STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, )
)
Petitioner, )
vs. ) CASE Nos. 88-3333
) 88-3334
ROBERT A. LIEBERMAN, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Final hearing in the above consolidated cases was held on November 30, December 1 and 2, 1988, in Orlando, Florida, before Mary Clark, Hearing Officer with the Division of Administrative Hearings. The parties were represented as follows:
For Petitioner: Peter Fleitman, Esquire
One Datran Center, Suite 1409 9100 South Dadeland Boulevard Miami, Florida 33156
For Respondent: Thomas M. Burke, Esquire
Richard A. Solomon, Esquire
11 East Pine Street Post Office Box 1873 Orlando, Florida 32802
BACKGROUND AND PROCEDURAL MATTERS
These cases are the result of two Administrative Complaints brought by Petitioner against the Respondent physician, and filed on May 3, 1988 and May 20, 1988. They were consolidated for hearing at the request of Respondent in an Order dated August 10, 1988.
That same Order denied Respondent's motion to dismiss certain counts of the Administrative Complaint in Case NO. 88- 3333. Basis for the motion was that in a prior proceeding involving the Respondent and his patient, M. A., the Respondent was exonerated from wrongdoing in the prescription of quantities of Percodan, Seconal and Quaaludes, between July 1978 and January 1979. See Recommended Order of Arnold H. Pollock, dated January 31, 1984, in Case No. 83- 0267, and Final Order of the Board of Medical Examiners, dated May 12, 1984.
The complaint in Case No. 88-3333, as it relates to the patient, M. A., references a longer period of time, February 1977 to October 1979; charges that Quaaludes were prescribed for M. A. in the name of other patients; claims that not only Quaaludes and Seconal were improperly prescribed, but also Placidyl, Valium and Demerol; and adds a series of charges related to improper sexual conduct with the patient. For this reason, the complaints were not the same.
Additional motions by both parties were considered at the commencement of the
hearing, and were denied. Those include a motion for continuance and a motion for order in limine by the Respondent, and a motion to strike witnesses by Petitioner.
At the hearing Petitioner presented the testimony of nine witnesses and offered exhibits numbered 1-13 and 16-20, all admitted with the exception of Petitioner's exhibit numbered 19. This exhibit is a prescription produced at hearing for the first time, in violation of a pre-hearing order dated November 18, 1988, which granted Respondent's motion to compel and required that all prescriptions be produced by 5:00 p.m. on November 28, 1988 (less than two days prior to hearing). Petitioner also presented the testimony of two expert witnesses through their depositions, Drs. Calvin Curry and Arthur Rudolph.
Respondent testified in his own behalf and presented three additional witnesses. His twelve exhibits were received into evidence.
After the preparation of a transcript both parties submitted proposed recommended orders. Respondent has submitted separate orders for each case. Respondent has also moved to strike Petitioner's 101-page proposed recommended order as violative of Rule 22I-6.031(3), Florida Administrative Code. Although that motion is denied, it should be noted that in the attached Appendix which addresses the parties' proposed findings of fact, Petitioner's proposal has been disregarded as argument or a restatement of testimony, rather than findings of fact.
ISSUES
The ultimate issues for determination are whether Respondent, Dr. Lieberman, committed the violations as alleged, and if so, what license discipline is appropriate. More specifically, did the following violations of Chapters 893 and 458, Florida Statutes, regulating the practice of medicine occur as alleged:
As to Patient, M. A.
Sections 893.05, Florida Statutes, and Section 458.1201(1)(k), Florida Statutes, (1977) reenacted as Section 458.331(1)(g), Florida Statutes, (1987) -- by inappropriately prescribing certain drugs classified as controlled substances.
Section 458.1201(1)(m), Florida Statutes, (1977) reenacted as Section 458.331(1)(j) and (t), Florida Statutes, (1987) -- by utilizing examinations for his own sexual gratification, by making inappropriate remarks during examinations and by engaging in sexual activity with the patient within the patient-physician relationship.
As to Patient, L. I.
