STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3466

) CASE NO. 92-4396 ROBERT W. FAUSEL, JR., M.D.,)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this matter before the Division of Administrative Hearings, by its duly designated Hearing Officer, Diane Cleavinger, on December 16, 1992, in Pensacola, Florida.

APPEARANCES

For Petitioner: Arthur B. Skafidas, Esquire

Department of Professional Regulation Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Robert W. Fausel, Jr., M.D., pro se

8130 Northpointe Boulevard Pensacola, Florida 32514 and

and after the hearing

Charles C. Godwin Attorney at Law Route 4, Box 68-B

Atmore, Alabama 36502 STATEMENT OF THE ISSUES

Whether disciplinary action should be taken against Respondent's license to practice as a medical doctor, based on alleged violations of Sections 458.328 and 458.331(1)(j),(t) and (x), Florida Statutes.

PRELIMINARY STATEMENT

On February 6, and May 15, 1991, the Petitioner filed Administrative Complaints, DPR Case Numbers 89-05924 and 89-10146 respectively, against Respondent alleging that Respondent's medical doctor's license should be disciplined for several violations of Chapter 458, Florida Statutes.

Specifically, the Administrative Complaints alleged that Respondent's license should be disciplined for violating Sections 458.328 and 458.331(1)(j),(t) and

(x), Florida Statutes, in that he failed to practice medicine with an acceptable level of care, that he exercised influence within a physician-patient relationship for purposes of engaging a patient in sexual activities and that he committed sexual misconduct in the practice of medicine.

Respondent denied the allegations of the Administrative Complaints and requested a formal administrative hearing. Petitioner's request for hearing was forwarded to the Division of Administrative Hearings.

At the hearing Petitioner presented the testimony of three (3) witnesses:

1. David Smith, M.D., Jane Jackson, L.P.N., and Tammy Jordan. Additionally, Petitioner also offered the deposition testimony of Nat W. Levine, Linda Kelley, Barbara A. Machado, Peggy Adams, Jetendra Varma, M.D., Ryan P. Carmichael, M.D., Daniel J. Spreke, M.D., Thomas Hicks, M.D., and Respondent. Petitioner also offered nineteen (19) exhibits, eighteen of which were accepted into evidence. Petitioner's Exhibit nineteen was marked for identification only. Respondent testified in his own behalf and offered one exhibit into evidence. Respondent also filed the deposition testimony of Angela Delores Rawls and C.C.

   
   

   Petitioner filed a Proposed Recommended Order on January 6, 1993.

   Respondent filed a Proposed Recommended Order on January 29, 1993. The parties' proposed findings of fact have been considered and utilized in the preparation of this Recommended Order, except where such findings were not shown by the evidence, or were immaterial, irrelevant, cumulative or subordinate. Specific rulings on the parties' Proposed Findings of Fact are contained in the appendix to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. Respondent, Robert W. Fausel, Jr., M.D., is a licensed physician in Florida, holding license number ME0016953. By Final Order dated January 3, 1984, Respondent was placed on five years probation by the Florida Board of Medicine for alcoholism and inappropriate prescribing of controlled substances to patients. Currently, Respondent's medical license remains in a probationary status.

      
      

   2. In 1984, F.S., a sixty-eight (68) year-old male, was a patient at the Family Practice Center, a health maintenance organization (HMO), in West Palm Beach, Florida. On May 15, 1984, F.S. presented to the Family Practice Center for problems with a hiatal hernia and was seen by Salomin Levin, M.D., one of the physicians on staff at the HMO. During this visit, Dr. Levin explained the physiology of a hiatal hernia and advised F.S. to return to the Center as needed. The patient history recorded by Dr. Levin during F.S.' 1984 visit revealed that F.S. had not been to a doctor in the past four (4) years and had not had a physical during that four year time period.

      
      

   3. At the time of F.S.' 1984 visit, the standard of care for a male over

      40 years of age required that a complete medical history should be gathered and an annual physical examination including a rectal examination be performed, or at the very least have been offered, and either arranged for or refused by the patient. However, the medical records do not reveal that the need for a complete physical was discussed during F.S.' visit or that such a physical was performed. Likewise, the records do not reveal that F.S. was worked up for a complete medical history during his May 15, 1984, visit.

