STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, BOARD )
OF MEDICINE, )
)
Petitioner, )
)
vs. ) CASE NO. 90-3406
)
CLIFFORD L. WELDON, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, final hearing in the above style case was held in Orlando, Florida, on November 27, 1990, before Robert D. Meale, Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
The parties were represented at the hearing as follows: For Petitioner: Attorney Mary Radkins
Department of Professional Regulation 1940 North Monroe Street
Tallahassee, FL 32399-0792
For Respondent: Attorney J. Cheney Mason
One DuPont Centre. Suite 2100
390 North Orange Avenue Orlando, FL 32801
STATEMENT OF THE ISSUE
The issue in this case is whether Respondent is guilty of committing sexual misconduct in the practice of medicine and, if so, what penalty should be imposed.
PRELIMINARY STATEMENT
By Administrative Complaint dated April 9, 1990, Petitioner alleges that Respondent violated Section 458.331(1)(j), Florida Statutes, by exercising influence in a patient-physician relationship for purposes of engaging a patient in sexual activity and Section 458.331(1)(x), Florida Statutes, by engaging in sexual misconduct, as defined b Section 458.329, Florida Statutes.
The Administrative Complaint alleges that, on or about August 4, 1988, Respondent treated Patient 1 for a freon spill in her eye. On this date, he allegedly removed the straps of her jumpsuit and stared at her body even though her complaint Involved a freon spill in her eye, reached around her left side
while placing his right hand against her face and placing his cheek against her face, and tried to kiss her.
With respect to Patient 1, Count I alleges that Respondent violated Section 458.331(1)(j), and Count II alleges that Respondent violated Section 458.331(1)(x) due to a violation of Section 458.329.
The Administrative Complaint alleges that, on or about August 4, 1988, Respondent conducted a physical examination of Patient 2. On this date, he allegedly put his body against hers as he listened to her heart, asked if he was giving her palpitations, directed her to take off her bra and felt her breasts, told her to kneel down, knelt down with her and pressed his body against hers while listening to her heart, told her to stand and bend over, ran his hand down her back, and apologized while watching her get dressed.
With respect to Patient 2, Count III alleges that Respondent violated Section 458.331(1)(j), and Count IV alleges that Respondent violated Section 458.331(1)(x) due to a violation of Section 458.329.
The Administrative Complaint alleges that, on or about August 10, 1988, Respondent treated Patient 3 for excessive menstrual bleeding, among other things. On that date, Respondent allegedly massaged her shoulder while saying she had a pretty smile, attempted to kiss her, again commented that she had a pretty smile and was a pretty girl, and tried to kiss her again after approaching her to examine her eyes.
With respect to Patient 3, Count v alleges that Respondent violated Section 458.331(1)(j), and Count VI alleges that Respondent violated Section 458.331(1)(x) due to a violation of Section 458.329.
By Election of Rights filed May 23, 1990, Respondent requested a formal administrative hearing.
At the hearing, Petitioner called seven witnesses and offered into evidence eight exhibits. Respondent called two witnesses and offered into evidence one exhibit. All exhibits were admitted except Petitioners Exhibit 8.
The parties were given ten days from the filing of the transcript, which took place on December 14, 1990, to file proposed recommended orders.
Petitioner, joined by Respondent, requested an extension through January 15, 1991, within which to file Proposed recommended orders. The request was granted. The only Proposed recommended order received was Petitioners, which was filed on January 17, 1991. The parties are thus deemed to have waived their right to rulings on Proposed findings.
FINDINGS OF FACT
At all material times, Respondent has been licensed to practice medicine in the State of Florida. He is Board Certified in internal medicine and is presently about midway through a three-year fellowship in cardiology, which has taken him to Michigan. The fellowship was obtained in June, 1988, which is prior to the events in question.
In August, 1988, Respondent was working at the Winter Park Memorial Hospital emergency room and a walk-in clinic owned and operated by a corporation affiliated with the corporation owning and operating the hospital.