Sections 458.329, Florida Statutes, and Subsections 458.331(1)(j), [formerly (k)], (t) and (x), Florida Statutes, -- by forcibly engaging in sexual intercourse with a patient and by inappropriately using the examination for his own sexual gratification.
As to Patient, D. B.
Section 458.329, Florida Statutes, and Subsections 458.331(1)(j), [formerly (k)], (t) and (x), Florida Statutes, by engaging in sexual conduct with a
patient and using the examination for purposes of obtaining sexual gratification.
As to Patient, B. J. (Case NO. 88-3334)
Section 458.331(1)(t), Florida Statutes, by failing to obtain appropriate tests on a patient who was later diagnosed as having cervical cancer.
FINDINGS OF FACT
At all times relevant to the allegations of the Administrative Complaints, Robert A. Lieberman was a physician licensed to practice medicine pursuant to Chapter 458, Florida Statutes, and holding license number ME 0023165.
After two years in the U.S. Navy, serving as a physician with the rank of Lt. Commander, Dr. Lieberman opened a private practice in Orlando, Florida in 1976.
At all times relevant to the allegations of the complaints, Dr. Lieberman has been Board Certified in obstetrics and gynecology and maintained his practice at 615 East Princeton Street, in Orlando, Florida.
Dr. Lieberman's practice includes approximately 6500 patient visits per year and the delivery of approximately 180 infants per year.
M. A.
Patient M. A., also known as M. Q., was treated by Dr. Lieberman from February 1, 1977 until May 31, 1979. She also visited the office on October 24, 1979 for a pregnancy test, but was not seen by Dr. Lieberman on that date.
During the course of her visits she was treated for a variety of complaints including difficulty in adjusting to birth control pills, gynecological infections, post-coital bleeding and a spontaneous abortion. She underwent an induced abortion on February 7, 1977, and later became an obstetric patient of Dr. Lieberman. She delivered a live birth on June 29, 1978. During the course of her treatment M. A. was an extremely stressed and disturbed young woman. In January 1978, She reported having been beaten by her boyfriend. She also reported heavy usage of cocaine and "sopors" (methaqualone)
In January 1979, she reported she was raped. At one point, during a divorce, she wrote an anguished letter to Dr. Lieberman asking that he be her "shrink" (her term, which in the context of the letter meant counselor). (Petitioner's Exhibit 7.)
During the course of his treatment of M. A., Dr. Lieberman's office notes and copies of prescriptions reflect the following controlled substances that he prescribed for her:
Date 2/7/77 | Type Percodan | Dosage (not indicated) | Number 12 |
2/22/77 | Valium | 10 mgs | 30 |
3/1/77 | Percodan | (not indicated) | 30 |
3/1/77 | Quaaludes | (not indicated) | 10 |
3/10/77 | Valium | 10 mgs | 30 |
3/18/77 | Valium | 10 mgs | (not indicated) |
5/6/77 | Valium | 10 mgs | 60, plus one |
refill | |||
5/20/77 | Quaaludes | 300 mgs | 15, plus one |
refill | |||
5/27/77 | Valium | 10 mgs | 60, plus one |
refill | |||
8/11/77 | Tranxene | 7.5 | 60 |
1/4/78 | Phenobarbitol | 1 gr | 60, plus one |
refill | |||
1/4/78 | Darvocet | N100 | 60 |
5/17/78 | Quaaludes | 300 mgs | 30 |
7/13/78 | Fiornal | No. 3 | 20 |
7/17/78 | Seconal | 100 mgs | 10 |
7/20/78 | Fiornal | No. 3 | 20 |
8/4/78 | Quaaludes | (not indicated) | 30 |
8/7/78 | Fiornal | No. 3 | 15 |
8/24/78 | Quaaludes | 300 mgs | 30 |
9/18/78 | Quaaludes | 300 mgs | 30 |
9/19/78 | Quaaludes | (not indicated) | 30 |
9/25/78 | Quaaludes | 300 mgs | (not indicated) |
10/10/78 | Quaaludes | 300 mgs | 30 |
11/1/78 | Quaaludes | 300 mgs | 30 |
11/6/78 | Valium | 10 mgs | 30, plus |
two refills 11/6/78 Valium (not indicated) 30, plus
two refills
12/15/78 | Percodan | (not indicated) | 20 | |
12/26/78 | Quaaludes | 300 mgs | 30 | |
1/2/79 | Quaaludes | 300 mgs | (not | indicated) |
1/15/79 | Placidyl | 500 mgs | 30 | |
2/1/79 | Valium | 10 mgs | 30 | |
5/31/79 | Placidyl | 750 mgs | 30 |
The medical records also reveal that M. A. was given a single injection of Demerol at the time of her abortion procedure on February 7, 1977. No evidence supports the allegation that this use of the drug was inappropriate.
