responded that she had a pimple on her back, and alleges that Dr. Wise then asked to see her back. When she lifted her pullover, she says Dr. Wise fondled her breasts briefly.
Viewing the testimony of L.M. as a whole, the evidence is not clearly convincing that Dr. Wise ever fondled her breasts.
Patient K. M.
Dr. Wise treated K.M. from 1982, when she was 18 years old, until 1984. K. M. came to see Dr. Wise because of problems including an abortion she had when she was 15 years old, as well as a prior incestuous relationship with her brother. K.M. testified that she would go to Dr. Wise's office for treatment late in the evening, when they also would engage in sexual intercourse. She also testified that in 1985, after she terminated her therapeutic relation with Dr. Wise, she told her general practice physician, Dr. Peter Shea, during an office visit, that she had an affair with Dr. Wise. As with the foregoing witnesses, the statement made to Dr. Shea is consistent with
K. M.'s testimony at final hearing, but that consistency does not enhance K.
M.'s testimony. The testimony of K.M. concerning liaisons with Dr. Wise is not clearly convincing.
Patient L. G.
L.G. saw Dr. Wise beginning in April, 1974 when she was 21 years old. When she first came to Dr. Wise she complained of depression, unhappiness, and confusion. She told Dr. Wise that she was lonely and did not have a good relationship with men. Dr. Wise also treated L.G.'s sister, Joan.
After about two months of seeing her on a weekly basis, L.G. alleges that Dr. Wise came over to the couch where she was sitting, embraced her, and during the course of the treatment, their physical relationship became more intimate. The intimacies were to have included oral sex which L.G. performed on Dr. Wise, which she thought was therapy for her psychological problems with sexual intimacy. L.G. terminated her relationship with Dr. Wise and began seeing a psychologist at the University of Miami, Edward Rappaport. During the course of treatment L.G. reported to Dr. Rappaport that she had been sexually involved with Dr. Wise. The testimony of L.G. at final hearing is consistent with the statement she made to Dr. Rappaport during therapy that Dr. Wise engaged in sex with her while she was seeing Dr. Wise for professional help.
The consistency of the testimony does not make it persuasive.
Considering the testimony of L.G. and Dr. Rappaport, the evidence offered to show that Dr. Wise had engaged in sexual intimacies with L.G. while she was seen as a patient is not clearly convincing.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1) and 455.225, Florida Statutes. In a proceeding to revoke professional licensure, the Department of Professional Regulation is required to prove the acts constituting disciplinary violations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987)
It is a violation of the Medical Practice Act for a physician to exercise influence over a patient to engage in sexual activity with the patient. Sections 458.329 and 458.331(1)(j), Florida Statutes. Engaging in sex with a patient would also constitute malpractice by failing to practice medicine with a level of care, skill and treatment recognized by a reasonably prudent similar physician as being acceptable. Section 458.331(1)(t), Florida Statutes.
A number of accusations of sexual misconduct were made against Dr. Wise in the course of this proceeding. Given the nature of the allegations, it was appropriate for the Department of Professional Regulation to pursue this disciplinary proceeding zealously. Having listened to all the witnesses, observed their demeanor, and evaluated their credibility, the evidence against Dr. Wise is not clear and convincing.
It is RECOMMENDED that the Board of Medicine enter a Final Order dismissing the second amended Administrative Complaint filed against Respondent.
DONE AND ENTERED this 22rd day of May, 1989, in Tallahassee, Leon County, Florida.
WILLIAM R. DORSEY
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904)488-9675
Filed with the Clerk of the Division of Administrative Hearings this 22rd day of May, 1989.
APPENDIX
The following constitutes my rulings on Proposed Findings of Fact submitted by the parties pursuant to Section 120.59(2), Florida Statutes (1987).
Rulings on Findings of Fact Proposed by the Department of Professional Regulation
Covered in finding of fact 1.
Covered in finding of fact 1.
Accepted in findings of fact 2, 6, 10, 11 and 12.
Covered in finding of fact 11.
6-7. Rejected for the reasons stated in finding of fact 11.
Rejected as unnecessary.
Covered in finding of fact 9.
Rejected as unnecessary.
Rejected as unnecessary.
Covered in finding of fact 11.
13 Covered in finding of fact 6.
Covered in finding of fact 7, of the facts stated that are rejected.
Rejected because the testimony of S.P. was not clearly convincing.
Covered in finding of fact 9.
Covered in finding of fact 9. The proposals concerning the telephone calls are rejected as unnecessary.
Rejected because the testimony of S.P. was not clearly convincing.
Covered in finding of fact 9.
Rejected as subordinate to finding of fact 9.
Rejected as subordinate to finding of fact 9.
Covered in finding of fact 9.
Covered in finding of fact 9.
To the extent necessary, covered in finding of fact 24. The proposal concerning the telephone calls is rejected as unnecessary.
Rejected as unnecessary.
26.-29. To the extent necessary, covered in finding of fact 10.
Rejected as unnecessary.
Covered in finding of fact 12.
Rejected as unnecessary.
Covered in finding of fact 13, although the proposals are rejected because L.G.'s testimony was not clearly convincing.
Rejected as unnecessary.
Rejected because the testimony of L.G. is not clearly convincing.
Rejected as unnecessary.
37.-38. To the extent necessary, covered in finding of fact 13.
39. Rejected as unnecessary. 40. Covered in finding of fact 13. 41.-42. Rejected because the testimony of L.G. was not clearly convincing. 43. Covered in finding of fact 2.
Covered in finding of fact 3, although the proposed findings are rejected.
Covered in finding of fact 3, although the proposed findings are rejected.
Covered in finding of fact 3.
Covered in finding of fact 4.
Rejected as unnecessary.
Rejected because of the testimony of the complaining witnesses has not been clearly convincing.