Patient 1 was born on November 4, 1968. On August 3, 1988, Patient 1 suffered an accident at work that caused freon to splash into her eye. She Immediately went to the above- described walk-in clinic. A physician examined her, applied medication and a patch to the eye, and sent her home with instructions to return the following day for a recheck. The patient record shows the diagnosis of a thermal injury to the left eye.
The following morning at about 9:20 a.m., Patient 1, who had removed the eye patch the prior evening, returned to the clinic. After a brief examination by a nurse, Patient 1 was taken to a curtained cubicle to wait for a doctor to see her.
The cubicle contains a gurney or table. A solid wall is at the back of the cubicle. Otherwise the cubicle is enclosed by a curtain, which runs from the ceiling to about two feet from the floor. The curtain is solid except for open mesh at the upper one third. Noise passes through the cubicle, and the nurse seated at her station is only 10-15 feet from the gurney to which Patient
1 was taken. The nurse customarily enters a curtained area unannounced, especially if she hears anything suggesting that her presence might be needed.
Respondent entered the cubicle without Patient 1's chart, although he had reviewed the chart briefly. Only Respondent and Patient 1 were in the cubicle, and the curtain was drawn closed. A rheostat on the wall behind the gurney allowed the light in the cubicle to be dimmed sufficiently to allow an eye examination, although surrounding light prevented the cubicle from becoming completely dark.
Respondent asked Patient 1 some questions about her injury. She complained that her eye ached and was sensitive to light. She also suffered from some blurred and double vision.
With the cubicle darkened in order to dilate the pupils, Respondent told Patient 1 to lie down on the gurney and examined her left eye with a fundoscope. The purpose of the examination was to determine whether a scratch or foreign body was causing the pain.
Following the eye examination, Respondent checked the neck area for freon burns and then slipped the left strap of Patient 1's jumper and T-shirt or tank top to examine the upper part of her left chest. No part of her breast was exposed. Patient 1 immediately informed Respondent that the freon contacted only her face. Respondent did not further examine her chest area.
Either immediately after the eye examination or after examining the neck and chest area, Patient 1 resumed a sitting position on the edge of the gurney. Shortly thereafter, Patient 1 and Respondent stepped outside the cubicle so that the nurse could conduct a visual acuity test.
When they returned to the darkened cubicle, Respondent again shined the fundoscope light into Patient 1's eye while she sat on the edge of the gurney. His legs were touching hers. He asked her, "does it hurt when I look at you? or "does it hurt when I do this? -apparently meaning looking at her]" Not understanding him, Patient 1 asked what he meant. He repeated the question, and she said no and laughed nervously.
Respondent then placed his hand n her cheek and his face against her ear. He turned his face toward hers and approached her lips to kiss her on her lips. She pushed him away, and he completed a note on the chart, laughed, and left the cubicle.
The testimony of Respondent and Patient 1 conflict at the point at which the nurse completed the visual acuity test. Unfortunately, the nurse was not called to testify. Patient 1's version, which is accepted, has been set forth in the preceding two paragraphs. Respondent testified that the nurse followed Patient 1 to her cubicle following the vision test and Respondent did not further see her.
Patient 1's has been credited because her testimony was clear and specific on the material facts concerning the incidents in question. She appeared to testify candidly. She appeared quite capable of accurately observing the events that she described, remembering them, and reporting them reliably at the hearing.
By contrast, Respondent's testimony was often qualified to the best of his recollection. Patient 1 reported the incidents in question to her supervisor at work on August 4. He then immediately contacted the hospital, whose representative informed Respondent of the charges within days of the incidents. Although considerable time has passed since the incidents, little time passed from the incidents until Respondent was informed of the charges. It is unlikely that, concerning a matter of obvious importance to Respondent, he would have been unable to reconstruct the events of a few days earlier and then retain this reconstruction for the following two years.
