STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, AGENCY FOR ) HEALTH COST ADMINISTRATION, ) BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NOS. 91-2366

) 91-7577

SHAFAAT AHMED, M. D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matters were heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on March 2-5 and June 16-19, 1992, in Daytona Beach, Florida.

APPEARANCES

For Petitioner: Bruce D. Lamb, Esquire

Post Office Box 2378 Tampa, Florida 33601

For Respondent: James W. Smith, Esquire

Todd M. Cranshaw, Esquire

214 Loomis Avenue

Daytona Beach, Florida 32114

Paul Watson Lambert, Esquire 2851 Remington Green Circle Suite C

Tallahassee, Florida 32308-3749 STATEMENT OF THE ISSUES

The issue is whether respondent's license as a medical doctor should be disciplined for the reasons stated in the two administrative complaints.

PRELIMINARY STATEMENT

Case No. 91-2366 began on March 19, 1991, with the issuance of an administrative complaint by petitioner, Department of Professional Regulation, Agency for Health Cost Administration, Board of Medicine (Board). The complaint alleged that respondent, Shafaat Ahmed, a licensed medical doctor, committed sexual misconduct with two former female patients. At the same time, the Board issued an order of emergency restriction of his license and required him to have a female health care professional in his office examination rooms during the examination and treatment of all female patients. The administrative complaint was later amended to add the allegation that respondent committed sexual

misconduct with eight (rather than two) female patients. Case No. 91-7577 was initiated by the issuance of an administrative complaint on October 22, 1991, alleging that respondent committed sexual misconduct with a ninth female patient. The two cases were consolidated by order dated December 6, 1991.

Case No. 91-2366 was originally scheduled for final hearing on August 12- 14, 1991, in Daytona Beach, Florida. Pursuant to a joint motion for continuance, the matter was continued to October 22-23, 1991. Thereafter, the parties' joint motion to continue was granted and the final hearing was rescheduled to January 7-10, 1992. Respondent's unopposed motion to continue was granted and both cases were reset for March 2-5, 1992, at the same location. Two motions for continuances filed by respondent were thereafter denied.

Continued hearings were held on June 16-19, 1992. On August 6, 1991, the case was transferred from Hearing Officer William F. Quattlebaum to the undersigned.

At final hearing, petitioner presented the testimony of eight of the patients identified in the two complaints, Reverend Charles I. Mitchell, Dr. Mary Jane Derbenwick, Robert B. Trumbo, Jr., Katherine Wilkes, D. F., W. G., W. G., R. J. D., and C. B. (all relatives of the alleged victims), Susan Bosang, Dr. George W. Bernard, a psychiatrist and accepted as an expert in psychiatry, and Dr. Michael S. Zeide, an orthopedic surgeon and accepted as an expert in orthopedic surgery. It also offered petitioner's exhibits 1-17. All exhibits were received in evidence. At the close of petitioner's case-in-chief, it voluntarily dismissed all allegations pertaining to patient number 2 (paragraphs 28-46 of the amended complaint). Respondent testified on his own behalf and presented the testimony of Donna Fowler, George Ellett, Andre Williams, Sandra Corn, Estelle Golin, Dr. Thomas J. Broderick, an orthopedic surgeon and accepted as an expert in orthopedic surgery, Dr. Minoo Vaghaiwalla, a urologist and accepted as an expert in urology, Thomas L. West, Robert W. Elton, Benjamin Blackwelder, Kimberly J. Misthler, Katherine Peebles, Aytch G. Sizemore, Fred Dietrich, Josephine A. Matthews, Gay Denise, Martha Ann Whitson, Tracy Lee Doud, Jennifer Carey, Carol Ahmed, Dr. Jack Rotstein, a psychiatrist and accepted as an expert in psychiatry and neurology, Dr. Victor F. Doig, a surgeon and accepted as an expert in general and thoracic surgery, Frederick H. Tresher, III, Christopher W. Wickersham, Dr. Gilbert A. Martin, Jr., an orthopedic surgeon and accepted as an expert in orthopedic surgery, and Dr. Richard Irons, an internist and accepted as an expert in sexual disorders. Also, he offered respondent's exhibits 1-23. All exhibits were received in evidence except exhibit 16.