50.-53. Rejected as unnecessary.
54. Rejected as unnecessary.
Rulings on Findings of Fact Proposed By Dr. Wise
Rejected as unnecessary.
Covered in finding of fact 1.
Covered in finding of fact 1.
Covered in finding of fact 2.
Covered in finding of fact 2
Covered in finding of fact 4.
Covered in finding of fact 5.
Rejected as unnecessary.
Covered in finding of fact 5.
Covered in finding of fact 6.
Covered in finding of fact 6.
Rejected as unnecessary.
Covered in finding of fact 7.
Covered in finding of fact 8.
Covered in finding of fact 11.
Rejected as unnecessary.
Covered in finding of fact 11.
Rejected as unnecessary.
Covered in finding of fact 11.
Covered in finding of fact 12.
Covered in finding of fact 12.
Covered in finding of fact 12, to the extent necessary.
Covered in finding of fact 14.
Covered in finding of fact 10.
Covered in finding of fact 10.
Rejected as unnecessary.
Covered in finding of fact 10.
Rejected as unnecessary.
COPIES FURNISHED:
Susan Sewell, Esquire
Law offices of Mark P. Lang
20 North Orange Avenue Suite 707
Post Office Box 2127 Orlando, FL 32802-2127
Jonathan King, Esquire Department of Professional Regulation
130 North Monroe Street Tallahassee, FL 32399-0750
Kenneth D. Easley, General Counsel Department of Professional Regulation
130 North Monroe Street Tallahassee, FL 32399-0750
Dorothy Faircloth, Executive Director Department of Professional Regulation, Board of Medicine
130 North Monroe Street Tallahassee, FL 32399-0750A
=================================================================
AGENCY FINAL ORDER
=================================================================
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICINE
DEPARTMENT OF PROFESSIONAL REGULATION,
DPR CASE NUMBERS: 004427
Petitioner, 0074140
0085197
-vs - 0085196
DOAH CASE NUMBER: 87-3635
MELVIN WISE, M.D., LICENSE NUMBER: ME 00Q852O
Respondent.
/
FINAL ORDER
This cause came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)10, Florida Statutes, on February 3, 1990, in Ft. Lauderdale, Florida, for the purpose of considering the Hearing Officer's Recommended Order, Petitioner's Exceptions to the Recommended Order, and the Hearing Officer's Order on Remand and on Department's Motion for New Hearing (copies of which are attached hereto as Exhibits A, B, and C, respectively) in the above-styled cause. Petitioner, Department of Professional Regulation, was represented by Stephanie A. Daniel, Attorney at Law, Respondent was represented at the hearing by Mark Lang, Attorney at Law.
Upon review of the Recommended Order, the Exceptions, the Hearing Officer's Order on Remand and Department's Motion for New Hearing, the argument of the
parties, and being otherwise fully advised in the premises, the Board makes the following findings and conclusions.
RULINGS ON EXCEPTIONS
Petitioner's Exception number 1 is GRANTED based on the reasons and arguments set forth in the Exception.
Petitioner's Exception number 2 is GRANTED based on the reasons and arguments set forth in the Exception.
Petitioner's Exception number 3 is GRANTED based on the reasons and arguments set forth in the Exception. Specifically, the Board accepts Petitioner's position that the only remedy in this case is to remand the matter to the Division of Administrative Hearings for a new hearing. See Cohn vs. Department of Professional Regulation, 477 So.2d 1039 (Fla. 3d DCA 1985). However, the Board attempted to remand this cause to the Division of Administrative Hearings; and the original Hearing Officer, in a 32 page Order, DENIED the Department's Motion for New Hearing and "declined" the remand.
Petitioner's Exception number 4 is GRANTED based on the reasons and arguments set forth in the written Exception.
Petitioner's Exception number 5 an Exception to the Conclusions of Law is GRANTED based on the rulings made above in the previous Exceptions and the reasons and arguments set forth in the written Exception.
With regard to Petitioner's Exception number 6 which is an Exception to the Hearing Officer's recommendation of dismissal, the Board feels that although it has granted all of Petitioner's previous Exceptions, the Hearing Officer has refused to accept a remand and has refused to make findings of fact in light of the Board's rulings on issues of law and evidence. Accordingly, the Board feels compelled, based on the state of the record at this time, to agree with the ultimate conclusion that there is not clear and convincing evidence that Respondent was guilty of the charges set forth in the Second Amended Administrative Complaint at issue.
FINDINGS OF FACT
Findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein only to the extent that the Findings of Fact are not inconsistent with the Boards rulings on the Petitioner's Exceptions.
There is competent substantial evidence to support the findings of fact by the Board.
CONCLUSIONS OF LAW
The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 455, Florida Statutes.
The conclusions of law set forth in the Recommended Order are approved and adopted and incorporated herein only insofar as they are not inconsistent with the Board's rulings on the Exceptions by Petitioner.
There is competent substantial evidence to support the conclusions of law by the Board.
DISPOSITION
Based on the foregoing, the Board determines that the disposition recommended by the Hearing Officer must be ADOPTED.
WHEREFORE,
IT IS HEREBY ORDERED AND ADJUDGED
That the Second Amended Administrative Complaint filed against Respondent is hereby DISMISSED.
This Order takes effect upon filing with the Clerk of the Department of Professional Regulation
DONE AND ORDERED this 11th of February 1990.
BOARD OF MEDICINE
ZACHARIAH P. ZACHARIAH, M.D. VICE CHAIRMAN
NOTICE OF RIGHT TO JUDICIAL REVIEW
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.8, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF PROFESSIONAL REGULATION AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE -OF APPEAL MUST BE FILED WITHIN THIRTY (30) DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Melvin Wise, M.D., 9655 South Dixie Highway, Miami, Florida 33156 and Mark Lang, Attorney at Law, 20 North Orange Avenue,
Box 2127, Suite 707, Orlando, Florida 32802 by U.S. Mail to William R. Dorsey, Jr., Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; and by interoffice delivery to Stephanie A. Daniel, Attorney at Law, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32388- 0792 at or before 5:00 P.M., this 20th day of February 1990.