Although Patient 1 abruptly left the hearing room during the cross- examination, no adverse inference can be drawn from her emotional departure, which was immediately preceded by her announcement that she was not on trial and did not intend to subject herself to this. Various inferences are possible.
The most favorable to Respondent is that Patient 1 was agitated at the prospect of disclosure of the truth during cross-examination. The most favorable to Petitioner is that Patient 1 still bears the emotional trauma of the incidents and finds it painful to revisit the matter. Possibly, Patient 1 was merely irritated that, two years after the event, she was required to take time off from work to testify about a doctor trying to kiss her in an examination room. The only finding arising out of Patient 1's abrupt departure from the hearing room is that her motivation was not, in part or in whole, due to fear of being unmasked as a prevaricator.
Another factor weighing in favor of Patient 1's credibility is that she lacks any motive to lie about the incident. She was mildly irritated at Respondent's refusal to certify her ready to resume her normal laser-assembly duties on August 4. The record provides no basis for the inference that this mild irritation could lead to a fabrication of sexual misconduct.
Concededly, it would appear especially reckless of Respondent to make an advance to Patient 1 under the circumstances. A nurse was probably only 10-
15 feet away. Patient 1 had not in any way suggested that she would be amenable to any sexual or romantic overture from Respondent. To the contrary, she had firmly informed him that her injuries were limited to her face when he began to examine her chest area. Thus, the probability was high that any advance could be met by a loud expression of outrage that could be heard by the nurse. Given the above-described factors in favor of Patient 1's version, it appears that
this was a risk that Respondent was willing to take. And in fact Patient 1 did not scream or shout, so perhaps the probability was less than would otherwise appear due to factors not disclosed in the record.
Patient 3 is a dental hygienist and was so employed in August, 1988. She was born on March 12, 1963.
Patient 3 visited the Winter Park Memorial Hospital emergency room on the evening of August 9, 1988. She presented with heavy menstrual flow for about three days with dizziness and light-headaches She was medicated, sent home, and told to return to the hospital the following morning to undergo a sonogram.
Patient 3 returned to the hospital the following morning and underwent a sonogram. The rate of vaginal bleeding had lessened, and she felt somewhat better. Following the sonogram, Patient 3 was told to go to the emergency room to wait.
A nurse accompanied Patient 3 to an examination room in the emergency room area. The room was fully enclosed with a door. Patient 3 remained seated, fully dressed, waiting to see a doctor.
Respondent entered the room without a nurse. The generally prevailing ratio of five nurses and one physician in the emergency room typically allowed a nurse to be available to accompany a physician in examination rooms.
Respondent had with him the sonogram results, which disclosed some cysts and a small fibroid tumor. Patient 3 told him that a pregnancy had aborted recently and she had a history of vaginal bleeding and bad headaches. She was in a fairly agitated state.
Respondent advised Patient 3 that neither he nor the radiologist thought that anything abnormal was contributing to the bleeding. However, he advised that she needed another pelvic examination to see if the bleeding had stopped. Patient 3 responded that she did not like pelvic exams.
Respondent was standing to the left of Patient 3, who was seated on a gurney. He then placed his right arm around her, placing his right hand on the top of her shoulder toward her back rather than her front. With his face about two inches from hers, Respondent said that she had a pretty smile. Patient 3 leaned back and said nothing. Respondent left the room, and Patient 3 undressed and put on a hospital gown and sheet.
Respondent returned briefly to the room a couple of times, explaining that he had an emergency to take care of, but would return. He said on at least one of these occasions that Patient 3 had a pretty smile. Patient 3 had undressed and was in a hospital gown and sheet.
Respondent finally returned, again without a nurse. He conducted a physical examination of her heart and lungs with a stethoscope and checked her breasts and eyes. The breast exam was similar to breast exams that Patient 3 had received from other doctors.