Quaaludes are a depressant and were prescribed for sleep, primarily. They have an effect comparable to barbiturates. They are highly addictive and, while legal at the time that Dr. Lieberman was prescribing them for M. A., they were removed from the market around 1982 because of their abuse.
Placidyl is also a sleeping pill, although in a different class of drugs than Quaalude.
Tranxene is similar to Valium and both are used as tranquilizers.
Dr. Lieberman's office notes did not reflect the basis for the wide array and sometimes frequent prescriptions. In several instances he prescribed Quaaludes without any notation in his office records. This occurred on August 24, 1978, September 18, 1978 and October 10, 1978.
Nevertheless, the testimony of the agency's physician witnesses lacked specificity with regard to the propriety of Dr. Lieberman's prescriptions to this patient. Dr. Curry felt that the prescriptions for Quaaludes were "excessive" and that it was "unwise" for a physician to prescribe this quantity
of a popular street drug to a known drug abuser. (Petitioner's Exhibit 2, pp.
6 and 10.) He offered no opinion on the other controlled substances.
Dr. Rudolph had a close family member who had a problem with Quaaludes and he would never prescribe this drug. He was concerned generally with regard to the variety of drugs, but could conclude that only the Quaaludes were absolutely, totally, unnecessary. (Petitioner's Exhibit 1, P. 71.)
Neither physician was qualified as an expert in pharmacology and neither was particularly familiar with M. A.'s records, as they had difficulty reading the office notes.
M. A.`s testimony with regard to her experiences as Dr. Lieberman's patient was vague and confused. Ten years ago she was, as she described, a different person, under substantial stress and thoroughly habituated to drugs. She claims that Dr. Lieberman knew that she was a substance abuser and willingly provided her with the prescriptions she sought. She also claimed that he made embarrassing "joking and filthy" comments about the appearance of her genitalia during her pelvic examinations. She also claims that on one occasion, when she had gone to his office seeking drugs, he required that she perform oral sex on him.
The dates and specifics of these charges were not provided. M. A. admitted that during the period in question, she was on tranquilizing drugs all of the time and that she was not aware of all that Dr. Lieberman had done to her until 1982 or 1983. Prior to her testimony in this proceeding she had given sworn statements in deposition or otherwise with regard to her relationship with Dr. Lieberman.
In one such statement given on November 9, 1984, she testified that she was a patient of Dr. Lieberman in the early 70's and that he prescribed drugs for her for a period of about eight years. (Petitioner's Exhibit 8.) The patient records and prescriptions substantiate that M. A. was a patient for approximately two years (1977-1979). Dr. Lieberman was not in private practice until 1976, and M. A. concedes that she first met him when she visited his office at East Princeton Street.
In addition to discrepancies in dates, M. A. at various times claimed that Dr. Lieberman made advances or fondled her prior to the oral sex incident and, in contradiction, claimed that she was surprised by the incident as sex had never come up at all other than verbal teasing. (Transcript, pp. 52 and 68, Petitioner's Exhibit 3, P. 10.)
In summary, M. A. was an earnest and emphatic witness. However, the lavish and unspecific charges she has made cannot alone form the basis of proof of the violations related to this patient in the Administrative Complaint.