      
      

   4. On March 4, 1985, F.S., at age sixty-nine, presented to the Family Practice Center with complaints of pain in the hip, thigh and lower back.

      Respondent, then on staff at the Family Practice Center, saw F.S. during his March 4, 1985, visit and observed a deceptively healthy looking older man.

      
      

   5. The entry on F.S.' medical records written by Dr. Fausel stated that "The patient lifted an elderly man who had fallen out of bed 3 weeks ago; now has pain in left hip and thigh and low back." Significantly, F.S. did not report that he had any pain in the hip, thigh or back prior to lifting the elderly man. Further, F.S. did not report that he had any urinary symptoms such as difficulty with urination, dysuria, cloudy or bloody urine. 1/ However, other than the history associated with F.S.'s back pain, Respondent did not record any sort of general history, physical or rectal examination of F.S. even though Respondent knew, through a review of F.S.'s medical records, that F.S.' medical records did not reflect that F.S. had been worked up for a complete history or physical during his previous visit in 1984.

      
      

   6. Respondent did treat F.S. for the primary complaint for which he came to the Center, i.e., pain in the hip, thigh and lower back. Given the history

      F.S. related regarding his pain, Respondent appropriately suspected that F.S. had suffered a musculoskeletal injury involving the left hip, thigh and lower back and referred F.S. to Dr. Stopek, a chiropractor for further examination of F.S.' condition.

      
      

   7. F.S. initially saw the chiropractor on March 5, 1985. Thereafter, F.S. saw the chiropractor at least four more times through out the month of March. At some point X-rays were taken of F.S.' left hip, thigh and lower back. Eventually, F.S. was referred back to Respondent with a diagnosis of DJD in the left hip and a recommendation that the patient be given a prescription for the pain medication Feldene, a legend drug.

      
      

   8. On or about April 4, 1985, F.S. returned to Respondent at the Family Practice Center for his continued pain. Respondent diagnosed F.S. with arthritis in the left hip. Respondent also, at the request of the chiropractor, prescribed Feldene to F.S. for pain relief. Additionally, Respondent began a general physical examination of F.S. with the expectation that the blood and rectal exam would be completed during later visits. In essence, a complete physical examination of F.S. would be accomplished in stages.

      
      

   9. Following that course of action, F.S. arranged to have a standard blood profile accomplished. The actual blood work was performed on June 4, 1985, and a report of the results was issued. Unfortunately, for reasons due mainly to the operation of the HMO and the assignment of doctors to patients on a daily basis, Dr. Fausel never saw F.S. again and the doctor patient relationship between Respondent and F.S. terminated. A rectal exam was never performed on

      F.S. by Respondent.

      
      

   10. However, F.S. was seen by other doctors at the HMO on at least eight occasions throughout 1985 and 1986. These doctors had F.S.' medical records available to them and were aware that those records did not indicate that either Respondent or any of the post-Respondent doctors, prior to December 3, 1986, performed a rectal examination on F.S.

       
       

   11. These doctors did continue to evaluate F.S.' pain as either some form of arthritis or paget's disease. In 1986, F.S. was referred to an orthopedic surgeon and rheumatologist for further evaluation of his pain.

       
       

   12. It was the rheumatologist who finally performed a rectal examination of F.S. and noted a hard prostrate, indicating possible cancer. At that point,

       F.S was referred for blood tests specific to prostate cancer and to an urologist.

       
       

   13. On October 23, 1986, Jitendra Varma, M.D., the urologist, ordered a prostate biopsy on F.S. which revealed adenocarcinoma.

       
       

   14. Subsequently, on November 24, 1986, Dr. Varma performed a bilateral orchiectomy on F.S.

       
       

   15. In this case the Department is attempting to prove a case of malpractice based solely on F.S. medical records which may or not be complete. In fact, the evidence demonstrated that no records custodian from the HMO had custody of F.S.' medical records or that those records were complete. Many of the records submitted into evidence were impossible to read. No testimony from

       F.S. to fill in important details as to what took place during his HMO visits was presented at the hearing. In short, the Department is attempting to infer from an absence of entries in a patient's medical records that some medical service did not occur or was not offered. However, given the brevity of the medical records from the HMO, the healthy appearance of F.S., the loss of memory due to the age of this case and the lack of testimony from F.S., it is impossible to determine if any malpractice occurred since the absence of an entry from F.S.'s medical records does not mean that the need for a physical and follow-up appointments were not discussed or that Respondent failed to perform an adequate evaluation of F.S. which would have included a medical history.

