vs. ) CASE NO. 87-5562
JON E. MUNDORFF, )
Respondent. )
The final hearing was held in this case on June 21, 1988 in Tampa, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.
Petitioner: Laura P. Gaffney, Esquire
Respondent: Paul B. Johnson, Esquire
The issue in this case is whether the Board of Psychological Examiners should take license disciplinary action against Jon E. Mundorff based upon the allegations contained in the Administrative Complaint that he requested a female client to engage in sex with one of his male clients and report back to him on the results of that liaison, and also that he failed to keep adequate patient records. At the hearing, the Department of Professional Regulation (Petitioner) called 3 witnesses and introduced 4 exhibits, while Jon E. Mundorff (Respondent) called 8 witnesses and introduced 9 exhibits. A transcript of the hearing was filed on June 29, 1988. The Appendix to this Recommended Order contains a ruling on each timely filed proposed finding of fact.
At all times material hereto, Respondent has been a licensed psychologist in the State of Florida, having been issued license number P4- 0002471 on March 5, 1982.
Respondent has been in practice for approximately 16 years, and engages in educational and counseling psychology, rather than clinical or industrial psychology. He is also licensed by the Department of Education as a school psychologist.
From October, 1984 until November 21, 1986, E. J. A. was one of Respondent's patients. She began counseling with him for marital problems she was having, and continued counseling with Respondent after her marriage ended in divorce. E. J. A. was a very conscientious patient who always kept her appointments, maintained complete written records of her dreams which she gave to Respondent at each appointment, and expressed no concerns or dissatisfaction about her two years of counseling with Respondent, except for the incident which she testified occurred during her last appointment on November 21, 1986. Up until the last appointment, she testified Respondent made no sexual overtures or improper suggestions. During her counseling, E. J. A. had come to trust Respondent, and had developed an informal, friendly patient-psychologist relationship.
E. J. A. had an appointment with Respondent on October 16, 1986, which was without incident. By the middle of November, when he had not heard from her to set up another appointment, Respondent telephoned her at work and requested that she set up another appointment. She agreed and the appointment on November 21, 1986 was scheduled.
The November 21 session consisted of a general discussion and review about her two years of counseling. E. J. A. was feeling at the time that she might be ready to end her counseling, although Respondent felt additional sessions, at longer intervals, would be advisable. Counseling sessions were 50 minutes in length, and the November 21 session was routine and without incident until the very end of the session when Respondent and E. J. A. were saying good- bye.
As was their usual practice at the end of a session, they both stood up and hugged. According to E. J. A., Respondent then said he wanted her to meet, go out with and have sex with one of his male patients who was having premature ejaculation problems. She testified that Respondent described the male patient as a very good looking Latin man from a wealthy family of Brazilian or Venezuelan origin, who was at home from Purdue law school for the Thanksgiving holiday. E. J. A. testified she asked Respondent why he was asking her to do this, and her testimony was that he said she was a sensitive, caring person who could help this young man. At first she was flattered, and she told Respondent she would think about it and get back with him. She was not initially offended. However, she did not contact Respondent to pursue the matter, and after discussing this with her brother two weeks later, she testified she realized it was unprofessional and immoral, and therefore filed a complaint with Petitioner.
Respondent's patient record for E. J. A., after two years of counseling, consists of one sheet of paper with pencil notes on the front and back, as well as statements of Account, some of which have been destroyed or are missing, containing simply the date of her visit, the charge and the same diagnosis on all statements of adult situational disorder with anxiety features.
E. J. A.'s dream records which she kept and brought with her throughout counseling were thrown out by Respondent. He testified the dream records were of no value after they had been discussed during a session, and he routinely destroys such notes after discussing them with his patients. His explanation for his own failure to keep detailed patient records was that he had a very good memory and could recall all important matters without written notes. Further, he stated that at one time he had kept voluminous patient notations and found them to be useless.
Respondent was interviewed by Petitioner's investigator on or about January 26, 1986 and cooperated fully. After having heard Respondent's
testimony at hearing about that interview and his use of the phrase, "I don't recollect," in answer to several questions posed by Petitioner's investigator about his November 21, 1986 session with E. J. A., it is specifically found that Respondent did not admit asking her to have sex with a Latin male patient.
Nothing in the record, including testimony about a subsequent meeting between E.
J. A. and Respondent on February 1, 1987, constitutes an admission against interest by Respondent concerning this allegation.
There is no evidence that Respondent had a Latin male patient, of Venezuelan or Brazilian origin, in November, 1986, nor that he had a Purdue law student as a patient at the time. Respondent denies having a patient that fits the description given by E. J. A.; nor was he counseling a patient with premature ejaculation problems at that time. Nothing in the record rebuts Respondent's apparently sincere denials. The only evidence of unprofessional conduct is E. J. A.'s testimony about the November 21 session, which Respondent has convincingly denied.
Respondent has an outstanding reputation as a counseling psychologist in the community. He has counseled hundreds of patients referred to him by three practicing family law attorneys who testified at hearing, and none of those patients has ever expressed any complaints to their attorneys about Respondent. To the contrary, there has been an overwhelming expression of gratitude and satisfaction from these patients to the attorneys who referred them to Respondent. The same three practicing attorneys also testified to seeing Respondent on a professional basis for counseling, and stated their complete satisfaction with, and admiration for, Respondent. During counseling, they testified Respondent took few notes, but he had a complete and astonishing memory.
Three medical doctors who have practiced with Respondent, as well as the Chairman of the Department of Rehabilitative Counseling at the University of South Florida, testified that Respondent is an excellent therapist who is conscientious, thorough, caring and highly professional. The deposition of a counseling psychologist who has known Respondent professionally for 16 years was introduced, and supports his reputation for competence and meeting community standards for the profession.