In spite of the ten years time that has elapsed since these violations allegedly occurred, the agency failed to produce written records, prescriptions, and corroborating testimony from the other patients through whom M. A. claimed Dr. Lieberman was supplementing her drugs, to substantiate her charges.
L. I.
L. I. was Dr. Lieberman's patient from July 1978 until November 1982. She was initially treated for conditions requiring a total abdominal
hysterectomy. She had follow-up visits and was seen intermittently for other non-related complaints through April 1980.
Two years later she again visited Dr. Lieberman on June 8, 1982, when she presented complaints of pain in her left side. On June 17, 1982, she was hospitalized and Dr. Lieberman performed an exploratory laparotomy with lysis of adhesions. That is, abdominal surgery was performed and adhesions or scar tissue attached to the ovary were broken apart, without complications. She was discharged after some further tests related to digestive and vision problems, on June 25, 1982.
On July 2, 1982, L. I. returned to Dr. Lieberman's office for a post- operative examination and for removal of her bandages. At the time of the examination, as instructed, L. I. kept her clothing on, except for her underpants, which she removed. She was given a paper sheet which she used as she lay an the examining table.
Dr. Lieberman conducted the examination without a chaperone, pulling the sheet up and pressing around the abdomen area. After the examination, he said she could get up and reached out to help her when she had difficulty.
Instead of moving away, he stood and stared at L. I. as she sat on the table with her legs outstretched. This made her uncomfortable. He told her to scoot forward and when she did not, he pulled her forward and unzipped his pants. L. I. protested verbally with, "Don't do this, and "this is not right." He then leaned forward and quickly had sexual intercourse with her. Afterwards
L. I. sat and cried. He turned to the sink and handed her tissues and asked if he had hurt her. He said that he did not want her to be upset, that it was important that she not say anything and that he would see her again in two weeks. (Transcript, Vol. I, pp. 79-86.)
L. I. did not report the rape. She was profoundly embarrassed and felt that she was at fault for not struggling.
In order to return to work after her surgery, L. I. had to have a release from her attending physician. She returned to Dr. Lieberman's office on July 20, 1982, as he was the only person who could provide the release insisted on by her employer.
The nurse instructed her to get undressed for a pelvic examination. She questioned why a pelvic examination was necessary, but did undress. The nurse left and Dr. Lieberman entered the examining room. As he walked toward her, L.
I. put her hand up and said, "No, not until the nurse comes'. He turned, and L.
I. thought he had pushed a call button for the nurse. She stretched back on the table positioned for the examination, with her feet in the stirrups.
Dr. Lieberman stood next to her at the side of the table, rather than at the end of the table between the stirrups, where a pelvic examination is usually conducted. He touched her between the legs with his bare hand and L. I. heard him undoing his pants. She said, "Oh, not this again," and the phone rang in the examining room. As he turned to answer the phone, she sat up and wrapped herself with the sheet.
After the call, he walked out. As L. I. was getting dressed, he walked back in. She said, Just give me my release and I'll go". He told her to sit down and calm herself; she sat on the stool where her clothes had been and asked again for the release. He told her it was important not to say anything about
what happened, that it had never happened before; he wrote her release on a prescription pad and left. (Transcript, Vol. I, pp. 90-94.)
L. I. returned to Dr. Lieberman's office for one final visit in November 1982. She had received a card in the mail reminding her that it was time for a Pap test. By then she had thought about what had happened and felt that, given another opportunity, she could struggle or scream and someone would believe her. Otherwise, she was concerned it was just her word against the doctor.
On this occasion, she undressed fully for the exam. A nurse was in the room almost the entire time and no improper advances or comments were made. The examination and discourse afterward were uneventful. Although, she told him that she was still upset about what happened. He didn't respond.
L. I. never returned to Dr. Lieberman or to any other gynecologist.
In March 1983, L. I. began seeing a mental health counselor through her employee assistance program when she was having trouble with one of her children. At some point in the counseling process, L. I. began discussing her experience with Dr. Lieberman. As a result of the counseling she gained some insight into her own reactions to the incident. She is intimidated easily and is compliant. She tries to let things go and handle matters in her own way. In his testimony at hearing, Dr. Lieberman agreed that L. I. was reticent and a subdued and submissive type of individual. (Transcript, Vol. IV, P. 138.)