       The same can be said for the lack of a rectal exam during the brief two visits Respondent treated F.S. for his primary complaint of pain. Indeed the medical records reflect that on September 14, 1985, someone from the HMO contacted F.S. and that he stated everything had been taken care of.

       
       

   16. Additionally, the Department's own experts disagreed on whether the "piecemeal" basis of F.S.'s physical examination was inappropriate or that the referral to the chiropractor was inappropriate. Given these facts, the evidence did not clearly and convincingly demonstrate that Respondent failed to treat

       F.S. with an appropriate standard of care by either referring F.S. to a chiropractor, performing a physical exam on a piecemeal basis or by failing to perform a rectal examination on F.S.

       
       

   17. Given these facts, the Department has failed to clearly and convincingly demonstrate that Respondent failed to practice medicine with an acceptable level of care in regard to patient F.S. Indeed, the best that can be said of this case is that Respondent may not have kept adequate medical records. However, Respondent was not charged with such a failure and the matter was not an issue in this hearing. Because of the Department's failure of proof the Administrative Complaint relating to Respondent's care of F.S. should be dismissed.

       
       

   18. By 1987, Respondent had moved to North Florida and opened a general practice in Century, Florida. Respondent was also on staff at Jay Hospital.

       
       

   19. From November, 1987, through June, 1989, C. David Smith, M.D., was Respondent's monitoring physician under the terms of Respondent's probation.

       
       

   20. Additionally by 1989, Respondent had developed a number of serious medical problems as well as some mental difficulties associated with his diabetes and bipolar disorder. One such problem was impotence with a very low libido.

   21. On March 20, 1989, Respondent began treating Patient C.C. and admitted

       C.C. to Jay Hospital under his care for evaluation and treatment of a medical condition.

       
       

   22. C.C. had a ten (10) year history of psychiatric illness. Some of the symptoms of her mental illness were depression and anxiety. C.C.'s medical condition was not associated with her mental condition.

       
       

   23. On April 4, 1989, after treatment of her medical condition, Respondent discharged C.C. from Jay Hospital.

       
       

   24. Respondent's discharge summary for C.C. dated April 4, 1989, included the following:

       
       

       . . . At that point, on 3/23/89, it was noted that the patient was making statements which sounded quite psychotic, referring to delusional material. She stated that she believed her neck and cervical spine in the back of her head and the roof of her mouth were 'rotten' and cancerous. She stated that God had revealed to her the fact that she was going to die of cancer. She stated that God had been quite specific as to the means by which she would die, namely, by the collapse of the roof of her mouth, jaws, and skull, which would then occlude her airway, making her choke to death or die of asphyxiation.

       She stated that God had revealed to her the fact that she was going to die of cancer. In addition, she stated that she had been dead and had come back to life. She made additional statements which lead me to believe that she was psychotic. I began a series of discussions with the patient, to evaluate her psychosis, and I found that the patient was extremely resistant to the idea of psychiatric evaluation. She felt that she was not psychotic or 'crazy' at all. In addition, she resented anyone implying that she was psychotic or crazy. She stated that her family members had implied in the past that she was crazy or psychotic and this made her very resentful. . . . The patient stated that on May 12, 1984, she heard God's voice warning her that her death was imminent. She added that God had told her that she was going to die of cancer, specifically bone cancer, brain cancer, and cancer of the ears, mouth and jaw bones and neck and spine. She stated that the medical terminology for the type of cancer from which she was going to diet [sic] was a medullablastoma. The patient also stated that she was a prophetess of God, one of five listed in the Bible. She stated that she had been told by God that she was literally going to choke to death and that her time was

       drawing near. Paramount in her delusion was the idea that she was going to diet [sic] within a very short time. I pointed out to her that she continued to live, in spite of her predictions that she would be dead within