================================================================= RECOMMENDED ORDER AFTER REMAND
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )
)
Petitioner, )
)
vs. ) CASE NO. 87-3635
)
MELVIN S. WISE, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
This matter is before the Division of Administrative Hearings upon a remand from the Board of Medicine received on December 24, 1991. Although the parties were offered the opportunity to supplement the evidence, they chose to file amended proposed recommended orders as the only action upon the remand. The matter has been considered by the Hearing Officer originally assigned to the case, William R. Dorsey, Jr.
APPEARANCES
For Petitioner: Mark Lang, Esquire
Kenneth Baker, Esquire Lang & Baker
Post Office Box 2127 Orlando, Florida 36802-2127
For Respondent: Larry McPherson, Esquire
Department of Professional Regulation 1940 North Monroe Street, Suite 60
Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUE
The issue is whether the license of Melvin S. Wise, M.D., should be disciplined for sexual misconduct with any of five patients.
PRELIMINARY STATEMENT
This matter was heard by William R. Dorsey, Jr., on November 21-22, 1988, and March 9, 1989, in Miami, Florida. After the filing of the transcripts and proposed recommended orders, on May 23, 1989, a Recommended Order was entered. That order found that the charges against Dr. Wise had not been proven with clear and convincing proof, and recommended that the Second Amended Complaint which had been filed against Dr. Wise be dismissed. Department of Professional Regulation vs. Wise, 12 F.A.L.R. 2862 (DOAH 1989). That Recommended Order was considered by the Board of Medicine on August 5, 1989.
The Board remanded the case to the Division of Administrative Hearings on August 17, 1989, and after the remand the Department of Professional Regulation moved for a new hearing before a new hearing officer on the allegations of its Second Amended Complaint.
An Order On Remand and Department's Motion For New Hearing was entered on November 21, 1989; the remand was declined, and the Motion For A New Hearing Before A New Hearing Officer was denied. 12 F.A.L.R. 2866 (DOAH 1989). Dr.
Wise then moved for the entry of a final order on November 21, 1989, and a Final Order Dismissing The Second Amended Administrative Complaint was entered by the Board of Medicine on February 11, 1990. 12 F.A.L.R. 2860 (Board of Medicine 1990). The Department of Professional Regulation appealed the Board's Final Order to the District Court of Appeal, First District.
The appellate opinion, published at 575 So.2d 713 (Fla. 1st DCA 1991), was entered on February 14, 1991. It set aside the Final Order, and directed the Board of Medicine to remand the case to the Hearing Officer for further findings after removing from consideration evidence of the sexual histories of complaining witnesses which had been admitted at the formal hearing, that the court determined was irrelevant. The appellate court required that a new recommended order be entered taking into account only legally relevant evidence submitted at the final hearing, but provided the opportunity for the parties to submit additional evidence.
After the entry of that opinion, the Department of Professional Regulation moved for rehearing, clarification, or certification of conflict, which the District Court of Appeal denied by order entered March 13, 1991. The Department thereafter sought review of the decision in the Supreme Court of Florida. The Supreme Court denied review in an order entered July 31, 1991, published at 584 So.2d 997 (Fla. 1991). The matter then came before the Board of Medicine on September 21, 1991. The Board's order remanding the case to the Division of Administrative Hearings was entered by the Clerk of the Department of Professional Regulation on October 1, 1991, and was delivered to the Division of Administrative Hearings on December 24, 1991.
The parties were offered the opportunity to submit additional evidence or argument, and they chose to submit new proposed recommended orders, which were filed with the Division of Administrative Hearings on March 31, 1992. Rulings on proposed findings are made in the appendix to this Recommended Order.
Background For the Second Amended Complaint
The Administrative Complaint filed on May 22, 1987, was amended on July 13, 1987, and on July 27, 1988. Dr. Wise had first been charged with exercising influence over a patient for the purpose of engaging the patient in sexual activity, in violation of Section 458.331(1)(j), Florida Statutes (1986 Supp.) [formerly Section 458.331(1)(k)] and with gross or repeated malpractice, in violation of Section 458.331(1)(t), Florida Statutes (1985), in the care of three patients.
The Second Amended Complaint included allegations pertaining to additional patients, and charged him with unprofessional or immoral conduct in violation of Section 458.1201(1)(m), Florida Statutes (1969) [now Section 458.329, Florida Statutes (1987)], and with violation of the Medical Practice Act, Section 458.331(1)(x), Florida Statutes (1987).
The central issue is whether Dr. Wise abused his position as a treating psychiatrist for five young women by using his influence over them to engage them in sexual relations in violation of Section 458.331(1)(k), Florida Statutes (1979) [recodified as Section 458.331(1)(j), Florida Statutes (1987)], and whether he is therefore guilty of unprofessional or immoral conduct in violation of Section 458.1201(1), Florida Statutes (1969) [recodified as Section 458.329, Florida Statutes (1987)]. If Dr. Wise is guilty of these activities he would also be guilty of violation of Section 458.331(1)(x), Florida Statutes (1987), which proscribes any conduct which would violate a provision of Chapter 458.
Sexual misconduct with patients constitutes gross or repeated malpractice, which is unlawful under Section 458.331(1)(t), Florida Statutes (1987).