For the eye exam, Patient 3 was lying down in the darkened room. She was looking up at the ceiling. Respondent was very close to her. At one point, Patient 3 felt that his lips touched her cheek. Respondent disputes this.
Based on Patient 3's description of the incident, including the presence of a
fundoscope between her eye and his eye and her concentration on the ceiling, it is not possible to accord Patient 3's version sufficient weight to justify any finding on this point adverse to Respondent
Immediately following the eye exam, Respondent turned on the lights and left the room. When the nurse returned, Patient 3 asked her if she would remain in the room during the pelvic exam. The nurse assured her that she or another female- nurse would attend the exam.
The pelvic examination proceeded without incident and with a female nurse in attendance. Responding to her complaints of anxiety, Respondent gave Patient 3 a prescription for Atarax, a mild sedative to assist her in sleeping.
Immediately after dressing, Patient 3 called her father, who is a dentist, and complained about Respondent. Her father told her to tell the hospital. She did so the following day.
Patient 2 did not testify at the hearing. Her testimony was Presented by deposition. She was unable to appear at the hearing because she is pregnant and under doctor's orders to remain on "complete bed rest" due to complications in her pregnancy. Her deposition was admitted for all purposes over the objection of Respondent. However, Respondent's objection to the admission of a sworn statement of Patient 2 was Sustained.
Patient 2 was born on August 2, 1965. She was employed as a bus driver by the Orange County School District in August, 1988.
She visited the above-described walk-in clinic at 12:20 p.m. on August 4, 1988, to obtain an annual physical examination required for work. She was seen by Respondent, whom she advised, at the conclusion of the exam, that she had a mitral valve prolapse.
Respondent placed a stethoscope over Patient 2's heart. In so doing, he placed his body against hers. At the time, Patient 2 was dressed in a hospital gown. He then told her to kneel down. He knelt down with her and placed the stethoscope on her chest. As she stood up, he continued to listen to her heart with his stethoscope.
Respondent left the examination cubicle to allow Patient 2 to dress. Before she had completed dressing, he returned to the cubicle, as she was putting on her bra. He approached her when she finished dressing, put his arm around her, held her tight to his body, looked into her eyes, and asked if he was making her nervous. Patient 2 did not reply, and Respondent left the room without saying anything further.
Nothing in the record establishes that Respondent's contact with Patient 2 was outside the presence of a nurse.
Respondent signed the Department of Education physical examination form and certified that Patient 2 exhibited Satisfactory physical, emotional, and mental condition for driving a school bus. Patient 2 was discharged at 1:20 p.m.
None of the three patients is or has ever been acquainted with either of the other patients. None of the three patients ever had met Respondent prior to the day of their respective examinations, nor did any of the three patients ever hear from Respondent following their examinations.
All of the examinations administered by Respond were medically appropriate under the circumstances. For instance, requiring Patient 2 to kneel-down is an acceptable part of an examination of a patient with mitral valve prolapse. Likewise, the examination of the pelvic region, breasts, and eyes of Patient 3 was appropriate given the wide-ranging symptoms that she had reported, especially as Respondent could not then have logically precluded the possibility of a brain tumor resulting from cancer that had metastasized from elsewhere in the body. The examination of Patient 1's eyes for possible asymptomatic thermal eye injury, as well as the upper chest area on the same side as the eye injury, was appropriate Any testimony to the contrary of Petitioner's expert, an emergency room physician from Sarasota, has been completely discredited.
Petitioners expert also testified to the inappropriateness of Respondents examination of female patient5 without a nurse in attendance and physical contact with the patients, such as in the form of an arm around Patient
The record establishes that it is imprudent for a doctor, especially a young male such as Respondent, to perform a nonemergency examination on a young female patient without a nurse or other witness in attendance. However, such imprudence does not, in itself, establish sexual misconduct, and Respondent is not charged with violating a rule of the Board of Medicine or policy of Winter Park Memorial Hospital Prohibiting such a practice.