She obtained legal counsel civil brought a civil suit against Dr. Lieberman, which suit has since been settled.
D. B.
D. B. was a patient of Dr. Lieberman from June 1978 until September 1981. She first became his patient when he was the OB/GYN physician on call at Florida Hospital where she had been referred by a family practitioner.
He performed emergency surgery, and she continued to see him on a regular basis for routine check-ups and a variety of gynecological services, including two abortions, treatment for infections, and birth control.
On September 1, 1981, D. B. visited Dr. Lieberman's office for the purpose of being fitted for a diaphragm, a birth control device.
At the instructions of the nurse, D. B. completely disrobed, and draped the paper vest and sheet. She was sitting on the examining table when Dr. Lieberman entered the examining room. They exchanged brief pleasantries with regard to his having been up all night delivering babies. He then approached her, attempted to push her down on the table, and french kissed her while fondling her left breast. She resisted physically by pushing forward, and the incident lasted only ten to fifteen seconds.
As he wiped lipstick from his mouth, he told her that she wasn't cheating on her husband.
She dressed, left the office and returned to her own office. (Transcript, Vol. I, pp. 52-58.)
At the office she talked to a friend who suggested that she do something. The friend called the police and arrangements were made for her to meet them at her apartment. After she made her report to the police, D. B. was contacted by a female police detective, Sgt. Alana Hunter. D. B. decided not to press charges because she had two abortions prior to her marriage and had never told her husband. She was told that the abortions might be disclosed during the prosecution. She later retained the services of an attorney and a civil action is pending.
B. J.
B. J. was an OB/GYN patient of Dr. Lieberman from September 1979 until May 1984.
Her medical care and treatment by Dr. Lieberman included obstetrical deliveries in June 1980 and November 1982, with intervening gynecological care.
Part of that care included a test called a Pap smear. This procedure involves the taking of a sample of cells from the patient's cervix which sample is sent to a laboratory for a cytological/pathological examination to determine the presence of abnormal, precancerous or cancerous cells. It is a routine gynecological procedure with the primary purpose of early detection of cancer.
The findings of examination of a Pap smear are reported in levels, ranging from I, which is considered normal; to II, considered abnormal or denoting inflamed or damaged cells; to III, inferring cancerous consideration; to IV and V, where carcinoma is more clear and definite.
B. J. had Pap smears taken by Dr. Lieberman on September 26, 1979; June 23, 1980; December 18, 1980; July 28, 1981; and May 7, 1982 -- all Class I, although the laboratory reports for the latter three tests noted mild and moderate inflammation.
On December 21, 1982, her Pap result was Class II. She was treated with a vaginal suppository and was appropriately directed to return for a follow-up test in one month. The repeat test on January 25, 1983, was still Class II.
On February 8, 1983, Dr. Lieberman performed a cryocauterization of B. J.'s cervix. This is an office procedure involving the use of a probe-like instrument which is inserted flush up against the cervix. Nitrous oxide is released to the probe, freezing the atypical cells. This results in a discharge over the next six to eight weeks, during which time the entire surface of the cervix is sloughed away.
Dr. Lieberman next saw B. J. on September 14, 1983, when another Pap smear was taken. This returned from the laboratory as a Class I. At that point he was satisfied that the cryocauterization had been successful.
Sometime between September 1983 and February 1984, B. J. began experiencing bleeding during and after intercourse. She returned to Dr. Lieberman with that complaint on February 23, 1984. He found the cervix bled when touched and he took another Pap smear. This test returned as a Class II.
Since he felt that the procedure had worked in the past, Dr. Lieberman performed another cryocautery procedure on B. J. on March 8, 1984.
On May 8, 1984, she came back to his office still complaining of bleeding. Her cervix appeared beefy red and Dr. Lieberman saw very small points of bleeding. He applied a coagulent to attempt to stop the bleeding. She returned two days later and more coagulent was applied to her cervix.