The transcript of hearing (seventeen volumes) was filed on July 25, 1992. By agreement of the parties, the time for filing proposed findings of fact and conclusions of law was extended to August 25, 1992. At the request of respondent, this time was later extended to September 8, 1992, and proposed orders were timely filed by the parties on that date. In addition, leave was given for the parties to file proposed orders not exceeding fifty pages. A ruling on each proposed finding has been made in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based on all of the evidence, the following findings of fact are determined:

1. Background

   
   

   1. At all times relevant hereto, respondent, Shafaat Ahmed, was licensed as a medical doctor by petitioner, Department of Professional Regulation, Board of Medicine (Board). When the events herein occurred, respondent was engaged in the practice of orthopedic medicine and surgery at 1121 Mason Avenue, Daytona Beach, Florida. He has been licensed by the Board since 1965. A native of India, respondent received a five-year medical degree from Agra University in Indore, India, in 1957 and came to the United States the following year. Thereafter, Dr. Ahmed received extensive post-medical school specialty training in this country and was board certified in orthopedic surgery in January 1969. He has been in private practice in Daytona Beach, Florida, since November 1965 specializing in orthopedic surgery. There is no evidence that respondent has been previously disciplined by the Board during his lengthy tenure as a physician.

      
      

   2. These proceedings have their origin in early 1991 when two former patients of respondent, both female, filed complaints with the Board alleging that respondent had engaged in sexual misconduct, that is, he had inappropriately touched them while they were being treated for various injuries. A news account of these two complaints was published in the Daytona Beach News Journal on March 13, 1991. As a result of that article, seven other former female patients came forward and lodged similar complaints against respondent. These complaints form the basis for the charges in Case Nos. 91-2366 and 91- 7577. However, the charges made by one patient (number 2) were voluntarily dismissed by petitioner at hearing. For purposes of preserving the confidentiality of the names of the patients, they will be referred to by their patient numbers 1, 3, 4, 5, 6, 7, 8 and 9, which correspond with their identification in the two complaints.

      
      

   3. The complaints generally involve allegations by the patients that while respondent was examining and treating them for various injuries suffered from accidents, he inappropriately touched their breasts and vaginal area and did so without using gloves. These alleged improprieties range in time from 1973 (or some 19 years ago) to as recent as 1989. All patients claim that the touchings were not incidental or unintentional but, rather, were deliberate and calculated acts on the part of respondent, an allegation strongly denied by respondent. To resolve these claims, it is necessary to judge not only the credibility of the patients and respondent and the supporting cast of witnesses for both sides but also to consider the appropriate manner in which orthopedic examinations are conducted and whether the complaints presented by the patients to respondent justified certain physical examinations.

      
      

   4. To aid in the resolution of the complaints, both parties presented numerous lay and expert witnesses. As might be expected, their testimony presents factual conflicts which have been resolved by the undersigned accepting the more credible and persuasive testimony. The accepted testimony is set forth in the following findings.

      
      

2. Respondent's Practice

   
   

   1. Respondent has been in the private practice of orthopedics in Daytona Beach since September 1965. In all, he has probably treated more than 25,000 patients during his tenure in private practice. After initially working with several other orthopedic surgeons, Dr. Ahmed opened his own office in 1968 and has been a sole practitioner since that time. However, during the 1980's, an older, semi-retired orthopedic surgeon, Dr. Albee, assisted respondent on a

      part-time basis in seeing patients on follow-up office visits for symptomatic complaints.

      
      

   2. Prior to 1983, respondent carried an extremely heavy and active patient caseload. In 1983, respondent and a friend were struck by an automobile while crossing a street near respondent's home. The friend was killed while respondent suffered a skull fracture and three compression fractures in his dorsal spine. Because of these serious injuries, respondent was unable to return to his office for approximately three months. Even then, he was able to devote only a limited amount of time to office work since he was heavily dependent on crutches and braces. Since the accident, respondent has necessarily reduced his case load, and he has suffered a serious degree of impotence which bears on the validity of some allegations by patients that respondent had an erection when he pressed against them.