The testimony of Petitioners expert concerning the appropriateness of the contact between Respondent and female patients is rejected on two grounds. One, the testimony offered was so vague as to be useless to assist a factfinder in solving the issues present in this case. Two, the witness candidly admitted that nothing in his training, background, education, or experience particularly qualified him to opine as to what constituted sexual misconduct. Possibly, an expert in human sexual behavior could assist a fact finder in identifying more subtle or unusual patterns of sexual behavior, but Petitioners expert clearly lacked such qualification.
In determining the quality of proof present in this case, it is necessary to consider each incident first in isolation. The only clear and convincing evidence of sexual misconduct in this case is that Respondent tried to kiss Patient 1. The evidence is clear and convincing that Respondent tried to kiss her and that an attempt to kiss a patient is sexual misconduct. Likewise, an attempt to kiss a patient during a professional examination is an attempt to exercise influence within the patient-physician relationship for the purpose of engaging a patient in sexual activity. A kiss is sexual activity.
Petitioner failed to prove by either the clear and convincing or preponderance standard the other allegations of sexual misconduct or attempts to exercise influence within the patient-physician relationship for the purpose of engaging a patient in sexual activity. The sexual orientation of facts set forth above was unproven by either of these standards.
It is difficult to characterize properly the nature of the above- described incidents, except for the attempt to kiss Patient 3, which is obviously sexual, and the breast and pelvic exams, which were medically necessary, although possibly not entirely without sexual content for Respondent. Two of the complaining patients were seen only hours apart, and the third only a week later. All of them were fairly young. Patient 1 was 19 years old, Patient
3 was 25 years old, and Patient 2 was 23 years old. Each patient independently determined that the behavior of Respondent was objectionable due to its sexual overtones and independently decided to report the incidents promptly.
However, on the basis of the record, it would be speculation to find that Respondent's behavior constituted an attempt to create a sexually suggestive atmosphere in order to induce sexual activity. To characterize this behavior as sexual or an attempt to induce sexual activity requires expertise not provided by the sole expert witness whom Petitioner saw fit to call to testify.
On the basis of the record, it is equally likely that Respondent may have innocently "invaded the space" of these patients That three patients within one week found his behavior sexually objectionable is strong evidence of the specific actions of which they complain, but not necessarily of the interpretations that they cast upon ambiguous behavior (other than the attempted kiss) that defies easy classification.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)
Petitioner is charged with the enforcement of the disciplinary provision5 governing physician5 in the practice of medicine. Section 458.331.
Among the grounds for discipline is:
Exercising influence within a patient- physical 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
Section 458.331(1)(j).
A physician may also be disciplined if he violates any provision of Chapter 458. Section 458.331(1)(x).
Sexual misconduct in the practice of medicine is prohibited in Chapter
458. Sexual misconduct is the:
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 of the scope of generally accepted examination or treatment of the patient.
Section 458.329.
When the Board of Medicine find: a physician has violated any of the provisions of Section 458331(1), the Board may enter an order revoking or Suspending the license, restricting the physician's practice, imposing an administrative fine not to exceed $5000 per count or separate offense, issuing a reprimand, or placing the physician on probation subject to such conditions as the Board may specify. Section 458.331(2).
A recent change to Chapter 458 involves the Standard of proof applicable to disciplinary proceedings involving physicians Section 458.331(3), Florida Statutes (Supp. 1988), states:
In any administrative action against a physician which does not involve revocation or suspension of license, the division shall have the burden, by the greater weight of the evidence, to establish the existence of grounds for disciplinary action. The division shall establish grounds for revocation or suspension of license by clear and convincing evidence.
The reference to "division" is unclear. The only reference to a division elsewhere in Section 458.331 Is to the Division of Medical Quality Assurance, but this division is not the Petitioner is disciplinary proceedings involving physicians. It is assumed that the reference should be to the Department of Professional Regulation or the Board of Medicine, which assume more direct responsibilities in disciplinary cases of this type.