Evidence at the Final Hearing
The Department presented testimony from five former patients of Dr. Wise, K.M., S.P., L.M., E.H., and L.G., as well as the testimony of Rev. Francis Flynn, Ph.D.; Edward Rappaport, Ph.D.; and the mother of S.P. It also offered in evidence the deposition of Peter Shea, M.D. The Department's Exhibit 1 and 3 were admitted into evidence, but Exhibit 2 was rejected. Dr. Wise presented the testimony of S.P.H.; Patricia Kolski; James N. Sussex, M.D., and his own testimony. Dr. Wise offered Exhibits 1-12 into evidence, all of which were received. These included deposition testimony of former employees of Dr. Wise, Barbara Morganstern Epstein and James F. Kennedy, Ph.D., and a statement given by Charlotte Starkman at what was to have been her deposition, which the Department did not attend. The Department raised no objection to the admission of the Epstein and Kennedy depositions, or of the sworn statement of Ms.
Starkman.
FINDINGS OF FACT
At all times pertinent to the charges made against Dr. Wise, he had been licensed in Florida as a medical doctor, holding license ME 0008520. He has been licensed in Florida since 1957 and has practiced in the areas of adult and child psychiatry in Miami. He obtained a board certification as a psychiatrist in 1965. Dr. Wise provided treatment to patients K.M., E.H., L.G., L.M., and S.P.
Patient L.H.
From July of 1969 until April 1971, Dr. Wise saw L.H. as a patient. When she first saw him she was 21 years old.
L.H. had recently been discharged from Medfield State Hospital in Massachusetts, where she had voluntarily admitted herself for six weeks, and she needed continuing psychiatric care. According to L.H., she saw Dr. Wise because she was having panic attacks and a fear of dying. The discharge summary from the Massachusetts hospital shows that she was diagnosed as having a hysterical personality with anxiety reaction. Her psychiatrist in Massachusetts, Dr. Rosenwald, wrote to Dr. Wise about L.H.'s condition on August 26, 1969. Dr. Rosenwald had been treating L.H. with the antidepressant Elavil. At the time she was discharged from the state hospital her medications had included Norpramine and Valium. When he saw her, Dr. Wise found that her thinking was consistent with schizophrenic illness, she reported fantasies, such as believing that she had seen the devil sitting on her bed. At first she saw Dr. Wise once a week, later twice a week, and ultimately only once every other week.
While Dr. Wise was treating her he received a late night phone call from her stating that she had been raped in the back of a VW Beetle near Card Sound in south Dade County by a man who was a friend of her boyfriend. Dr. Wise
told her to go to the emergency room at Jackson Memorial Hospital. She did so, but she was diagnosed at the emergency room as psychotic and admitted to the hospital's psychiatric unit. The hospital could not verify L.H.'s claim that she had been the victim of a rape. During this period of psychosis she was seen by Dr. Wise and treated with anti-psychotic drugs, including Haldol. Dr. Wise continued to see her after her discharge from the hospital, and she remained on anti-psychotic medication. When her family moved to St. Louis in April 1971, he provided her with prescriptions for her medication to carry her until she was able to establish a relationship with a psychiatrist there who would continue her treatment. She wrote to Dr. Wise on a number of occasions after that move, and those letters have a friendly tone. Eventually, however, Dr. Wise had to place bills which her father had not paid before her move with a collection agency, something L.H. was "not happy about" (Tr. 286).
The sexual encounter L.H. described with Dr. Wise was to have occurred not long before her move to St. Louis, at a time her parents were out of town in March 1971. She called Dr. Wise at night when she was experiencing a panic attack. According to her testimony, Dr. Wise gave her directions to his apartment, where he met her wearing a bath robe, took her into his bedroom, put her hand on his penis, and ultimately they had sexual intercourse. L.H. saw Dr. Wise on at least one more occasion in his office for therapy after this incident was said to have happened.
In May 1984 L.H. began to see a psychologist in St. Louis, Gertrude Williams, Ph.D., for depression related to breast cancer from which L.H.'s mother was suffering. Dr. Williams recommended inpatient treatment for alcoholic abuse, and L.H. entered treatment. Thereafter, during the course of seeing Dr. Williams, L.H. reported the sexual activity with Dr. Wise. Dr. Williams encouraged L.H. to deal with the matter, which led L.H. to write to the Dade County Medical Association stating her accusations against Dr. Wise in October 1985. Those allegations were then forwarded both to the South Florida Psychiatric Association and to the Department of Professional Regulation. The South Florida Psychiatric Association held a hearing on those charges which extended over two days but found no misconduct on the part of Dr. Wise. Similarly, the Department of Professional Regulation prosecuted no disciplinary action against Dr. Wise based on those allegations.
The allegations of misconduct made by L.H. against Dr. Wise are not convincing. She was going through a difficult period of her life, as shown by the psychiatric hospitalizations in Massachusetts and at Jackson Memorial Hospital after she reported a rape which, on the basis of the record made here, was not substantiated. She was also being treated with anti-psychotic medication and it is not clear what effect that medication may have had on her perception or recollection if it (1) was taken appropriately or, (2) was not taken as it should have been, or with alcohol. I accept Dr. Wise's testimony that as part of L.H.'s condition, she was generally fearful of medication. This casts doubts on whether the medication was taken as prescribed. The events surrounding the claim of a prior instance of rape raises substantial doubt about the events to which L.H. testified, so that I cannot say that I am clearly convinced that the allegations she has made against Dr. Wise are true. No doubt her family came to regard Dr. Wise negatively after he placed bills for treatment of L.H. with a collection agency. This could account for familial reinforcement of negative feelings about Dr. Wise. I accept Dr. Wise's denial of the allegations made against him by L.H.
Patient K.M.
Dr. Wise first treated K.M. in September of 1982, when she was approximately 18 year old. The treatment continued over a period of about two years. She came to Dr. Wise for treatment because she was having a great deal of difficulty in communicating with her parents. She had first been seen by a social worker in Dr. Wise's office. K.M. told the social worker that she was concerned about a "memory from the past" that she did not explain. K.M. then was seen by Dr. Wise, and described an incestuous relationship over a period of time with her older brother and an abortion. Dr. Wise referred her to Dr. Peter Shea for some physical complaints. Dr. Wise diagnosed K.M. as having borderline personality disorder with depression.