      
      

   3. Respondent's office has been located on Mason Avenue in Daytona Beach since around 1974. The office has a series of five small examination rooms, one of which is larger than the others and has been designated as the "cast room." All rooms have sliding doors. In addition, there is a therapy area, an x-ray facility, a waiting area and a business office. Each examination room has a standard medical examination table, step stool, chair, sink and cabinet. There is very little room for movement due to the small size of the rooms. Indeed, one witness stated that to get three persons abreast in the rooms would create a "very crowded" condition.

      
      

   4. Until late 1989, respondent did not have a female assistant remain in the examination room while female patients were being examined. This was because he had never received any complaints, doors were left partially open and assistants were only a few steps away. After a charge of impropriety was leveled against him that year by patient 1, he has always had a female assistant in the examination room while treating both male and female patients. It should be noted that respondent's failure to have a female assistant in the room was not unusual since this practice accorded with the community custom. Indeed, another Daytona Beach orthopedic surgeon who testified at hearing followed this same practice until he became aware of the charges leveled against respondent. At that time, the doctor hired a female assistant to stay with him in the examination room while treating female patients so as to avoid the possibility of similar charges.

      
      

   5. Like so many other medical offices, after entering respondent's office, a patient is required to put his name on a sign-in sheet. If the visit is the patient's first, the patient is also required to fill out a patient history form which is then immediately typed by the business office. Before the patient is sent to an examination room, Dr. Ahmed reviews the complaints to determine if x- rays are needed. If none are required, the patient goes to an examination room with his records.

      
      

   6. Since at least the early 1970's, respondent has had a practice of keeping the sliding doors in the examination rooms either entirely or partially open while meeting with the patient. This is because the patient is not disrobed, and respondent frequently calls to an assistant for information or assistance during the examination process. Because of the small dimensions of the rooms and their proximity to one another, and the fact that long waits for the doctor are not unusual, the patients often talk to each other through the open doors while waiting for respondent. The only exception to the open-door policy is in the cast room where the door is periodically shut by the cast- cutter to muffle the noise from the cast-cutting machine.

3. The Appropriate Orthopedic Examination

   
   

   1. There is no concise description in the record of the type of injuries that an orthopedic surgeon treats. However, it may be inferred from the record that an orthopedic surgeon treats patients having injuries to the bones and ligaments of the body.

      
      

   2. The type of injury presented by a female patient generally dictates the type of examination given by the orthopedic surgeon. Where the patient has been involved in an autombile or a slip and fall accident, as was the case with almost every complaining patient here, it is customary in the medical community for the doctor to perform a complete and comprehensive examination. This includes, among other things, an examination of the chest wall, pelvic ring and hip joint. Although particular problems can sometimes be accurately diagnosed through the use of x-rays, a physical (hands-on) examination is still necessary in virtually every case. This is because the examinations have shown fractures, cartilage tears and dislocations that do not show up in x-rays.

      
      

   3. When an anterior-chest (the frontal portion of the chest) examination is performed, the examiner is required to inspect, palpate, percuss and feel the different areas of the chest wall, including the muscles and ligaments underlying the breast area. This is particularly true where the doctor must ascertain whether the patient has costochondritis, which is an inflammatory process in the rib/cartilage junction of the chest, or a costochondral separation. In examining this area of the body, it is essential for the examiner to touch on and around the patient's breasts. This touching is generally done with two or three of the fingertips placed together, and to the patient, it may appear the doctor is rubbing his fingers (hand) back and forth across the breasts while palpating the costochondral junctions in the chest.

      
      

   4. Another required test is the pelvic compression test. It is an accepted test for patients who have experienced a medical trauma such as injuries received in an automobile accident and who manifest pain in the lower back, leg, and inguinal areas or the sacroiliac. To perform the pelvic compression test, the doctor requires the patient to lay on her side (the decubitus position) while the examiner presses down on the hip (iliac crest region) to see if any discomfort or pain is elicited. The doctor also presses down and palpates the pubic bone area (or just above the vagina) to see if any pain occurs. Such a procedure is required to determine the integrity of the ligaments, the interpubic disc and the adjacent pubic bones. When performing this procedure, it is appropriate for the doctor to slide his hand under the patient's underwear while palpating the pubic bone, and the doctor's hand must necessarily touch the pubic hair of the patient. While the examination can be performed by pressing through the patient's clothing, which procedure respondent has occasionally used, the preferred and more reliable method is for the doctor to press the patient's bare skin. Incidental contact with the top of the vulva is not unusual and gloves are never worn.