After considering all of the evidence, as well as the demeanor of the witnesses and Respondent's excellent reputation in the community, it is found that he did not request E. J. A. to have sex with a male patient and report back to him. He did not commit any act upon his patient, E. J. A., which would constitute sexual misconduct or on consenting experimentation on a human subject.
Petitioner presented the American Psychological Association's "Specialty Guidelines for the Delivery of Services by Clinical Psychologists" to establish that the patient records maintained by Respondent concerning E. J. A. were inadequate and failed to meet minimum standards of performance. However, the "Guidelines" specifically state that they "are meant to apply only to those psychologists who voluntarily wish to be designated as clinical psychologists. They do not apply to other psychologists." American Psychologist, Vol. 36, No. 6, p. 640. Since the "Guidelines" specifically guide the specialty practice of clinical psychology only, they are irrelevant to a counseling psychologist such as Respondent, particularly since Respondent has never held himself out as a clinical psychologist in any way. Therefore, Guideline 2.3.4., which requires clinical psychologists to retain patient records for from 3 to 15 years after completion of planned services or last contact, as well as other guidelines
concerning patient records, are not relevant to Respondent's practice as a counseling psychologist.
According to Dr. Sydney Merin, who was accepted as an expert in psychology, record keeping is always important. Patient records should contain an adequate representation of what went on in each session. Dr. Merin testified that all psychologists are expected to keep adequate patient records, and that Respondent's record on one sheet of paper for counseling with E. J. A. for two years, as well as incomplete Statements of Account, failed to meet minimum standards of performance because they were inadequate. E. J. A.'s dream notebooks had been destroyed, and there is no way to tell from E. J. A.'s records what was discussed, explored, revealed or found in two years of counseling. If Respondent were to die, leave the area, or discontinue his practice, E. J. A. would have no meaningful record of her extensive counseling with him.
The testimony of Dr. Fred Dickman, introduced by Respondent by deposition, confirms the testimony of Dr. Merin concerning the importance of keeping adequate patient records. Further, Dr. Dickman testified that at a minimum he keeps a record of each date when he sees a patient, and at least a sentence about each session. Respondent failed to make any notes about what went on in his sessions with E.J.A., other than the date, the charge and diagnosis for insurance billing purposes. He failed to meet the community standard to keep notes of on- going therapy.
Although Respondent produced the testimony of three psychiatrists, who were also qualified as experts in the supervision of psychologists, to state that his records for E. J. A. were adequate, this testimony is specifically outweighed by the testimony of Drs. Merin and Dickman since they are both psychologists and, therefore, their testimony is more relevant and persuasive concerning minimum standards of psychology than the testimony of psychiatrists. While these professions may be related, they are separate and distinct, and while adequate patient records of each session may not be required in the profession of psychiatry, they are required in the profession of psychology. Similarly, the testimony of Dr. Calvin Pinkard that the need for notekeeping is debatable is discounted as irrelevant because, although he is an expert in psychology, he was testifying about, and in the context of, teaching students studying to become mental health counselors, not psychologists.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes. The Petitioner has the burden to prove, by clear and convincing evidence, the violations of Chapter 490, Florida Statutes, alleged in the Administrative Complaint issued against Respondent. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
Petitioner has charged Respondent with committing an act upon his patient, E. J. A., which would constitute sexual battery or sexual misconduct in violation of Section 490.009(2)(k), Florida Statutes, and with experimentation on human subjects in violation of Section 490.009(2)(r), Florida Statutes. The evidence produced at hearing does not establish, clearly and convincingly, that Respondent violated either of these statutory provisions in his counseling of E.
J. A. It was not shown that the incident alleged to have occurred on November 21, 1986 ever actually took place, and, in fact, it appears from the evidence
presented and from Respondent's outstanding reputation that he did not ask E. J.
A. to have sex with a male patient and report back to him.
Section 490.009 (2)(s), Florida Statutes, provides that licensees are subject to disciplinary action for:
Failing to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance . . . .
While no statute or rule of the Board of Psychological Examiners specifically requires the keeping of adequate records of patient counseling sessions, the evidence produced at hearing establishes that recordkeeping is a standard of performance of psychology in the community, and that Respondent's records of two years of counseling with E. J. A. were inadequate, and do not meet the minimum community standards. Therefore, Respondent is in violation of Section 490.009(2)(s), as well as Section 490.009(2)(q) which itself prohibits the violation of any provision of Chapter 490, Florida Statutes.
The relevant disciplinary guidelines adopted by the Board are set forth at Rule 21U-18.003(1)(q) and (s), and relevant mitigation factors are also set forth at Rule 21U- 18.003(2)(a), (b), (c), (e), (f), (g), Florida Administrative Code. This is the only complaint made against Respondent during his many years of practice, no harm was shown to have occurred to E. J. A. based upon the keeping of inadequate patient records, and the only offense proven involved recordkeeping which did not involve the competency of Respondent's counseling. Therefore, the penalty of a public reprimand is appropriate in this case.
Based upon the forgoing, it is recommended that the Board of Psychological Examiners enter a Final Order publicly reprimanding Respondent for the violation of Sections 490.009(2)(q) and (s), Florida Statutes.
DONE AND ENTERED this 20th day of July, 1988, in Tallahassee, Florida.
DONALD D. CONN
Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1988.
(DOAH Case No. 87-5562)
3-4. Adopted in Finding of Fact 2, but otherwise Rejected as irrelevant.
7-8. Rejected in Findings of Fact 14, 15, 16.
Laura P. Gaffney, Esquire Department of Professional
Paul B. Johnson, Esquire
P. O. Box 3416 Tampa, Florida 33601