According to K.M., she saw Dr. Wise usually between 4:00 and 5:00 p.m. It is common for psychiatrists, psychologists and other mental health professionals, especially when dealing with children in school or young adults who work, to see them late in the work day or after 5:00 p.m., the close of the ordinary work day. K.M. has accused Dr. Wise in her testimony of engaging her in sexual activity (reciprocal oral sex) and intercourse. According to K.M., she would explain her problems to Dr. Wise, and she would cry and he would sit next to her and comfort her on the couch, begin caressing her, and proceed to sexual activity. K.M. also testified that Dr. Wise encouraged her to call him if she wanted to talk more with him and that she would do so by seeing him in his office at night around 9:00 or 10:00 p.m. where he would massage her with baby oil and they would have sex.
K.M.'s therapy ended in 1984 when her father decided that she had been in therapy long enough to have obtained whatever benefits it was going to provide for her.
Later, between February and June of 1985, she told Dr. Shea that she had been involved in sexual experiences with Dr. Wise. Dr. Shea then had Dr. Jerry Poliacoff, a clinical psychologist, call K.M. about these allegations. Dr. Poliacoff was an expert obtained by another former patient of Dr. Wise who was maintaining an action in circuit court against Dr. Wise for sexual misconduct, which ultimately proved unsuccessful. See Finding 29, below. Dr. Poliacoff referred K.M. to a lawyer, but so far as the record shows K.M. has never filed any civil proceeding against Dr. Wise.
Dr. Wise denied engaging in any sexual misconduct with K.M.
A high level of proof is required in actions for the revocation of professional licenses. This is the strongest case of all those presented by the Department against Dr. Wise. K.M.'s testimony was forthright and specific.
K.M. never appears to have had problems which could be characterized as serious in the sense of constituting psychotic illness, nor was she on any anti- psychotic medication, which might have altered her perceptions, either because of the action of the medication, or the result of taking the medication irregularly. According to Dr. Wise, K.M. may have made the allegations that he engaged in sexual activity with her as a way of provoking jealousy either in her boyfriend or her brother. (Tr. 388) It is difficult to understand why she would have made these allegations to Dr. Shea if that was her motivation. There is no explanation of why her disclosure to Dr. Shea would have been communicated either to her boyfriend or to her brother and provoke jealous reactions.
K.M.'s testimony was believable, and I have been convinced that Dr. Wise engaged in sexual activity with her while she was a patient of his.
For a psychiatrist to engage a young patient in sexual activity is a violation of the standard of care owed by a psychiatrist to a patient and constitutes malpractice.
Patient L.G.
L.G. saw Dr. Wise beginning in April of 1974. She was then approximately 21 years old. She saw Dr. Wise because she was experiencing depression, unhappiness and confusion. She told Dr. Wise that she was lonely and did not have a good relationship with men.
Dr. Wise also treated L.G.'s sister, J.G.
L.G. testified that after seeing Dr. Wise on a weekly basis for about two months, during one of their sessions Dr. Wise came over to the couch on which she was sitting, embraced her, and the embrace progressed to a more physical relationship which included performing oral sex on Dr. Wise, which L.G. thought was therapy for her psychological problems with sexual intimacy.
I do not find the testimony of L.G. persuasive. Her statements of her sexual relationship with Dr. Wise given to the Department during its investigation were contradicted in an important way by Charlotte Starkman, which is described below, and that contradiction severely undermined L.G.'s credibility.
L.G. told an investigator for the Department of Professional Regulation that she had sex with Dr. Wise at a motel. This was apparently in addition to any sexual encounters which allegedly took place at Dr. Wise's office.
I find the testimony of Ms. Starkman to be believable. She has not worked for Dr. Wise for a significant period, and had no reason to fabricate evidence which would favor Dr. Wise. According to Ms. Starkman, in the middle of a work day, Dr. Wise received a call from L.G. asking for help. L.G. said that she was at a motel on South Dixie Highway in the Miami area. Dr. Wise went to the motel to see L.G., but had asked Ms. Starkman to accompany him. When they arrived at the motel he told Ms. Starkman that if he did not come out in five minutes that she should come into the motel room. Dr. Wise did go in, and spoke with L.G., but he returned soon, so Ms. Starkman never left the car. In addition, the evidence given by Ms. Starkman gives rise to the inference that
L.G. would not have known that Ms. Starkman had accompanied Dr. Wise to the motel.
L.G. recanted her testimony about a tryst at the motel after the evidence to be offered by Ms. Starkman became known. I do not understand how
L.G. could have misremembered such an important incident if it were true. Apparently, L.G. is unhappy with Dr. Wise, because she believes that Dr. Wise had prescribed too many pills for her sister while she was under the care of Dr. Wise.
Patient L.R.M.
L.R.M. began therapy with Dr. Wise in late 1972 and continued for a short time, terminating that therapy with him in February of 1973, but she was seen thereafter by others in Dr. Wise's practice group. She had been referred to Dr. Wise by her family physician, Dr. Ben Shepard, when she was about 16 years of age, while she was in the hospital under the care of Dr. Shepard suffering from an "adjustment reaction" to adolescence. She had been
experiencing adjustment problems at home and had run away from home twice in the weeks before her hospitalization. Dr. Wise saw her in the hospital, and a psychologist associated with Dr. Wise's practice, Barbara Morganstern Epstein, 1/ administered a psychological evaluation to her while in the hospital. At that time, Ms. Morganstern found that L.R.M.:
Is a bright girl who exploits and manipulates others for her own self interest. She has overwhelming guilt and fear concerning sexuality. Because she distrusts males, she assumes a superior position and becomes extremely controlling in heterosexual
relationships . . . Whenever this adolescent experiences stress, she typically acts out in an aggressive manner or displays a dissociative
reaction . . . Primary process disturbance is revealed in pathological responses on the Rorschach. Paranoid schizophrenic ideation is observed on the Rorschach and on other projective tests. (Exhibit 4, Psychological Evaluation by Barbara Morganstern administered September 21, 22, and 23, 1972 at p. 6)
While she was seen by Dr. Wise and his associates after her discharge from the hospital, she had treatment in individual sessions and group sessions. During her treatment she received anti-psychotic and antidepressant medications. Her mediation was discontinued after the spring of 1974.