Rule 21M-20.001(2)(j) recommends, for a violation of Section 458.331(j), a penalty ranging from suspension for one year to revocation plus an administrative fine of between $250 and $5000. Rule 21M-20.001(2)(x) recommends, for a violation of Section 458.331(1)(x), a penalty ranging from a reprimand to revocation plus an administrative fine of between $250 and $5000.
Rule 21M-20.001(3) authorizes deviation from the recommended penalty ranges in the event of the following aggravating or mitigating factors: degree of exposure of the patient or public to real or potential injury; status of the license at the time of the offense; number of counts of separate offenses; number of times the licensee has committed the same offense Previously; the licensee's disciplinary history and length of Practice; Pecuniary benefit to the licensee; and any other mitigating factors.
In this case, the only violation for which Respondent has been found guilty is trying to kiss Patient 3. Although this action violates Section 458.331(1)(j) and (x)(the latter by violating Section 458.329), the action involves only a single incident and should be penalized accordingly.
The sole incident of which Respondent has been proven guilty does not justify penalties as extreme as revocation or suspension The absence of any aggravating factors and presence of mitigating factors, such as the absence of prior discipline of any sort, militate in favor of a lesser penalty than suspension Although clearly grounds for discipline, trying to kiss a patient is not among the more injurious examples of exercising influence to induce sexual
activity far more serious, for example, is the case of the licensee who fashions an elaborate scheme by which to deepen the trust placed in him by his patient and then exploits the trust by engaging in an affair with the patient.
Based on the foregoing, it is hereby
RECOMMENDED that the Board of Medicine enter a final order finding Respondent guilty of engaging in sexual misconduct with a patient by attempting to kiss her, issuing a reprimand, imposing an administrative fine of $5000, and placing Respondent's license on probation until he successfully completes such continuing education requirements as the Board deems necessary to provide Respondent with additional training in his ethical obligations as a physician and such psychological assistance as the Board deems necessary to enable Respondent to redefine his proper relationship with female patients.
DONE and ORDERED this 18th day of January, 1991, in Tallahassee, Florida.
ROBERT E. MEALE
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 January, 1991.
COPIES FURNISHED:
Attorney Mary Radkins
Department of Professional Regulation 1940 North Monroe Street
Tallahassee, FL 32399-0792
Attorney J. Cheney Mason
One DuPont Centre. Suite 2100
390 North Orange Avenue Orlando, FL 32801
Kenneth D. Easley General Counsel
Department of Professional Regulation 1940 North Monroe Street
Tallahassee, FL 32399-0792
Dorothy Faircloth Executive Director Board of Medicine
1940 North Monroe Street Tallahassee, FL 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 or 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.
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AGENCY FINAL ORDER
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DEPARTMENT OF PROFESSIONAL BOARD OF MEDICINE
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner, DPR CASE NUMBER: 0105235 vs. DOAH CASE NUMBER: 90-3406
LICENSE NUMBER: ME 0044982
CLIFFORD WELDON, M.D.,
Respondent.
/
FINAL ORDER
This cause came-before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)10, Florida Statutes, on April 13, 1991, in Ft. Lauderdale, Florida, for the purpose of considering the Hearing Officer's Recommended Order a (copy of which is attached hereto as Exhibit A) in the above-styled cause. Petitioner, Department of Professional Regulation, was represented by Larry G. McPherson, Jr., Attorney at Law. Respondent was present and represented by J. Cheney Mason, 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.
FINDINGS OF FACT
The Board rejects the following Findings of Fact as not being based on competent substantial evidence:
The last sentence of Paragraph 28 of the Findings of Fact in the Recommended Order.