      
      

   5. In those instances where the examiner is palpating the patient's back, it is an accepted procedure to place the examiner's other hand on the patient's chest as a steadying or balancing influence to keep the patient from swaying or being pushed over by the doctor. Depending on the doctor's position, this may entail placing the hand near or adjacent to the breast area and include incidental touching of the patient's breasts.

   6. If a patient presents a complaint of a possible hernia in the groin area and asks that it be checked, as did one patient in these proceedings, the examiner puts his hand on both sides of the inguinal region and asks the patient to turn her head and cough to see if a hernia protrudes or if a tear in the tissue is discerned. Obviously, it is not necessary for the examiner to stick his finger in the vagina in order to make this type of examination on a female patient. According to one surgeon who treats hernias on a regular basis, he requires female patients to disrobe (i.e., remove their undergarments) before conducting his examination. He says this is the only way in which the hernia can be properly examined and it necessitates, in some instances, incidental contact with the vaginal area. Moreover, it is not customary in the medical community to wear gloves during such an examination. This is because no entry into the vagina itself is necessary nor contemplated. This testimony was not contradicted.

      
      

   7. Respondent makes handwritten notes as a patient examination progresses and dictates the patient chart entries on the dictation machine in the examining room while the patient is there. He has a reputation among local attorneys and physicians as having accurate and reliable records. In addition, while performing his examinations, respondent typically wears a business suit and carries flashlights, pens, and goniometer, a beeper on his hip, and a percussion hammer in his pocket. The goniometer is made of hard plastic, about six inches long, is flat and bullet shaped, and was carried in respondent's right, front pants pocket.

      
      

4. Respondent's Cultural Background

1. Respondent was born on July 4, 1932, in Jaora, India, is a fourth generation physician, and is a devout Moslem. He received his medical degree and initial medical training from a university in that country. The evidence establishes that it is customary for physicians in India to never ask the patient for permission to touch them, and they do not explain to a patient why they are touching them in a certain area of the body. Respondent also had a habit, based upon Indian custom, of standing very close to a person when engaging that person in a conversation. Until these proceedings arose, respondent was not aware that this mannerism caused some persons to whom he was speaking to be uncomfortable. Finally, because of his Indian background and class cultural status, respondent does not find putting his finger into a vagina erotic or sexually stimulating.

   
   

2. In every single case herein, respondent did not request permission from his patients prior to touching them during an examination. In addition, he did not explain to them why he was performing a frontal chest examination or a pelvic compression test, both of which require contact with sensitive areas of the body. Although this lack of communication may be disconcerting to some patients, it is not a ground for disciplinary action since such a practice does not constitute a deviation from the standard of care. As noted in a subsequent finding, after these practices were brought to his attention during an evaluation process by another physician, respondent began requesting permission to touch patients and advising them as to why certain examinations were being performed.

1. Golden Valley Examination

   
   

   1. After the first complaints were filed against respondent, and after contacting Dr. Roger Goetz, who is medical director of the Florida Physician Recovery Network, in March 1991 respondent visited the Golden Valley Health

      Center (Golden Valley) in Minneapolis, Minnesota, a freestanding psychiatric hospital that specializes in the treatment of sexual disorders and psychiatric illness. The aim of the visit was to determine, among other things, whether respondent was afflicted with a sexual disorder or mental sexual deviancy problem.

      
      

   2. The Golden Valley medical coordinator is Dr. Richard Irons, a board certified internist. As a part of the Golden Valley evaluation process, respondent was required to perform a mock examination of Dr. Irons. The purpose of the examination was to enable Dr. Irons to compare respondent's examining techniques with the techniques used by other doctors. It was established that Dr. Ahmed felt comfortable with his body much more proximate to the patient than one would expect of an American doctor. However, this was consistent with his cultural background as a native of India. In addition, because of his rather short arms, it was necessary for respondent to move physically closer to the patient in order to perform the type of examination typically required by an orthopedic physician. Doctor Irons then examined Dr. Ahmed using respondent's examining techniques. The examiner noticed that respondent was genuinely surprised how close the examiner's body came to his and felt uncomfortable when Dr. Irons' pelvic and genital areas came in contact with his body. Finally, Dr. Irons learned that Dr. Ahmed did not know that it was comforting to ask the patient permission to touch their bodies since Indian doctors do not ask permission to touch their patients.