L.R.M. testified that during a session with Dr. Wise she spoke of experiencing stress at school and how it occasionally caused her to break out on her back. She says that Dr. Wise was insistent about seeing her back, sat next to her, began to take off her pullover and fondled her breast for a few seconds, and that she became angry. Dr. Wise tried to explain to her that he was a doctor, and that what he had done was appropriate.
In the course of the investigation of this matter, L.R.M. had told the Department's investigator that another young woman who was in group therapy with
L.R.M. conducted by Ms. Morganstern had accused Dr. Wise during the sessions of fondling her breasts and having sex with her, but that Ms. Morganstern had no reaction to these disclosures, although she did not seem to believe this other young woman. Ms. Morgenstern forcefully denied this ever occurred, and I find those denials credible. This has caused me to seriously doubt the accuracy of the testimony of L.R.M.
Considering all the evidence on the charges made by L.R.M., including
1) her hostility to males as documented by Ms. Morganstern in the report on the psychological testing done while L.R.M. was in the hospital, before she entered into a course of treatment with Dr. Wise, 2) the denial by Ms. Morganstern, which I credit, that L.R.M. is incorrect in saying that another young women in group therapy sessions had accused Dr. Wise of sexual involvement with her, and
3) the underlying psychotic illness from which L.R.M. was suffering when this event is to have taken place, I do not find the evidence of sexual misconduct with L.R.M. convincing.
Patient S.P.
S.P. began seeing Dr. Wise in July of 1980 when she was 19 years of age. She saw him for nervousness, sleep problems and hyperventilation. The initial diagnosis of Dr. Wise was that S.P. had a borderline personality disorder with hysterical and narcissistic traits. As part of her therapy, Dr.
Wise had her write reports of her dreams, which indicated that S.P. had difficult with authority and anger towards physicians.
According to S.P., after about two months of therapy, Dr. Wise would sit on the couch near her, leaned over and kissed her and the intimacy progressed to sexual intercourse. According to S.P., after the sex began Dr. Wise suggested that she ask for the last appointment for the day, which she did. She also testified that she saw Dr. Wise not only on Tuesdays for scheduled appointments but also on Thursdays, but she was not charged for those visits, and they had sex on both days of the week. These sexual encounters were such that S.P. testified that she never left Dr. Wise's office before 11:00 p.m. Although she was out late, she testified that her husband never questioned her about the late nights she spent with Dr. Wise. Her husband became angry when
S.P. told him on Christmas Eve about having had sex with Dr. Wise. S.P. and her husband filed a civil action for damages against Dr. Wise, which was unsuccessful.
In about April of 1981 S.P. began to see another counselor, Father Frances Flynn, Ph.D., who is also a Catholic priest. She had been separated from her husband in January of 1981 and divorce proceedings were underway. S.P. told Father Flynn that she had had sex with Dr. Wise. Father Flynn, who is also a clinical psychologist, took no action to confront Dr. Wise or otherwise make this serious allegation of misconduct on the part of Dr. Wise known to any authorities. S.P. also testified that she told her mother, with whom she began living after her separation from her husband, that she had been sexually involved with Dr. Wise within a month from the time she stopped seeing Dr. Wise.
With respect to the allegations made by S.P., I find the denial of Dr. Wise to be credible. Although she was having difficulties in her relationship with her husband, S.P. refused to allow Dr. Wise to speak to her husband, or to agree to come in for joint counseling with her husband. Neither did S.P. want Dr. Wise to discuss S.P.'s condition with her mother. Her dissatisfaction with her relationship with her husband would cause her to leave their home when she found him stoned on marijuana and asleep in front of the television set, and go out to bars. Accusing Dr. Wise of misconduct provided a way to explain her absences at night. I do not find the testimony of S.P. credible.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this matter. Sections 120.57(1) and 455.225(5), Florida Statutes (1991).
The Board of Medicine has the authority to revoke the license of a physician under Section 458.331(1)(k), Florida Statutes (1981) for a sexual misconduct in the practice of medicine, because that misconduct would constitute a violation of the physician-patient relationship. To use that relationship to induce a patient to engage in sexual activity is outside the scope of the practice of medicine and outside the scope of generally accepted modes of treatment for a patient.
Under Section 458.331(3), Florida Statutes (1991), administrative proceedings filed against physicians seeking license revocation require the Department of Professional Regulation to establish the grounds for revocation "by clear and convincing evidence." The Department seeks revocation in its complaint, so the clear and convincing evidence standard applies. See also Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Evans Packing Co. v. Department
of Agriculture, 550 So.2d 112, 116 (Fla. 1st DCA 1989). The allegations made by L.H., L.G., L.R.M., and S.P. have not been established at that level of proof.