On May 30, 1984, Dr. Lieberman applied hot cauterization to her cervix.
B. J. never returned for further treatment from Dr. Lieberman.
Instead, B. J. changed her Health Maintenance Organization (HMO) family practitioner and was referred to another OB/GYN physician, Dr. Grace Sarvotham. During her pelvic examination B. J. bled profusely and was referred to Dr. Robert DeMaio, a Board-certified OB/GYN, practicing in Winter Park, Florida.
Dr. DeMaio examined B. J. on September 5, 1984. Utilizing a colposcope, which is a microscope-type instrument, to magnify the cervix, he found areas of abnormal blood vessels and abnormal white epithelium. Because of these abnormalities, he took a biopsy.
The report on the biopsy was returned on September 6, 1984, with the finding exophytic squamous cell carcinoma -- in lay terms, cancer of the cervix that had shown evidence of spread.
B. J. was referred to Dr. Thomas Castaldo, a gynecological oncologist, who admitted her for surgery on September 17, 1984, and performed a radical abdominal hysterectomy and bilateral pelvic node dissection. That means her uterus and cervix were removed, along with the supporting tissues and pelvic lymph nodes.
She is still being followed by Dr. Castaldo and has received radiation therapy from Dr. John Looper, a Board-certified radiation oncologist in Orlando, Florida.
Dr. Lieberman claims that by May 1984, he was beginning to feel that a biopsy should be done on B. J.'s cervix. This procedure involves the surgical removal of a small amount of tissue and its examination under a microscope. He was familiar with this procedure and was trained in it, as well as in the cotoposcopy procedure utilized by Dr. DeMaio.
Except with a Class V Pap smear, which undeniably indicates cancer, a diagnosis cannot be made from a Pap smear. The abnormalities or inflammations noted with a Class II Pap smear are symptoms of some condition which must be diagnosed before they are treated.
Dr. Lieberman's use of the cautery procedures prior to diagnosis served to temporarily mask the symptoms. His failure to diagnose B. J.'s condition prior to treatment, or to rule out cancer or precancerous condition was a departure from the standards of acceptable and prevailing medical practice.
SUMMARY OF FINDINGS
One of the most sensitive but essential functions of a fact finder is the resolution of conflicting testimony by weighing the credibility of witnesses. Disposition of the issues in this case involves almost exclusively that function.
M. A.'s rambling and confused account of her life as a drug abuser in the 1970's, indiscriminately consuming vast quantities of controlled substances, was either zealous hyperbole or a candid revelation of her tortured former existence and mental state. Neither construction recommends the credibility of her allegations of Dr. Lieberman's wrongdoing.
The agency failed to prove the specifics of those allegations. There were a few prescriptions, some of which were never recorded in Dr. Lieberman's office notes for this patient, contrary to his avowed practice. But those prescriptions in no way fully corroborated M. A.'s testimony. Likewise, the expert opinions based on review of office notes, medical records and the prescription forms were too equivocal to outweigh contrary opinions offered by Dr. Lieberman's experts.
L. I. and D. B., in contrast, were convincing and competent witnesses.
L. I. credibly explained how she could return twice to the scene of her rape. Her unwillingness to immediately report the incidents was also explained.
D. B. stated at hearing that she did not receive any treatment in Dr. Lieberman's office on September 1, 1981. In an earlier, out-of-hearing statement, she established that she had been fitted with a diaphragm during the visit and prior to Dr. Lieberman's untoward conduct. The earlier statement is consistent with the office notes in records maintained by Dr. Lieberman. The inconsistent statements do not, however, impeach her allegation that Dr. Lieberman kissed and fondled her on that occasion.
Dr. Lieberman claims that he has no independent recollection of the visits by these patients on the dates in question. He denies that he is a violent person who could have assaulted these women.
Although sexual assaults are generally considered acts of violence, in these instances little force was required. He had established a relationship of trust and took advantage of that trust.
His testimony that coitus is anatomically impossible with the woman in a seated position, likewise begs the question.