      
      

   3. After a week of psychological testing, the consensus of the Golden Valley staff was that respondent did not have a psychosexual disorder or mental sexual deviancy problem. This conclusion was also reached by Dr. Jack Rotstein, a Daytona Beach psychiatrist, who performed a comprehensive psychiatric examination of respondent in 1990 and found no evidence of any mental or sexual disorder. The Golden Valley group also recommended that respondent seek medical attention for impotence to determine how serious that problem was since respondent has experienced such problems since his injuries received when struck by an automobile in 1983. Respondent has complied with this recommendation.

      
      

2. The Complaints of the Patients

   
   

   1. Generally

      
      

      1. With the foregoing factual background in mind, the complaints will be reviewed and analyzed. All were made by former female patients of respondent, the most recent complaint having its origin some three years ago. Some of the complaints were based on treatment performed a decade or longer ago while one dates back almost twenty years. At the time of hearing, three of the patients had lawsuits pending while at least one other was considering filing a suit. It is noted that none of the patients complained that respondent made sexually suggestive remarks or otherwise acted (except in the touchings) in a sexually suggestive manner. Finally, it is again important to note that, unlike many doctors, respondent never explained to the patients why it was necessary to touch their breasts and pubic bone areas.

         
         

   2. Patient 1

1. The underlying allegations in the amended complaint concerning patient

   1 were that, during an office visit on March 6, 1989, respondent "ran his finger across (her) nipple repeatedly, rested his hand on (her) left breast and squeezed it, put his finger inside (her) vagina; and hugged (her) with an

   erection", all such acts constituting "sexual activity outside the scope of generally accepted examination or treatment of the patient."

   
   

2. Patient 1 is a thirty-nine year old female who was first treated by respondent in 1985 for injuries sustained in an automobile accident. She chose him by random out of the telephone book. Although she had no problems during these visits, she recalled that respondent got very close to her face when he spoke to her and this made her a little "uncomfortable."

   
   

3. In 1988 patient 1 was in a second automobile accident and suffered injuries to her face, neck, ear and jaw. She was again treated by respondent. After conducting a physical examination on the first visit, respondent prescribed physical therapy. On a subsequent visit on March 6, 1989, patient 1 told respondent that she suspected she had a hernia in her left groin area adjacent to her vagina and asked him to check the area. Respondent observed a lump in the left groin area, palpated it and found it to be "moveable". Since he believed it to be a femoral hernia he recommended she see a general surgeon for treatment. Standard medical procedure also called for respondent to check the right groin area of the patient. He found no lumps on the right side.

   While examining the two groin areas, there was incidental contact with the side of the patient's vaginal area but such contact was incidental and without sexual connotation. Testimony that respondent placed his finger inside her vagina, squeezed her left breast, ran his finger over her nipple, and pressed against her body with an erection is not accepted as being credible.

   
   

4. In discrediting this patient's testimony, the undersigned has considered the fact that patient 1 has a pending lawsuit against respondent and a reputation for not telling the truth. She has also filed other lawsuits and unfounded claims in the past and gave testimony which was inconsistent in several respects.

   
   

   1. Patient 3

      
      

5. The amended complaint alleges that while treating patient 3 in the fall of 1987, respondent "commented to (her) that she had a nice body and pretty hair," he "placed his hand on one of her breasts and stroked her nipple and then stroked her genital area while pressing his body against hers."

   
   

6. Patient 3 was first treated by respondent in 1973 for injuries received in a motorcycle accident. On July 8, 1987, she was struck by an automobile while riding a bicycle. This occasioned a series of visits to respondent's office for treatment. At that time, she presented complaints of pain in the neck, middle back, lower back and tailbone area, numbness and headaches, which necessitated respondent administering a comprehensive orthopedic examination, including a pelvic compression test. It is noted that the patient's recollection of her treatment did not comport with her medical records, as contemporaneously recorded in 1987. Although the patient alleged that on one visit respondent "stroked" her clitoris four or five times from the outside of her pants and undergarments, this assertion is not deemed to be credible. Likewise, the testimony that respondent complimented her on having a nice body and pretty hair is discredited. Further, the patient was confused as to which breast respondent allegedly touched, and if such touching occurred, it was incidental to an appropriate examination. Finally, her contention that she reported these incidents to two of respondent's employees was denied by those employees. Therefore, it is found that no inappropriate touchings occurred with respect to this patient.