After reviewing carefully the entire body of evidence in the case, at the direction of the appellate court, I do find that the Department has proven its allegations with respect to the claim of misconduct with K.M. at the requisite level of proof. Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983); Evans Packing Co., supra, 550 So.2d 112, 116 and n.5. K.M. was the first witness to testify in this proceeding. The claims made by the other witnesses have been rejected for the reasons stated in the findings of fact. The weakness of these other charges of misconduct can cause a halo effect, in which the weakness of those other claims generally gives the impressions that all of the evidence in the case is weak. The Department has made an analogous argument in its proposed Finding 49, seeking to buttress findings it offered based on the testimony of L.H. with the argument that the other witnesses' testimony make that of L.H. more believable. After carefully reviewing the transcript and all of the exhibits, however, I have become convinced that the claim of misconduct with K.M. must be sustained. Her testimony was credible, distinct and specific, and she informed Dr. Shea of the acts of Dr. Wise within a reasonable time after she left Dr. Wise's care. Dr. Shea acted on this information in a manner consistent with his belief in its truth, and took steps to deal with the problem by having Dr. Poliacoff contact K.M.
This sexual misconduct constitutes a violation of Section 458.331(1)(j), Florida Statutes (1987), which prohibits a physician from exercising influence within the physician/patient relationship, and a violation of Section 458.331(1)(x), Florida Statutes (1987), in that it constitutes a violation of Section 458.329, Florida Statutes (1987), which specifically prohibits a physician from inducing or attempting to induce a patient to engage in a sexual relationship during the physician/patient relationship. The conduct also violates Section 458.331(1)(t), Florida Statutes (1987), because it constitutes gross or repeated malpractice by failing to practice medicine with a level of care, skill and treatment recognized as being acceptable under similar circumstances and conditions. See Finding 15.
The Department has recommended as an appropriate penalty here that Dr. Wise be reprimanded, or be fined $6,000 to be paid within one year of the entry of the final order, and that he be placed on probation for a period of 5 years with terms and conditions to be set by the Board of Medicine. The Department apparently did so in the mistaken belief that a reprimand and fine could be imposed if misconduct were found using the lower preponderance of evidence standard, if the evidence failed to meet the more demanding clear and convincing evidence standard which would authorize suspension or revocation. That penalty does not appear to be appropriate. Use of the physician/patient relationship to engage a young patient who is seeing a psychiatrist for problems which are, at least in part, sexually related is very serious misconduct. The appropriate penalty would be the revocation of Dr. Wise's licensure as a physician in the State of Florida. Cf., Rule 21M-17.015(2)(j), Florida Administrative Code, which prescribes a penalty from one year suspension to revocation of licensure for violation of Section 458.331(l)(j), Florida Statutes, which prohibits exercising influence to engage a patient in sex.
RECOMMENDATION
It is recommended that a final order be entered by the Board of Medicine finding Dr. Wise guilty of sexual misconduct with a patient in his psychiatric practice, and that his license as a physician be revoked.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of June 1992.
WILLIAM R. DORSEY, JR.
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 18th day of June 1992.
ENDNOTE
1/ Ms. Esptein has been divorced and no longer uses the name Morganstern, as she did when employed by Dr. Wise.
APPENDIX
Rulings on the Findings of Fact proposed by the Petitioner.
1-3. Adopted in Finding of Fact 1.
Adopted in Findings of Fact 8 and 9.
First sentence generally adopted in Finding of Fact 8.
Adopted in Finding of Fact 9.
Adopted in Finding of Fact 9.
Adopted in Finding of Fact 10.
Adopted in Finding of Fact 11.
Rejected as unnecessary.
Implicit in Finding of Fact 11.
Adopted in Finding of Fact 11.
Adopted in Finding of Fact 28.
The testimony is recounted in Finding of Fact 29.
The testimony is recounted in Finding of Fact 29.
The testimony is recounted in Finding of Fact 30.
The testimony is recounted in Finding of Fact 30.
Rejected as inconsistent with my view of the evidence.
Adopted in Finding of Fact 30.
Implicit in Finding of Fact 30.
Rejected because I have not found the testimony of S.P. persuasive.
Adopted in Finding of Fact 30.
Adopted in Finding of Fact 30.
Rejected as unpersuasive.
Rejected as unnecessary.
Adopted in Finding of Fact 23.
The testimony is recounted in Finding of Fact 25.
The testimony is recounted in Finding of Fact 25.
The testimony is generally recounted in Finding of Fact 25.
Rejected as unnecessary.
Adopted in Finding of Fact 16.
Adopted in Finding of Fact 16 except for the final two sentences which are rejected as unpersuasive.
The testimony is recounted in Finding of Fact 18, but reje cted for the reasons stated in the Findings of Fact, especially Findings 19-22.
34-36. The testimony is recounted in Finding 18, but rejected for the reasons stated in the Findings of Fact, especially Findings 19-22.
37 & 38. Rejected as unnecessary. I have not accepted the testimony of L.G., and the corroborative testimony of Dr. Rappaport is unnecessary.
39. Rejected as unnecessary.
40-42. Rejected as unnecessary.
43. Treating E.H. as L.H., adopted in Finding of Fact 2, although the reasons for treatment are found in Finding 3.
44 & 45. The testimony is recounted in Finding of Fact 5.
Adopted in Finding of Fact 5.
Adopted in Finding of Fact 6.
Rejected as unnecessary.
Accepted in Finding of Fact 7. 50-53. Rejected as unnecessary.
54. Adopted in Finding of Fact 15.
Rulings on the Findings of Fact proposed by the Respondent, Board of Medicine.
Adopted in Finding of Fact 1.
Generally adopted in Findings of Fact 2 and 3.
Adopted in Finding of Fact 5.
Adopted in Finding of Fact 6.
Generally adopted in Finding of Fact 7.
Generally adopted in Finding of Fact 28.
Generally adopted in Finding of Fact 29.
Generally adopted in Finding of Fact 31.
Generally adopted in Finding of Fact 31.
Generally adopted in Findings of Fact 23 and 25.
Generally adopted in Findings of Fact 26 and 27.
Generally adopted in Findings of Fact 8 and 11.