Paragraph 43 of the Findings of Fact insofar as it relates to the need for and qualifications of an expert witness. In lieu of the Hearing Officer's finding, the Board makes the following finding;
The testimony of Petitioner's expert concerning the appropriateness of the contact between Respondent and female patients is rejected. The testimony offered was so vague as to be useless to assist a factfinder in resolving the issues present in this case.
The last sentence of Paragraph 47 of the Findings of Fact in the Recommended Order.
The remaining 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 of the Board.
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 with the single exception that Paragraph 10 is corrected to refer to Patient 1 instead of Patient 3.
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 ACCEPTED and ADOPTED. WHEREFORE,
IT IS HEREBY ORDERED AND ADJUDGED that
Respondent's license to practice medicine is REPRIMANDED.
Respondent shall pay an administrative fine in the amount of $5,000 to the Executive Director within one year of the date this Final Order is filed.
Respondent's license to practice medicine in the State of Florida is placed on PROBATION until the Respondent successfully completes the following terms and conditions:
Respondent shall comply with all state and federal statutes, rules and regulations pertaining to the practice of medicine, including Chapters 455, 458, and 893, Florida Statutes, and Rules 21M Florida Administrative Code.
Respondent shall submit quarterly reports in affidavit form, the contents of which hall be specified by the Board. The report shall include:
Brief statement of why physician is on probation.
Practice location
Describe current practice (type and composition)
Brief statement of compliance with probation terms.
Advise Board of any problems.
Respondent shall attend 30 hours of Category I Continuing Medical Education courses per year, 5 hours in the area of risk management and 25 hours in medical ethics. Respondent shall submit a written plan to the Chairman of the Probationer's Committee for approval prior to completion of said courses. The Board confers authority on the Chairman of the Probationer's Committee to approve or disapprove said continuing education courses. In addition, Respondent shall submit documentation of these continuing medical education courses in his quarterly reports. These hours shall be in addition to these hours required for renewal of licensure. Unless otherwise approved by the Board or the Chairman of the Probationer's Committee, said continuing education courses shall consist of a formal live lecture format.
Respondent shall see a psychiatrist approved by the Board or Probationers Committee at least quarterly for evaluations and treatment.
Respondent shall pay all costs necessary to comply with the terms of the Order issued based on this proceeding. Such costs include, but are not limited to, the cost of preparation of investigative reports detailing compliance with the terms of this proceeding, the cost of analysis of any blood or urine specimens submitted pursuant to the Order entered as a result of this proceeding, and administrative costs directly associated with Respondent's probation. See Section 458.331(2), Florida Statutes.
This order takes effect upon filing with the Clerk of the Department of Professional Regulation.
DONE AND ORDERED this 2nd of July, 1991.
BOARD OF MEDICINE
ZACHARIAH P. ZACHARIAH, M.D. 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 120.68, 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 Clifford Weldon, M.D., 6019 Margie Court, Orlando, Florida 32807 and J. Cheney Mason, Attorney at Law, One DuPont Centre, Suite 2100, 3909 North Orange Avenue, Orlando, Florida 32801, by U.S. Mail to Robert E. Meale, 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., Acting Chief Medical Attorney, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 at or before 5:00 P.M., this 11th day of July, 1991.
DOROTHHY J. FAIRCLOTH
| Issue Date | Proceedings |
|---|---|
| Jan. 18, 1991 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 02, 1991 | Agency Final Order | |
| Jan. 18, 1991 | Recommended Order | Recommended $5000 fine and probation for education of Respondent for trying to kiss a patient. |
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs AUNALI SALIM KHAKU, M.D., 90-003406 (1990)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs RONALD MALAVE, M.D., 90-003406 (1990)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs THOMAS THOMAS, JR., M.D., 90-003406 (1990)
DEPARTMENT OF HEALTH, BOARD OF RESPIRATORY CARE vs JENNIFER ABADIE, R.R.T., 90-003406 (1990)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs GEORGE A. GANT, 90-003406 (1990)