       24 hours. She explained this by stating that God gave her small extensions of life, and this was why she continued to live. I noted that she experienced a great deal of anxiety about death and that this anxiety repeated itself on a daily basis. She has a continual fear that her death is very close, and yet insists that she does not fear this death, because she stated that she is a prophetess of God and is going straight to Heaven. In the past, she had been treated with Prolixin, Artane and Lithium Carbonate for her psychotic problems. Conversation with her family indicated that they thought that she was 'crazy', but 'harmless'. My arguments with the patient that there was absolutely no physical evidence for her death were useless. Discussions with her family indicated that she had been hospitalized for psychotic problems in the past. I discussed with the patient the possibility of admitting her to a psychiatric institution, however, the patient was adamantly resistant to this idea. The patient also was extremely resistant to the [sic] idea of taking Prolixin, Lithium Carbonate, and Artane. . . . It was apparent that the patient was frankly psychotic and probably falling into the paranoid schizophrenic category, with religious delusions and auditory hallucinations. . . . At no time did I hear the patient express any suicidal ideation, and she did not seem to be a danger to herself or to other people. Also, at no time did the patient threaten to harm anyone else, or seem to constitute a danger to other people. . . .

       
       

   25. The evidence did not show that C.C. had any tendency to sexual delusion or sexual preoccupation.

       
       

   26. On May 17, 1989, Respondent again admitted C.C. to Jay Hospital for treatment of a medical condition not associated with her mental condition. C.C.'s mental illness continued to manifest itself as outlined in the April 4, 1989, discharge summary despite Respondent's assurances that he could not find any evidence of cancer.

       
       

   27. Again the evidence did not show that C.C. had any sexual delusions or preoccupations. Additionally, the evidence did not show that C.C. desired a psychiatric referral or could have been forced to accept such a referral.

       
       

   28. Because C.C. had manifested her fixed delusions for such a long time, her friends and family were fed up with her and did not overly concern

       themselves with C.C.'s condition. C.C. felt very much lost and alone. Because of C.C.'s loneliness, Respondent felt sorry for C.C. and tried to be friends with her. C.C. saw Respondent's attentiveness as a salvation and would call on him when she felt anxious about her personal or medical state. The evidence did not demonstrate that C.C. saw Dr. Fausel in a romantic or sexual way, but only in a friendly Christian love way. Likewise, the evidence did not reveal that Respondent's attempts at friendship with C.C. were for sexual reasons.

       Indeed, except for one church tent revival, Respondent did not attend any social outings or church functions with C.C. C.C. believed that Respondent felt Christian love for her.

       
       

   29. On June 20, 1989, Respondent received a telephone call from C.C.

       
       

   30. C.C. was having severe anxiety and advised Respondent that she was contemplating suicide. Respondent arranged to meet with C.C. later that evening.

       
       

   31. On the evening of June 20, 1989, after normal business hours, Respondent met C.C. and they went to his office at 8401 North Century Boulevard, Century, Florida.

       
       

   32. Respondent was seeing the patient as both a friend and a medical doctor.

       
       

   33. Respondent and C.C. went into a vacant examination room in Respondent's office. The lights in the room were on. Respondent and C.C. sat on the floor. Because Respondent was somewhat obese, Respondent undid the top button of his pants so that he could more comfortably sit on the floor.

       
       

   34. The office air conditioning was off and it was hot in the room. Respondent and C.C. discussed religious matters and C.C. sang hymns. At one point, both stretched out on the floor facing each other. Just prior to 11:00 p.m., C.C. removed her dress and turned off the lights. She still had on her slip and underwear. C.C. lay back down on the floor within approximately one foot of Respondent. C.C. did not make any sexual advances towards Respondent and her disrobing was not for sexual purposes. Respondent asked her to put her dress back on at least twice. He told her that she looked more saintly fully dressed.

       
       

   35. Respondent did not make any sexual advances toward C.C.

       
       

   36. Within a few minutes of C.C.'s disrobing, at approximately 11:00 p.m., Respondent's nurse, Jane Jackson, found Respondent and C.C. on the floor of the vacant room.