L. I. described her position as seated on the examining table with her legs dropped, when the extension of the table was dropped by Dr. Lieberman. He positioned her, as she described, with his arm around her buttocks, moving her forward. A simple rotation of the anatomical chart, received in evidence as Respondent's Exhibit 12, demonstrates how entry could have been accomplished under those circumstances.
Uncontroverted expert testimony established that the sexual activities by Dr. Lieberman with L. I. and D. B. were outside the scope of generally accepted examination or treatment of a patient.
With regard to Patient B. J., the solid weight of expert evidence established that the failure to obtain appropriate tests was an unacceptable deviation from the standards of reasonable medical care.
The wrongdoing was not, as argued by counsel for Respondent, the failure to diagnose B. J.'s cancer. The violation was the persistent treatment of symptoms whose etiology had not been established.
The testimony of Dr. William Russell, one of Respondent's experts, regarding the use of Pap smears in the detection of cancer, was informative, but his opinion that a colposcopy or biopsy of B. J.'s cervix during Dr. Lieberman's treatment was unnecessary is not persuasive in the face of the overwhelming competent evidence presented by the agency's witnesses.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding, pursuant to Sections 120.57 and 455.225, Florida Statutes.
In cases such as this when license revocation is sought as the ultimate penalty, the Petitioner must prove by clear and convincing evidence that the violations occurred. Ferris v. Turlington, 510 So. 2d 292, 294 (Fla. 1987).
Petitioner failed to meet that burden as to Counts I, II and III relating to Patient, M. A., and it is unnecessary to further address Respondent's defenses of res judicata, collateral estoppel or retroactive application of disciplinary statutes.
Petitioner met its burden of proving counts IV through IX, as to Patients, L. I. and D. B. (88-3333) and the allegations of the Administrative Complaint in case number 88-3334, as to Patient, B. J.
Section 458.329, Florida Statutes, provides:
458.329 Sexual misconduct in the practice of medicine. --The physician-patient relationship is found on mutual trust.
Sexual misconduct in the practice of medicine means violation of the physician-patient relationship through which the physician uses said relationship to induce or attempt to induce the patient to engage, or to engage or attempt to engage the patient, in sexual activity outside the scope of the practice or the scope of generally accepted examination or treatment of the patient. Sexual misconduct in the practice of medicine is prohibited.
In addition, the Board of Medicine may discipline the license of a physician for the following pertinent acts proscribed in Subsection 458.331(1), Florida Statutes:
(j) Exercising influence within a
patient-physician relationship for purposes of engaging a patient in sexual activity. A patient shall be presumed to be incapable of giving free, full, and informed consent to sexual activity with his physician.
(t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is
recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances... As used in this paragraph, "gross malpractice" or "the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances," shall not be construed so as to require more than one instance, event, or act.
(x) Violating any provision of this chapter, a rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the department.
The above provisions of the 1987 statutes have been codified in substantially the same form at least since 1979.
As alleged, Dr. Lieberman committed the above violations.
Based on the foregoing, it is hereby
RECOMMENDED that a final order be entered by the Board of Medicine finding Robert A. Lieberman, M.D., guilty of sexual misconduct in the practice of medicine and failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, and revoking his license to practice medicine.
DONE and ENTERED this 13th day of April, 1989, in Tallahassee, Leon County, Florida.
MARY CLARK
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 13th day of April, 1989.
APPENDIX
Subsection 120.59(2), Florida Statutes, requires that if a party submits proposed findings of fact, the order must include a ruling on each.
Counsel for Petitioner submitted a 101-page "proposed recommended order", with 599 separately numbered paragraphs styled "proposed findings of fact". The vast majority of these paragraphs are not proposed findings of fact, but rather are a summary statement of testimony of the witnesses, taken from the transcript of hearing and the two depositions of Petitioner's experts. The statements are not organized by issue or subject matter but faithfully follow the order in which the testimony was given at hearing. Although these statements have been read, no rulings need be made. Any rulings would be mere commentary on the testimony as summarized by Petitioner.