Rejected for the reasons stated in Findings of Fact 13 and 14.
Generally adopted in Finding of Fact 16.
Generally adopted in Finding of Fact 18. The testimony of Dr. Rappaport is not discussed because, while corroborative of the testimony of L.G., I have not accepted L.G.'s testimony for the reasons stated in Findings of Fact 20-22.
Generally adopted in Findings of Fact 21 and 22.
COPIES FURNISHED:
Mark Lang, Esquire Kenneth Baker, Esquire Lang & Baker
Post Office Box 2127 Orlando, Florida 36802-2127
Larry McPherson, Esquire Department of Professional
Regulation Suite 60
1940 North Monroe Street
Tallahassee, Florida 32399-0792
Dorothy Faircloth Executive Director Board of Medicine
Department of Professional Regulation
1940 North Monroe Street Suite 60
Tallahassee, Florida 32399-0792
Jack McRay General Counsel
Department of Professional Regulation
1940 North Monroe Street Suite 60
Tallahassee, Florida 32399-0792
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
=================================================================
AGENCY FINAL ORDER
=================================================================
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICINE
DEPARTMENT OF PROFESSIONAL REGULATION,
DPR CASE NUMBERS: 0085196
Petitioner, 0085197
0064427
-vs- 0074140
DOAH CASE NUMBERS: 87-3635
MELVIN S. WISE, M.D., LICENSE NUMBER: ME 0008520
Respondent.
/
FINAL ORDER
This cause came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)10, Florida Statutes, on August 7, 1992, in Tallahassee, Florida, for the purpose of considering the Hearing Officer's Recommended Order, Respondent's Exceptions to the Recommended Order, and Petitioner's Response to Respondent's Exceptions (copies of which are attached hereto as Exhibits A, B, and C, respectively) in the above-styled cause. Petitioner, Department of Professional Regulation, was represented by Lisa S. Nelson, Assistant General Counsel. Respondent was represented by Mark Lang, Attorney at Law.
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.
RULINGS ON EXCEPTIONS
Respondent's exception numbered I.A. is rejected for the reasons stated orally and in writing by the Department.
Respondent's exception numbered I.B. is rejected for the reasons stated orally and in writing by the Department.
Respondent's exception numbered I.C. is rejected for the reasons stated orally and in writing by the Department.
Respondent's exceptions numbered II and III are rejected for the reasons stated orally and in writing by the Department. It is noted that the key is not whether any evidence relating to K.M. was excluded, but that the Hearing Officer was directed on remand to review the entire record because his prior view of the totality of the evidence may have been affected by his consideration of evidence later found by the appellate court to be irrelevant.
FINDINGS OF FACT
Findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein.
There is competent substantial evidence to support the findings of fact.
CONCLUSIONS OF LAW
The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.
The conclusions of law set forth in the Recommended Order are approved and adopted and incorporated herein.
There is competent substantial evidence to support the conclusions of
law.
PENALTY
Upon a complete review of the record in this case, the Board determines that the penalty recommended by the Hearing Officer be ADOPTED. WHEREFORE,
IT IS HEREBY ORDERED AND ADJUDGED that
Respondent's license to practice medicine in the State of Florida is REVOKED.
This order takes effect upon filing with the Clerk of the Department of Professional Regulation.
DONE AND ORDERED this 14th day of August 1992.
JAMES N. BURT, M.D. VICE CHAIRMAN
NOTICE OF RIGHT TO JUDICIAL REVIEW
A PARTY WHO IS ADVERSELY AFFECT D B THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO ON 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF PROFESSIONAL REGULATION AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN THIRTY (30) DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Melvin S. Wise, M.D., c/o Kenneth L. Baker and Mark A. Lang, Attorneys at Law, Lang & Baker, P.A., 20 North Orange Avenue, Suite 406, Post Office Box 2127, Orlando, Florida 32802-2127 and to Kenneth L. Baker and Mark A. Lang, 20 North Orange Avenue, Suite 406, Post Office Box 2127, Orlando, Florida 32802-2127, by U.S. Mail to William R. Dorsey, Jr., Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; and by interoffice delivery to Larry G. McPherson, Jr., Chief Medical Attorney, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 at or before 5:00 P.M., this 24th day of August 1992
| Issue Date | Proceedings |
|---|---|
| Aug. 31, 1993 | BY ORDER OF THE COURT: (Dr Wise is deceased) filed. |
| Sep. 22, 1992 | Docketing Statement and Notice of Appearance of Counsel filed. |
| Sep. 15, 1992 | Letter to DOAH from DCA filed. DCA Case No. 92-3110 |
| Sep. 09, 1992 | AGENCY APPEAL, ONCE THE RETENTION SCHEDULE OF -KEEP ONE YEAR AFTER CLOSURE- IS MET, CASE FILE IS RETURNED TO AGENCY GENERAL COUNSEL. -ac |
| Aug. 25, 1992 | Final Order filed. |
| Jul. 13, 1992 | Respondent's Request for Oral Argument; Respondent's Exceptions to Recommended Order filed. |
| Jun. 18, 1992 | Recommended Order(Remanded) sent out. (Recommended that Dr. Wise license as a physician be revoked) |
| Nov. 01, 1989 | Order on Remand and on Department`s Motion for a New Hearing sent out. |
| Sep. 13, 1989 | Petitioner`s Motion for a New Hearing filed. |
| Sep. 13, 1989 | Order filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 14, 1992 | Agency Final Order | |
| Jun. 18, 1992 | Recommended Order | Dismissal recommended. Allegations of sexual misconduct with patients not proven. Testimony consistent, but not clear/convincing. |
| Nov. 01, 1989 | Remanded from the Agency | |
| Sep. 13, 1989 | Agency Miscellaneous | |
| Aug. 17, 1989 | Agency Miscellaneous |