       
       

   37. Nurse Jackson turned on the office lights as she entered the room occupied by C.C. and Respondent.

       
       

   38. With little conversation, Nurse Jackson left the clinic and reported what she had seen to C. David Smith, Respondent's monitoring physician.

       
       

   39. Dr. Smith telephoned the administrator of Jay Hospital, Mr. Allen Foster, and arranged a meeting during which Dr. Smith informed Mr. Foster of Nurse Jackson's observations.

       
       

   40. Dr. Smith and Mr. Foster met with the Respondent to discuss what had transpired.

   41. On June 21, 1989, Respondent withdrew from practicing at his office in Century, Florida and voluntarily began treatment for the depression he was experiencing.

       
       

   42. In essence, the facts of this case do not establish that Respondent used his doctor patient relationship with C.C. for any sexual purpose or that Respondent committed any acts of sexual misconduct involving C.C. The evidence only demonstrated that C.C. had a tendency to act in a bizarre manner by disrobing when she was overheated and that Respondent did not overreact to his patient's inappropriate behavior, but attempted to try to redirect her conduct to more appropriate behavior. Such action by Respondent does not constitute sexual misconduct and the Administrative Complaint charging Respondent with such misconduct should be dismissed.

       
       

       CONCLUSIONS OF LAW

       
       

   43. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

       
       

   44. Pursuant to Section 458.331(2), Florida Statutes, the Board of Medicine is empowered to revoke, suspend or otherwise discipline the license of a medical doctor for violations of Section 458.331, Florida Statutes. Section 458.331, Florida Statutes, states in relevant part:

       
       

       1. The following acts shall constitute grounds for which the disciplinary action in subsection (2) may be taken:

          * * *

          (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, a rule of the board or department, or a lawful order of the board or department . . . . .

          
          

          Additionally, Section 458.329, Florida Statutes, states:

          
          

          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.

          
          

   45. Since disciplinary licensing proceedings are penal in nature, the Petitioner must prove the alleged violations of Section 458.331, and 458.331(3), Florida Statutes, by clear and convincing evidence. State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973). Ferris v. Turlington, 510 So.2d 292 (Fla. 1st DCA 1987); See Addington v. Texas, 441 U.S.

       426 (1979), and Section 458.331(3), Florida Statutes.

       
       

   46. The Department has not presented clear and convincing evidence that Respondent, by failing to perform an appropriate physical exam and thus failing to work-up F.S. for prostatic disease, has violated Section 458.331(1)(t), Florida Statutes. The Department's case was primarily based on the lack of entries in F.S.' medical records. No testimony from F.S. was offered and Respondent's memory of the events surrounding his two visits with F.S. had greatly faded due to the age of this case. Without more, a lack of entries in a patient's medical records simply does not constitutes clear and convincing evidence that malpractice has occurred. Therefore the Administrative Complaint regarding Respondent's treatment of F.S. should be dismissed.

       
       

   47. Likewise, the Department has failed to present clear and convincing evidence that Respondent engaged or attempted to engage patient C.C. in sexual activity or has otherwise committed any acts of sexual misconduct. The evidence only showed that C.C. was acting in an inappropriate non sexual manner to a hot, unairconditioned room and that Respondent was attempting to redirect her behavior and continue to help her with that evenings problems. Given these facts, the Administrative Complaint regarding patient C.C. should be dismissed. 2/

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly,

RECOMMENDED:

That the Board of Medicine enter a Final Order dismissing both the Administrative Complaints.

ENTERED this 3rd day of March, 1993, in Tallahassee, Florida.

DIANNE CLEAVINGER

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 3rd day of March, 1993.

ENDNOTE

1/ There was another entry in F.S.' medical records for his May 4, 1985, visit. The entry was written by an unknown person and stated the following: C/O general checkup. No credible evidence was presented at the hearing as to the meaning of C/O or to the meaning of this entry in general. Therefore it cannot be concluded that F.S. also desired to obtain a physical from the HMO during his March visit or that such a physical was discussed during the March visit.