   1. Patient 4

      
      

7. The amended complaint alleges that while treating patient 4 on two office visits in December 1982, respondent "rubbed his hand across (her) bra". On another visit in January 1983 respondent allegedly stood behind the patient, had her bend over to touch her toes, and pressed his body against her while she bent over. It also alleges that on the same office visit, respondent had the patient lie down on the examination table, unzipped her pants and placed his hand inside her undergarments.

   
   

8. Patient 4, who is the sister of patient 9, was in an automobile accident on October 24, 1982, and was later admitted to a local hospital where respondent first saw her on November 1, 1982. A local attorney had recommended that the patient see respondent for treatment. The patient made a number of follow-up visits to respondent's office during the following months. It is noted that at hearing the patient had hardly any recollection of the information recorded in her medical records regarding tests performed, injuries diagnosed or verbal complaints she gave to respondent.

   
   

9. At hearing, the patient complained that during at least two office visits in December 1982 or January 1983 respondent's hand touched her breast during the course of the examination. While such an occurrence probably happened when respondent placed his hand in the sternum area while pressing with the other hand on her back or while checking her complaint of tightness in the sternocleidomastoid, it was incidental and had no sexual connotations. On another visit, and while performing a range of motion test which required her to bend forward, patient 4 recalled that respondent stood behind her and placed his arms around her waist while having her bend over causing her body to press against his groin area. However, the more credible fact is that respondent stood closely to the side of the patient while she bent over and there may have been incidental touching with his body. There were no sexual connotations in this touching. Finally, although the patient recalled that respondent placed her in a lying position on the table and began pressing down in her abdominal area, assuming the patient's recollection is correct, there was nothing inappropriate in this action since an examination of this area was appropriate. Therefore, it is found that the allegations involving patient 4 have not been sustained.

   
   

   1. Patient 5

      
      

10. As to this patient, the amended complaint alleges that while treating her in September 1977, or some fifteen years ago, respondent "placed his hand inside the front of her pants and undergarments and placed his hand on (her) pubic area of her vaginal lips," and then later told her three year old son "that he had a beautiful mommy."

    
    

11. In September 1977 the truck in which patient 5 was a passenger was struck by an automobile. She suffered back injuries and lacerations to her leg. Upon the advice of her attorney she sought treatment from respondent. During respondent's examination of the patient, the patient's three year old son, who had also been injured in the accident, remained in the examination room. As respondent performed a pelvic compression test on the patient, she recalled that his hand went inside her slacks and underwear and slid down to the pubic bone area where he pressed to discern any discomfort. There was momentary (two seconds or less) incidental touching of the upper part of the vulva and then respondent withdrew his hand. Because the patient had never had that type of examination performed before, and received no explanation as to why it was

    needed, she felt it was inappropriate and sexual in nature. However, it is found that the touching of the upper part of the vulva was incidental to the pelvic compression test and had no sexual connotations.

    
    

12. After respondent completed his examination of the patient, he examined the three year old son in her presence. In order to put the child at ease, respondent engaged in conversation with the child and, among other things, said words to the effect that he had a pretty mommy. The patient acknowledged at hearing that she did not find the comments to be "offensive" and it is found that such comments were not inappropriate or sexually suggestive.

    
    

    1. Patient 6

       
       

13. This allegation dates back to January 1973 and involves a charge that while respondent was treating this patient for pain caused by job-related injuries he "inserted his finger into her vagina". It is noted that the patient continued being treated by respondent until August 1974. The patient is now contemplating filing a civil action against respondent.

    
    

14. According to respondent's records, on the patient's first office visit he examined her pubic bone to check the arcuate ligament which is shaped like an arc at the bottom of the pubic bone. An injury in this area could produce pain in the patient's lower back and legs. The patient recalls that respondent did not state why the examination was necessary, ask permission to touch her body, or ask her if that area hurt. Although the witness believed that she felt one or two fingers being inserted into her vagina during the test, it is found that no insertion occurred but there was incidental contact with her vagina associated with the pelvic compression test. Therefore, it is found that no improper conduct occurred with respect to this patient.