Specific Rulings on Respondent's Proposed Findings of Fact (Case NO. 88-3333)
Adopted in paragraph 1.
Adopted in paragraphs 2 and 3.
Adopted in paragraph 2.
Adopted in paragraphs 4, 14 and 23, with the exception of the last sentence which is not addressed in the record.
Adopted in substance in paragraph 4.
Adopted in summary in paragraph 5, except that the number of months is 15, not 12.
7.-9. Adopted in summary in paragraph 10. 10.-12. Rejected as unnecessary.
13.-17. Adopted in summary in paragraph 6.
18.-45. Adopted in summary in paragraphs 5, 7 and 10. 46.-53. Rejected as unnecessary.
54. Adopted in substance in paragraph 4. 55.-60. Rejected as unnecessary.
61.-62. Adopted in paragraph 23.
63. Adopted in paragraph 24. 64.-65. Rejected as unnecessary
66. Adopted in paragraph 24. 67.-69. Rejected as unnecessary.
Adopted in paragraph 43.
Adopted in paragraph 14.
Rejected as unnecessary.
Adopted in paragraph 15. 74.-75. Rejected as unnecessary.
76. Adopted in paragraphs 18 and 19, except that the record does not establish that a pelvic examina- tion was conducted on July 20, 1982.
(Case NO. 88-3334)
1. Adopted in paragraph 1.
2.-3. Adopted in paragraphs 2 and 3.
Adopted in paragraph 27.
Adopted in paragraph 28.
Adopted in paragraph 29.
Adopted in paragraphs 37 and 39.
Adopted in paragraph 39.
Adopted in paragraph 31.
Adopted in paragraph 31, except that the record established that the condition is not unusual after a vaginal delivery. B. J.'s delivery
was a Caesarean section.
11.-12. Adopted by implication in paragraphs 30 and 31.
Adopted in paragraph 31.
Rejected as contrary to the weight of evidence.
Adopted in paragraph 32.
Rejected as unnecessary.
Adopted in paragraph 33.
Rejected as unnecessary, but still implied in the finding in paragraph 34.
19.-21. Adopted in paragraph 34.
Adopted in paragraph 35.
Rejected as unnecessary.
Adopted in paragraph 35.
25.-26. Adopted in summary in paragraph 36.
Adopted in paragraph 37.
Adopted in paragraph 38.
29.-30. Rejected as unnecessary, except the fact that she underwent radiation therapy, addressed in paragraph 38.
COPIES FURNISHED:
PETER FLEITMAN, ESQUIRE
ONE DATRAN CENTER, SUITE 1409 9100 SOUTH DADELAND BOULEVARD MIAMI, FLORIDA 33156
THOMAS M. BURKE, ESQUIRE RICHARD A. SOLOMON, ESQUIRE
11 EAST PINE STREET POST OFFICE BOX 1873 ORLANDO, FLORIDA 32802
DOROTHY FAIRCLOTH, EXECUTIVE DIRECTOR BOARD OF MEDICINE
DEPARTMENT OF PROFESSIONAL REGULATION
130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750
KENNETH D. EASLEY, ESQUIRE GENERAL COUNSEL
DEPARTMENT OF PROFESSIONAL REGULATION
130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750
| Issue Date | Proceedings |
|---|---|
| Apr. 13, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 13, 1989 | Agency Final Order | |
| Apr. 13, 1989 | Recommended Order | License revoked when petitioner proved 2 occasions of improper sexual activity with patients and respondent also negligently failed to conduct tests for cancer |
DEPARTMENT OF HEALTH, BOARD OF OSTEOPATHIC MEDICINE vs DAVID SIMON, D.O., 88-003333 (1988)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs ZAFAR S. SHAH, M.D., 88-003333 (1988)
BOARD OF MEDICAL EXAMINERS vs. JOSE RODRIGUEZ LOMBILLO, 88-003333 (1988)
BOARD OF MEDICAL EXAMINERS vs. STANLEY MARK DRATLER, 88-003333 (1988)