2/ The Department argues that Respondent committed a "boundary violation" in allowing a friendly relationship to develop between himself and C.C. apparently "boundary violations" constitute some undefined area of conduct which affords protection to a doctor in his dealings with patients. They are only for the protection of the doctor and do not demonstrate in and of themselves that a violation of Chapter 458 has occurred. However, even assuming that a "boundary violation" occurred in this case, the facts still do not establish a violation of Chapter 458, Florida Statutes.

APPENDIX TO CASE NO. 91-3466 and 92-4396

1. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 33, 34, 35, 36, 37, 38, 39, 40, 41, 44, 45, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 61, 66, 67, 68, 73, 74 of Petitioner Proposed Findings of Fact are adopted in substance insofar as material.

2. The facts contained in paragraphs 17, 19, 32, 43, 59, 60, 62, 63, 64, 65, 69, 70, and 76 of Petitioner's Proposed Findings of Fact are subordinate.

3. The facts contained in paragraphs 42, 77, and 78 of Petitioner's Proposed Findings of Fact were not shown by the evidence.

4. The facts contained in paragraphs 1, 3, 4, 6, 13, 14, 15, 16, 17, 19, 22, 23, 27, 34, 36, 37, 39, 41, 43, 45, 46 and 47 of Respondent's Proposed Findings of Fact are adopted in substance, insofar as material.

5. The facts contained in paragraphs 2, 11, 12, 18, 24, 25, 26, 28, 29, 30, 31, 32, 33, 35, 38, 44, 48, 49 and 53 of Respondent's Proposed Findings of Fact are subordinate.

6. The facts contained in paragraphs 5, 20 and 42 of Respondent's Proposed Findings of Fact were not shown by the evidence.

7. The facts contained in paragraphs 7, 8, 9, 10, 40, 50, 51 and

52 were immaterial or were legal argument.

COPIES FURNISHED:

Dorothy Faircloth, Executive Director Board of Medicine

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

Jack McRay General Counsel

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

Arthur B. Skafidas, Esquire Department of Professional Regulation Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Robert W. Fausel, Jr., M.D. 8130 Northpointe Boulevard

Pensacola, Florida 32514

Charles C. Godwin Attorney at Law Route 4, Box 68-B

Atmore, Alabama 36502

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency concerning its rules on the deadline for filing exceptions to this Recommended Order.

=================================================================

AGENCY FINAL ORDER

=================================================================

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICINE

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

DPR CASE NUMBERS: 89-05924,

vs. 89-10146

DOAH CASE NUMBERS: 91-3466,

ROBERT W. FAUSEL, M.D., 92-4396

LICENSE NUMBER: ME 6016953

Respondent.

/

FINAL ORDER

This cause came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)10, Florida Statutes, on April 2, 1993, in Plantation, 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 Charles Godwin, Qualified Representative.

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

1. Findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein.

   
   

2. There is competent substantial evidence to support the findings of fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.

   
   

2. The conclusions of law set forth in the Recommended Order are approved and adopted and incorporated herein.

   
   

3. The Board rejects the Hearing Officer's view as to the purpose of rules relating to boundary violations being only to protect the doctor, but agrees that, under the facts found by the Hearing Officer, the issue is not material to the ultimate resolution of this case.

   
   

4. There is competent substantial evidence to support the conclusions of law of the Board.

DISPOSITION

Upon a complete review of the record in this case, the Board determines that the disposition recommended by the Hearing Officer be APPROVED and ADOPTED. WHEREFORE,

IT IS HEREBY ORDERED AND ADJUDGED that

The Administrative Complaints are DISMISSED.

This order takes effect upon filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 12th day of April, 1993.

BOARD OF MEDICINE

MARGARET C. S. SKINNER, M.D. ACTING CHAIR

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Robert W. Fausel, M.D., 8130 Northpoint Boulevard, Pensacola, Florida 32514-6543 and Charles R. Godwin, Qualified Representative, Route 4, Box 68-B, Atmore, Alabama 36502, by U.S. Mail to Diane Cleavinger, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; and by interoffice delivery to Larry G. McPherson, Jr., Chief Medical Attorney, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 at or before 5:00 P.M., this 27th day of April, 1993.

DOROTHY J. FAIRCLOTH

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.

AprilOrders 93

Docket for Case No: 91-003466

Orders for Case No: 91-003466