    
    

    1. Patient 7

       
       

15. The charges underlying the treatment of this patient are that during several office vists between April 1986 and December 1987 respondent "rubbed (her) breasts", "rubbed his pelvic area against (her) knee", "had (her) lay down on the examination table, unbuttoned and unzipped her pants and placed one of his fingers in her vagina." It is also alleged that he "kissed (her) on the lips." In evaluating the credibility of this complaint, it is noted that the patient was addicted to pain medications while being treated by respondent, and she became "angry" when he put her on a decreasing dosage schedule on her last visit.

    
    

16. This patient was treated for trauma related to an amusement park ride injury and a rear end autombile accident which resulted in back and neck pain. She recalled two, or maybe three, unspecified improper touchings by respondent on undisclosed dates. Two such touchings were of her breasts, but these are found to have occurred while respondent performed a chest examination and were not inappropriate. While performing a pelvic compression test, and after specifically recalling that respondent had first pressed her hip bones, the patient remembers that he slid his hand down to her pubic bone and began pressing. If there was contact by respondent's hand with the upper part of the patient's vulva, it is found to be incidental. Finally, the patient recalled that after undergoing surgery, respondent kissed her on the lips as she left the office, but she construed it as a fatherly kiss with no sexual overtones, said that respondent "meant (nothing) by it", and she was in no way offended by this fatherly gesture. Accordingly, it is found that no improper conduct occurred.

    1. Patient 8

       
       

17. As to this patient, the amended complaint alleges that on several office visits between June 6, 1988, and October 3, 1988, respondent "would place his hand over (her) breasts" in a manner which was not consistent with acceptable physical examinations.

    
    

18. On May 31, 1988, patient 8 was thrown from a motorcycle, landing on her side with sufficient impact to break bones, including her collar bone, and be hospitalized. Respondent first saw the patient at the hospital, and she visited his office for a number of follow-up visits. Until she read the newspaper article concerning patients 1 and 2, she assumed she had been treated appropriately. She now intends to file a civil action against respondent.

    
    

19. Patient 8 originally believed that respondent was examining her for a hernia when he performed a pelvic compression test. She now understands that the pelvic compression test was an appropriate procedure. Although not an allegation in the complaint, the patient recalled that when the test was performed while she was lying in bed in the hospital, respondent's hand touched the top of her vagina. If such touching occurred, it was incidental to the test and was not inappropriate. The patient also recalled that on "several" occasions during the office visits, respondent's hand touched her right breast. To the extent such touchings may have occurred, it is found that they were incidental to other appropriate examinations and had no sexual overtones.

    
    

    1. Patient 9

    
    

20. The allegations concerning the final patient are that during an examination on August 17, 1989, respondent "placed his hands on the patient's breasts and squeezed them", and while standing behind her, he had her "bend over forward, and pressed his body against the body of (the) patient." The complaint also alleges that during a subsequent examination, respondent "rubbed (her) groin area through her pants" and stopped after the patient advised him she did not have pain in that area. She has recently filed a civil lawsuit against respondent.

    
    

21. This patient sought treatment from respondent for injuries received from a slip and fall accident. During the course of her treatment, the medical records show the patient's chest wall was examined which would necessitate the incidental touchings of her breasts. Respondent also performed a forward flexion test which required him to stand to her side to observe her flexion. Any bodily contact between the two during that test was incidental and non- sexual in nature. Finally, the touching of the groin area occurred during a pelvic compression test and was an appropriate procedure given the injuries and pain presented by the patient. Prior to performing that test, respondent did not explain to the patient what he was doing or why it was necessary. At hearing she stated that had he explained the necessity of such a test, she probably would not have complained. Therefore, it is found that no improper conduct occurred.

    
    

    i. Summary

    
    

22. In summary, it is found that respondent did not touch the eight patients in an inappropriate manner and that he followed all routine orthopedic examination procedures while examining his patients. To the extent such touchings of the breast and vaginal areas occurred, these were incidental to medically necessary tests. In making these findings, the undersigned has

    considered the statements made by some of the patients to friends, family members and others concerning the alleged inappropriate touchings, and which hearsay testimony was offered to supplement and explain the patients' testimony. Although such statements were presumably made, they are found to be based upon the patients' misunderstanding of orthopedic tests, a lack of communication between respondent and his patients, and the patients' erroneous perception that such touchings were not medically necessary. The undersigned has also considered the testimony of petitioner's experts, Drs. Zeide and Barnard, but their conclusions are based upon the assumption that all of the complaints were true. Therefore, it is found that respondent did not exercise influence within his patient-physician relationship for the purpose of engaging his patients in sexual activities.

