STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4931

)

EDWARD PEDRERO, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on November 14, 1991, at Tampa, Florida.

APPEARANCES

For Petitioner: Arthur B. Skafidas, Esquire

1940 N. Monroe Street Tallahassee, FL 32399-0792

For Respondent: Michael L. Kinney, Esquire

Post Office Box 18055 Tampa, FL 33679

STATEMENT OF THE ISSUES

Whether Respondent exercised influence within a physician-patient relationship for purposes of engaging the patient in sexual activities, committed sexual misconduct in the practice of medicine and was found guilty of a crime relating to the practice of medicine.

PRELIMINARY STATEMENT

By Administrative Complaint filed July 1, 1991, the Department of Professional Regulation, Petitioner, seeks to discipline the license of Edward Pedrero, M.D., as a medical doctor. As grounds therefor, it is alleged that on or about May 24, 1990, while alone in his examining room with a mentally retarded female patient, Respondent undid the patient's bra and fondled her breasts. It is further alleged that Respondent was brought to trial in the County Court of Hillsborough County for the offense of battery involving the fondling of this mentally retarded female patient and was found guilty.

At the hearing, the Petitioner called two witnesses, the testimony of the alleged victim was submitted from a transcript of the testimony given at the criminal proceeding, (Exhibit 2) Respondent testified in mitigation, and six exhibits were admitted into evidence. Respondent did not contest the facts testified to by the patient.

Proposed findings of fact submitted by the parties are accepted. Proposed findings not include herein were deemed unnecessary to the conclusions reached.

FINDINGS OF FACT

1. At all times relevant hereto Respondent was licensed as a medical doctor by the Florida Board of Medicine, having been issued license number ME 0006357. He has been so licensed since 1955.

   
   

2. On May 24, 1990, Patient #1, a 36 year old retarded female, was brought by her counselor to Respondent's office for a physical examination in connection with qualifying her for a job she was being prepared for by a rehabilitation counselor at J. Clifford McDonald Center at Tampa, Florida.

   
   

3. Shortly after their arrival, Respondent told the counselor that he needed to talk to Patient #1 alone and took her into an examining room. No nurse was present at Respondent's office at that time.

   
   

4. While in the examining room, Respondent undid Patient #1's bra, fondled and sucked on her breasts and told her not to tell anyone.

   
   

5. After leaving Respondent's office, Patient #1 was unusually quiet while enroute back to the rehabilitation center. Later that afternoon, Patient #1 approached her counselor and related what had happened in the examining room at Respondent's office. The Tampa police were notified, and Respondent was subsequently brought to trial in the County Court of Hillsborough County, Florida.

   
   

6. By judgment entered 4-19-91, Respondent was found guilty of the offense of battery and was sentenced to 12 months probation, a fine of $750, 150 hours of community service and to pay the costs of his probation supervisor. (Exhibit 3)

   
   

7. Respondent is now 68 years old and has been licensed in Florida since 1955. He has no record of prior charges against his medical license. He served as assistant editor of the Journal of the Florida Medical Association from 1978 through 1984, and subsequent thereto he was a Senior Contributing Editor of the Florida Journal. (Exhibit 6) Respondent currently limits his practice to three days per week in his office, and he has not been involved in hospital practice or consultation since 1983.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

9. Respondent is here charged with violating Section 458.331(1), Florida Statutes, which provides the following acts shall constitute grounds for which disciplinary action up to and including revocation of license may be imposed.

   
   

   (c) Being convicted or found guilty of, or entering a plea of nolo contendere, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of medicine or to the ability to practice medicine

   * * *

   (j) Exercising influence within a patient- physician relationship for purpose of engag- ing a patient in sexual activity.

   * * *

   (x) Violating any provision of this chapter

   . . . .

   
   

10. Section 458.329, Florida Statutes, provides:

    
    

    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 engage or attempt to engage the patient in sexual activity outside the scope of the practice or the scope of generally accepted examination or treatment of the patient.

    Sexual misconduct in the practice of medicine is prohibited.

    
    

11. In these proceedings, Petitioner has the burden or proving the allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

12. The evidence regarding the fondling of Patient #1 is unrebutted as is the evidence of Respondent's conviction in the county court. The offense of which he was convicted, i.e. battery on a patient, is a crime directly related to the practice of medicine. Accordingly, Petitioner has met his burden of proof of the allegations here involved.

    
    

13. Determining an appropriate disciplinary action for the offenses involved presents a complex balancing act. On the one hand we have an 68-year old semi-retired physician with no prior history of misconduct. On the other hand we have clear evidence of an offense that goes to the heart of disrupting the physician-patient relationship so essential to the practice of medicine.

    
    

14. Rule 21M-15.002, Florida Administrative Code, establishes disciplinary guidelines and a recommended range of penalties for violations of the Medical Practices Act. For violation of Section 458.331(1)(c), (guilty of crime relating to the practice of medicine), the recommended penalty is a minimum of six months probation to revocation.

    
    

15. For violation of Section 458.331(1)(k), (exercising influence to engage the patient in sex), the recommended penalty range is from one year suspension to revocation.

    
    

16. For violation of Section 458.331(1)(x), (violation of any provision of this chapter), the recommended penalty range is from reprimand to revocation.

    
    

17. Balancing Respondent's unblemished record of 35 years practice of medicine in Florida with the heinousness of Respondent's conduct in fondling a retarded female patient and his current age and limited practice leads to the following:

RECOMMENDATION

The license of Edward Pedrero, M.D., to practice medicine in Florida should be revoked, but the revocation should be stayed for a period of 5 years probation under such terms and conditions as the Board of Medicine shall deem appropriate; and, at the expiration of the probationary period, unless sooner revoked, the revocation be set aside and Respondent restored to good standing in the medical probation.

ENTERED this 6th day of January, 1992, in Tallahassee, Florida.

COPIES FURNISHED:

Arthur B. Skafidas, Esquire Department of Professional

Regulation

1940 N. Monroe Street Tallahassee, FL 32399-0792

Michael L. Kinney, Esquire Post Office Box 18055 Tampa, FL 33679

Dorothy Faircloth Executive Director Department of Professional

Regulation Northwood Centre

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

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1992.

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: 91-004931

Orders for Case No: 91-004931