    
    

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1991).

    
    

24. Since respondent's license as a medical doctor is at risk, the Board is obliged to establish by clear and convincing evidence that the charges in the two administrative complaints are true. See, e. g., Ramsey v. Department of Professional Regulation, Division of Real Estate, 574 So.2d 291 (Fla. 5th DCA 1991).

    
    

25. Respondent is charged with violating Subsections 458.331(1)(j)and (t), Florida Statutes, as to each of the eight patients and with violating Subsection 458.331(1)(x), Florida Statutes, as to all patients except patients 5 and 6, who were treated prior to the enactment of that statute. Those subsections authorize disciplinary action to be taken against a physician whenever a physician is found guilty of:

    
    

    (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. . . . .

    
    

    * * *

    
    

    (x) Violating any provision of this chapter,

    . . .

    
    

    The violation of subsection 458.331(1)(x) is based upon the allegation that respondent violated Section 458.329, Florida Statutes, which provides as follows:

    The physician-patient relationship is founded 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 generally accepted examination or treatment of the patient. Sexual misconduct in the practice of medicine is prohibited.

    
    

26. There is less than clear and convincing evidence to support the allegations that respondent (a) exercised influence within a patient-physician relationship for purposes of engaging a patient in sexual activity, (b) engaged in gross or repeated malpractice or a failure to meet the acceptable standard of care, and (c) violated any provision within chapter 458. This being so, the two complaints should be dismissed.

    
    

27. Petitioner's objection to the admission of respondent's exhibit 16 is sustained.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent enter a final order dismissing the two

administrative complaints, with prejudice.

DONE AND ORDERED in Tallahassee, Florida, this 28th day of September, 1992.

DONALD R. ALEXANDER

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 28th day of September, 1992.

Petitioner:

APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 91-2366 and 91-7577

1-3. Partially accepted in finding of fact 1.

4-35. Partially accepted in findings of fact 25-28 and 46.

36. Partially accepted in finding of fact 2.

37-45. Partially accepted in findings of fact 29 and 30.

46-56. Partially accepted in findings of fact 31-33 and 46. 57-67. Partially accepted in findings of fact 33-36 and 46. 68-76. Partially accepted in findings of fact 37, 38 and 46.

77-85. Partially accepted in findings of fact 39, 40 and 46. 86-95. Partially accepted in findings of fact 41-43 and 46. 96-103. Partially accepted in findings of fact 44-46.

Respondent:

24-25. Rejected as being unnecessary.

26-44. Partially accepted in findings of fact 25-28.

45. Partially accepted in finding of fact 2.

46-60. Partially accepted in findings of fact 29, 30 and 46. 61-67. Partially accepted in findings of fact 31-33 and 46. 68-81. Partially accepted in findings of fact 34-36 and 46. 82-94. Partially accepted in findings of fact 37, 38 and 46.

95-104. Partially accepted in findings of fact 39, 40 and 46. 105-112. Partially accepted in findings of fact 41-43 and 46. 113-124. Partially accepted in findings of fact 44-46.

125-141. Partially accepted in findings of fact 47-49.

NOTE: Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the more credible and persuasive testimony, or a conclusion of law.

COPIES FURNISHED:

Bruce D. Lamb, Esquire Post Office Box 2378 Tampa, Florida 33601

Larry G. McPherson, Jr., Esquire 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

James W. Smith, Esquire Todd M. Cranshaw, Esquire

214 Loomis Avenue

Daytona Beach, Florida 32114

Paul Watson Lambert, Esquire 2851 Remington Green Circle Suite C

Tallahassee, Florida 32308

Dorothy J. Faircloth, Executive Director Board of Medicine

1940 North Monroe Street Tallahassee, Florida 32399-0770

Jack L. McRay, Esquire

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.

Docket for Case No: 91-002366

Orders for Case No: 91-002366